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THE 


ENCYCLOPAEDIA 


OF 


EVIDENCE 


EDITED  BY 
EDGAR   W.  CAMP 


VOL.   1 


LOS  ANGELES,  CAL. 
L.   D.  POWELL  COMPANY 

1902 


COPYRIGHT    1902 
BY    L.  D.   POWELL   COMPANY 


TIMES-MIRROR  PRINTING  AND  BINDING   HOUSE 
LOS  ANGELES,  CAL. 


For  Reading  Uoom  Only 


h 
6C 


PREFACE 

Encyclopedias  of  law  have  justified  themselves  to  the  profession. 
Questions  of  evidence  are  continually  arisinsj  in  ]jractice, 
requirino-  quick  and  accurate  solution  —  not  the  theories  of  authors 
are  needed,  but  the  law  as  fixed  by  the  courts  of  final  resort.  To 
search  out  and  arrange  in  compact  form  these  fixed  rules,  from 
encyclopedias  of  general  law  and  digests,  requires  time  and  patience 
as  well  as  access  to  a  very  complete  library, 
■v  This  work   is  intended  to  present  these  rules,   with   the  decided 

!i^  cases,  in  such  form  that  they  shall  be  ready  for  instant  use  when 

"^  wanted.     The  aim  is  to  present  all  the  law  of  evidence,  so  that  the 

practitioner  may  here  find  help  on  the  most  difficult  and  obscure 
questions,  and  find  it  readily.     The  system  of  cross  references  and 
^  catch  lines  in  large  type,  to  be  found  in  the  notes  as  well  as  the 

^  text,  will  aid  the  seeker  in  quickly  and  easily  finding  the  precise 

point  for  which  he  is  searching.     Instead  of  giving  long  lists  of 
cases  upon  general  propositions,  we  have  differentiated  the  authori- 
ties ;  thus  enabling  the  lawyer  to  turn  to  the  precise  question,  or 
the  very  subdivision  of  the  general  subject  which  he  has  in  hand. 
C^  We  shall  bring  citations  down,  as  nearly  as  practicable,  to  the 

J  date  of  publication,  and  shall  make  a  point  of  citing  the  late  and 

latest  cases ;  and  shall  cite  not  only  the  official  reports  but  also  the 
>  National    Reporters    System,    the    American    Decisions,    American 

^  Reports,  American  State  Reports,  and  Lawyers'  Reports  Annotated. 

The  limits  of  this  work  cannot  be  precisely  determined  by  defini- 
tion of  the  word  "  evidence  "  but  must  be  fixed  by  the  use  and 
wont  of  lawyers  in  investigating  matters  in  litigation.  The  efTort 
will  be  made  to  include  all  for  which  a  lawyer  would  naturally 
examine  books  on  evidence,  and  to  exclude  all  for  which  he  would 
more  naturally  turn  to  others. 

Edc,.\r  W.  Camp. 
Los  Angeles,  Cal.,  J.\nuary  23,  1903. 


168901 


TABLE    01-    TITLES. 

.\uaxdoxment    i 

Abatement   14 

Abbreviations    23 

Abduction  32 

Abortion    53 

Abstracts  of  Title   (^<^ 

Accessories,  Aiders  and  Abettors 71 

Accomplices  92 

Accord  and  Satisfaction   117 

Accounts,  Accounting  and  Accounts  Stated 129 

Acknowledgments   185 

Adjoining  Land  (h\-.\ERS  208 

Admiralty    219 

Admissions    348 

Adulteration    616 

Adultery    623 

Adxerse  Possession'   63('i 

Ai''iti)a\its    • 702 

Al•■l■'KA^■     J2/ 

Agic   731 

Ali  iu  740 

Alienating  Ai-Ei^cTroNS ys^^ 

Almanac  "('j 

Alteration  oI''   rxsTKUMiCNTS   770 

Am liiGuiTY  823 

Ancient  Documents   857 

Animals    888 

AnSW  ERS     904 

Appeal  Bonds  940 

Apprentices    994 

Arbitration  and  Award 948 

A RsoN    980 

ASSAI'LT    AND     I '.ATri^RN"     (X)4 


ABANDONMENT. 

Bv  Lewis  R.  Works. 

I.  DEFINITION.    I 

II.  WHAT  MAY  BE  ABANDONED,   i 
III.  ELEMENTS,  3 

1.  The  Act]  3 

2.  Tlic  Intent,  4 

A.  IVhat  Does  and  Docs  Not  Sliozv,  5 
^.  /;;   Whose  Favor  May  Be  Made,  7 
IV.  QUESTION,  HOW  DETERMINED,  8 

1.  Nature  of  Question,  8 

2.  Burden  of  Proof,  10 

3.  Presumptions,  10 

4.  What  Should  Co   to   the  Jury,   13 

CROSS-REFERENCES. 

Adverse  Possession  ; 

Bills  of  Particulars ; 

Contracts ;  Copyright ; 

Dedication ;  Divorce ; 

Easements  ;  Eminent   Domain  ;    Estoppel ;  Execution  ; 

Factors ; 

Highways ;  Homestead ; 

Insurance ; 

Liens ; 

Patents ;  Prescription ; 

Trade  Marks  and  Trade  Names ; 

Waiver. 

I.   DEFINITION. 

Abandonment  is  the  actual  leaving  of  property  with  a  final 
relinquishment  of  all  claim  thereto  and  without  conveyance  or  gift 
to  any  particular  person  or  persons. 

II.  WHAT  MAY  BE  ABANDONED. 

Personal  property  generally  is  susceptible  of  abandonment.' 
Easements  and  servitudes  may  be  abandoned,  those  acquired  by 
prescri]5tion  being  so  lost  by  mere  non-user,-  while  in  the  case  of 

1.  McGoon  i".  Ankeny,  II  111.  558;  Me.  394,  399;  French  v.  Braintree 
Haslam  v.  Lockwood,  37  Conn.  500,  Mfg.  Co.,  23  Pick.  (Mass.)  216,  221; 
9  Am.  Rep.  350.  Smyles   v.    Hastings,   22    N.    Y.   217, 

2.  Robie  v.  Sedgwick,  35  Barb.  224;  Jewett  v.  Jewett,  16  Barb.  (N. 
(N.  Y.)  319;  Dikes  v.  Miller,  24  Y.)  150,  157;  Canny  z;.  Andrews,  123 
Tex.  417,  424;  Farrar  v.  Cooper,  34  Mass.  155. 

1  ,  Vol.  I 


2  ABANDONMENT. 

those  ac(|iiiiT(l  by  deeil,  further  evuk'iicc  of  intent  to  abandon  is 
necessary.-'  Tailings  from  niines^  and  patent  rights  to  inventions'* 
may  be  aljandoned,  as  may  also  mining  claims"  and  water  rights.' 
Highways  ma\-  be  abandoned  by  cities,  counties  and  other  bodies 
politic* 

Inchoate  claims,  equitable  titles  or  possessory  rights  to  real  prop- 
erty and  the  rights  acquired  therein  by  settlers  under  the  public 
land  laws  previous  to  patent  are  the  subject  of  abandonment,"  and 


3.  United  States.  —  Townsend  v. 
Mich.  Cent,  Ry.  Co.,   loi .  Fed.  757. 

/rfa/io.— Welch  v.  Garrett  (Idaho), 
51    Pac.  405- 

Illinois. — Kuechen  v.  Voltz,  no  111. 
264. 

loica.—NoU  i:  Dubuque  H.  &  M. 
R.  R.  Co.,  32  Iowa  66. 

Kansas. — Edgerton  v.  Mc.Mullau, 
55  Kan.  90,  39  Pac.  102 1. 

Kentuekv. — Curran  v.  Louisville, 
83   Ky.   628. 

Massachusetts. — Barnes  v.  Lloyd, 
112  Mass.  224;  Arnold  v.  Stevens, 
24  Pick.  106,  35  Am.  Dec.  305 ;  But- 
terfield  v.  Reed,  160  Mass.  361,  35 
N.   E.   1 128. 

Michigan.  —  Day  v.  Walden,  46 
Mich.  575,  ID  N.  W.  26;  Lathrop  v. 
Eisner,  93  Mich.  599,  53  N.  W.  791. 

Nciv  Jersey.  —  Riehle  v.  Heulings, 
38  N.  J.  Eq.  20;  Dill  V.  School  Board, 
47  N.  J.  Eq.  421,  20  Atl.  7.W,  10  L. 
R.   A.   276. 

Ne'M  York. — Longendyck  v.  Ander- 
son, 59  How.  Pr.  I  ;  Marshall  v. 
Wenninger,  20  Misc.  527,  46  I'l.  Y. 
Supp.  670;  Welsh  V.  Taylor,  19  N.  Y. 
St.  735,  2  N.  Y.  Supp.  815;  Valentine 
V.  Sclireiber,  7},  N.  Y.  St.  838,  38  N. 
Y.  Supp.  417;  Smiles  v.  Hastings,  24 
Barb.  44;  Smyles  v.  Hastings,  22  N. 
Y.  217. 

As  to  Different  Kinds  of  Ease- 
ments  "•  There  i^  a  material  dis- 
tinction between  an  easement  ac- 
quired by  prescription,  and  one 
created  by  deed.'"  (AngcU  on 
Watercourses,  Ed.  of  1850,  p.  269,  § 
252.)  This  writer  says,  "An  ease- 
ment, to  become  extinguished  by 
disuse,  must  have  been  acquired  by 
use ;  and  the  doctrine  of  extinction 
by  non-user  does  not  apply  to  ser- 
vitudes or  easements  created  by 
deed.  In  the  one  case,  mere  disuse 
is  sufficient ;  but  in  the  latter  there 
must  not  only  be  disuse  by  the  owner 

Vol.  I 


of  the  land  dominant,  but  there  must 
be  an  actual  adverse  user  by  the 
owner  of  the  land  servient."  Jewett 
V.  Jewett,  16  Barb.  (N.  Y.)    150.  157. 

4.  Dougherty  v.,  Creary,  30  Cal. 
290,  89  Am.  Dec.  116. 

5.  Pennock  v.  Dialogue,  2  Pet.  i, 
16;  Planing  Machine  Co.  v.  Keith, 
lOi  U.  S.  479;  Bell  z:  Daniels,  i 
Bond  212,  I  Fish.  Pat.  Cas.  372, 
Merw.  Pat.  Inv.  616,  3  Fed.  Cas.  No. 
1247;  Pitts  V.  Hall,  2  Blatchf.  229, 
19  Fed.  Cas.  No.  11,192. 

6.  Weill  V.  Lucerne  Min.  Co.,  II 
Nev.  200;  Richardson  v.  McNulty,  24 
Cal.  339;  Depuy  v.  Williams,  26  Cal. 
309;    Harkrader   v.    Carroll,   76   Fed. 

7.  Dodge  V.  Marden,  7  Or.  450; 
Hewitt  V.  Story,  51  Fed.  loi ;  North 
Am.  E.  Co.  V.  Adams,  104  Fed.  404; 
Utt  V.  Frey,  106  Cal.  392,  39  Pac. 
807. 

8.  Los  Angeles  v.  Colin,  lOi  Cal. 
373.  35  Pac.  1002 ;  Town  of  Derby  v. 
Ailing,  40  Conn.  410,  436;  Hutto  v. 
Tindall.  6  Rich.  Law  ( S.  C.)  396; 
Jeflfersonville  M.  &  I.  R.  R.  Co.  v. 
O'Connor,  37  Ind.  95:  Larson  v. 
Fitzgerald,  87  Iowa  402,  54  N.  W. 
441  ;  Hewes  v.  Village  of  Crete,  175 
111.  348,  SI  N.  E.  696. 

9.  United  States.  —  Carroll  v. 
Price,  81  Fed.  137. 

.f/d/xi/na.— Louisville  &  N.  R.  Co. 
i:  Philyaw,  88  Ala.  264,  6  So.  837- 

California. — Gluckauf  i'.  Reed.  22 
Cal.  468;   Ferris   v.   Coover,   10   Cal. 

589. 

Kentucky.Smhh  v.  Morrow,  7  J- 
J.  Marsh.  442. 

il/n;«c.— Hamilton  z:  Paine,  17  Me. 
219;  Schwartz  v.  Kuhn.  10  Me.  274, 
25  Am.  Dec.  239. 

il/i'.s.fi.'r.n'/'/ij.— Harper  z:  Tapley,  35 
Miss.  506. 

Peniisyh'ania. — Mayor  v.  Riddle,  25 
Pa.    St.  "259:    Gibson    v.    Robbins,   9 


.'IB.INDONMENT. 


3 


sonictinK'S  even  tlic  perfected  title  to  real  property  may  he  so  sur- 
rctulered,'"  although  the  i^jeneral  rule  is  to  the  contrary"  even  where 
the  title  has  arisen  merely  hy  adverse  ]iossession.'- 

III.   ELEMENTS. 

1.  The  Act. — To  establish  an  abandonment,  there  must  first  be 
shown  an  actual,  complete  and  voluntary  leaving",  relinquishment  or 
surrender  of  possession  Ijy  tlie  owner.''' 

Must  be  Voluntary. — Hence,  where  one  is  ousted  from  the 
possession  of  property,  he  can  not  be  charged  with  abandonment,^* 
nor  can  he  be  where  he  is  prevented  from  using  or  occupying  by 
injunction  or  other  judicial  order-'^   as   the   relinquishment   is   not 


Watts  156;  Philips  -.■.  Shaffur,  5 
Serg.  &  R.  215. 

South  Carolina.  —  Garlington  v. 
Copeland,  32  S.  C.  57.  10  S.  E.  616. 

Texas. — Sideck  v.  Duran,  67  Tex. 
256,  3  S.  W.  264;  Hollingswortn  v. 
Holshoiisen,  17  Tex.  41;  DiUe;  v. 
Miller,  24  Tex.  417. 

10.  Fine  v.  St.  Louis  Puljlic 
Schools,  30  Mo.  166,  175;  Clark  v. 
Hammerle,  36  AIo.  620,  639 ;  Landes 
V.  Perkins,  12  Mo.  238,  256 ;  Dikes  v. 
Miller,  24  Tex.  417,  424. 

11.  Hummel  v.  Cumberland  Val. 
R.  Co.,  175  Pa.  St.  537.  U  Atl,  S48; 
Robie  V.  Sedgwick,  35  Barb.  (N.  Y.) 
319,  329;  Mayor  v.  Riddle,  25  Pa. 
St.  259,  263 ;  Davenport  v.  Turpin, 
43  Cal.  597,  602 ;  Ferris  v.  Coover, 
10   Cal.    589,   631. 

12.  School  Dist.  V.  Benson,  31 
Me.  381,  52  Am.  Dec.  618. 

13-  United  States.  —  Dawson  v. 
Daniel,  2  Flip.  305,  7  Fed.  Cas.  No. 
3669;  Integral  Quicksilver  M.  Co.  v. 
Altoona  Quicksilver  M.  Co..  75  Fed. 
.379;    Harkrader  i\    Carroll,   76   Fed. 

474- 

California. — Judson  v.  Malloy,  40 
Cal.  299;  Richardson  v.  McNulty,  24 
Cab  339;  Keane  v.  Cannovan,  21  Cal. 
291,  82  Am.  Dec.  738;  Bell  v.  Bed 
Rock  T.  &  M.  Co.,  36  Cal.  214;  Utt  v. 
Frey,  106  Cal.  392,  39  Pac.  807. 

Connecticut. — Stevens  v.  Norfolk. 
42  Conn.  i77. 

Maine. — Livermore  v.  White,  74 
Me.   452,   43   Am.   Dec.  600. 

Missouri. — Clark  v.  Hammerle,  36 
Mo.  620;  Page  V.  Scheibel,  Ti  Mo. 
167;  Landes  v.  Perkins,  12  Mo.  238; 
Fine  V.  St.  Louis  Public  Schools.  30 


Mo.  166;  Hickman  v.  Link,  Ii6  Mo. 
123,   22    S.    W.   472. 

Montana.  —  Gassert  v.  Noyes,  18 
Mont.   216,   44   Pac.  959. 

Oregon. — Dodge  v.  Marden,  7  Or. 

456- 

Pcnnsvhaitia. — Miller  v.  Cresson, 
5   Watts"  &   S.  284. 

Tennessee. — Breedlove  v.  Stump,  11 
Tenn.  257 ;  Masson  v.  .\nderson,  3 
Baxt.   290. 

rt\ra.f.— McMillan  v.  Warner,  38 
Tex.   410. 

14.  Wrongful  Ouster. — Cook  v. 
McCord,  9  Okla.  200,  60  Pac.  497. 

Ousted   From   Property "If     the 

plaintiff  was  rightfully  in  possession 
of  the  mine,  and  seeking  to  hold  it, 
and  the  time  had  not  expired  within 
which  he  was  allowed  to  do  the  work 
and  perfect  his  location,  and  if  during 
this  time  the  defendant  wrongfully 
intruded  upon  his  possession,  and 
ousted  him  from  the  mine,  then  the 
plaintiff  could  not  be  charged  with 
abandonment.  Abandonment  can  not 
be  charged  against  the  locator  of  a 
claim  if,  while  in  his  possession,  his 
claim  has  been  seized  by  another, 
who  holds  the  possession  of  it  ad- 
versely to  him."  Lockhart  v.  Wills, 
9  N.  M.  263,  so  Pac.  318,  321. 

15.  Cook  I'.  McCord,  9  Okla.  200, 
60  Pac.  497. 

Dispossessed  Under  Order  of  Court. 
'■  From  1889  to  i8gi,  inclusive,  the 
waters  of  Blackfoot  River  were  in- 
volved in  litigation,  and  the  court 
appointed  a  water  master,  who  shut 
the  water  off  from  the  ditch  in  ques- 
tion, and  refused  to  permit  the  water 
to  be   used  by   plaintiff   during   said 

Vol.  I 


/ 

/ 


4  .IBANDONMIiXT. 

voluntary  in  (.■ilhcr  case.  The  same  rule  Imlds  \Vliere  one  is  forced 
to  relinquish  the  possession  of  property  hy  stress  of  weather  or  hy 
other  circumstances  over  which  he  has  no  control ;"'  but  abandon- 
ment may  result  where  one  is  compelled  to  desert  property  by  a 
superior  force,  and,  either  at  the  time  of  or  after  the  act,  relin- 
quishes all  intention  to  return  or  to  reclaim.'' 

2.  The  Intent. — Couplctl  with  the  leaving,  there  must  be  present 
in  the  mind  of  the  abandoner  an  unequivocal  intent  not  to  make 
further  claim  to  the  tliino-  or  right  abandoned.'** 


litigation.  .  .  .  Tlie  non-user  of 
the  ditch,  or  any  part  thereof,  during 
that  portion  of  the  time  that  its  use 
was  prevented  by  circumstances  over 
which  tlie  plaintiff  had  no  control,  is 
not  evidence  of  abandonment  of,  or 
intention  to  abandon,  such  ditch." 
Welch  V.  Garrett  (Idaho),  51  Pac. 
405. 

16.  Livermore  v.  White,  74  Mc. 
452,  43  Am.  Dec.  600;  Whitwell  v. 
Wells,  24  Pick.  (Mass.)  25;  Wyman 
V.  Hurlburt,  12  Ohio  81,  40  Atn.  Dec. 
461. 

17.  See  post,  note  27. 

18.  England. — Moore  v.  Rawson, 
3  Barn.  &  C.  332,  5  Dowl.  &  Ry.  234, 
3  L.  J.  K.  B.  32,  27  Rev.  Rep.  375; 
Liggins  V.  Inge,  7  Bing.  682,  33  Rev. 
Rep.   615. 

United  States. — Paine  v.  Griffiths, 
86  Fed.  452 ;  Harkrader  v.  Carroll, 
76  Fed.  474;  Integral  Quicksilver  M. 
Co.  V.  Altoona  Q.  M.  Co.,  75  Fed. 
379- 

California.  —  Richardson  i'.  Mc- 
Nulty,  24  Cal.  339.  345;  Judson  v. 
Malloy,  40  Cal.  299,  309;  Morenhaut 
V.  Wilson,  52  Cal.  263 ;  Keane  v. 
Cannovan,  21  Cal.  291,  303,  82  Am. 
Dec.  738;  St.  John  v.  Kidd,  26  Cal. 
263,  272;  Davis  V.  Perley,  30  Cal.  630; 
Sweetland  v.  Hill,  9  Cal.  556;  Moon 
V.  Rollins,  36  Cal.  333,  95  Am.  Dec. 
181  ;  Bell  V.  Bed  Rock  T.  &  M.  Co., 
36  Cal.  214;  Smith  v.  Gushing,  41 
Cal.  97 ;  Marqnart  v.  Bradford,  43 
Cal.  526;  Sweeney  v.  Reilly,  42  Cal. 
402 ;  Douglierty  v.  Creary,  30  Cal. 
290,  89  Am.  Dec.  116;  Myers  v. 
Spooner,  55  Cal.  257,  260;  Stone  v. 
Geyser  Q.  M.  Co.,  52  Cal.  315:  Jones 
V.  Jackson,  9  Cal.  237,  245 ;  Utt  v. 
Frcy,  106  Cal.  392,  39  Pac.  807. 

Connectieut. — Stevens  v.  Norfolk, 
42  Conn.  377,  384;  Ilasleni  v.  Lock- 

Vol.  I 


wood,  3y  Conn.  500.  9  Am.  Rep.  350. 
Illinois. — McNeil    v.    Chicago    City 
Ry.    Co.,    61    111.    150;    McGoon    v. 
Ankeny,    11    111.   558. 

Kentucky. — Kercheval    v.    Ambler, 

4  Dana  166 ;  Speed  i>.  Ripperdan,  I 
Litt.    189. 

Maine. — Livermore  v.  White,  74 
Me.  452,  43  Am.  Dec.  600;  Pratt  v. 
Sweetser,  68  Me.  344;  Ross  v.  Gould, 

5  Greenl.  204. 

Massacliusetts. — Howard  v.  Fes- 
senden,  14  Allen  124;  Dyer  v.  San- 
ford,  9  Mete.  395,  43  Ain.  Dec.  399; 
Canny  v.  Andrews,  123  Mass.  155. 

Mississiffi- — Hicks  v.  Steigleman, 
49   Miss.   ^77,  385. 

.Montana. — Sloan  v.  Glancy,  19 
Mont.   70,   47   Pac.   334. 

Missouri. — Hickman  v.  Link,  116 
Mo.  123,  22  S.  W.  472;  Fine  v. 
St.    Louis    Public    Schools,    30    Mo. 

166,  175;    Page  V.    Scheibel,    11    Mo. 

167,  184;  Tayon  z'.  Ladew,  3^  Mo. 
205,  208 ;  Clarke  v.  Hammerle,  36 
Mo.  620.  639;  Landes  v.  Perkins, 
[2  Mo.  238,  257. 

Nevada. — Mallett  i'.  Uncle  Sam 
M.  Co.,  I  Nev.  188,  204,  90  Am.  Dec. 
484 ;  Oreamuno  v.  Uncle  Sam  M. 
Co.,  I  Nev.  215;  Weill  v.  Lucerne 
M.  Co.,   11   Nev.  200,  212. 

Nezv  York.  —  Wiggins  v.  Mc- 
Cleary,  49  N.  Y.  346. 

Oregon. — Dodge  v.  Marden,  7  Or. 
456.  460. 

Pennsylvania.  —  McLaughlin  v. 
Maybury,  4  Yeates  534;  iMnler  v. 
Crcsson,  5  Watts   &  S.  284. 

South  Carolina. — Parkins  v.  Dun- 
ham, 3  Strob.  Law  224,  228 ;  Poison 
V.  Ingram,  22  S.  C.  541,  546. 

7V.raj.— Sideck  v.  Duran,  67  Tex. 
256,  3  S.  W.  264;  McMillan  -.'.  War- 
ner, 38  Tex.  410,  414. 


ABANDONMENT.  5 

Is  Principal  Element. — The  question  of  intent  is  the  principal  sub- 
ject of  inquiry  in  abandonment  cases.'" 

A.  What  Does  and  Does  Not  Show. — What  will  or  will  not 
show  an  intent  to  abandon  must  be  determined  upon  the  circum- 
stances of  each  particular  case.  The  statement  of  fixed  rules  on 
the  subject  is  next  to  impossible,  but  a  few  may  be  ventured. 

Failure  to  TJse  not  Enough — Exception. — The  mere  failure  to  use 
proiierty,  in  whole  or  in  part,  or  to  exercise  a  right,  does  not  alone 
show  an  intent  to  abandon,-"  unless  the  non-user  continue  for  so 
great  a  length  of  time  as  to  raise  the  presumption  of  such  an  intent 
under  the  rules  laid  down  Ijelow.-' 

Evidence  of  Failure  to  TJse  Competent. — lUit  a  failure  to  use  may  be 
shown  in  evidence  in  connection  with  other  circumstances  going  to 
establish  the  intent. -- 


19.  Sweeney  v.  Reilly,  42  Cal. 
402,  407;  McMillan  v.  Warner,  38 
Tex.  410,  414 ;  Grain  v.  Fox,  16 
Barb.  (N.  Y.)  184;  City  of  Cleve- 
land V.  Cleveland  C,  C.  &  St.  L. 
Ry.  Co.,  93  Fed.  113,  122;  Townsend 
V.  Michigan  Cent.  R.  Co.,  loi  Fed. 
757.  761 ;  Raritan  W.  P.  Co.  v. 
Veghte,  21   N.  J.  Eq.  463,  479. 

Intent    Paramount    Question "In 

determining  whether  one  has  aban- 
doned his  property  or  rights,  the 
intention  is  the  first  and  paramount 
object  of  inquiry;  for  there  can  be 
no  strict  abandonment  of  property 
without  the  intention  to  do  so." 
Mallett  V.  Uncle  Sam  M.  Co.,  I  Nev. 
188,   204.  90  .A.m.   Dec.   484. 

20.  Sloan  v.  Glancy,  19  Mont. 
70,  47  Pac.  334;  Turner  v.  Cole, 
31  Or.  154,  49  Pac.  971  ;  McNamara 
V.  Minneapolis  St.  P.  etc.  Ry.  Co., 
95  Mich.  545,  55  N.  W.  440;  City  of 
Madison  v.  Mayers,  97  Wis.  399,  73 
N.  W.  43,  65  Am.  St.  Rep.  127,.  40 
L.  R.  A.  635 ;  Brown  v.  Hiatt,  16 
Ind.   App.   340,   45   N.    E.   481. 

Failure  to  Use  Highway. — "When 
first  laid  out,  there  anoears  to  have 
been  a  very  poor  and  dilapidated 
fence  along  or  near  the  section  line 
and  center  of  said  highway,  and  that 
the  travel  sometimes  was  through 
and  on  the  west  side  of  it,  and  the 
part  of  the  highway  on  the  east 
side  of  said  fence  has  been  con- 
stantly used  when  necessary,  ever 
since  it  was  laid  out,  as  the  main 
(raveled  way  out  to  and  upon  the 
highway  with  which  it  is  connected 
at  the  north  end.     But  the  contention 


in  respect  to  such  user  is  that,  inas- 
much as  the  west  half  of  such  high- 
way has  not  been  used,  at  least  that 
part  of  it  has  ceased  to  be  a  highway 
by  non-user  and  abandonment.  Upon 
the  same  ground  all  parts  of  any 
highway  not  actually  traveled,  or 
kept  suitable  for  travel,  would  cease 
to  be  parts  of  such  highway,  and 
might  be  treated  as  abandoned.  This 
would  be  placing  highways  on  too 
narrow  ground  to  be  of  much  use 
to  the  public,  and  make  them  liable 
to  abandonment  by  willful  encroach- 
ment. We  think  there  was  suffi- 
cient evidence  that  the  highway  has 
been  worked  and  traveled  as  such 
when  necessary,  during  all  the  time 
since  it  was  laid  out ;  and  that  there 
has  been  no  abandonment  of  it  by 
the  public."  Moore  v.  Roberts,  64 
Wis.   538,  25   N.    W.   564. 

21.  See  post,   note   36. 

22.  Non-User  Evidence  of  Intent. 
"  From  187 1  to  187s,  according  to 
the  proofs,  each  of  the  three  ditches 
constructed  in  1870  and  1871  was 
neglected,  and  probably  used  but  little 
during  one  or  more  of  the  seasons ; 
but  we  cannot  say  that  the  evidence 
sufficiently  establishes  an  intention 
to  abandon  either  of  them,  or  the 
right  to  water  acquired  thereby.  A 
failure  to  use  for  a  time  is  compe- 
tent evidence  on  the  question  of 
abandonment ;  and  if  such  non-user 
continued  for  an  unreasonable  per- 
iod, it  may  fairly  create  a  presump- 
tion of  intention  to  abandon ;  but 
this  presumption  is  not  conclusive, 
and     may    be    overcome    by     other 

Vol.  I 


6  ABANDON  Mli.xr. 

Effect  of  Failure  to  Pay  Taxes. — An  intent  to  abandon  real  property 
is  not  shown  by  a  failure  to  pay  taxes  assessed  against  it,  discon- 
nected from  otlier  circumstances.-^ 

Removal  from  House. — The  mere  removal  from  a  house  does  not 
show  an  intent  to  abandon  the  ownership  of  it.-' 

Gradual  Escape  from  Possession. —  Where  parts  of  property  of  a 
movable  nature  are  allowed  by  the  owner  to  escape  from  him  day 
by  day,  an  abandonment  of  those  parts  may  result,  but  such  an 
abandonment  for  past  days  does  not  show  an  intent  to  abandon  for 
the  future  and  the  escapement  may  be  stopped.-^ 

Property  Derelict.  — It  is  the  general  rule  that  property  is  not 
abandoned,  in  a  legal  sense,  when  it  is  left  derelict,  or  is  jettisoned 
at  sea;-"  but  when  at  the  time  or  after  the  property  is  relinquished, 
the  owner  gives  up  all  hope  of,  or  intent  to  reclaim  it.  an  abandon- 
ment will   result.-' 


satisfactory  proofs."  Seiber  z: 
Frink,  7  Colo.   148,  2  Pac.  901. 

23.  Mayor  v.  Riddle,  ^5  Pa.  St. 
25Q- 

Non-Payment  of  Taxes "Title  to 

another  man's  property  cannot  be 
acquired  by  the  payment  of  the  taxes 
thereon.  And  the  payment  of  the 
taxes  by  the  occupant  in  the  present 
case  for  a  portion  of  the  time  he  was 
in  possession  was  not  of  itself,  dis- 
connected from  other  circumstances, 
evidence  that  the  owner  had  aban- 
doned the  property."  Keane  v.  Can- 
novan,  21  Cal.  219,  ^3,  82  .'\ni.  Dec. 
738. 

24.  Removal  from  House,  Effect 
of — "As  tenant  in  connnon.  Fcsscn- 
den  could  lawfully  occupy  or  au- 
thorize another  to  occupy  any  part 
of  the  land.  His  permission  to  Day 
to  occupy  with  his  buildings  that 
portion  of  the  land  which  they 
covered  gave  him  all  the  rights  of  a 
tenant  at  will;  at  least  until  the 
other  tenants  in  common  should  ac- 
tually enter  upon  him.  The  mere 
fact  of  moving  out  of  the  house, 
preparatory  to  a  sale  and  removal  of 
the  buildings,  cannot  be  regarded  as 
an  abandonment  of  his  rights.  If 
it  were  so,  it  would  be  ditficult  to 
sec  how  a  tenant  at  will  could  ever 
exercise  his  right  of  removal  of  a 
dwelling-house,  except  by  moving 
his  family  in  the  building."  Howard 
V.  Fessendcn,  14  .Mien  (Mass.)  124. 
12(1. 

25.  Escape  of  Tailings. — 'So  long 
as    the   miners   of   the   basin    and   the 

Vol.  I 


Blue  Point  Mining  Company  aban- 
doned the  water  and  tailings  which 
passed  from  their  mining  grounds, 
the  Cheek  and  Ackley  Flume  Com- 
pany had  the  right  to  take  and  ap- 
propriate the  same  to  its  own  use, 
and  upon  the  passage  of  the  water 
and  earth  through  that  flume,  the 
Side  Hill  Flume  had  the  right  to 
take  and  appropriate  what  so  passed 
through  the  Cheek  and  Ackley  Flume 
to  its  own  use;  but  the  respective 
rights  of  these  flume  companies  was 
contingent  and  dependent  on  the  fact 
of  continual  abandonment  of  the 
waters  and  tailings  by  the  mining 
company  to  whom  the  same  l)elonged. 
If  those  owning  and  working  the 
mining  groimd  elected  to  abandon 
their  property  at  a  particular  point 
and  for  a  particular  length  of  time, 
it  did  not  therefore  become  obliga- 
tory upon  them  to  continue  to  do 
so."  Dougherty  v.  Creary,  30  Cal. 
290,  298,  89  Am.  Dec-  116. 

26.  See  ante,  nt  te  16. 

27.  Where  Hope  Of  and  Intention 
To  Reclaim  Abandoned — "It  is  found, 
by  the  jury,  that  when  the  vessel 
was  raised,  and  the  money  in  ques- 
tion converted  by  the  defendants, 
the  vessel  and  money  were  derelict 
property,  and  abandoned  by  the 
owner.  Perhaps,  if  the  term  dere- 
lict only  were  used  by  the  jury,  there 
would  he  more  diflicuUy  in  the  case; 
for  if  used  in  its  strict  maritime 
sense,  it  woidd  not  imply  that  the 
owner   was    divested   of   all    right   in 


ABANDONMENT.  7 

Where  One  Acts  Ignorantly. — Where  one  acts  in  ignorance  of,  or 
under  mistake  as  to  his  rights  in  the  ownership  of  property,  his  acts 
can  show  no  intent  to  abandon.-" 

3.  In  Whose  Favor  May  Be  Made. —  It  is  one  of  the  essentials  of 
abandonment  that  tiie  thing  abandoned  is  subject  to  occupancy  by 
the  first  comer.  Therefore,  if  the  evidence  shows  that  it  was 
deHvered  to  a  particular  individual  in  such  way  that  he  ma)'  hold 
and  own  it  by  virtue  of  the  transfer,  no  abandonment  is  shown, 
but  a  gift,  sale,  or  conveyance.-' 


the  property:  7  Am.  Jur.  30,  jj. 
But  when  the  jury  tind  the  vessel 
and  money  were,  also,  ahandoned  by 
the  owner,  we  suppose  they  intend 
to  be  understood  that  all  hope,  e.x- 
pectation,  and  intention  to  recover 
the  property  were  utterly  and  entirely 
relinquished;  and  such  the  judges, 
who  tried  the  cause,  believe  was  the 
evidence  given  on  the  trial ;  and,  in 
case  of  property,  thus  derelict  and 
abandoned,  either  on  the  high  seas 
or  anywhere  else,  it  belongs  to  the 
first  finder  who  reduces  it  to 
possession."  Wyman  v.  Hurlburt,  12 
Ohio,  81,  40  Am.  Dec.  461. 

28.  Ross  V.  Gould.  5  Grcenl.  (Me.) 
204. 

Acting  Under  Mistake "The  con- 
tract of  1820  gave  Williams  a  right 
to  demand  the  conveyance  of 
seventy-five  acres,  upon  completing 
sales  of  the  residue  of  the  original 
tracts  sold  to  him  in  January.  1818. 
Much  the  larger  portion  of  these 
tracts  had  been  then  sold,  so  that 
Williams  had  paid  the  greater  portio'i 
of  the  consideration  for  the  seventy- 
five  acres.  He  continued,  up  to  1825. 
assiduous  to  efifect  a  sale  of  the  resi- 
due, upon  the  terms  agreed  on ;  but 
he  was  unsuccessful.  At  that  time. 
Champion,  by  conveying  to  Good- 
rich, put  an  end  to  the  contract,  and 
disabled  Williams  from  performing 
that  portion  of  it  that  remained  un- 
perforiued.  Williams'  subsequent  as- 
sertion that  he  did  not  look  to  the 
land,  but  to  Cliampion.  for  damages. 
we  are  satisfied  was  made  under  a 
mistake  as  to  what  were  his  rights. 
Nothing  in  the  case  sustains  the  idea 
of  abandonment.  Whilst  the  con- 
tract existed,  he  sought  to  perform 
it.  W'hen  the  other  party  put  an 
end  to  it,  Williams  still  asserted  his 
rights   under   it,   though    not    in   the 


form  he  now  asserts  tliem.  There 
is  no  pretense  to  sustain  the  position 
of  a  voluntary  aliandonment."  Wil- 
liams V.  Champion,  6  Ohio  169. 

29.  McLeraii  v.  Benton,  43  Cal. 
467. 

Can  Not  Be  to  Particular  Indi- 
vidual— ".Admitting  the  interest  of 
plaintiff  in  the  premises  such  as  could 
be  divested  by  abandoimient,  there 
can  be  no  such  thing  as  abandon- 
ment in  favor  of  a  particular  indi- 
vidual, or  for  a  consideration.  Such 
act  would  be  a  gift  or  sale.  An 
abandonment  is  'the  relinquishment 
of  a  right,  the  giving  up  of  some- 
thing to  which  we  are  entitled.'  " 
(Bouv.) 

"Abandonment  must  be  made  by 
the  owner,  without  being  pressed  by 
any  duty,  necessity,  or  utility  to  him- 
self, but  simply  because  he  desires 
no  longer  to  possess  the  thing;  and 
further,  it  must  be  made  without 
any  desire  that  any  other  person 
shall  acquire  the  same ;  for  if  it 
were  made  for  a  consideration  it 
would  be  a  sale  or  barter,  and  if 
without  consideration,  but  with  an 
intention  that  some  other  person 
should  become  the  possessor,  it 
would   be   a   gift.      (lb.) 

"Stephens  transferred  the  posses- 
sion to  Hunter  for  the  consideration 
of  six  hundred  dollars:  this  fact  is 
entirely  inconsistent  with  the  idea 
of  abandonment."  Stephens  v.  Mans- 
fieltl,   II   Cal.  363. 

"The  next  error  assigned  is  as  to 
an  instruction  given  by  the  court,  in 
the  following  words,  viz :  'The 
abandonment  must  also  be  made 
without  any  desire  that  any  particular 
person  should  acquire  the  property, 
for  if  such  desire  exist,  the  trans- 
action might  be  construed  a  gift.' 
The  sentence  above  quoted 

Vol.  I 


8  ABANDONMENT. 

IV.  GUESTION,  HOW  DETERMINED. 

1.  Nature  of  Question. —  one   of   Fact. — It   has   usually   been   held 
that   the   c|uestion   of   ahandonuK'iU    is   one   of   fact    for   the   jury,'" 


appears  to  be  based  upon  the  au- 
thority of  Stephens  v.  Mansfield,  1 1 
Cal.  365.  ...  In  that  case  the 
court  held  that  '  admitting  the  in- 
terest of  the  plaintiff  in  the  prem- 
ises such  as  could  be  divested  by 
abandonment,  there  can  be  no  such 
thing  as  abandonment  in  favor  of  a 
particular  individual  or  for  a  con- 
sideration. Such  act  would  be  a  gift 
or  sale.'  ...  If  the  gift  be 
complete — that  is  to  say,  if  the  thing 
given  be  delivered,  and  accepted  by 
the  donee,  a  transfer  is  the  result, 
which  transfer  as  much  precludes 
the  idea  of  abandonment  as  a  trans- 
fer resulting  from  a  sale.  No  ques- 
tion of  abandonment  can  arise  where 
a  transfer  has  been  had  by  the  act 
of  two  parties.  To  an  abandonment 
of  the  character  involved  in  this 
and  all  similar  cases,  there  can  be 
but  one  party.  ...  By  the  act 
of  occupancy,  the  plaintiff  made  it 
his,  and  manifested  his  intention  to 
do  so.  Once  his,  it  continues  his 
until  he  manifests  his  intention  to 
part  with  it  in  some  manner  known 
to  the  law.  He  may  sell  it,  or  give 
it  to  another  or  transfer  it  in  any 
other  mode  authorized  by  law 
(thereby  preserving  the  continuity  of 
possession),  or  he  may  abandon  it. 
In  doing  the  latter  he  must  leave  it 
free  to  the  occupation  of  the  next 
comer,  whoever  he  may  be,  without 
any  intention  to  repossess  or  reclaim 
it  for  himself  in  any  event,  and  re- 
gardless and  indifferent  as  to  what 
may  become  of  it  in  the  future.  When 
this  is  done,  a  vacancy  in  the  posses- 
sion is  created,  and  the  land  reverts 
to  its  former  condition,  and  becomes 
once  more  publici  juris,  and  then,  and 
not  until  then,  an  abandomncnt  has 
taken  place.  There  can  be  no  aban- 
donment except  where  the  right 
abates,  and  ceases  to  exist.  If  it  be 
continued  in  another,  by  any  of  the 
modes  known  to  the  law  for  the 
transfer  of  property,  there  has  been 
no  abandomnent.  for  the  right,  first 
acouired  by  the  occupancy  still 
exists,    although    vested    in    another. 

Vol.  1 


and  the  continuity  of  possession  re- 
mains unbroken.  But  the  occupant 
cannot  continue  his  right  in  another 
by  the  mere  act  of  volition ;  nor  is 
his  right  kept  alive  by  a  mere  de- 
sire that  it  may  become  vested  in 
a  particular  person.  Such  a  voli- 
tion or  desire  does  not  amount  to 
a  gift  for  there  can  be  no  gift  with- 
out an  acceptance.  If  the  wish  or 
desire  is  expressed  to  the  person  in 
whose  behalf  it  is  entertained,  and 
thereupon  he  occupies  the  land,  a  gift 
is  the  result,  and  the  transfer  is 
made  complete  —  and  not  other- 
wise. The  mere  wishes  and  desires 
of  the  occupant  are  only  effectual 
to  preserve  the  right  in  himself, 
and  not  to  transmit  it  to  another ; 
and  the  case  of  Stephens  v.  Mans- 
field, so  far  as  it  can  be  fairly  con- 
strued to  go  beyond  the  views  here 
expressed,    is    not    law. 

"From  what  has  been  said,  it  fol- 
lows that  the  charge  in  question, 
so  far  as  it  instructs  the  jury  that 
there  can  be  no  abandonment  where 
the  transaction  amounts  to  a  gift,  is 
correct,  but  that  it  is  erroneous  so 
far  as  it  instructs  them  that  leaving 
the  claim,  with  a  desire  that  a  par- 
ticular person  may  acquire  it,  might 
be  construed  to  be  a  gift.  The  error 
is  in  the  definition  of  «i  gift,  rather 
than  in  that  of  an  abandonment." 
Richardson  v.   McNuIty.  24  Cal.  .^.W- 

30.  United  5"to<M.— Integral  Quick- 
silver M.  Co.  V.  Altoona  Quicksilver 
M.  Co..  75  Fed.  .379;  North  Am.  E. 
Co.  V.  Adams.   104  Fed.  404. 

California.  —  Keane  v.  Cannovan, 
21  Cal.  291,  82  Am.  Dec.  738;  Davis 
V.  Butler,  6  Cal.  510;  Roberts  v. 
Unger,  30  Cal.  676;  Myers  v. 
Spooner,  55   Cal.  257. 

Ciiiinccticut. — Russell  v.  Davis,  38 
Conn,  562;  Town  of  Derby  v.  Ai- 
ling, 40  Conn.  410,  436, 

IltiiKiis. — McOoon  v.  .'Vnkenv  11 
111.   5s8. 

Kciitiicky. — Kercheval  r.  .\ml)lcr, 
)  Dana.  166. 

Maine. — Schwartz  7'.  Kuhn.  10  Me. 
274,  25  Am.  Dec.  239. 


ABANDONMENT.  9 

although  other  authorities  pronounce  it  a  mixed  question  of  law 
and  fact'''  under  certain  circumstances. 

When  a  Question  of  Law. — But  it  has  been  said  that  the  question 
may  sometimes  resolve  itself  into  one  of  law  for  the  court. ^-  It  is 
safe  to  say,  however,  that  the  doctrine  that  it  is  a  question  of  law 
only  applies  to  cases  in  which  the  act  of  relinquishment  and  the  sub- 
sequent acts  and  declarations  of  the  party  are  so  positive  and 
unequivocal  as  to  leave  no  room  for  doubt  as  to  his  intent. ^^ 


Massacliusetts. — Hatch  v  Dwight, 
17   Mass.  289,  297,  9  Am.   Dec.   145. 

Missouri. — Clark  ii.  Haninifrlc,  36 
Mo.  620.  639 ;  Landes  v.  Perkins,  12 
Mo.  238,  256;  Barada  v.  Blumen- 
thal,  20  Mo.  162;  Page  v.  Scheibel, 
II    Mo.    167.    182. 

Nevada. — Weill  v.  Lucerne  M.  Co., 
II    Nev.    200,   212. 

New  York. — Wiggins  v.  McCleary, 
49  N.  Y.  346. 

Pennsylvania.  —  McLaughlin  v. 
Maybnrj',  4  Yeates  534.  538;  Wilson 
z:  Watterson,  4  Pa.  St.  214;  Good- 
man V.  Losey,  3  Watts  &  S.  526; 
Philips  V.  Shatifer,  5  Serg.  &  R.  215, 
218;  Sample  v.  Robb,  16  Pa.  St. 
303-,  320. 

South  Carolina. — Parkins  v.  Dun- 
ham, 3  Strob.  Law  224;  Poison  v. 
Ingram,  22   S.   C.   541,   546. 

Te.x'as.  —  Hollingswortn  v.  Hols- 
housen,  17  Te.x.  41,  49;  Simpson  v. 
McLeinore,  8  Te.x.  448. 

I'ennont. — Patchin    v.    Stroud,    28 

yt.  3Q4- 

Is  a  Question  of  Fact  for  the 
Jury — ''Abandonment  is  a  question 
for  the  consideration  of  the  jury, 
and  depends  upon  the  intention, 
which  is  to  be  ascertained  from  cir- 
cumstances." Fine  V.  St.  Louis  Pub- 
lic Schools,  30  Mo.  166,  175. 

"The  fact  that  the  orator  has  done 
no  act  upon  the  lot  for  nearly  13 
years  next  before  the  defendant's 
entry  does  not  of  itself,  and  as  a 
matter  of  law,  constitute  an  aban- 
donment of  the  possession  he  had 
formerly  had.  Whether  a  prior 
possession  has  been  abandoned  or 
not  is  a  question  of  fact,  to  be 
determined  from  the  circumstances 
of  the  case."  Langdon  v.  Temple- 
ton.   66   Vt.    173.   28   Atl.   866. 

31.  Oreamuno  z'.  Uncle  Sam  M. 
Co..    I    Nev.   215. 

Mixed  Question  of  Law  and  Fact. 
"  I    wnuUl    also    say    that    wliercvcr 


the  question  of  abandonment  is  made 
upon  a  lapse  of  time  less  than  seven 
years,  accompanied  by  circum- 
stances from  which  it  might  be  in- 
f  rred  that  the  party  intended  to 
abandon,  that  it  was  a  mi.xed  ques- 
tion of  fact  and  law  to  be  submitted 
to  the  jury.  It  is  certainly  the  law 
that  a  party  may  abandon  at  any 
time,  within  seven  years  if  he 
chooses,  and  wherever  he  has  relin- 
quished the  possession  of  the  land 
within  less  than  seven  years,  it  would 
become  a  matter  of  contention  then 
to  be  settled  by  the  jury."  Brent- 
linger  V.  Hutchinson,  I  Watts  (Pa.) 
46,  52. 

32.  Paine  v.  Griffiths,  86  Fed.  452; 
Wilson  z:  Watterson,  4  Pa.  St.  214; 
Goodman  z:  Losey,  3  Watts  &  S. 
(Pa.)  =;26;  Forster  v.  McDivit,  5 
Watts  &  S.  (Pa.)  359;  Gibson  v. 
Robbins.  g  Watts  (Pa.)  i'^6;  Wat- 
son z'.  Gilday.  11  Serg.  &  R.  (Pa.) 
337 ;  Sample  z'.  Robb,  16  Pa.  St.  305. 

"Some  cases  may  be  so  strongly 
and  indelibly  marked,  either  by  con- 
tinuous absence,  and  suffering  the 
improvement  to  return  to  its  wild 
state,  or  by  the  declarations  and 
acts  of  the  party,  as  to  justify  the 
court  in  deciding  as  matter  of  law 
upon  the  question."  Heath  v.  Biddle, 
9  Pa.  St.  273. 

33.  Not  Where  There  Is  Doubt. 
"We  cannot  say  tliat  the  evi- 
dence of  abandonment  was  so 
flagrant  as  to  justify  the  court 
in  pronouncing  it  such.  In  all 
cases  when  the  circumstances  leave 
room  for  doubt,  the  jury  is 
the  proper  tribunal  to  decide :  For- 
ster V.  McDivit,  5  W.  &  S.  359 ;  and 
in  Wilson  z'.  Watterson,  4  Barr  2ig, 
it  is  observed,  by  the  judge  who  de- 
livered the  opinion  of  the  court, 
'Some  cases  may  be  so  strongly  and 
indelibly   marked,   either  by  continu- 

Vol.  I 


10 


ABANDONMENT. 


Failure  to  Perfect  Inchoate  Right.  —Where  il  is  incumbent  on  a 
party,  as  by  statute,  to  take  steps  to  perfect  an  inchoate  right  within 
a  reasonable  time,  it  has  been  held  that,  after  the  expiration  of  such 
time,  the  court  may  declare  an  abandonment  as  matter  of  law,  ir- 
respective of  the  real  intent  of  the  party. ''^ 

2.  Burden  of  Proof. — The  burden  of  proving  an  abandonment  is 
on  him  who  alleges  it.'' 

3.  Presumptions. —  Lapse  of  Time. — It  has  frequently  been  held 
that  the  court  or  jury  max   presume  an  intent  to  abandon  from  the 


ous  alisence,  and  suffering  tlie  im- 
provement to  return  to  its  wild  state, 
or  by  the  declarations  and  acts  of 
the  party,  as  to  justify  the  court  in 
deciding  as  a  matter  of  law  on  the 
question;  yet  in  a  majority  of  the 
cases  which  occur,  there  is  such  a 
mixture  of  motive,  intent  and  cir- 
cumstances, as  to  make  it  a  matter 
properly  referable  to  the  jury;'  and 
the  facts  and  circumstances  disclosed 
by  the  evidence  in  the  present  case, 
afforded  precisely  the  exigencies  in- 
dicating the  jury  as  the  proper  forum 
in  the  two  decisions  referred  to." 
Heath  V.  Riddle,  g  Pa.  St.  273. 

34.  Failure  to  Prosecute  Actual 
Settlement — "It  may  be  proper 
enough  m  deciding  the  question 
whether  or  not  an  improvement  upon 
land  has  been  prosecuted  with  due 
diligence  from  its  commencement  to 
an  actual  settlement,  to  have  refer- 
ence to  the  ability  of  the  party  mak- 
ing it,  and  the  adverse  circumstan- 
ces he  may  have  had  to  encounter 
in  order  to  effect  it,  yet  still  the 
law  will  not  indulge  him  with  an 
unreasonable  time  for  this  purpose. 
If  he  be  unable  to  effect  it  within 
a  reasonable  time,  he  ought  not  to 
undertake  it ;  and  it  will  avail  him 
nothing  after  having  commenced  his 
improvement  without  the  ability  or 
means  of  completing  it,  when  he  is 
compelled  to  quit  it  on  such  account, 
to  say  that  he  intends  holding  on  to 
it,  and  to  resume  the  work  and  per- 
fect it  as  soon  as  he  shall  become 
able  to  do  so :  for,  if  he  could,  in  this 
way  prevent  the  state  from  disposing 
of  the  land  for  five  or  six  years,  he 
and  his  heirs  might  upon  the  same 
plea,  and  perhaps  with  truth  too, 
do  it  for  a  century.  Abaudomncnt 
is  not  always  a  question  of  intention, 
and,  therefore,  a  matter  of  fact  to 
be  left  exclusively  to  the  jury,  with- 

Vol.  I 


cjut  any  controlling  instruction  from 
the  court  as  the  court  would  seem 
to  have  thought  it  was  in  this  case. 
"Because  when  more  than  a 
reasonable  time  has  elapsed  for  com- 
pleting the  settlement  without  its 
being  done,  after  making  a  proper 
allowance  for  all  delay  occasioned 
by  what  the  law  may  deem  a  suffi- 
cient excuse  or  cause  for  it,  and 
the  facts  are  not  controverted,  the 
law  will  pronounce  the  neglect  or 
the  failure  of  the  party  to  perfect  his 
settlement  an  abandonment,  what- 
ever his  intention  in  regard  to  it 
may  have  been.  Intention  will 
amount  to  nothing  in  such  case  with- 
out acts.  The  will  cannot  be  taken 
for  the  deed ;  for  a  settlement,  in 
order  to  make  it  effectual,  must  not 
have  the  smallest  case  of  abandon- 
ment about  it."  .Atchison  v.  Mc- 
Cnlloch.   S   Watts    (Pa.)    13. 

35.  Oreamuno  i'.  Uncle  Sam  M. 
Co..  I  Nev.  215;  Moon  f.  Rollins, 
36  Cal.  T,33.  95  Am.  Dec.  181 ;  Hall 
V.  Lincoln,  10  Colo.  App.  360,  50 
Pac.  1047;  Providence  Gold  M.  Co. 
V.  Burke,  (.^riz.)  57  Pac.  641;  Hicks 
f.  Steigleman,  49  Aliss.  377. 

On  Whom  Burden  Rests — "The 
question  of  abandonment  is  one  of 
fact  and  intention.  Ceasing  to  culti- 
vate a  lot  in  the  co-nmon  fields  and 
a  removal  elsewhere  do  not  rnake 
an  abandonment ;  but,  to  constitute 
an  abandonment  by  a  party,  it  must 
be  shown  that  he  quitted  the  prop- 
erty with  the  intention  of  no  further 
claiming  the  same,  and  the  burden 
of  showing  the  abandonment  rests 
upon   the   one   who   asserts   it. 

■'These  instructions  properly  stated 
the  question  to  the  jury  in  accord- 
ance with  previous  decisions  by  this 
court."  Tayon  v.  Ladew,  33  Mo. 
205'. 


ABANDONMENT. 


11 


lapse  of  a  great  length  of  time  after  the  relinquishment  without  a 
claim  of  ownership  being  made  or  acts  of  ownership  exercised."" 

Not  Conclusive. — But  this  presumption  is  not  conclusive  and  may 
be  rebutted  by  proof  of  a  contrary  intent. '' 

Does  Mere  Lapse  of  Time  Create  Presumption. — It  has  sometimes  been 
held  that  the  lapse  of  time  alone  furnishes  no  presumption  of  intent 
to  abandon,  either  conclusive  or  disputable. ^*^ 


36.  United  States.  —  Paine  v. 
Griffiths,  86  Fed.  452. 

Arkansas. — Eads  v.  Brazeltoii,  22 
Ark.  499,  79  .'*ini.   Dec.  88. 

California.  —  Keane  v.  Cannovan, 
21    Cal.  291,   303,  82   Am.   Dec.   738. 

Connecticut. — Hartford  Bridge  Co. 
V.  East  Hartford,  16  Conn.  149,  173; 
Town  of  Derljy  v.  Ailing,  40  Conn. 
410. 

Indiana.  —  Jefifersonville  M.  &  I. 
R.  R.  Co.  V.  O'Connor,  37  Ind.  95. 

Maine. — Farrar  z:  Cooper,  34  Me. 
394;   Pratt  V.  Sweetser,  68  Me.  344. 

Massachusetts. — French  v.  Brain- 
tree    Mfg.    Co.,   23    Pick.   216,   222. 

Nc'lV  York. — Robie  v.  Sedgwick, 
35  Barb.  319,  329;  Miller  z'.  Gar- 
lock,  8  Barb.  1^3,  155;  Corning  v. 
Gould,    16    Wend.    531,    535. 

Pcnnsylz'ania. — Clemniins  i'.  Gotts- 
hall.  4  Yeates  330;  Clnggage  v.  Dun- 
can. I  Scrg.  &  R.  109,  120;  Wilson 
7'.  Watterson,  4  Pa.  St.  214,  219; 
Brentlinger  z\  Hutchinson,  I  Watts 
46;  Gibson  z:  Robbins,  9  Watts  156; 
Philadelphia  &  Reading  R.  R.  Co., 
z:  Obert,  109  Pa.  St.  193,  I  Atl.  398. 

Texas. — Tiebout  z:  Millican.  61 
Tex.   S14. 

What  Sufficient  to  Create  Pre- 
sumption— "Whether  the  rule  as  to 
the  time  after  which  courts  will 
presume  abandonment  of  a  settle- 
ment upon  vacant  land  be  taken 
from  Brentlinger  j'.  Hutchinson,  i 
Watts  46.  or  from  any  of  the  otlier 
cases  cited  and  commented  on  by 
Mr.  Justice  Thoinpson  in  Whitcomb 
Z'.  Hoyt,  6  Casey  409,  it  is  past  all 
doubt  that  time  enough  had  elapsed 
in  this  case  to  raise  the  legal  pre- 
sumption. Smith  the  settler  went 
out  of  possession  in  October,  1850, 
and  no  effort  was  made  to  regain  it 
till  his  alienee.  Grant,  instituted  this 
eiectment  on  the  21st  of  January, 
1861.  Here  were  ten  years  and 
more  of  non  claim — time  enough  to 
justify  the  court  in  pronouncing  the 


settlement  abandoned,  unless  the 
mode  of  losing  the  possession  is  to 
distinguish  the  case  from  the  general 
rule.  The  peculiarity  of  the  case 
is  that  the  settler  did  not  go  out 
voluntarily,  but  was  put  out  by  a 
writ  of  habere  facias  fossessioneni, 
founded  on  a  judgment  of  eject- 
ment, which  -•Mlison  and  Orr  re- 
covered against  him  in  1848.  Does 
this  excuse  an  inactivity  of  ten 
years?  We  think  not."  Grant  z'. 
.'Mlison,   43    Pa.    St.   427.   430. 

37.  Cletnmins  z:  Gottshall,  4 
Yeates    (Pa.)   330;  Grant  v.   Allison, 

43  Pa.  St.  427 ;  Farrar  v.  Cooper, 
34  Me.  394,  400;  Pratt  v.  Sweetser, 
68  Me.  344. 

How  Rebutted. — "WHiere  a  dam 
and  mill  have  been  erected  and  put 
in  operation,  so  that  the  statute 
privilege  has  attached  to  it,  an 
entire  and  continued  disuse  of  the 
dam  for  mill  purposes,  for  the  term 
of  twenty  years,  is  strong  prima 
facie  evidence  of  ceasing  to  use  the 
privilege  for  an  unreasonable  time, 
by  which  the  privilege  is  lost  to  the 
owner,  and  unless  rebutted  by  clear, 
strong  and  satisfactory  proof  of  ex- 
planatory circumstances,  must  be 
taken  to  be  conclusive.  If  the  re- 
building of  the  dam  or  mill  have 
been  connnenced,  but  destroyed  by 
fire  or  flood  or  other  casualty,  if 
definite  arrangements  have  been 
made  to  rebuild,  in  good  faith,  but 
are  defeated  by  causes  over  which 
the  parties  have  no  control,  these 
might  well  be  deemed  proof  of  a 
proper  character  tending  to  rebut 
such  presumption  of  unreasonable 
delav."  French  z'.  The  Braintree 
Mfg.  Co.,  23  Pick.   (Mass.)  216,  222. 

38.  Cravens  7'.  Moore,  61  Mo. 
17S;  Gassert  z:  Noyes,  18  Mont.  216, 

44  Pac.   Q59. 

No  Presumption — "The  fact  that 
the  orator  had  done  no  act  upon  the 
lot    for   nearly    13  years   next   before 

Vol.  I 


u 


ABAMDONMBNT. 


Of  Easement  by  Non-Use. — A  presumption  of  the  abandonment 
by  non-user  of  an  easement  not  acquired  by  deed  will  be  indulged 
after  twenty  years,  but  not  before/'-'  and  the  time  has  sometimes 
been  fixed  at  twenty-one  years.'"' 

Theory  of  Cases. — These  cases  proceed  upon  the  theory  that  the 
time  for  loss  of  an  easement  by  non-user  should  l)e  the  same  in 
length  as  the  time  necessary  to  acquire  it  by  use  and  enjoyment. 
This  seems  to  be  the  general  rule,  both  as  to  private  and  to  public 
easements,  as  of  highway,  and  has  been  put  in  statutory  form  in 
some  of  the  states." 


the  defendant's  entry  does  not  of 
itself,  and  as  matter  of  law,  con- 
stitute an  abandonment  of  the 
possession  he  had  formerly  had." 
Langdon  v.  Templeton,  66  Vt.  173, 
28  ,A.tl.  866,  868. 

39.  French  v.  Braintree  Mfg.  Co., 
23  Pick.  (Mass.)  216;  Farrar  v. 
Cooper,  34  Me.  394;  'Williams  v. 
Nelson,  23  Pick.  (Mass.)  141,  34 
Am.  Dec.  45 ;  Emerson  v.  Wiley,  10 
Pick.    (Mass.)    310. 

After   Twenty   Years "But    it   is 

contended  on  the  part  of  the  de- 
fendants that  if  the  plaintiffs,  or 
their  predecessors  in  office,  ever  had 
the  title  as  claimed,  they  liave  lost 
it,  by  abandoning  the  premises,  and 
permitting  others  to  occupy  and  use 
them,  for  other  purposes,  and  in 
hostility  to  their  claim  of  title.  This 
doctrine  of  abandonment,  or  non- 
user,  applies,  as  I  understand  it, 
only  to  easements,  claimed  by  one 
in  the  land  of  another,  and  in  no 
respect  to  the  title  of  the  land  itself. 
And  in  case  of  easements,  the  gen- 
eral doctrine  seems  to  be  well  set- 
tled, that  the  right  is  not  extin- 
guished short  of  an  entire  abandon- 
ment for  the  period  of  twenty 
years."  Robie  v.  Sedgwick.  35 
Barb.  310,  329. 

40.  Twenty-one  Years  Elsewhere. 
"The  defendant  further  contends 
tliat  the  plaintiff  even  though  or- 
iginally entitled  had  lost  his  right 
by  non-u.ser  for  twenty  years ;  and 
assigns  for  error  that  the  judge 
charged  that  the  presumption  to 
defeat  such  right  does  not  arise  from 
a  non-user  for  a  less  period  than 
twenty-one  years. 

"In  this  position  we  think  the 
court  below  was  right,  and  that  the 
rule  on   the  suliject  in    Pemisylvania 

Vol.  I 


is  founded  in  the  analogy  to  our 
act  of  limitations  of  1785,  in  relation 
to  lands,  which  fixes  the  period  of 
twenty-one  years;  in  the  same  man- 
ner as  in  England  the  rule  is  es- 
tablished by  analogy  to  their  statute 
of  limitations  of  21  Jac.  i.  c.  16, 
relating  to  lands  there.  There  are 
undoubtedly  to  be  found  scattered 
through  our  reports  dicta  of  some  of 
the  judges  of  this  court  at  vari- 
ance with  this  doctrine ;  but  these 
expressions  have  been  used  in  cases 
where  the  e.xact  time  is  not  material 
in  the  cause,  and  it  was  not  there- 
fore necessary  to  be  precise  in 
language."  Dver  v.  Depui,  5  Whart. 
(Pa.)    584.    507. 

41.  Loss  by  Non-User  Under 
Statute — "An  act  entitled  'An  act 
concerning  roads  in  the  county  of 
Butte.'  approved  March  20.  1874, 
(St.  1874,  p.  503,)  provides  that  all 
roads  used  as  such  in  the  county  oT 
Butte  for  a  period  of  five  years  shall 
be  public  highways.  The  public, 
having  used  the  strip  of  land  in 
question  as  a  public  way  for  five 
years  prior  to  the  passage  of  that 
act,  acquired  the  right  to  use  the 
same  as  a  public  way.  Bolger  v. 
Foss,  65  Cal.  250,  3  Pac.  Rep.  871  ; 
Oloster  V.  'Wade,  21  Pac.  Rep.  6. 
'  By  taking  or  accepting  land  for  a 
highway,  the  public  acquire  only  the 
right  of  way,  and  the  incidents 
necessary  to  enjoying  and  maintain- 
ing the  same,  subject  to  the  regula- 
tions in  this  and  the  Civil  Code 
provided.'  Pol.  Code,  Sec.  2631. 
'The  extent  of  a  servitude  is  de- 
termined by  the  terms  of  the  grant. 
or  the  nature  of  the  enjoyment  by 
which  it  was  acquired.'  (Civ.  Code, 
Sec.  806),  and  is  extinguished,  'when 
the    servitude    was    acquired   by    en- 


.IBJX'DONMBNT. 


1.? 


4.  What  Should  go  to  the  Jury. — All  the  acts  and  declarations 
of  the  party  against  whom  an  abandonment  is  claimed,  going  to 
establish  an  intent  to  abandon,  should  go  to  the  jury,  and  he  should 
be  allowed  to  rebut  by  proving  all  facts  and  circumstances  tending 
to  show  a  contrary  intent. ■*- 


joyment,  liy  tlie  disuse  thereof  Ijy 
the  owner  of  the  servitude  for  the 
period  prescriljed  for  acquiring  title 
by  enjoyment,'  (Id.  Sec.  8ii).  These 
provisions  are  part  of  chapter  3.  pt. 
2,  tit.  2,  of  the  Civil  Code,  which 
relates  to  private  easements  and 
servitudes ;  but  they  are  made  ap- 
plicable to  a  public  easement  of  the 
character  in  question  by  section  2631 
of  the  Political  Code,  sul^ni.  The 
reason  of  the  law  is  clearly  to  pro- 
tect the  public  in  the  use  of  public 
highways  by  preventing  an  aban- 
donment of  the  right  to  the  use  be- 
ing presumed  from  the  cessation  of 
the  use  for  any  period  less  than  that 
by  which  the  right  may  be  acquired. 
In  this  respect  public  highways  are 
placed  upon  the  same  plane  with 
private  rights  of  way.  The  period 
by  which  the  public  acquired  the 
right  to  the  use  of  the  right  of  way 
in  question  was  fi.xed  at  five  years 
by  the  act  of  1874.  This  action  was 
brought  on  February  II,  1888,  and 
the  use  by  the  public  of  the  right  of 
way,  as  such,  was  not  discontinued 
until  1884,  therefore  the  period  of 
non-user  was  less  than  five  years, 
and  insufficient  to  support  a  pre- 
sumption of  an  abandonment  by 
operation  of  law."  McRose  v. 
Bottyer.  81   Cal.    122.   22   Pac.   393. 

42.  Moon  I'.  Rollins,  ^6  Cal.  -^  H. 
95  Am.  Dec.  181;  Bliss  v.  Ells- 
worth, 36  Cal.  310;  Integral  Quick- 
silver I\[.  Co.  V.  Altoona  Quicksilver 


M.  Co.,  75  Fed.  379;  Lockhart  v. 
Wills,  9  N.  M.  263,  50  Pac.  318; 
Davis  V.  Perley.  30  Cal.  630. 

Wide  Range  to  Be  Allowed. 
"We  think,  however,  that  the  court 
erred  in  excluding  the  evidence  of- 
fered by  the  plaintiff  upon  the  ques- 
tion of  abandonment.  The  fact 
that  he  was  inexperienced  in  farm- 
ing and  relied  upon  the  advice  of 
Crane  and  Lando,  and  that  they  ad- 
vised him  to  allow  the  land  to  lie 
fallow,  would  tend  at  least  to  ex- 
plain why  the  plaintiff  did  not  cul- 
tivate the  land.  It  may  have  been 
entitled  to  but  little  weight  as  evi- 
dence, but  if  it  was  competent,  and 
we  think  it  was,  he  was  entitled  to 
its  benefit.  So  also  in  regard  to  his 
efforts  to  procure  the  passage  of  the 
act  to  prevent  the  re-entering  of 
parties  dispossessed  by  legal  process. 
If  he  could  connect  these  efforts 
with  the  facts  of  this  case,  he  was 
entitled  to  prove  them  as  tending  to 
rebut  the  alleged  abandonment.  Up- 
on a  question  of  abandonment,  as 
on  a  question  of  fraud,  a  wide  range 
should  be  allowed,  for  it  is  gener- 
ally from  facts  and  circumstances 
that  the  truth  is  to  be  discovered, 
and  both  parties  should  be  allowed 
to  prove  any  fact  or  circumstance 
from  which  any  aid  for  the  solution 
of  the  question  can  be  derived." 
Wilson  V.  Cleaveland,  30  Cal.  192, 
201. 

Vol.  I 


ABATEMENT. 

Bv  Frank  S.  Adams. 

I.  BURDEN  OF  PROOF,   14 
II.  ORDER  OF  PROOF,   15 
III.  PROOF  UNDER  PLEA  OF  ANOTHER  ACTION  PENDING,   16 

1.  I'cxatiuiisncss  uf  Second  Action,    ih 

2.  Pendency  of  Former  Action,  16 

A.  Must  Be  Slwzi'ii  Pending,  16 

B.  Must  Be  Prior  Action,  17 

C.  Hozv  Pendency  Shown,  18 

a.  Record  Evidence,  18 

b.  Parol  Evidence,  18 

(I.)   Record  Unobtainable,  18 
(2.)   Record  Insufficient,  18 

D.  The  Parties  to  the  Actions,  19 

a.  Identity  of  Parties,  19 

b.  Reversal  of  Parties,  20 

c.  Defendant  in  Different  Capacities,  21 

E.  Subject  Matter,  Including  Relief  Sought,  21 

SCOPE  OF  SUBJECT. 

This  article  includes  only  the  rules  of  evidence  applicable  to 
trials  of  issues  raised  by  pleas  in  abatement  on  the  ground  of  another 
action  pending.  It  does  not  include  evidence  on  pleas  to  the  juris- 
diction or  pleas  of  infancy,  or  other  want  of  capacity  to  sue  or  be 
sued. 

I.   BURDEN  OF  PROOF. 

A  Plea  in  Abatement  Tenders  an  Issue  of  Fact. — It  is  an  affirmative 
plea  and  the  matters  set  forth  on  which  the  party  relies  to  sustain 
such  plea  must  be  proved  like  any  other  issue  in  the  case.' 

1.     Sheppard   v.   Graves,    14   How.  to  be  true."     People  v.  De  la  Guerra, 

(U.     S.)     505;     Gilmer    v.    City    of  24   Cal.    73. 

Grand  Rapids.  16  Fed.  708.  In  Federal  Courts.— Although  in 
A  Question  For  the  Jury — "The  the  courts  of  the  United  States  it 
plea  in  abatement  tendered  an  issue  is  nccessarj'  to  set  forth  the  grounds 
of  fact  and  should  have  been  deter-  of  their  cognizance  as  courts  of 
mined  by  the  jury."  Hart.  Wiggin  limited  jurisdiction,  yet  wherever 
&  Co.  7'.  Kanady.  3,^  Tex,  7J0.  iurisdiction  is  averred  in  the  plead- 
New  Matter  Deemed  to  Be  Con-  jugs,  in  conformity  with  the  laws 
troverted — ''The  new  matter  in  the  creating  those  courts,  it  must  be 
answer  under  the  practice  act,  is  taken  pruna  facie  as  existing,  and  it 
deemed  to  be  controverted,  and  in  is  incumbent  on  him  who  would 
this  case,  the  new  matter  set  up  in  impeach  that  jurisdiction  for  causes 
abatement  raised  an  issue.  The  issue  dc  Iwrs  the  pleading  to  allege  and 
must  be  tried  and  the  facts  found,  prove  such  causes.  Sheppard  v. 
before    the   answer    can    be   assumed  Graves,     14     How.      (U.     S.)     505; 

Vol.  I 


ABATEMENT. 


15 


Burden  on  Defendant. — The  hurclen  of  proof  on  a  plea  in  abate- 
ment is  always  on  the  defendant. - 

Evidence  Personal  to  Pleader. — A  plea  to  the  jurisdiction  of  the 
court  is  held  to  be  a  personal  privilege  and  evidence  tending  to  sup- 
port such  plea  cannot  inure  to  the  benefit  of  a  co-defendant  who  has 
failed  to  plead  in  abatement.' 

II.   ORDER  OF  PROOF. 

Where  a  plea  in  abatement  is  joined  by  the  answer  with  other 
matters  which  go  directly  to  the  merits  of  the  cause,  the  evidence 
upon  the  plea  in  abatement  should  be  first  in  the  order  of  proof.* 


D'Wolf  V.  Rabaiid,  i  Pet.  (U.  S.) 
476;  Wickliffe  v.  Owings,  17  How. 
(U.  S.)  47:  Jones  V.  League,  18 
How.   (U.  S.)   76. 

The  necessity  for  such  allegation 
and  the  burden  of  sustaining  it  by 
proof  both  rest  upon  the  party  tak- 
ing the  exception.  Conard  v.  Atl. 
Ins.  Co.,  I  Pet.  (U.  S.)  386;  D'Wolf 
V.  Rabaud,  i  Pet.  (U.  S.)  476; 
Sheppard    v.    Graves,    14    How.    (U. 

S.)  505. 

2.  Woodward  v.  Stark,  4  S.  D. 
588,  57  N.  W.  496;  Kuteman  v. 
Page,  3  Willson  Civ.  Cas.  Ct.  App. 
(Tex.)  164;  Graves  v.  First  Nat. 
Rank.  77  Tex.   555,   T4  S.   W.   163. 

Burden  on  the  Pleader — "Pleas  in 
abatement  must  be  proved  and  the 
onus  pyohandi  is  upon  him  who 
pleads  theiTi."  Hart,  Wiggin  &  Co. 
V.  Kanady,  a  Tex.  720. 

To  Prove  Want  of  Jurisdiction. 
"It  is  not  enough  that  the  alleged 
ground  of  jurisdiction  is  denied  by 
plea  in  abatement ;  the  plea  must  be 
followed  up  and  sustained  by  proof, 
or  it  will  be  unavailing.  The  bur- 
den of  sustaining  the  plea  was  upon 
defendant.  The  evidence  must  have 
shown  that  the  jurisdictional  ground 
relied  upon  did  not  exist."  Hopson 
V.  Caswell,  13  Tex.  Civ.  App.  492. 
36  S.  W.  31-'. 

To  Prove  Residence — In  Robert- 
son V.  Ephraim,  18  Tex.  118,  it  was 
held  that  where  the  complaint  al- 
leged the  defendant  to  be  a  resident 
of  a  certain  county  and  the  plea  in 
abatement  averred  residence  of  de- 
fendant  in   another  county,  the   pre- 


sumption from  the  petition  was  that 
the  court  had  jurisdiction;  that  the 
presumption  of  jurisdiction  could  be 
rebutted  by  allegation  and  proof,  and 
the  defendant  having  alleged  a  suffi- 
cient cause  to  impeach  the  juris- 
diction, was,  under  the  rules  of  evi- 
dence, bound  to  prove  it.  That  the 
burden  of  proof  must  be  on  de- 
fendant who  alleges  facts  which 
negative   the   jurisdiction. 

3.  Craig  v.  Cummings,  6  Fed. 
Cas.  No.  3331  ;  Cooper  v.  Gordon, 
6  Fed.  Cas.  No.  3195;  Harrison  v. 
Urann,  11  Fed.  Cas.  No.  6146; 
Moore  v.  Smith.  41  Ky.  (2  B.  Mon.) 
340. 

4.  Order  of  Proof. — "In  an  action 
of  ejectment  where,  in  addition  to 
the  defense  of  abatement  by  reason 
of  the  pendency  of  a  former  action, 
defendant  relies  upon  other  defenses 
which  go  directly  to  the  inerits  of 
the  cause,  it  is  better  practice  for 
the  trial  court  to  require  defend- 
ant to  present  his  evidence  upon 
his  plea  in  abatement  at  the  open- 
ing of  his  defense."  Leonard  v. 
Flynn,  89  Cal.  535.  26  Pac.  1097, 
23  Am.  St.  Rep.  500;  Blackwell  v. 
Dibbrell.  103  N.  C.  270,  9  S.  E. 
192. 

Value  of  Subject  of  Controversy. 
"  The  objection  to  the  jurisdiction 
of  the  justice,  on  the  ground  of 
excess  in  the  value  of  the  subject 
of  controversy,  was  properly  made 
by  the  answer,  and  that  should  have 
been  first  determined  before  he  pro- 
ceeded to  hear  the  merits  of  the 
case."      Small   v.   Gwinn,  6  Cal.  447- 


Vol.  I 


16 


ABATEMENT. 


III.   PROOF  UNDER  PLEA  OF  ANOTHER  ACTION  PENDING. 

1.  Vexatiousness  of  Second  Action. — It  has  been  held  that  in  order 
to  sustain  a  plea  of  another  aetion  pending  it  is  necessary  to  show 
that  the  latter  suit  was  in  fact  vexatious  and  unnecessary. ° 

2.  Pendency  of  Former  Action. — A.  Must  Be  Shown  Pending. 
The  action  pleaded  in  abatement  must  be  shown  to  be  actually  pend- 
ing at  the  time  of  the  trial,"  but  it  has  been  held  sufficient  to  show 


5.  California. — Reynolds  v.  Har- 
ris, 9  Cal.  338;  Thompson  v.  Lyon, 
14  Cal.  39 ;  Dyer  v.  Scalmanini,  69 
Cal.    637,    II    Pac.   327. 

Connecticut  — Durand  v.  Carring- 
ton,  I  Root  355 ;  Ward  v.  Curtiss, 
18  Conn.  290 ;  Quinebaug  Bank  v. 
Tarbox,    20    Conn.    510. 

Georgia. — Gilniorc  v.  Georgia  Ry. 
&  Banking  Co.,  93  Ga.  482,  21  S.  E. 
50. 

Illinois.  —  Phillips     v.     Quick,     68 

111.    324. 

Mississil<fi. — Griffin  v.  Board  of 
Miss.  Levee  Com'rs,  71  Mios.  767,  15 
So.   107. 

Missouri.  —  State  v.  Dougherty.  45 
Mo.   294. 

iVt'W'  Vorh. — Conipton  ?■.  Green, 
9  How.   Pr.  228. 

Te.vas. — Langhani  v.  Thoniason,  5 
Tex.    127. 

Vermont. — Downer  v.  Garland,  21 
Vt.    ^(^2. 

Reason  and  Source  of  the  Rule. 
In  Downer  v.  Garland,  21  Vt.  362, 
the  court  said :  "This  doctrine  is 
founded  upon  the  supposition,  that 
the  second  suit  is  unnecessary,  op- 
pressive and  vexatious.  This  being 
the  reason  for  the  adoption  of  the 
rule,  there  would  seem  to  be  no 
propriety  in  extending  and  applying 
it  to  cases  where  the  reason  does 
not  exist.  .  .  .  Hence  it  is  that 
courts  in  modern  times  have  some- 
what modified  the  rule,  and,  instead 
of  regarding  the  second  suit  as  nec- 
essarily vexations,  have  gone  into 
the  inquiry  of  whether,  in  fact,  it 
was    vexatious." 

Where  Prior  Suit  Is  InefTectual. 
"The  general  rule  that  the  pend- 
ency of  another  suit  between  the 
same  parlies  on  the  same  caure  of 
action  and  for  the  same  relief  may 
be  pleaded  in  abatement  of  a  subse- 
quent suit,  is  subject  to  many  excep- 
tions and  limitations.     The  rule  rests 

Vol.  I 


upon  the  right  of  everyone  to  be  pro- 
tected from  unnecessary  and  vexa- 
tious litigation."  Griffin  v.  Board  of 
;\iiss.  Levee  Com'rs.,  71  Miss.  767,  15 
So.    107. 

Where  Prior  Suit  Is  for  Part  of 
Same  Matter — W'liere,  on  plea  in 
abatement  to  the  entire  action,  that 
another  suit,  for  the  same  cause  of 
action,  was  pending  at  the  time  of 
suit  brought,  the  proof  shows  that 
the  first  suit  is  only  for  j)art  of  the 
same  matter  sued  for  in  the  second 
suit,  the  plea  fails.  Thompson  v. 
Lyon,  14  Cal.  .39. 

Want    of    Jurisdiction    in    Prior 

Suit Where   a    judgment    rendered 

in  lower  court  was  reversed  for 
want  of  jurisdiction  and  the  second 
action  was  commenced  in  the  cir- 
cuit court  before  the  prior  suit  was 
finally  disposed  of;  //.•/(/,  that  the 
former  suit  being  a  nullity,  the  plaint- 
iff was  at  hherty,  at  any  time  after 
it  was  commenced,  to  bring  another 
action  for  the  same  cause,  and  that 
the  plea  of  another  action  pending 
could  not  be  sustained.  Phillips  v. 
Quick,   68    III.    324- 

But  see  Napier  v.  Foster,  80  Ala. 
379,  wherein  it  is  held  that  a  pend- 
ing suit,  although  fatally  defective, 
and  subsequently  dismissed  on  that 
account,  will  defeat  a  second  suit  on 
the  same  ca,'se  of  action,  brought 
before    the    dismissal    of    the    first. 

Test  of  Vexatiousness — When  a 
recovery  in  one  suit  would  answer 
the  purposes  of  a  recovery  in  both, 
the  prosecution  of  two  su'ts  is 
vexatious,  and  the  second  will  be 
abated  if  the  court  can  ascertain 
which  is  the  second,  and  if  it  cannot, 
both  will  abate.  Dengler  v.  Hays, 
63  N.  J.  Law  16,  42  Atl.  775- 
'6.  Arkansas. —  GrideT  v.  Apper- 
son,  32  Ark.  332. 

California.— Vver  v.  Scalmanini, 
69  Cal.  637,   II    Pac.   327:   Moore  v. 


ABATBMBNr. 


17 


that  the  action  pleaded  in  abatement  was  pending  at  the  time  the 
second  suit  was  commenced.'' 

B.  Must  Be  Pkior  Action. — It  must  be  shown  that  the  action 
pleaded  in  abatement  was,  in  fact,  commenced  prior  to  the  com- 
mencement of  the  action  in  which  the  plea  was  made.' 


Hopkins,  83  Cal.  270,  23  Pac.  318, 
17  Am.  St.  Rep.  248;  Balfour  Guth- 
rie Inv.  Co.  V.  Woodworth,  124 
Cal.    169,   56   Pac.   891. 

Colorado. — Craig  v.  Smith,  10 
Colo.  220,  15  Pac.  337;  Yentzer  v. 
Thayer,  10  Colo.  63,  14  Pac.  53,  3 
Am.   St.  Rep.   563. 

Georgia. — Rumph  v.  Truelove,  66 
Ga.  480;  Gihnore  v.  Georgia  Ry.  & 
Banking   Co.,   93    Ga.   482,   21    S.   E. 

5°- 
Indiana. — Morris  v.  State,  loi  Ind 

560. 

Iowa. — Ball  v.  Koekuk  etc.  Ry. 
Co.,  71  Iowa  306,  32  N.  W.  354; 
Moorman  v.  Gibbs,  75  Iowa  537,  39 
N.  W.  832 ;  Rush  v.  Frost,  49  Iowa 
183. 

Kentucky. — Adams  v.  Gardiner,  13 
B.  Mon.  197;  Wilson  v.  Milliken, 
19  Ky.  Law  1843,  44  S.  W.  660,  42 
L.  R.  A.  449. 

Louisiana. — Schmidt  v.  Braunn,  10 
La.  Ann.  26;  Clark  v.  Comford,  45 
La.  Ann.  502,   12  So.  763. 

Maryland. — Leavitt  v.  Mowe,  54 
Md.  613;  Lewis  v.  Higgins,  52  Md 
614. 

Minnesota. — Nichols  v.  Bank,  45 
Minn.  102,  47  N.  W.  462;  Page  v 
Mitchell,  37  Minn.  368,  34  N.  W. 
896. 

Missouri. — Warder  v.  Henry,  117 
Mo.  530,  27  S.  W.  776. 

Neiv  Hampshire. — Gamsby  v.  Ray. 
52  N.   H.   513- 

Neiv  York. — Grossman  v.  Univer- 
sal Rubber  Co.,  131  N.  Y.  636,  30  N. 
E.  225 :  Averill  v.  Patterson,  10 
How.  Pr.  85 ;  Porter  v.  Kingsbury, 
77  N.  Y.  164;  Lord  i'.  Ostrander, 
43  Barb.  337;  Hyatt  v.  Ingalls,  124 
N,  Y.  93,  26  N.  E.  285. 

Pennsylvania.  —  Findlay  v.  Keim, 
62  Pa.  St.  112. 

Rhode  Island. — Banigan  v.  Woon- 
socket  Rubber  Co.,  22  R.  I.  93,  46 
Atl.    183. 

Te.vas. — Trawick  i'.  Martin  Brown 
Co..  74  Tex.  522.  12  S.  W.  216; 
Payne   v.    Benham,    16   Tex.   364. 


Virginia. — Williamson  v.  Paxton, 
18  Gratt.  475- 

Dismissal  on  Demurrer The  plea 

in  abatement  cannot  be  sustained 
where  it  is  shown  that  the  complaint 
in  the  first  suit  was  dismissed  on 
demurrer.  Burnett  i'.  S.  Ry.  Co., 
62  S.   C.  281,  40  S.   E.  679. 

No  Presumption  That  Suit  Com- 
menced Is  Still  Pending — "  The  ef- 
fective part  of  such  a  plea  is  that 
the  action  is  still  pending.  This 
must  be  affirmatively  proved.  The 
evidence  offered  would  have  simply 
proved  that  such  an  action  had  been 
commenced,  but  while  law  suits  are 
sometimes  very  protracted,  yet  we 
apprehend  that  there  is  no  presump- 
tion of  law  that  a  suit  once  begun 
is  still  pending,  until  the  contrary 
appears."  Phelps,  Adm'r.,  etc.  v. 
Winona  &  St.  Paul  Ry.  Co.,  37 
Minn.  485,  35  N.  W.  273,  S  Am.  St. 
Rep.  867. 

Contra.  —  When  the  defendant 
showed  the  issuing  of  a  writ  for  the 
same  cause  of  action,  he  proved 
prima  facie,  at  least,  the  pendency  of 
a  suit ;  and  it  then  devolved  on  the 
plaintiff  to  prove,  by  competent  tes- 
timony, that  the  suit  had  been  dis- 
posed of  and  was  no  longer  pending. 
Fowler  V.  Byrd,  (Hempst.  213)  g 
Fed.   Cas.   No.   4999a. 

Former  Action  Pending  During 
Appeal — The  plea  is  sustained  by 
proof  that  an  appeal  has  been  taken 
from  a  judgment  in  the  former  ac- 
tion which  has  not  been  dismissed 
nor  finally  determined.  Fisk  v. 
Atkinson,  71  Cal.  452,  10  Pac.  374; 
Aferritt  v.  Richey,  100  Ind.  416; 
Walker  v.  Heller,  73  Ind.  46;  Bond 
V.  White,  24  Kan.  45;  Althen  v. 
Tarbox,  48  Minn.  18,  50  N.  W.  1018, 
31    Am.    St.    Rep.    616. 

7.  Lee  V.  Hefley,  21  Ind.  98; 
Porter  v.   Kingsbury,   77   N.   Y.    164. 

8.  United  States.  —  Renner  v. 
Marshall,  i  Wheat.  215. 

Alabama. — Humphries  v.  Dawson, 
38  Ala.   199. 

Vol.  I 


18 


ABAriiMUNT. 


C.  How  PiiNDKNCv  Shown. — a.  Record  Evidence. — It  has  been 
uniformly  held  that  the  proper  evidence  to  sustain  the  allegation  of 
another  action  pending,  when  pleaded  in  abatement  of  a  subsequent 
action,  at  law  or  in  equity,  is  the  record  of  the  proceedings  of  the 
court  in  which  the  former  action  is  being  conducted,  or  a  duly  au- 
thenticated copy  or  transcript  thereof." 

b.  Parol'  Bvidence. — (1.)  Record  Unobtainable. —  When  the  rec- 
ord of  the  court  in  which  the  former  action  is  alleged  to  be  pending 
cannot  be  obtained  by  reason  of  its  having  been  lost  or  destroyed, 
parol  evidence  is  admissil)lc  to  establish  the  pendency  of  the  prior 
action.'" 

(2.)  Record  Insufficient.  — Parol  evidence  is  admissible  on  the  part 
of  both  i)laintiff  and  defendant  where  it  cannot  be  determined  from 
an  inspection  of  the  complaints  in  the  two  actions  whether  the  same 
cause  of  action  is  set  forth  in  each." 


Illinois. — BhimeiUhal  v.  Taylor, 
44   111.   App.    139. 

Indiana. — Tippecanoe  Co.  v.  La- 
fayette etc.  Ry.  Co.,  50  Ind.  85,   119. 

Kansas. — Rizer  v.  Gillpatrick,  16 
Kan.  564. 

Massachusetts. — Webster  r.  Ran- 
dall, 19  Pick.  13:  Hooton  v.  Holt, 
139  Mass.  54,  29  N.  E.  221. 

Michigan. — Callanan  v.  Port  Hn- 
ron  etc.  Ry.  Co.,  61  Mich.  15,  27  N. 
W.  718. 

New  York.  —  Middlebrook  v. 
Travis,  68  Hnn  155,  22  N.  Y.  Supp. 
672;  Welch  V.  Sage,  47  N.  Y.  143, 
7    Am.    Rep.   423. 

Wisconsin. — Wood  v.  Lake,  13 
Wis.   94. 

Actions  Commenced  at  Same 
Time — If  two  suits  he  institnted  at 
the  same  tiine,  by  the  same  plaint- 
iff, or  persons  suing  in  the  same 
right,  against  the  same  defendant, 
on  the  .same  cause  of  action,  the 
pendency  of  each  may  be  pleaded 
in  abatement  of  the  other.  Dengler 
V.   Hays,   63    N.   J.   Law    16,   42   Atl. 

775- 

9.  Bond  v:  White,  24  Kan.  •=;; 
Smiley  v.  Devvcv.  17  Ohio,  156; 
Walker   7:    Heller".    73    I'kI.   46- 

Record  on  Appeal.— Where  a  plea 
in  abatement  was  interposed  it  was 
held  that  as  it  did  not  appear  that 
the  record  of  the  proceedings  in  the 
suit  pleaded  in  abatement  were  of- 
fered in  evidence  in  the  lower  court, 
or  if  so  offered  were  not  presented 
in    the    bill    of    exceptions,    the    plea 

Vol.  I 


could  not  be  sustained.  Craig  v. 
Smith.   10  Colo.  220.  15   Pac.  337. 

Record  Must  Be  Introduced.  Ju- 
dicial Notice  Not  Taken.  Where 
the  pleadings  in  the  fonner  case 
alleged  to  be  pending  were  attached 
to  the  answer,  but  the  original  record 
was  not  offered  in  evidence.  Held, 
that  in  the  trial  of  one  case  the  court 
can  no  more  take  judicial  notice  of 
the  record  in  another  case  in  the 
same  court,  without  its  forma!  intro- 
duction in  evidence,  than  if  it  were  a 
record  in  another  court.  People  v. 
De  La  Guerra,  24  Cal.  73 ;  Bond  v. 
White,  24  Kan.  4q. 

"  The  records  of  courts  cannot  be 
proved  by  affidavits  nor  can  an  affi- 
davit be  made  to  take  the  place  or 
serve  the  purpose  of  an  answer  in 
abatement  or  in  bar."  Kellogg  v. 
Sutherland.  38  Tnd.   ie,d. 

10.  Where  Record  lost Suggett 

V.  Rank  of  Kentucky.  .38  Ky.  (8 
Dana')  201;  Tolle  v.  .-Xllcv  CKy.'),  24 
S.    W.     113. 

See    also,    "RnroRus,"    and    "Best 

.\NT)     SECONn.\RV    KVIDENCK." 

Papers    Destroyed    by    Plaintiff — 

Where  upon  plea  in  abatement,  that 
former  suit  had  been  commenced  and 
lew  made,  for  the  same  cause  of 
action,  and  the  papers  had  been 
destroyed  by  plaintiff  the  evidence  of 
the  parties  who  issued  the  nitachnient 
in  both  cases  held  admissible.  Dean 
V.    "Massey,   7   Ala.   601. 

11.  Davis    !'.    Dunklee.    0    N,    H. 


ABATEMUNT. 


19 


D.  The  Parties  to  the  Two  Actions. — a.  Identity  of  Parties. 
In  order  to  sustain  the  plea  of  another  action  pending  for  the  same 
cause  of  action  it  must  appear  that  the  parties  to  both  actions  are 
the  same,'-  or  that  the  parties  to  the  second  action  are  privy  to  the 


Where  the  complaint  hi  the  first 
suit  stated  a  cause  o£  action  for 
money  had  and  received  and  in  the 
second  suit  contained  an  additional 
count  on  an  account  stated,  the  court 
said:  "  If  we  should  hold  that  these 
two  actions  cannot  have  hcen  brought 
for  the  same  things  liecause  the  dec- 
laration contains  an  additional  count 
on  an  account  stated  between  the 
same  parties,  it  would  seem  to  be 
almost  equivalent  to  holding  that  the 
declarations  in  the  two  suits  must 
be  copies  of  each  other,  for  the  count 
on  an  account  stated  is  not  neces- 
sarily for  a  cause  of  action  different 
from  the  money  had  and  received, 
though  it  may  be ;  and  wdiether  it 
is  or  not  would  be  a  matter  of  fact 
to  be  tried  by  the  jury,  if  issue  had 
been  taken  upon  the  averment." 
Bain  v.  Bain,  lo  U.  C.  Q.  B.  572. 

Right  to  Show  That  the  Actions 
Are  Not  for  Same  Cause — The  pen- 
dency of  another  action  is  a  fact 
outside  the  record,  which  the  plaint- 
iff has  a  right  to  dispute.  It  would 
ordinarily  be  settled  by  the  pro- 
duction of  the  record  in  the  other 
case;  but  the  plaintiff  has  the  right 
to  dispute  the  existence  of  any  such 
record,  or,  admitting  its  existence, 
to  reply  and  prove,  as  answer  to 
defendant's  plea,  that  the  cause  of 
action,  though  by  the  record  ap- 
parently the  same,  was  not  so  in 
fact.  Foye  v.  Patch,  132  Mass.  105. 
Causes  of  Action  Concealed  by 
Complaints.  —  "\  plaintiff  cannot 
bring  two  suits,  for  the  same  cause 
of  action,  by  framing  his  pleadings 
in  each  suit  in  such  general  terms 
that  the  specific  facts  do  not  appear 
but  that  each  suit  discloses  on  the 
face  of  the  pleadings  filed,  a  different 
cause  of  action,  and  then  object  to 
testimony  aliunde  on  the  part  of 
defendant  showing  that  the  suit  in 
one  case  is  for  the  same  cause  of 
action  as  the  other  and  insist  that 
this  question  shall  be  determined  by 
a  comparison  of  the  complaints.  The 
law  no  more  permits  a  plaintiff  to 
have   two   suits   against   a   defendant 


for  the  same  cause  than  it  permits 
him  to  have  two  judgments.  There- 
fore there  is  equal  necessity  for 
parol  testimony  as  a  defense  against 
the  former  as  against  the  latter 
wrong."  Damon  v.  Denny,  54  Conn. 
253,   7   Atl.  409. 

12.  United  States.  —  Hacker  v. 
Stevens,  4  McLean  535,  11  Fed.  Cas. 
No.  5887;  Taylor  v.  Royal  Saxon, 
I  Wall.  Jr.  311,  23  Fed.  Cas.  No. 
13,803;  Brooks  V.  Mills  Co.,  4  Dill. 
524,  4  Fed.  Cas.  No.   1,95s. 

Alabama. — Foster  v.  Napier,  Ti 
Ala.  595;  Davis  v.  Petrinovich,  112 
Ala.   '654,   21    So.    344,    36    L-    R-    A. 

615. 

Arkansas. — Bourland  v.   Nixon,  27 

Ark.    315- 

California. — Kerns  v.  McKean,  65 
Cal.  411,  4  Pac.  404;  Heilbron  v. 
Fowler  Switch  Canal  Co.,  75  Cal. 
426,  17  Pac.  535.  7  Am.  St.  Rep. 
183 ;  Calaveras  Co.  v.  Brockway,  30 
Cal.   32s. 

Connecticut. — Beach  v.  Norton,  8 
Conn.  71  ;  Hatch  v.  Spofford,  22 
Conn.  48s'.  58  Am.  Dec.  433;  La 
Croix  V.  Fairfield  Co..  50  Conn.  321, 
47  Am.  Rep.  648. 

Georgia. — Rogers  v.  Hoskins,  15 
Ga.  270. 

Indiana.  —  Paxton  v.  Vincennes 
Mfg.  Co.,  20  Ind.  App.  253,  50  N. 
E.  583 ;  Loyd  V.  Reynolds,  29  Ind. 
299;  Dawson  v.  Vaughan,  42  Ind. 
395 ;  Bryan  v.  Scholl,  109  Ind.  367, 
10  N.  E.  107 ;  Board  etc.  v.  Railroad 
Co.,  50  Ind.  85;  Commissioners  etc. 
V.  Holman,  34  Ind.  256;  Merritt  v. 
Richey,   lOO  Ind.  416. 

Kansas. — .Mullen  v.  Mullock.  22 
Kan.   598. 

Kentucky.— KATLmi  v.  Gardiner,  13 
B.   Mon.   197. 

Louisiana. — Ingram  v.  Richardson. 
2  La.  Ann.  839;  Ilackct  v.  Lenares, 
16  La.  .^nn.  204;  State  v.  Kreider, 
21  La.  .\nn.  482. 

.Maine. — Cumberland  Co.  -'.  Cen- 
tral etc.  Tow  Boat  Co..  90  Me.  95, 
37  Atl.  867,  60  Am.  St.  Rep.  246, 

Nebraska. — Richardson  v.  Opelt, 
60  Neb.  180,  82  N.  W.  377 '.  McReady 

Vol.  I 


20 


.iB.iriSMUNr. 


parties  to  the  action  pleaded  in  abatement  in  their  relation  to  the 
subject  matter  of  the  actions.'"' 

b.  Rci'crsal  of  Parties. — It  must  be  shown  that  both  actions 
were  commenced  by  the  same  plaintiff.  The  rule  does  not  extend 
to  cases  where  the  parties  to  the  two  actions  are  reversed." 

Exceptions  to  Rule. — This  rule,  however,  has  been  held  not  to  apply 


V.  Rogers,  I  Neb.  124,  93  Am,  Dec. 
333- 

New  Hampshire.  —  Bennett  v. 
Chase,  21  N.  H.  570;  Parker  v. 
Colcord,  2  N.  H.  36;  Ganisby  v. 
Ray,  52   N.   H.   513. 

New  Jersey. — Dengler  v.  Hays,  63 
N.    J.    Law    16,   42   Atl.   775. 

Neii.<  York. — Dawley  v.  Brown,  65 
Barb.  107;  Middlebrook  v.  Travis, 
68  Hun  iss,  22  N.  Y.  Supp.  672; 
Smith  V.  St.  Francis  Xavier  Col- 
lege, 61  N.  Y.  Super.  Ct.  363,  20  N. 
Y.   Supp.   533. 

North  Carolina.  —  Redfearn  v. 
Austin,  88  N.  C.  413;  Blackwell 
Durhani  Tobacco  Co.  v.  McElwee, 
94    N.    C.    425. 

Pennsylvania. — Streaper  1'.  Fisher, 
I   Rawle   155,   18  Am.   Dec.  604. 

Tennessee. — Morley  v.  Power,  5 
Lea   691. 

Te.ras. — Langham  v.  Thomason,  5 
Tex.    127. 

Second   Suit  By  Assignee Thus 

where  in  a  suit  by  A.  against  the 
sheriff  to  recover  possession  of  cer- 
tain goods  taken  under  a  writ  of 
attachment  against  B.,  the  assignee 
of  the  insolvent  B.,  intervenes  in 
which  A.  is  necessarily  made  a 
party  defendant,  a  subsequent  suit 
hy  the  assignee  against  A.  for  the 
fraudulent  conversion  of  the  same 
goods  will  not  be  abated  by  reason 
of  the  former  suit  in  intervention  by 
the  assignee  against  A.  and  the 
sheriff.  Hall  v.  Susskind,  log  Cal. 
203,  41  Pac.  1012;  Egan  v.  Laemmle, 
54  N.  Y.  St.  789.  25  N.  Y.  Supp. 
330;  Langham  v.  Thomason,  5  Tex. 
127;  Dawley  v.  Brown,  65  Barb. 
(N.   Y.)    107. 

Suit  By  One  Creditor  For  All. 
"  A  pending  creditors'  bill  filed  to 
reach  property  fraudulently  conveyed 
by  a  debtor,  in  the  name  of  one 
creditor  on  behalf  of  all  other 
creditors  who  may  see  proper  to 
come  in  and  make  themselves  par- 
ties,   will    not    preclude    other    cred- 

Vol.  I 


itors  from  proceeding  in  like  manner 
by  original  bill.  ...  If  some 
of  the  parties  complainant  to  the 
second  bill  filed  were  complainants 
to  the  first  bill  the  objection  should 
have  been  directed  to  such  parties 
and  not  to  the  whole  bill."  Max- 
well V.  Peters  Shoe  Co.,  109  Ala. 
371,  19  So.  412;  Hall  V.  Improvement 
Co.,  104  Ala.  577,  16  So.  439,  53  Am. 
St.  Rep.  87. 

13.  Richardson  v.  Opelt,  60  Neb. 
180,  82  N.  W.  377;  Morley  v. 
Power,  S  Lea  (Tenn.)  691;  Watson 
V.  Jones,  13  Wall.  (U.  S.)  679,  20 
L.  Ed.  666;  Holloway  v.  Holloway, 
103  Mo.  274,  15  S.  W.  536;  Gardner 
V.  Clark,  21  N.  Y.  399;  Beach  v. 
Norton,  8  Conn.  71 ;  Tippecanoe 
County  V.  Lafayette  Ry.  Co.,  50 
Ind.  85,  118;  Crane  ~e.  Larsen,  15 
Or.   345.   15   Pac.  326. 

Similarity  of  Parties  and  Cause. 
"  When  the  pendency  of  a  suit  is 
set  up  to  defeat  another,  the  case 
must  be  the  same.  There  must  be 
the  same  parties,  or  at  least  such  as 
represent  the  same  interest,  there 
must  be  the  same  rights  asserted, 
and  the  same  relief  prayed  for.  This 
relief  must  be  founcled  on  the  same 
facts,  and  the  title  or  essential  basis 
of  the  relief  sought  must  be  the 
same.  The  identity  in  these  par- 
ticulars should  be  such  that  if  the 
pending  case  had  already  been  dis- 
posed of,  it  could  be  pleaded  in  bar 
as  a  former  adjudication  of  the  same 
matter  between  the  same  parties." 
Watson  V.  Jones,  13  Wall.  (U.  S.) 
679. 

14.  Alabama. — Hall  v.  Holcombe. 
26  .-Ma.  720. 

California.— O'Connor  v.  Blake,  29 
Cal.  312;  Ayres  v.  Bensley,  32  Cal. 
620;  Velch  V.  Beaudry,  40  Cal.  439; 
Walsworth  v.  Johnson,  41   Cal.  61. 

Illinois. — Tompkins  v.  Gerry,  43 
111.   App.   255. 

Iowa. — Pratt  v.  Howard.  109  Iowa, 
504,  80  N.  W.  546. 


ABATEMENT. 


21 


in  cases  of  accounting  whore  the  items  of  the  account  may  be  sepa- 
rated and  sued  upon  separately,'^  or  to  cases  where  the  first  suit 
affords  a  full,  plain  and  adequate  remedy  to  the  defendant  in  such 
suit.'" 

c.  Defendant  in  Different  Capacities. — It  must  be  shown  that 
the  defendant  is  sued  in  the  same  capacity  in  each  suit.'' 

E.  Subject  Matter,  Including  Relief  Sought. — The  sulaject 
matter  and  relief  sought  must  be  shown  to  be  the  same  in  both 
actions.'' 


Kentucky. — Johnson  v.  Robertson, 
20  Ky.  Law  135,  45  S.  W.  523. 

New  York. — Welch  v.  Sage,  47  N. 
Y.   143,  7  Am.  Rep.  423. 

IVisconsin. — Wood  v.  Lake,  13 
Wis.    94. 

The  very  foundation  of  such  a 
defense  is  the  maxim,  "  Nemo  debet 
bis  vexari,"  etc. ;  and  manifestly  this 
can  have  no  application  when  the 
first  suit  is  brought,  not  by,  but 
against,  the  person  who  is  the  plaint- 
iff in  the  second  action."  Wals- 
worth   V.   Johnson,  41    Cal.   61. 

Contra. — In  Crane  v.  Larsen,  15 
Or.  345,  IS  Pac.  326,  it  was  held 
that  if  the  issues  in  the  two  suits 
were  the  same  a  plea  of  another 
action  was  good  in  abatement 
although  the  parties,  plaintiu  and 
defendant,  in  the  two  actions  were 
reversed. 

15.  Coubrough  v.  Adams,  70  Cal. 
374,  II  Pac.  634;  Maloy  v.  Asso- 
ciated Lace  Makers,  30  N.  Y.  St. 
153,  8   N.   Y.    Supp.  815. 

16.  Pratt  V.  Howard,  lOg  Iowa 
504,  80  N.  W.  546;  Colt  V.  Par- 
tridge, 7   Mete.    (Xlass.)    570. 

Where    Defendant    Has    Complete 

Defense    in    First    Suit In    a    suit 

brought  against  a  railway  company 
for  the  recovery  of  a  fine  imposed 
for  the  removal  of  a  switch,  the 
railway  company,  after  answering  in 
this  action,  brought  suit  to  enjoin 
the  plaintiff  from  proceeding  in  the 
first  suit  on  the  ground  of  the  al- 
leged unconstitutionality  of  the  act 
under  whicli  the  commission  was  pro- 
ceeding. Lis  pendens  was  pleaded, 
and  the  court  held  that,  while  there 
might  be  some  difference  in  the 
relief  sought,  the  cases  were  not 
very  materially  different.  If  the 
remedy  was  not  as  complete  for  the 
defendant  in  the  first  suit,  it  was 
because   it   did   not  wish   to  make   it 


so.  It  was  bound  to  exhaust  the 
possibilities  of  its  defense  before 
resorting  to  another  suit.  Parties 
can  not,  by  not  pleading  part  of 
tlieir  defense,  proceed  in  the  second 
suit  with  the  object  of  preventing 
further  proceedings  in  the  first  suit. 
Kansas  City  S.  Ry.  Co.  v.  Railroad 
Commission  of  Louisiana,  106  La. 
583,  31    So.   130. 

17.  Capacity  of  Defendant. 
Where  the  suit  pleaded  in  abate- 
ment was  against  Robert  Watson, 
James  Watson  and  John  Watson, 
partners,  doing  business  as  R.  &  J. 
Watson,  as  endorser  of  certain 
promissory  notes  passed  by  it  to  the 
plaintiff,  and  the  second  suit  was 
against  James  Watson  alone,  and 
the  declaration  charged  his  liability, 
on  these  same  notes,  as  arising  from 
his  having  fraudulently  and  without 
authority,  endorsed  the  firm  name 
thereon  and  so  passed  them  to  the 
plaintiff,  it  was  held  that  it  was  ap- 
parent from  an  inspection  of  the 
records  in  the  two  cases  that  the 
parties  defendant  were  not  the  same. 
In  the  one  case  the  action  was 
against  a  firm  on  a  joint  or  firm 
endorsement ;  in  the  other  the  action 
was  against  James  Watson  alone, 
and  upon  a  several  liability  in  which 
the  partnership  had  no  interest,  and 
could  involve  it  in  no  responsibility. 
Pjlackburn  v.  Watson,  85  Pa.  St.  241. 

18.  United  States.  —  Pierce  v. 
Feagans,  39  Fed.  587;  Langstraat  v. 
Nelson.  40  Fed.  783;  Sharon  v.  Hill, 
22   Fed.   28. 

.Alabama. — Hall  v.  Holcombe,  26 
Ala.   720;   Foster  v.   Napier,  73  Ala. 

595- 
Arkansas. — Bourland  v.  Nixon,  27 

Ark.    315  ^      , 

Ca/iyoDim.  —  Heilbron  v.  Fowler 
Switch    Canal    Co.,    75    Cal.    426,    17 

Vol.  I 


ABATEMENT. 


Pac.  535,  7  Am.  St.  Rep.  183 ;  Ayres 
V.  Bensley,  32  Cal.  620 ;  Henry  v. 
Everts,  30  Cal.  425 ;  Caleveras  Co.  v. 
Brockway,  30  Cal.  325 ;  Hall  v. 
Susskind,  109  Cal.  203,  41  Pac.  1012; 
Vance  v.  Olinger,  27  Cal.  358;  Co- 
burn  V.   Pacific  Lumber  Co.,  46  Cal. 

31-^ 

Coniiccticul. — La  Croix  v.  Fairfield 
Co.,  50  Conn.  321,  47  Am.  Kep.  648. 

Indiana. — Bryan  v.  SchoU,  109 
Ind.  367,  10  N.  E.  107;  Paxton  v. 
Vincennes  Mfg.  Co.,  20  Ind.  App. 
253.   50   N.   E.   583- 

lozea. — Jones  v.  Brandt,  59  Iowa 
332,  10  N.  W.  854 ;  Osburn  t'.  Cloud, 
23   Iowa    104,  92  Am.   Dec.  413. 

Kansas. — Mullen  v.  Mullock,  22 
Kan.  598:  Snow  z'.  Hudson,  56  Kan. 
378,  43   Pac.   260. 

Kentucky. — Johnson  v.  Robertson. 
20  Ky.  Law  135,  45  S.  W.  523;  Goff 
V.  Wilborn,  15  Ky.  Law  614,  24  S. 
W.  871  ;  Mattingly  v.  Elder,  19  Ky. 
Law  164s,  44  S.  W.  21s;  Flint  V. 
Spurr.   17  B.   Mon.  499. 

Louisiana. — Pacific  Express  Co.  v. 
Haven,  41  La.  Ann.  811,  6  So.  650; 
Hacket  v.  Lenares,  16  La.  Ann.  204; 
Carre  v.  New  Orleans,  41  La.  Ann. 
996,  6  So.  893 ;  State  v.  Kreider,  21 
La.  Ann.  482 ;  Ingram  v.  Richardson, 
2  La.  Ann.  839. 

Massachusi'tls. — Cobb  v.  Fogg,  166 
Mass.  466,  44   N.  E.  S-34- 

Michigan.  —  Eaton  v.  Eaton,  68 
Mich.   158,  36  N.  W.  so. 

Minnesota. — Mathews  v.  Henne- 
pin Co.  Sav.  Bank,  44  Minn.  442,  46 
N.  W.  913;  Coles  7'.  Yorks,  31 
Minn.   213,   17   N.   W.  341. 

Vol.  I 


Missouri.  —  Carroll  v.  Campbell, 
no  Mo.  557,  19  S.  W.  809;  State  v. 
Dougherty,   45    Mo.  294. 

Nebraska. — McReady  v.  Rogers,  i 
Neb.    124,   93    Am.    Dec.    333. 

Neiv  York. — Hyatt  v.  Ingalls,  124 
N.  Y.  93,  26  N.  E.  285;  Maloy  v. 
Associated  Lace-Makers  Co.,  30  N. 
Y.  St.  153,  8  N.  Y.  Supp.  815';  Raven 
V.  Smith,  53  N.  Y.  St.  857,  24  N.  Y. 
Supp.  600;  Mandeville  v.  Avery.  124 
N.  Y.  376,  26  N.  E.  951,  21  Am.  St. 
Rep.  678;  Pullman  v.  Alley,  53  N. 
Y.  637;  Dawley  v.  Brown,  65  Barb. 
107. 

North  Carolina.  —  Propst  v.  Ma- 
this,  115  N.  C.  526,  20  S.  E.  710; 
Redfearn  v.  Austin,  88  N.  C.  413. 

Pennsylvania.  —  Hessenbruch  v. 
Markle,  194  Pa.  St.  581,  45  Atl.  669. 

Tennessee. — Parmelee  v.  Tennessee 
etc.   R.   Co.,   13  Lea  600. 

Texas. — Payne  v.  Benham,  16  Tex. 
364. 

ll'isconsin.  —  Koch  v.  Peters,  97 
Wis.  492,  73  N.  W.  25. 

Actions  for  the  Possession  of  Real 
Property — An  action  in  ejectment 
cannot  be  maintained  during  the 
pendency  of  a  prior  action  in  equity 
between  the  same  parties,  in  which 
plaintiff  alleges  that  defendant 
wrongfully  withholds  possession  of 
the  same  property  from  the  plaintiff, 
and  asks  to  enjoin  the  defendant 
from  excluding  the  plaintiflf  there- 
from. Shaughnessy  v.  St.  Andrew's 
Church  of  Tecumseh,  (Neb.)  89  N. 
W.  263. 


ABBREVIATIONS. 

By  Henry  S.  Van  Dyke. 

1.  DEFINITION,  23 
II.  IN  GENERAL,  24 

III.  JUDICIAL  NOTICE,  24 

1.  Informal  ll'ritiiigs,  25 

2.  U'ritiiigs  Affecting  Land,  25 

A.  Deeds,  Mortgages,  Etc.,  25 

B.  Judicial  Proceedings,  25 

3.  Judicial  Process,  26 

A.  Civil  Causes,  26 

B.  Criminal  Cases,  26 

4.  Political  Proceedings.  Blectioiis,  ptc,  27 

IV.  EXTRINSIC  EVIDENCE,  2y 

1.  Wills,  28 

2.  Contracts,  29 

A.  Formal  Writings,  29 

B.  Informal  Writings,  29 

3.  Jl'ritings  Affecting  Laud,  30 

A.  Deeds,  Etc.,  30 

B.  /»  Taxation  Proceedings,  30 

4.  Judicial  Process,  31 

A.  CjV//  Ca-jcj,  31 

B.  Criminal  Cases,  31 

5.  Political  Proceedings,  Elections,  Etc.,  31 

6.  Miscellaneous  Matters.  31 

I.  DEFINITION. 

An  abbreviation  is  the  shortened  form  of  a  word,  obtained  by  the 
omission  of  one  or  more  letters  or  syllables  from  the  middle  or  end 
of  the  word.'  An  abbreviation  of  a  word  also  may  be  formed  by 
the  use  of  one  or  more  letters  not  found  in  the  word  abbreviated.^ 
Figures  and  symbols  are  treated  as  abbreviations,^  as  well  as 
shortened  expressions  of  phrases.* 

1-     Bouv.   Law   Diet.  568;    Fulenwider    v.    Fulenwider,    53 

2.  Frowd    V.    Stillard,    4    Car.    &       Mo.   439. 

P.  51,  ig  Eng.  C.  L.  268;  Ullman  v.  4.     Penn.    To.   Co.   v.   Leman,    log 

Babcock,  63  Tex.  68.  Ga.    428,   34    S.    E.    679;    Weaver   v. 

3.  Wilson  V.  Frisbie,  57  Ga.  269;  McElbenon,  13  Mo.  89;  Dana  v. 
Jaqua  zk  Witbam  etc.  Co.,  106  Ind.  Fiedler.  12  N.  Y.  40,  62  Am.  Dec. 
54S,  7  N.  E.  314;  Hunt  v.  Smilli,  9  130;  McKee  v.  De  Witt,  12  App. 
Kan.  137;  Maurin  r.  Lyon,  6g  Minn.  Div.  617,  43  N.  Y.  Supp.  132.  Com- 
257,  72   N,   W.   72,  65   Am,    St.   Rep.  /^are  also  Whart.  on  Contracts,  §639. 

Vol.  I 


24 


ADBREriATIONS. 


II.  IN  GENERAL. 

There  are  two  modes  by  which  an  abbreviation  is  available  in 
evidence:     (i)  Judicial  Notice,  and  (2)  Extrinsic  Evidence.^ 

It  would  seem  in  general  that  an  abbreviation  is  admissible  in 
evidence  wherever  its  fully  formed  expression  would  lje  (though 
not  to  contradict  fully  formed  expressions),  unless  it  appears  that 
the  party  sought  to  be  affected  by  it  was  ignorant  of  its  meaning." 

The  generally  accepted  exceptions  are  found  in  civil  transactions 
in  iiiritHiii,  in  critninal  proceedings,  in  mandatory  legal  formulae, 
and,  in  general,  in  transactions  inter  partes  where  the  abbreviation 
is  a  technical  or  peculiar  one  and  the  partv  afTected  is  not  shown  to 
have  understood  it.' 

III.  JUDICIAL  NOTICE. 

A  court  or  jury  may  notice  without  proof  the  meaning  of  such 
abbreviations,  even  in  formal  writings,  as  are  in  common  use  and 
the  meaning  of  which  is  unambiguous,  universal,  and  not  technical.* 

A  court,  however,  in  cases  where  it  would  be  allowed  by  law  to 
judicially  notice  abbreviations,  may  require  extrinsic  proof;"  or  it 


5.  All  of  these  cases  cited  in  this 
article  refer  to  written  abbreviations. 
Though  oral  abbreviations  are  pos- 
sible, the  rules  applicable  to  their 
admissibility  in  evidence  are  not 
treated   for  want  of  adjudged  cases. 

6.  Jaqua  v.  Withani  etc.  Co.,  106 
Ind.  545,  7  N.  E.  314;  Barton  v. 
Anderson,  104  Ind.  578,  4  N.  E.  420; 
I  Green.  Ev.,  §§  282,  283 ;  Whart. 
Ev.,  §§  954,  962  and  1003;  Best  Ev., 
pp.  232,  262 ;  Reissner  v.  Oxley.  80 
Ind.  580;  Dana  v.  Fiedler,  12  N.  Y. 
40,  62  Am.  Dec.   130. 

7.  See  particular  subjects  in  this 
article,  post  notes  Nos.  16,  19,  20,  22, 
37  and  39. 

8.  Chambcrlayne's  Best  on  Ev., 
Internat.  Ed.,  '93-'94,  p.  255,  citing 
iMoseley  v.  Mastin,  37  Ala.  216; 
Stephen  v.  State,  n  Ga.  225;  State 
V.  Liquors,  7^  Me.  278;  Grennan  v. 
McGregor,  78  Cal.  258,  20  Pac.  559; 
Weaver  v.  McElhcnon,  13  Mo.  89; 
Kile   V.    Yellnwhcad,   80   111.    208. 

Customary  Abbreviations  of 
Christian  Names — Brown  v.  Piper, 
91  II.  S.  37.  The  statement  of  the 
rule  of  law  on  the  point  cited  is 
obiter  in  this  case,  but  it  has  been 
frequently   quoted    as    authority. 

Initials    in    Pleadings See    post 

judicial    proceedings    affecting    land, 

Vol.  I 


notes  31  and  32;  judicial  process 
notes  34,  35  and  36. 

"A.  D.,"  Arabic  Figures,  Roman 
Numerals — U.  S.  v.  Reichert,  32 
Fed.    142. 

Usual  Abbreviation  for  Name  of 
a  State  in  a  Note. — Burroughs  v. 
Wilson,  59  Ind.  536. 

Co»</a.— Ellis  V.  Park,  8  Tex. 
205,  citing  Andrews  v.  Hoxie,  5'  Tex. 
171,    and    otlier    Texas    cases. 

Russell  V.  Martin,  15  Tex.  238, 
citing  only  Texas  cases.  These 
Texas  cases  seem  to  have  been  fol- 
lowed nowhere  else.  See  criticism 
in  89  Am.   Dec.  692,   Note. 

"  Christy "  Signed  to  a  Note. 
Weaver  v.  McElhenon,  13  Mo.  89; 
See  also  Gordon's  Lessee  v.  Holiday, 
I  Wash.  (U.  S.  C.  C.)  28s,  10  Fed. 
Cas.  No.  5,610;  Fenton  v.  Perkins,  3 
Mo.  144;  Birch  v.  Rogers,  3  Mo. 
227. 

"  Acct."  in  Indorsement  on  Note. 
Hcaton  V.  Ainlcy.  108  Iowa  112,  78 
N.  W.  708. 

"  Settled  at  Market  72  3-4,"  in 
Indorsement  of  Contract.  —  Storey 
V.  Salomon.  6  Daly  ( N.  Y.)  531. 
540,  citing  Dana  v.  Fiedler,  12  N.  Y. 
40,  46.  62  Am.  Dec.   130. 

9.  Hulbert  v.  Carver,  37  Barb. 
(N.  Y.)  62.  Compare  Abbott's  Trial 
Brief  on  the  Facts,  p.  2. 


ABBRUriATIONS.  25 

may   satisfy   itself   by    i-cfrcshiny   its   meiuory   by   resorliiig-  to   any 
means  deemed  proper." 

1.  Informal  Writings,  Memoranda  etc. — Informal  writings  being 
merely  provisional,  are  not  snbject  to  so  striet  a  rule  as  formal 
writings." 

2.  Writings  Affecting  Land. — A.  Diiiit)S,  Mortgages,  Etc. —  In  a 
suit  to  foreclose  a  mortgage,  the  court  cannot  judicially  notice  the 
identity  of  an  initial  with  a  Christian  name.'- 

B.  Judicial  Procekuings  Affecting  Land. —  Judicial  notice 
will  be  taken  of  an  ordinary  abbreviation  of  a  Christian  name;" 
and  of  the  recognized  abbreviations  and  figures  ordinarily  employed 
in  describing  lands  originally  granted  by  U.  S.  patent.'*  On  the 
other  hand,  a  court  cannot  take  judicial  notice  of  the  meaning  of 


10.  Brown  v.   Piper,  91   U.   S.  37. 

11.  Whart.  Ev.  §§926,  1064,  1068 
and    1070.     See   foot-note   30,  (lost. 

"  C.  0.  D "  on  Express  Package. 
U.  S.  Co.  V.  Keefer,  59  Ind.  263 ; 
State  V.  Liquors,  &c.,  73  Me.  278, 
citing  I  Whart.  Ev.,  p.  330,  and  Best 
Ev.,  p.  351. 

"  C.  0.  D."  in  a  Letter —  McXichoI 
V.  Pac.  Ex.  Co.,  12  Mo.  App.  401, 
citing  Fagin  v.  Connoly,  25  Mo.  94, 
69  Am.  Dec.  450;  and  Edwards  v. 
Smith,  63  Mo.  119,  127.  Specifically, 
the  case  cited  holds  that  the  jury 
and  not  the  court  must  notice  the 
meaning  of  the  abbreviation   quoted. 

In  Attorney's  Bill  Abbreviations 
Commonly  Used  by  Attorneys. — The 
abbreviations  were :  "  Drawg.  De- 
clon.  ffo.  15,"  "Instrons.  for  case," 
''  Attg.  you  in  long  confce,"  "  Pre- 
paring Afft."  Frowd  V.  Stillard,  4 
Car.  &  P.  51,  citing  Reynolds  v. 
Caswell,  4  Taunt.  193,  where  the 
following  abbreviations  were  judi- 
cially noticed  in  an  attorney's  bill : 
"  Instrons.  for  declaration,  ffo.  18." 
"  Pd.",  "  Serjt.",  "Atty.",  "  Lres " 
&c. 

"I.  0.  U."— Lemere  v.  Elliott.  30 
E.  J.  E.x.  350,  6  H.  &  N.  656. 

12.  Paris  v.  Lewis,  85'  111.  597; 
Andrews  v.  Wynn,  4  S.  D.  40,  54 
N.   W.    1047. 

The  Court  says,  that  a  court  can- 
not take  judicial  notice  that  Edward 
H.  Andrews  and  E.  H.  Andrews  are 
one  and  the  same  person,  or  that  E. 
H.  is  not  the  full  Christian  name  of 
a    person.     Gardner    v.    McCIure,    6 


Minn.  250  (Gill.  167)  ;  Nelson  v. 
Highland,  13  Cal.  75;  Ma.xw.  Code 
PI.  75.  The  difficulty  with  the  com- 
plaint in  the  case  at  bar  is  that  one 
Edward  H.  Andrews  brings  the  suit 
to  recover  on  a  note  and  mortgage 
apparently  made  to  one  E.  H.  ."lU- 
drews,  and  that  it  is  nowhere  alleged 
in  the  Complaint  that  Edward  H. 
and  E.  H.  are  one  and  the  same  per- 
son, or  that  the  note  and  mortgage 
were  made,  executed  and  delivered 
to  the  plaintiff;  in  other  words, 
there  is  nothing  in  the  complaint  to 
show  that  the  plaintiff  is  entitled  to 
maintain  the  action.  An  allegation 
lliat  the  plaintiff  Edward  H.  was  E. 
H.  to  whom  the  note  and  mortgage 
were  made,  would  cure  the  defect. 

13.  Goodell  V.  Hall,  112  Ga.  43s, 
37  S.  E.  725,  where  the  court  took 
judicial  notice  that  "  Eliza "  in  an 
application  for  a  homestead  meant 
"  EHzabeth."  the  Christian  name  of 
a  claimant  against  sale  on  foreclos- 
ure. 

14.  Jordan  Ditching,  etc.  Ass'n. 
V.  Wagoner,  33  Ind.  50,  a  suit  to 
enforce  a  lien  for  benefits  assessed 
to  defendant's  land,  the  abbreviations 
occurring  in  the  assessment ;  and 
Frazer  v.  State,  106  Ind.  471,  7  N. 
E.  203,  a  suit  on  a  drainage  assess- 
ment, the  abbreviation  occurring  in 
the  assessment.  Compare  89  .\m. 
Dec.  692,  note ;  coiupan-  Paris  v. 
Lewis.  85  111.  597.  But  see,  for  rule 
as  to  extrinsic  evidence  on  similar 
abbreviations.   Division   IV.,  post. 


Vol.  I 


26 


ABBREVIATIONS. 


printers'  marks  in  an  advertised  notice  in  foreclosure  proceedings. '° 
It  has  even  been  held  that  a  court  would  take  judicial  notice  that 
certain  abbreviations  in  an  assessment  on  land  were  not  in  common 
use,  and  therefore  could  not  be  proved  b}'  extrinsic  evidence.'" 

3.  Judicial  Process,  etc.  —  A.  In  Cnii,  C.\SF,S.  —  Courts  have 
taken  judicial  notice  of  many  common  abljreviations  in  process  and 
other  papers  used  in  judicial  proceedings;''  but  where,  in  proceed- 
ings to  perpetuate  testimony,  initials  were  used  for  a  railroad  com- 
pany's name,  the  court  could  not  judicially  notice  their  meaning." 

B.  In  Criminal  C.\SES. — The  courts  are  perhaps  less  liberal 
in  taking  judicial  notice  of  abbreviations  in  criminal  proceedings 
than  in  civil  cases. '^ 


15.  Tlie  printer's  marks  were 
"  Oct.  3,  4t."  Johnson  v.  Robertson, 
31   Md.  476. 

16.  Power  z:  Bowdle,  3  N.  D.  107, 
54  N.  W.  404,  44  Am.  St.  Rep.  511, 
21  L.  R.  A.  328;  Powers  v.  Larabee, 
2  N.  D.  141,  49  N.  W.  724;  Keith  v. 
Haydcn,  26  Minn.  212,  2  N.  W.  495 ; 
Tidd  v.  Rincs,  26  .Minn.  201,  2  N.  W. 

497- 

17.  "  Adm'r."     in     a     Complaint. 

^Nlosley's  "Adni'T."  f.  Maslin,  27 
Ala.  216. 

"  N.  P."  in  a  Notarial  Certificate. 
Rowley  v.  Berrian,  12  111.  (2  Peck.) 
198. 

"  Supt."  in  an  Affidavit —  So.  Mo. 
Land  Co.  v.  Jeffries,  40  Mo.  i\pp. 
360. 

Numerals   and   Dollar   Mark    in   a 

Petition Fulenwider      v.      Fulen- 

wider,  53  Mo.  439,  citing  Murrill  v. 
Handy,  17  Mo.  406,  where  a  note 
had  the  abbreviation  ''  sum  of  fifty- 
two  25-100." 

Abbreviations  in  Commissioner's 
Report —  Hunt  v.  SuTitli.  y  Kan.  137. 
The  court  took  judicial  notice  that, 
in  a  commissioner's  report  assessing 
danir.ges  in  condemnation  proceed- 
ings, the  figures  "1,100.00"  meant 
money,  U.  S.  money,  and  of  the 
usual  units,  i.  e.   dollars. 

Abbreviations  in  Declaration. 
Rice  I'.  P.uclianan,  S:c.,  I  W.  L.  J. 
395.  (Ohio  '44.)  The  abbreviation 
was  "  thous."   for  "  thousands." 

18.  The  petition  filed  in  court 
prior  to  taking  testimony  gave  de- 
fendant's name  as  "  C.  B.  &  Q.  R. 
k.  Co."  A  paper  was  filed  with 
cross    interrogatories   attached,    sign- 

Vol.  I 


ed  "C.  B.  &  Q.  R.  R.  Co."  Held, 
that  the  court  could  not  take  judicial 
notice,  wlien  the  deposition  was  sub- 
sequently offered,  that  said  initials 
meant  "  Chicago,  Burlington  & 
Quincy  Railroad  Company."  .^.ccola 
z:  Chicago,  B.  &  Q.  R.  Co.,  70  Iowa 
185,  30  N.  W.  503. 

TJ.  S.  Land  Survey  Abbreviations. 
Kile  I'.  Yellowhead,  80  111,  208. 
The  abbreviations  were  the  usual 
ones  in  the  U.  S.  Government  land- 
surveys,  excepting  the  abbreviation 
"  E.  W.  i  S."  used  in  the  plat  of  the 
road.  The  court  says :  "  We  believe 
that  the  practice  of  using  initials  for 
this  purpose  in  conveyances,  levies 
of  executions,  judicial  sales,  surveys, 
assessments  for  taxes,  etc.,  etc.,  has 
been  very  general,  from  the  first  or- 
ganization of  our  State  Government, 
and  that  any  person  would  as  readily 
comprehend  their  meaning  as  if  the 
words  they  represented  were  written 
in  full."  After  a  comparison  of  the 
description  of  the  road  as  given  in 
the  complaint,  in  the  petition  for  the 
location,  etc.,  in  the  order  establish- 
ing tlie  road,  and  the  plat  of  the 
road,  the  court  concludes  "  that  the 
initials  '  E.  W.  i  S.',  in  the  connec- 
tion in  which  they  are  used,  may  be 
reasonably  construed  to  tuean,  '  east 
,ind   west   halves  of  section.'  " 

19.  Meaning  of  "  Wm."  in  In- 
dictment  Henry    v.    Armitage,    12 

I,.  K.,  12  O.  B.  Div.  2S7;  S.  C,  50 
L.  T.  R.  N.  S.  4- 

Abbreviations  in  Christian  Names 
of  Grand  Jurors — Stephen  v.  State, 
II  Ga.  225.  citing  Studstill  v.  State, 
7  Ga.  2;   Minor  z:   State,  63  Ga.  318. 


ABBREVIATIONS.  27 

4.  Political  Proceedings,  Elections,  etc. — In  general  an  abbrevia- 
tion of  a  candidate's  name  in  a  ballot  must  be  unmistakable  on  its 
face  to  he  judicially  noticed.-" 

IV.  EXTRINSIC  EVIDENCE. 

In  general,  where  technical  abbreviations  are  used  in  a  particular 
business,  unintelligible  to  persons  unacquainted  with  such  business, 
and  their  construction  by  a  cotirt  is  necessary,  the  rule  is  that  they 
may  be  explained  by  extrinsic  evidence,  unless  the  explanation  is 


Figures      Without      Dollar      Sign. 

State  V.  Ring,  29  Minn.  78,  11  N.  W. 
2ii,  citing  State  v.  Minis,  26  ^linn. 
183,  2  N.  W.  494,  683,  and  distin- 
gui.shing  Tidd  i>.  Rines,  26  Alinn. 
201,  2  N.  VV.  497. 

IT.  S.  Land-Survey  Abbreviations 
in  Indictment — U.  S.  v-  Reiclicrt, 
32  Fed'.  142.  The  indictment  was 
for  filing  a  fraudulent  claim  for  U. 
S.  land.  The  court,  per  Field,  J., 
says :  "An  indictment  is  to  be  read 
to  the  accused  unless  the  reading  is 
waived.  The  language  should  there- 
fore be  so  plain  that  one  of  ordinary 
intelligence  can  understand  its  mean- 
ing. For  that  purpose,  common 
words  are  to  be  used  as  descriptive 
of  the  matters.  Abbreviations  of 
words  employed  by  men  of  science 
or  in  the  arts  will  not  answer,  with- 
out full  explanation  of  their  mean- 
ing in  ordinary  language. 
(But)  the  initials  here  have  refer- 
ence to  the  public  lands  as  marked 
on  the  public  surveys ;  they  are 
signs  used  in  a  particular  depart- 
ment of  public  business,  and  are  not 
matters  of  general  and  universal 
knowledge  by  all  speakers  of  the 
English  language.  The  same  objec- 
tion applies  to  the  initials  S.  B.  M., 
supposed  to  denote  San  Bernardino 
meridian.  There  is  no  averment  ex- 
cept in  this  way  that  the  land  alleged 
to  have  been  surveyed  lies  in  the 
State  of  California." 

Abbreviations  in  Warrant  of  Ar- 
rest— Vivian  v.  State,  16  Tex.  Crim. 
App.  262.  The  bail  bond  recited 
that  accused  had  been  arrested  by 
virtue  of  a  warrant  issued  by  "  J.  R. 
Sweeten,  J.  P.  Pr.  No.  I,  D.  C." 
Held,  that  the  court  was  not  author- 
ized   to    presume     that     the     initials 


"  D.  C."  signified  "  Dimmit  County," 
nor  that  "  Carrizo  Springs "  are  in 
JJinnnit  County,  and  that  therefore 
the  motion  to  set  aside  the  judgment 
sliould   have   prevailed. 

Variance  in  First  Initial  of  Per- 
son's Name — English  v.  State,  30 
Tex.  App.  470,  18  S.  W.  94-  The  in- 
dictment was  for  forgery,  setting 
out  in  liacc  verba  an  instrument 
signed  "  R.  M.  Lewis,"  but  alleging 
that  the  act  purports  to  be  the  act 
of  "  M.  R.  Lewis."  Held,  that  the 
variance  as  to  the  middle  initial  was 
immaterial,  as  the  middle  name  is 
not  recognized  by  common  law  as 
part  of  the  name,  but  that  the  vari- 
ance as  to  the  first  initial  was  fatal. 

20.  People  v.  Tisdale,  i  Doug. 
(Mich.)  59,  where  it  was  held  that 
a  ballot  for  "  J.  A.  Dyer "  did  not 
show,  upon  its  face,  that  it  was  in- 
tended for  the  candidate  "  James  A. 
Dyer."  In  People  v.  Pease.  27  N. 
Y.  45,  64,  84  Am.  Dec.  242,  in  which 
Moses  M.  Smith  was  a  candidate, 
Selden,  J.,  says :  "  According  to 
well  settled  rules,  the  board  of  can- 
vassers erred  in  refusing  to  allow 
to  the  relator  the  nineteen  votes 
given  for  "  Moses  Smith  "  and  "  M. 
M.  Smith." 

The  case  of  People  v.  Tisdale, 
supra,  was,  however,  followed  in 
People  V.  Cicott,  16  Mich.  283,  97 
Am.  Dec.  141,  though  the  majority 
of  the  court  expressed  the  opinion 
that  it  was  erroneous  in  principle, 
but  had  been  too  long  (for  25  years) 
the  settled  law  of  the  state  to  be  dis- 
turbed, unless  by  the  legislature. 
Qoiitpare  Cooley  on  Cons.  Lims.,  pp. 
76s  and  766.  See  also  "Extrinsic 
Evidence  on  Abbreviations,"  fost, 
foot-note  78. 

Vol.  I 


28 


ABBREVIATIONS. 


inconsistent  with  fully  expressed  terms  of  a  written  instrument 
involved.-' 

As  to  abbreviations  claimed  to  be  customary  and  general,  it  would 
seem  that  they  cannot  be  proved  extrinsically  where  the  court  or 
jury  cannot  judicially  notice  them,--  unless  it  is  proved  that  the 
party  to  be  affected  actually  understood  and  so  used  them.'-^  The 
extrinsic  evidence  may  be  written  as  well  as  oral.-* 

1.  Wills. — There  seems  no  doubt  that  abbreviations  in  a  will  may 
always  be  explained,  where  the  explanation  does  not  conflict  with 
the  unambiguous  terms,  and  that  any  evidence  thereof,  other  than 
direct  evidence  of  the  expressed  intention  of  the  testator,  is  ad- 
missible."^ 


21.  Collender  v.  Dinsmore,  $5  N. 
Y.  200,  2o6,  14  Am.  Rep.  224,  cit- 
ing Dana  v.  Fiedler,  12  N.  Y.  40, 
62  Am.  Dec.  130,  a  leading  case; 
Barton  v.  Anderson,  104  Ind.  578,  4 
N.  E.  420;  Jaqna  v.  VVitliam,  etc. 
Co.,  106  Ind.  545,  7  N.  E.  314;  Pow- 
er V.  Bowdle,  3  N.  D.  107,  54  N.  W. 
404,  44  Am.  St.  Rep.  511,  21  L.  R.  A. 
328;  I  Greenl.  Ev.,  §282;  Wliart. 
Ev.,  §1003;  Best  Ev.,  p.  232.  Com- 
pare Abbott's  Trial  Brief  on  Facts. 
§4. 

22.  Power  v.  Bowdle,  3  N.  D. 
107,  54  N.  W.  404,  44  Am.  St.  Rep. 
511,  21  L.  R.  A.  328.  The  court 
said  (p.  118):  "If  it  be  true  that 
the  symbol  writing  is,  as  alleged  by 
the  answer,  used  in  describing  land, 
and  '  generally  understood  '  by  the 
taxpayers  and  the  people  of  North 
Dakota  and  throughout  the  western 
states,  the  judges  and  courts  of  such 
states  are  bound  to  judicially  note 
the  existence  of  such  usage.  To 
borrow  the  words  of  Chief  Justice 
Catou,  '  courts  will  not  pretend  to  be 
more  ignorant  than  tlie  rest  of  man- 
kind.' "  It  was  there  held  that  ex- 
trinsic evidence  was  inadmissible  to 
explain  tlie  abbreviations  in  question, 
i.  e.,  certain  abbreviations  used  in 
tax  proceedings  such  as  are  often 
used  in  United  States  Government 
Surveys. 

23.  Jaqua  v.  Witham,  etc.  Co.,  106 
Ind.  545,  7  N.  E.  314.  I  Greenl.  Ev.  § 
283;  Whart.  Ev.,  §§954.  962;  Reiss- 
ner  v.  Oxley,  80  Ind.  580. 

24.  State  v.  Collins,  68  N.  H.  299. 
44  Atl.  495,  a  proceeding  to  abate  a 


liquor  nuisance.  A  blank  application 
for  a  U.  S.  liquor  license  explaining 
certain  abbreviations  was  held  ad- 
missible to  explain  the  same  abbre- 
viations used  in  the  record  of  a  reve- 
nue collector. 

25.  Peculiar  Abbreviations. 
Schouler  on  Wills,  2  Ed.  §  582,  states 
the  rule  generally  that  "  any  obscure 
terms  common  to  a  calling  with 
which  the  testator  was  familiar,  or 
his  shorthand,  cipher,  or  other  pecu- 
liar modes  of  expression,  may  be  ex- 
plained by  the  evidence  of  others 
competent  to  enlighten  the  court, 
and  his  symbolic  writing  thus  re- 
duced to  its  rational  and  consistent 
meaning."  Kell  v.  Charman,  23 
Beav.  195,  is  cited,  where  the  testa- 
tor, a  jeweler,  used  the  private  price- 
marks  of  his  business ;  and  the  let- 
ters "  i  X  X  "  were  explained  to  mean 
£100.  Also  Lord  Abinger's  language 
in  Hiscocks  v.  Hiscocks,  5  M.  &  W. 
363 :  "  The  testator  may  have  ha- 
liitually  called  certain  persons  or 
things  by  peculiar  names,  by  which 
they  were  not  commonly  known.  If 
these  names  should  occur  in  his  will, 
they  could  only  be  explained  and 
construed  by  the  aid  of  extrinsic 
evidence  to  show  the  sense  in  which 
he  used  them,  in  like  manner  as  if 
his  will  were  written  in  cipher  or  in 
a  foreign  language.  The  habits  of 
the  testator  must  be  receivable  as 
evidence  to  explain  the  meaning  of 
his  will."  Compare  also.  Goblet  v. 
Beechey,  3  Sim.  24  (Reversed  in  2 
Russ.  &  M.  624)  ;  Scott  v.  Neeves, 
77  Wis.  305,  45  N.  W.  421 ;  Abbot  v. 
Massie,  3  Ves.  Jr.   148. 


Vol.  I 


ABBREVIATIONS. 


29 


2.  Contracts.  —  A.  Formal  Writings. —  Abbreviations  have 
been  explained  in  a  bill  of  lading;-"  in  contracts  to  buy,  to  sell, 
to  buy  and  sell,  options,  etc. ;-'  in  negotiable  instruments  f  in  an 
insurance  policy."'' 

B.  Informal  Writings. —  Informal  writings,  where  they  may 
be  considered  as  merely  provisional  contracts,  are  freely  explained 
as  to  abbreviations.^" 


26.  Mouton  v.  Louisvillt;  &  N.  R. 
Co.  (Ala.),  29  So.  602.  This  was 
an  action  against  a  carrier  for  fail- 
ure to  deliver  goods.  The  words 
"  K.  D."  and  "  released  "  were  ex- 
plained as  being  technical  terms. 

27.  Berry  v.  Kowalsky,  (Cal.), 
27  Pac.  286;  Maurin  v.  Lyon,  6g 
Minn.  257,  72  N.  W.  ■/2,  65  Am.  St. 
Rep.  568;  Earl  Fruit  Co.  v.  McKin- 
ncy,  65'  Mo.  App.  220,  2  JMo.  App. 
1274,  explaining  "  f.  o.  b." ;  Dana  v. 
Fiedler,  12  N.  Y.  40,  46,  62  Am. 
Dec.  130,  (a  leading  case);  Storey 
V.  Salomon,  6  Daly  (N.  Y.)  531; 
Silverman  v.  Clark,  g6  N.  Y.  522 ; 
Ottman  Co.  v.  Martin,  16  Misc.  490, 
38  N.  Y.  Supp.  966,  which  case 
should  be  compared  with  96  N.  Y., 
524  sufra:  McKee  v.  DeWitt,  12 
.\pp.  Div.  617,  43  N.  Y.  Supp.  132; 
White  v.  McMillan,  114  N.  C.  349, 
19  S.  E.  234;  Mercer  Co.  v.  McKee's 
Adm'r.,  77  Pa.  St.  170;  Ullman  v. 
Babcock.  63  Te.x.  68. 

The    Limits    of    Explanation In 

Silberman  v.  Clark.  96  N.  Y.  522, 
the  court  draws  the  line  as  to  where 
extrinsic  explanation  of  a  contract 
containing  an  abbreviation  must 
stop.  It  says,  p.  523 :  "  In  this 
contract,  after  the  letters  f.  o.  b.  are 
explained  and  understood,  there  is 
nothing  ambiguous.  There  is  no 
latent  ambiguity  which  needs  expla- 
nation. All  the  language  has  a 
meaning,  and  hence  there  is  no 
room,  under  the  rules  of  law,  for 
parol  evidence.  The  meaning  of  the 
language  used  cannot  be  changed 
or  varied  by  the  proof  of  any  cus- 
tom, and  hence  there  was  no  error 
in  this  case  upon  the  trial  in  exclud- 
ing such  proof." 

28.  Comstock  v.  Savage,  27  Conn. 
184;  First  Nat.  Bank  v.  Fricke,  75 
Mo.  178,  42  Am.  Rep.  397;  Palmer 
7'.    c^tephens,    i    Denio    (N.   Y.)    471. 


citing  Merchants'  Bank  v.  Spicer,  6 
Wend.  (N.  Y.)  443;  Brown  v. 
Butchers',  etc.  Bank,  6  Hill  443,  41 
Am.  Dec.  755 ;  Williamson  v.  John- 
son, I  Barn.  &  C.  146;  Bank  v. 
Flanders,  4  N.  H.  239,  247-8;  (see 
also  12  J.  B.  Moore,  219;  i  Camp. 
513,  2  Mood  &  R.  221,  and  Add.  on 
Contr.  46  N.)  ;  Hulbert  v.  Carver, 
37  Barb.  62;  Robinson  v.  Kanawha 
Bank,  44  Ohio  St.  441.  8  N.  E.  583, 
58  Am.  Rep.  829,  where  the  extrinsic 
evidence  was  admitted  by  the  trial 
court,  the  appellate  court  not  pass- 
ing on  its  admissibility  as  being  im- 
material ;  and  F.  &  M.  Bank  v.  Day, 
13  Vt.  36. 

29.  Nelson  v.  Sun  Ins.  Co.,  71  N. 
Y.  453.  The  abbreviation  was  the 
technical  phrase  ''  port-risk."  The 
parties  to  the  contract  were  familiar 
with  its  usage. 

30.  Lockett  V.  Nicklin,  2  Ex.  93; 
Palmer,  in  re,  21  Ch.  D.  47;  Amo- 
nett  V.  Montague,  63  Mo.  201  ;  Sharp 
V.  Radebaugh,  70  Ind.  547 ;  Adams  v. 
Sullivan,  100  Ind.  8;  Bennett  r. 
Frary,  55  Tex.  145;  Walters  t.  Van 
Derveer,  17  Kan.  425';  Whart.  on 
Contr.  §639.  Comfiarc  also  Baker 
on  Sales,  §  459,  citing  Salmon  Falls 
Mfg.  Co.  V.  Goddard,  14  How.  (U. 
S.)  446;  Scovill  V.  Griffiths.  2  Kern. 
(N.  Y.)  509;  Spencer  v.  Babcock,  22 
Barb.  326;  Fish  v.  Hubbard's 
Adm'rs.,    21    Wend.    (N.    Y.)    657. 

"  I.  0.  1J."  —The  letters  "I.  O.  U." 
constitute  a  valid  acknowledgement 
of  a  debt  due.  Kinney  v.  Flynn,  2 
R.  I.  319;  and  a  written  "I.  O.  U." 
is  presumptive  evidence  of  an  ac- 
count stated  ;  Fesenmayer  v.  Adcock. 
16  M.  &  W.  449;  Curtis  V.  Richards, 
I  Scott  (N.  R.)  ISS;  Gould  v. 
Coombes,  i  C.  B.  543. 

Cipher  Telegram. — Wilsou  v.  Fris- 
bie,  57  Ga.   269. 

Memorandum    of    Contract — Wil- 

Vol.  I 


30 


ABBRI'JIATIONS. 


3.  Writings  Affecting  Land.  —  A.  Deeds,  Etc.  —  Abbreviations 
in  contracts  to  convey  land  may  be  explained ;''  and  in  a  deed.^'' 

B.  In  Taxation  Pkdckkdixgs.  —  Some  courts  have  admitted 
evidence  to  explain  abbreviations  in  assessments  and  tax  deeds  f^ 
other  courts  have  rejected  such  evidence.^'' 


son  V.  Coleman,  8i   Ga.  297,  6  S.  E. 

693- 

Order    for    Goods Penn.    To.    Co. 

V.  Lcman.  109  Ga.  428,  34  S.  E.  679. , 

By  Letter — Jaqua  v.  Witham  Co.. 
106  Ind.  545.  7  N.  E.  .ii4- 

Extracts  From  Records Con- 
verse V.  Wead,  142  III.  132.  31  N.  E. 

314- 

Agreement   to   Furnish    Materials. 

Walrath  v.  Wliittt-kiml,  26  Kan.  4S2. 

Telegram     Containing     Technical 

Terms.— W.   U.   Tel.   Co.  v.    Collins, 

45  Kan.  88,  25  Pac.  187,  10  L.  R.  A. 

515- 
Express     Receipt Collender     v. 

Dinsmore,  55  N.  Y.  200.  14  .\ni. 
Dec.  224,  reversing  64  Barb.  457. 
and  citing  Magnin  v.  Dinsmore.  56 
N.  Y.  168;  Kirkland  v.  Dinsmore,  62 
N.  Y.  171 ;  Taft  v.  Schwamb.  80  111. 
289. 

Abbreviations  in  Bank  Book — 
Wingate  v.  Mec.  Bank,  10  Pa.  St. 
(10  Barr)    104. 

Bill    of    Parcels George   v.    Joy, 

iq  N.  H.  544. 

Memorandum     of     Agreement     to 

Deliver Dana   v.   Fielder,   2   Kern. 

(N.  Y.)  40.  62  Am.  Dec.  130. 

Order  Blank  Filled  In —  Coates, 
etc.  V.   Early,  46  S.  C.  220,  24  b.  E. 

305. 

31.  Abbreviated  Description  of 
Land. —  Richards  v.  Snider,  11  Or. 
197,  3  Pac.  177.  This  was  a  suit 
to  specifically  enforce  performance 
of  a  contract  to  convey  land  in  which 
the  only  description  of  the  land  was 
"lot  8,  sec.  19,  4  N.,  3S  E."  The 
complaint  alleged  the  meaning  of 
said  abbreviations  and  location  of 
said  land  as  to  county  and  state. 
Plaintiff  had  also  held  possession  of 
the  land  until  ejected  by  one  of  the 
defendants.  The  court,  p.  199.  said  : 
"  II  is  not,  however,  a  case  of  patent 
amliiguity,  even  with  the  description 
thus  limited.  Lot  8,  in  section  19,  is 
a  definite  and  particular  tract  of 
land  under  the  general  system  of  sur- 

Vol.  I 


veys  adopted  by  the  United  States, 
and  of  which  the  courts  will  take 
judicial  notice.  The  intention  of  the 
parties  to  contract  with  reference  to 
this  particular  tract  and  no  other,  is 
equally  certain.  There  is  no  uncer- 
tainty as  to  this  intention  on  the 
face  of  the  written  agreement.  It  is 
clearly  a  case  admitting  of  the  iden- 
tification of  the  subject  of  the  con- 
tract by  proof  of  extrinsic  facts. 
Dougherty  v.  Purdy,  18  111.  206; 
Wilson  V.  Smith,  50  Tex.  365 ;  Clark 
V.  Powers,  45  111.  283.  The  posses- 
sion alone  taken  under  the  circum- 
stances alleged,  should  be  held  a 
sufficient  identification.  Purinton  v. 
N.  111.  R.  Co.,  46  111.  297;  Parkhurst 
V.  Van  Cortland,  14  Johns.  15,  7  Am. 
Dec.  427. 

32.  Abbreviation  of  Grantee's 
Name.  —  Aultman,  etc.  Taylor  Mfg. 
Co.  V.  Richardson,  7  Neb.  i,  was  a 
suit  to  foreclose  a  mortgage.  The 
court  held  that  where  the  grantee's 
name  is  abbreviated  in  a  mortgage, 
it  may  be  explained  extrinsically, 
citing    Staak    v.    Sigelkow.    \2    Wis. 

259. 

33.  Sufficient  Description  of  Land. 

Barton  v.  .A.nderson.  104  Ind.  578, 
4  N.  E.  420,  citing  I  Greenl.  Ev., 
§282;  Whart.  Ev.,  §1003.  A  pur- 
chaser on  tax  sale  was  allowed  to 
prove  the  meaning  of  "^26  ft.  Washt. 
St.  S.  W.  cor.  out.  66."  in  a  tax 
dunlicatc. 

34.  Insufficient      Description      of 

Land Power     v.     Bowdle,     3     N. 

D.  107,  54  N.  W.  404,  44  Am. 
St.  Rep.  511,  21  L.  R.  A.  328. 
a  leading  case  reviewing  the 
question  thoroughly.  and  par- 
ticularlv  citing  Powers  v.  Larabee, 
2  N.  D.  141,  49  N.  W.  724;  and 
Keith  V.  Hayden.  26  Minn.  2T2.  2  N. 
W.  495,  where,  however,  no  extrinsic 
evidence  seems  to  have  been  con- 
sidered. Tidd  V.  Rines,  26  Minn. 
201,  2  N.  W.  497;  Griffin  V.  Crcppin, 
60     Mc.     270;     Comj'arc     Glass     v. 


ABBKEl'IATIONS. 


31 


4.  Judicial  Process,  etc. —  A.  L\  Ci\il  Casks. —  In  suits  not  in 
volving  property  abbreviations  may  be  explained,  as  in  proceedings 
to  abate  a  nuisance.''^  Abbreviations,  even  in  an  action  involving 
property,  have  been  judicially  noticed.""'  However,  in  an  action 
on  a  judgiTient,  it  was  held  inadmissible  to  explain  abbreviations 
in  a  justice's  docket.'"' 

B.  In  Criminal  Cases. — Where  an  instrument  in  writing  is 
involved  in  a  criminal  action,  abbreviations  therein  may  lie  ex- 
plained.^^ 

5.  Political  Proceedings,  Elections,  Etc.  —  The  rules  as  to  admis- 
sibilitv  of  extrinsic  evidence  to  explain  abbreviations  on  ballots  vary 
according  to  the  character  of  the  election  laws  of  the  court's  juris- 
diction. The  weight  of  authority  is  in  favor  of  allowing  explana- 
tion of  the  meaning  of  an  abbreviation,  where  the  election  law  is 
not  mandatory  to  the  contrary.^" 

6.  Miscellaneous  Matters.  —  It  is  admissible  to  explain  an  abbre- 
viation in  a  record  of  the  finding  by  a  board  of  supervisors.''"  In 
an  action  for  breaking  a  close,  a  surveyor's  mark  on  a  tree  was 
explained.*^ 


Gilbert,  58  Pa.  St.  266.  Com- 
pare Lowe  V.  Ekey,  82  Mo. 
286  where  certain  abbreviations 
used  in  the  description  of  land 
in  the  tax  deed  and  anteriof 
proceedings  in  the  case  were  held 
insufficient. 

35.  State  r.  Collins.  68  N.  H.  299, 
.44  Atl.  495. 

36.  Davis  v.  Harnbell,  (Tex.)  124 
S.  W.  97^. 

37.  Rood  V.  School  Dist.  No.  7.  i 
Doug.   (Mich.)   502. 

38.  In  U.  S.  V.  Hardynian,  13  Pet. 
176;  Hite  V.  State,  17  Tenn.  (g 
Yerg.)  357,  defendant  was  indicted 
for  receiving  certain  specified  treas- 
ury notes,  set  out  in  the  indictment. 
There  was  a  variance  between  the 
counts  and  the  notes,  one  of  which 
provided  for  interest  at  "M"  per 
centum.  The  court  said :  "We 
think  under  the  circumstances  of  the 
case,  that  parol  proof  may  be  re- 
ceived, to  show  the  meaning  and 
effect  of  the  letter  M.  as  inserted 
in  the  body  of  the  note." 

39.  People  v.  Ferguson,  8  Cow. 
(N.  Y.)  102;  People  v.  Seaman,  5 
Denio  (N.  Y.)  409;  People  v.  Cook, 
14  Barb:   (N.   Y.)    259,  and  8  N.  Y. 


67;  Atty.  Gen.  v.  Ely,  4  Wis.  438. 
Compare  Clark  v.  Co.  Examiners, 
126  ;Mass.  282. 

In  Atty.  Gen.  v.  Ely.  4  Wis.  438, 
votes  for  "D.  M.  Carpenter,"  "M.  D. 
C-arpenter,"  "M.  T.  Carpenter,"  and 
"  Carpenter  "  were  counted  for  Mat- 
tliew  H.  Carpenter.  State  v.  Elwood, 
12  Wis.  615;  People  v.  Pease,  27  N. 
Y.  45,  84  .\ni.  Dec.  242.  per  Denio, 
Ch.  j. :  Talkington  v.  Turner,  71  111. 
234;  Clark  v.  Robinson,  88  111.  498; 
Kreitz  i'.  Behrensmeyer.  125  111.  141, 
17  N.  E.  232.  8  Am.  St.  Rep.  349; 
State  V.  Williams.  95'  Mo.  159.  8  S. 
W.  415;  State  V.  Gates,  43  Conn.  533, 
In  Wimmer  v.  Eaton,  72  Iowa  374, 
34  N.  W.  170,  2  Am.  St.  Rep.  250, 
ballots  for  F.  W.  were  counted  for 
E.  W..  who  was  a  regular  candidate, 
there  being  no  one  eligible  or  run- 
ning  named    F.   W. 

To  the  contrary.  People  v.  Tis- 
dale.  I  Doug.  fMich.)  59;  People  z'. 
Higgins,  3  Mich.  233.  6r  Am.  Dec. 
4QI  :  and  People  v.  Cicott.  16  Mich. 
283.  97  Am.  Dec.  141. 

40.  Cameron  f.  Fellows.  109  Iowa 
534.   80   N.   W.   567. 

41.  'Knox  V.  Clark.  123  Mass.  216. 
216. 


Vol.  I 


ABDUCTION. 

By  Willouqhby  Rodman. 

I.  AS  A  CRIME,  34 

I.  The  Case  of  the  Prvseeiitioii,  34 

A.  Matters  Essential  to  Conviction,  34 

a.  Taking  Against  Will,  or  IVitli  Certain  Intent,  34 

(I.)   Proving    Taking  or  Detention,  34 

(A.)   Circumstances  Sbozving    That    Taking 
Was  Against  Will,  35 
(2.)    Proving  Intent,  35 

(A.)   Intent  Must  Be  Shozvn,  35 

(B.)   Specific  Intent,  36 

(C.)   Whose  Intent  Material,  2)7 

(a.)   Intent  of  Defendant  Alone  Mate- 
rial, 37 
(b. )  Knowledge     of     Female     Ininiate- 
rial,  37 
(D.)   Consent,  When  Immaterial,  37 

b.  Taking  Female  Under  Designated  Age  for  Certain 

Purpose,  37 

(I.)   Prostitution,  37 

(A.)    Character  of  House,  38 
(L).)   Character  of  House  As  Sliozving  Pur- 
pose or  Intent,  38 

(2.)    Concubinage,  38 

(A.)   Acts  Necessary  to  Constitute,  38 
(B.)   Number    of   Acts    As    Shozving    Pur- 
pose, 38 
(C.)   Previous  Chastity  Material.  39 

(3.)    Carnal  Knowledge,  31; 

c.  Taking  Minor  From  Parent  or  Guardian   Without 

His  Consent,  39 
(I.)    Taking  From  Custody,  39 
(A.)    What  Constitutes,  39 
(a.)   Fraud,  40 

(b.)   Bad  Intent  Immaterial.  40 
(c.)   Intent  Inferred,  40 
(d.)  Ignorance    of    Minority     Immate- 
rial, 40 
(B.*)   Actual  Removal  Necessary,  40 

(a.)  Constructive  Custody  Sufficient.  41 
(b.)  Constructii'e  .S'erz'ice  .Sufficient.  41 
(c. )    [/'/;()  Untitled  to  Custody.  41 

Vol.  I 


ABDUCTION.  33 

(d.)   Distance  Removed  or  Time  of  De- 
tention Immaterial,  41 
(e.)  Parental  Control  Lost,  42 
(2.)   Non-Consent  of  Parent  or  Guardian,  42 
(A.)   Non-Consent  Presumed,  42 
(B.)   Consent  Obtained  by  Fraud,  42 
(C.)   Defendant's   Knozclcdge   of   Non-Con- 
sent Immaterial,  42 
(D.)  Father's  Treatment  Immaterial,  42 
(E.)    Consent  Immaterial,  42 
d.  Previous  Chaste  Character  of  Female,  43 
(i.)  Chastity  Prior  to  Taking,  43 
(2.)    Chastity  Must  Be  Proved,  43 

(A.)   Presumption     of     Innocence     Insuffi- 
cient, 43 
(B.)   Shozi'H  by  Circumstances,  44 
(3.)    Unnecessary,  JVhen,  44 

(A.)   When  Force  Is  Employed,  44 
(B.)  Female  Under  Designated  Age,  44 
(4.)    Unchastity  As  Defense,  44 
(5.)    Unchastity  After  Taking  Immaterial,  45 

B.  Burden  of  Proof,  45 

C.  Evidence  for  Prosecution,  Witnesses,  45 

a.  Female  Taken,  45 

(i.)    JVife  Witness  for  or  Against  Husband,  45 

(2.)   Corroboration,  45 

(A.)    JJ' hen  Required,  45 
(B.)   Scope  and  Nature  of  Evidence,  45 
(C.)   Ma\i  Be  b\  Circumstances.  46 
(D.)  By 'Defendant,  47 

b.  Parent  or  Guardian,  As  IVitnesses,  47 
2.  Defendant's  Evidence,  47 

A.  Non-Criminal  Intent,  47 

B.  Unchastity  of  Prosecutrix,  48 

C.  Parental  Control  Lost,  48 

D.  Character  of  Relatives  Immaterial,  48 

II.  AS  A  CIVIL  ACTION,  48 

I.  Abduction  of  Minor,  49 
A.  Plaintiff's  Case,  49 
a.   Ultimate  Facts,  49 
(i.)    Custody,  49 
(2.)    Taking  Against  Consent,  49 
(A.)  Fraud,  49 

(B.)   Circumstantial  Evidence  Sufficient,  49 
(3.)   Defendant's    Knozvledge    of    Minority    and 
Obligation  of  Service,  50 
3  Vol.  I 


34 


ABDUCTION. 


(4.)  Damages,  50 

(A.)   Expense  of  Search,  50 
(B.)   Mental  Suffering  of  Plaintiff,  50 
B.  Defendant's  Case,  51 

a.  Minor  Not  in  Plaintiff's  Custody,  51 

b.  Abandonment  of  Service,  51 

c.  Belief  That  Minor  Left  With  Consent,  51 

d.  Voluntary  Leafing  by  Minor,  51 

e.  Proper  Motives,  51 

f.  Statements  of  Minor,  52 

g.  Mitigation  of  Damages,  52 

I.  AS  A  CRIME. 

1.  The  Case  of  the  Prosecution. —  A.  Matters  Essential  to 
Conviction. —  a.  Taking  Against  Will,  or  With  Certain  Intent. 
(1.)  Proving  Taking  or  Detention.  —  Where  defendant  is  charged 
with  taking  or  detaining  a  female  against  her  will/  such  taking 
or  detaining  is  shown  by  proof  of  force,"  threats,^  deceit  or  false 
representations,*  arts,  allurements,  or  persuasion,^  the  use  of  drugs 
or  intoxicants,"  detaining  an  insane  woman  for  purpose  of  carnal 
knowledge,''  taking  liberties  with  a  sleeping  woman.' 


1.  Schiiickcr  v.  People,  88  N.  Y. 
192. 

2.  Schnicker  v.  People,  88  N.  Y. 
192;  People  V.  Seeley,  37  Hun  (N. 
Y.)  190;  State  V.  Bussey,  58  Kan. 
679,  50  Pac.  891 ;  State  v.  Jamison, 
38  Minn.  21,  35  N.  W.  712;  State  v. 
Chisenhall,  106  N.  C.  676,  II  S.  E. 
518;  Scruggs  V.  State,  go  Tenn. 
81,  IS  S.  W.  1074;  Carpenter  v. 
People,  8  Barb.  (N.  Y.)  603;  State 
V.  Keith,  47  Minn.  559,  50  N.  W. 
691. 

3.  Russ.  Crimes  (9th  Ed.)  p. 
942. 

4.  Beyer  v.  People,  86  N.  Y.  369; 
In  People  v.  De  Leon.  109  N.  Y.  226, 
16  N.  E.  46,  4  Am.  St.  Rep.  444,  de- 
fendant was  indicted  for  "kidnap- 
ping," but  the  facts  of  the  case  and 
the  language  used  by  the  court  make 
the  decision  applicable  to  this  dis- 
cussion. 

5.  Arts — A  taking  against  the 
will  of  the  female  is  established  by 
proof  of  the  employment  of  any 
allurements  or  arts  which  naturally 
tend    to    induce    her    to    submit    her 

Vol.  I 


will  to  that  of  the  defendant  or  to 
leave  her  natural  or  legal  custodian. 
Slocuni  V.  People,  90  111.  274 ;  Peo- 
ple V.  Seeley,  37  Hun  (N.  Y.)  190; 
State  V.  Johnson,  iij  ]\lo.  480,  22 
S.  W.  463. 

6.  South  V.  State,  97  Tenn.  496, 
37  S.  W.  210. 

7.  Insane    Woman Higgins    v. 

Com.,  94  Ky.  54,  21  S.  W.  231.  This 
is  upon  the  theory  that  any  act  done 
to  an  insane  woman  which  is  not 
done  in  kindness,  or  for  her  benefit. 
is  done  against  her  will. 

Defendant  To  Be  Shown  Cognizant 
of  Insanity — In  P.caven  v.  Com., 
(Ky.)  30  S.  W.  968,  it  is  held,  in 
discussing  certain  instructions,  that 
when  it  is  shown  that  the  female  in 
question  was  insane,  it  must  also  be 
shown  that  the  defendant  knew,  or 
had  reason  to  know,  her  mental  con- 
dition. 

8.  Sleeping    Woman Couch    v. 

Com..  rKy.)  29  S.  W.  29. 

In  Malone  v.  Com.,  91  Ky.  307, 
15  S.  W.  856,  the  evidence  showed 
that  the  defendant  entered  the  room 


ABDUCTION. 


35 


(A.)  Circumstances  Showing  That  Taking  Was  Against  Will. 
Evidence  may  be  offered  of  facts  which  occurred  prior  to,  concur- 
rently with  and  subsequent  to  the  taking,  which  show,  or  tend 
to  show  that  the  female  was  acting  under  the  influence  of  force, 
threats,  deceit,   false  representations  or  persuasion." 

The  female  may  testify  as  to  her  reason  for  being  in  the  society 
of  defendant,  and  may  give  evidence  of  acts  or  language  on  his 
part  which  show  that  he  induced  her  to  accompany  him  by  the 
exercise  of  menace,  fraud,  deceit  or  persuasion." 

(2.)  Proving  Intent. —  (A.)  Intent  Must  Be  Shown.  — When  intent 
to  perform  an  inhibited  act,  other  than  the  taking,  is  an  essential 
ingredient  of  the  oft'ense,  the  prosecution  must  prove,  not  only  a 
taking  against  the  will  of  the  female,  but  that  the  taking  was 
done  with  intent  to  perform  the  other  act.'^  For  methods  of 
proving  intent  see  the  article  "  Intent."  But  certain  facts  which 
have  been  held  to  be  evidence  of  intent  in  abduction  cases  are 
cited  here.'-     Proof  of  the  commission  of  the  other  act  does  not 


of  a  young  girl  while  she  was  sleep- 
ing ;  and  without  waking  her,  pulled 
up  the  bedclothes,  disarranged  her 
garments,  and  took  liberties  with 
her  person.  Held,  that  the  evidence 
showed  an  intent  to  take  or  detain 
her  against  her  will  for  the  purpose 
of  carnal  knowledge. 

9.  Schnicker  v.  People,  88  N.  Y. 
102.  In  this  case  the  court  says : 
"In  this  case  the  precautions  taken 
to  prevent  the  prosecutrix  leaving 
the  house,  and  the  restraint  put  upon 
her'  through  her  fears,  by  the  sug- 
gestion that,  if  she  left  the  house, 
she  would  be  arrested,  justified  the 
jury  in  finding  that  she  was  taken 
by  the  prisoner  against  her  will.  The 
girl  was  young,  in  a'  strange  land, 
unacquainted  with  the  surroundings, 
and  the  conduct  of  the  prisoner, 
under  the  circumstances  in  which 
the  prosecutrix  was  placed,  naturally 
operated  as  potentially  in  restraining 
her  actions  and  overcnniine  her  will, 
as  if  actual  physical  violence  had 
been   used." 

See  also  Respublica  v.  Hevice,  2 
Yesfes.    CPa.')    IT4. 

10.  Reason     For     Accompanying 

Defendant — Beyer  v.  People.  86  N. 
Y.  360;  People  V.  Seelev  37  Hun 
(N.  Y.)  IQO;  Slociun  v.  People.  00 
111.  274:  People  V.  DeLeon,  lOO  N. 
Y.  226,  16  N.  H.  46.  4  Atu.  St.  Rep. 
444- 


In  Schnicker  v.  People,  88  N.  Y. 
192,  the  court  says :  "The  prosecutrix 
was  properly  allowed  to  state  vhy 
she  went  to  the  prisoner's  house.  It 
was  competent  for  the  people  to 
show  that  she  went  to  the  house 
for  an  innocent  purpose,  and  not  for 
the    purpose    of    prostitution." 

11.  Intent  Must  Be  Proved. 
State  V.  Gibson,  in  Mo.  92,  19  S. 
W.  980:  State  V.  Jamison,  38  Minn. 
21,  35  N.  W.  712. 

12.  Intent  To  Defile  Inferred 
From  Defilement.  —  The  house  was  a 
house  of  prostitution.  The  prisoner 
plied  the  prosecutrix  daily  with 
solicitation  that  she  should  have  il- 
licit intercourse  with  men.  When 
persuasion  failed,  the  prisoner  re- 
sorted to  the  compulsfon  of  fear, 
and  finally  the  prosecutrix  was  defiled 
by  force.  This  evidence  was  held 
amply  sufficient  to  establish  the  in- 
tent specified  in  the  statute. 
Schnicker  -'.  People,  88  N.  Y.   192. 

From  Taking  to  House  of  Pros- 
titution— "When  a  girl  is  surrepti- 
tiously taken  from  her  mother's  roof 
by  a  prostitute  and  those  who  keep 
company  with  her,  and  conducted 
to  a  house  of  prostitution,  the  fair 
and  reasonable  inference  is.  that  she 
is  taken  there  for  the  purpose  of 
nroslilution."  People  v.  Marshall,  59 
Cal.  386;  see  also  State  v.  Chisen- 
hall,   T06   N.   C.   676,   IT    S.   K.   .S'i8; 

Vol.  I 


36 


ABDUCTION. 


establish  the  intent.''' 

Intent  Inferred  From  Act.  —  But  is  admissible  as  tending  to  show 
the  intent." 

Proof  That  Attempt  Succeeded  Unnecessary.  —  \\  hen  the  Statute  is 
directed  against  taking  with  inhibited  intent,  the  intent  being  estab- 
lished, it  is  not  necessary  to  show  that  defendant  accomplished  his 
purpose.'-' 

(B.)  Specific  Intent.  —  Specific  intent  must  be  proved.  The 
evidence  for  the  prosecution  must  establish  the  specific  intent 
charged  in  the  indictment.  To  show  an  intent  to  commit  another 
unlawful  act,  even  of  similar  nature  to  that  referred  to,  is  not 
sufficient. '" 


Brown  v.  State,  72  Aid.  468,  20  Atl. 
186. 

Intercourse  Between  Defendant 
and  Prosecutrix,  Prior  to  Taking. 
Evidence  of  acts  of  se.xual  inter- 
course between  defendant  and  pros- 
ecutrix prior  to  the  taking  is  admis- 
sible to  show  defendant's  intent  in 
the  taking.  People  v.  Carrier,  46 
Mich.  442,  9  N.  W.  487;  People  v. 
Wah  Lee  Mon,  37  N.  Y.  St.  283, 
13   N.  Y.   Supp.  767- 

Acts  Subsequent  to  Taking  May 
Show  Intent — State  v.  Bobbst,  131 
Mo.  32S,  32  S.  W.  1 149;  State  v. 
Johnson,  115  Mo.  480,  22  S.  W.  463; 
Henderson  v.  People,  124  111.  607,  17 
N.  E.  68,  7  ■■^m.  St.  Rep.  391. 

Attempt  to  Conceal  Prosecutrix. 
State  V.  Gibson,  in  Mo.  92,  19  S.  W. 
980. 

Acts  Done  Outside  Jurisdiction  of 
Court.— People  v.  Wah  Lee  Mon,  37 
N.  Y.  St.  283,  13  N.  Y.  Supp.  7(17. 

But  Not  Immoral  Acts  With  Other 
Females — People  v.  Gibson,  21  N. 
Y.   St.  59,  4  N.  Y.   Supp.   170. 

Unchastity  of  Prosecutrix  as 
Bearing  on  Intent — Brown  v.  State, 
72   Md.  46S,  20  Atl.   186. 

That  defendant  was  told  prosecu- 
trix was  a  prostitute  and  that  he 
supposed  she  was  may  be  shown  by 
him  to  rebut  intent.  Reaven  v.  Com., 
(Ky.)    30    S.    W.    968. 

13.  Intent  Not  Presumed  From 
Act.— People  v.  Plath,  100  N.  Y. 
590,  53  Am.  Rep.  236;  State  v.  Gib- 
son, III  Mo.  92,  19  S.  W.  980:  State 
V.  Jamison,  38  Minn.  21,  35  N.  W. 
712;  Lawson  Presumptive  Ev.  p.  472. 

In     Cochran     v.     State,     91     Ga. 

Vol.  I 


763,  18  S.  E.  16,  defendant  was  in- 
dicted under  a  statute  which  pro- 
vided that  any  one  maliciously  or 
fraudulently  leading  or  taking  away 
a  child  under  eighteen  years  of  age 
from  its  parents  or  guardians,  or 
against  his,  her  or  their  wills,  shall 
be  guilty  of  kidnapping.  The  evi- 
dence showed  that  defendant  went 
with  a  girl  under  eighteen  to  a  li- 
censing office,  obtained  a  luarriage 
license,  and  married  the  girl.  There 
was  no  proof  of  fraud  or  force  prac- 
ticed or  exerted  upon  the  girl  or 
her  parents ;  and  no  proof  of  malice. 
Held,  that  the  evidence  did  not  sus- 
tain  a   conviction. 

14.  State  V.  Keith,  47  Minn.  559, 
50  N.  W.  691.  See  also  Beyer  v. 
People,  86  N.  Y.  369. 

15.  State  V.  Rorebeck,  158  Mo. 
130.  59  S.  W.  67;  Payner  v.  Com. 
(Ivy.)  19  S.  W.  927;  Slocum  v. 
People,  90  111.  274;  State  v.  Bobbst, 
131  Mo.  328,  32  S.  W.  1149;  State  v. 
Keith,  47   Minn.  559,  50  N.   W.  691. 

"The  gravamen  of  the  offense  is 
the  purpose  or  intent  with  which  the 
enticing  or  abduction  is  done;  and 
hence  the  offense,  if  committed  at 
all,  is  complete  the  moment  the  sub- 
ject of  the  crime  is  removed  beyond 
the  power  and  control  of  her  parents, 
or  others  having  lawful  charge  of 
her,  whether  any  illicit  intercourse 
takes  place  or  not."  Pfendcrson  i<. 
People,  124  111.  607,  17  N.  E.  68,  7 
Atri.  St.  Rep.  391. 

16.  Specific  Intent.  —  State  v. 
Stoyell.  54  Me.  24.  89  .^m.  Dec.  716. 
In  this  case,  which  is  the  leading 
American    case    on    the    subjects    of 


ABDUCTION.  ?.l 

(C.)  Whose  Intent  Matekial. —  (a.)  Intent  of  Defendant  Alone  Mate- 
rial. —  In  prosecution  under  statute  directed  against  taking  female 
with  inhibited  intent,  it  is  the  intent  of  defendant  which  is  material, 
the  intent  of  the  female  being  immaterial." 

{h.)  Kno-di'lcdge  of  Female  Immaterial. —  It  is  also  immaterial  that 
defendant's  intent  was  not  disclosed  to  the  female.'* 

(D.)  Consent,  When  Immaterial.  —  When  the  gist  of  the  offense 
is  the  abduction  of  an  infant,  or  the  taking  of  a  female  under  desig- 
nated age,  for  purposes  of  prostitution  or  concubinage,  it  is  immate- 
rial that  the  taking  was  with  the  consent  of  the  infant,"  or  the 
female.-" 

b.  Taking  Female  Under  Designated  Age  for  Certain  Purpose. 

(1.)   Prostitution Unnecessary  to  Sho-v  Particular  Man. — In  prosecution 

under  a  statute  against  compelling  or  procuring  a  female  to  have 


specific  intent  and  taking  for  pur- 
pose of  prostitution,  defendant  was 
indicted  under  a  statute  which  pro- 
vided that  '■  whoever  fraudulently 
and  deceitfully  entices  or  takes  away 
an  unmarried  female  from  her 
father's  house,  or  wherever  else  she 
may  be  found,  for  the  purpose  of 
prostitution,  at  a  house  of  ill  fame, 
assignation  or  elsewhere,  and  who- 
soever aids,"  etc.  The  evidence 
showed  that  the  defendant,  by  rep- 
resenting to  prosecutrix  that  he 
wished  to  take  her  for  a  drive,  in- 
duced her  to  accompany  him  to  a 
town  not  far  from  her  home.  On 
arriving  at  the  town  they  went  to  a 
hotel,  were  assigned  a  room,  where, 
after  producing  a  condition  of  par- 
tial into.xication  in  prosecutrix,  de- 
fendant had  intercourse  with  her. 
That  night  they  drove  to  her  father's 
house,  but  did  not  enter,  going,  in- 
stead to  another  hotel,  where  they 
again   had   intercourse. 

Defendant  was  convicted.  The 
appellate  court  held  that  the  evidence 
did  not  sustain  the  judgment  of  con- 
viction ;  that  it  did  not  show  any 
intent  to  cause  prosecutrix  to  be- 
come a   prostitute. 

See  also  State  v.  Gibson,  io8  Mo. 
575,  i8  S.  W.  nog;  People  v.  Rodcri- 
gas,  49  Cal.  9;  State  v.  Rorebeck, 
158  Mo.  130,  59  S.  W.  67;  People  v. 
Parshall,  6  Park.  Crim.  (N.  Y.) 
129 ;  People  v.  Plath,  100  N.  Y. 
590,  53  Am.  Rep.  236;  Carpenter  v. 
People,  8  Barb.  (N.  Y.)  603;  State 
V.   Ruhl,   8   Iowa   447. 


Proof  of  Intent  to  Seduce  Not 
Sufficient — Evidence  showing  an  at- 
tempt to  commit  seduction  does  not 
warrant, conviction  under  an  indict- 
ment which  charges  defendant  with 
taking  away  female  with  intent  to 
compel  her  to  be  defiled.  People  v. 
Parshall,  6  Park.  Crim.  (N.  Y.)   129. 

But  in  People  v.  Cummons,  56 
Mich.  544,  23  N.  W.  215,  it  was  held 
that  a  conviction  for  enticing  female 
under  designated  age,  for  purposes  of 
prostitution,  was  sustained  by  evi- 
dence that  defendant  enticed  the 
female  to  his  photographic  rooms, 
showed  her  lewd  pictures,  paid  her 
small  sums  of  money,  and  at  various 
times  had  se.xual  intercourse  with 
her. 

17.  Defendant's  Intent  Controls. 
Slocum  V.  People,  go  111.  274; 
State  V.  Bobbst,  131  Mo.  328,  32  S. 
W.    1149. 

18.  Knowledge  of  Female  Imma- 
terial— Slocum  V.  People,  90  111.  274; 
E.x  Parte  Estrado,  88  Cal.  316,  26 
Pac.    209. 

19.  Thwentt  v.  State,  74  Ga.  821 ; 
Tucker  v.  State,  8  Lea  (Tenn.)  633; 
I   Russ.  Crimes,    (gth  Ed.)   p.  953. 

20.  Consent  of  Female  Immate- 
rial— State  V.  Bobbst,  131  Mo.  328, 
32  S.  W.  1 149;  State  V.  Chisenhall, 
106  N.  C.  676,  II  S.  E.  518;  State  v. 
Bussey,  58  Kan.  679,  50  Pac.  891  ; 
State  V.  Stone,  106  Mo.,  16  S.  W. 
890;  Scruggs  V.  State,  go  Tenn.  81, 
15  S.  W.  1074;  South  V.  State,  97 
Tenn.  496,  37   S.   W.   210. 

Vol.  I 


1689 Ji 


38 


ABDUCTION. 


sexual  intercourse  with  men  other  than  the  person  so  procuring  or 
compelhng  her,  it  is  not  necessar)-  to  show  that  defendant's  purpose 
was  to  coinpel  prosecutrix  to  have  intercourse  with  any  particular 
man.  It  will  be  sufficient  if  the  evidence  shows  that  defendant's 
purpose  was  to  procure  or  compel  her  to  have  intercourse  with 
another,  or  with  others,  than  himself. '•'' 

(A.)  Character  OF  Hou&e. —  In  prosecution  under  statute  against 
inveigling  or  enticing  a  female  into  a  house  of  ill-fame  or  of  assig- 
p.ation,  or  elsewhere,  for  the  purposes  of  prostitution,  it  is  necessary 
to  show  that  the  place  to  which  the  female  was  taken  was  a  place  of 
character  similar  to  that  of  houses  of  ill-fame  or  of  assignation.--' 

(B.)  Character  of  House  As  Showing  Purpose  or  Intent.  — In  prose- 
cution for  taking  female  for  purpose  of  prostitution,  character  of 
house  may  be  considered  as  showing  defendant's  purpose  or  intent.- ' 

(2.)  Concubinage — (A.)  Acts  Necessary  to  Constitute. ^To  estab- 
lish a  taking  for  the  purposes  of  concubinage,  no  given  number  of 
acts  of  intercourse  is  necessary.-'' 

(B.)  Number  of  Acts  As  Showing  Purpose.  —  But  it  is  proper  to 
show  the  number  of  acts 'which  took  place,  and  the  number  may  be 
considered,  in  connection  with  other  facts,  and  circumstances  proved, 
in  determining  whether  or  not  defendant's  purpose  was  habitual 
cohabitation  with  the  female.-'' 


21.  Stevens  v.  State,  II2  Ind.  433, 
14  N.   E.  251. 

22.  In  State  v.  McCruni,  38  Minn. 
154,  36  N.  W.  102,  it  was  shown  that 
defendant  enticed  prosecutrix  into 
a  dwelling  house,  and  there  had  in- 
tercourse with  her.  Held,  that  to 
sustain  a  conviction,  it  should  have 
been  shown  that  the  house  was  a 
place  where  prostitution  of  the 
character  common  at  houses  of  ill- 
fame  was  practiced.  See  also  Miller 
V.  State,  121  Ind.  294,  23  N.  E. 
94.  But  see  People  v.  Cummons,  56 
Mich.  544,  23  N.  W.  215.  See  also 
Reg.  V.  McNamara,  20  O.  R.  (Can.) 
480. 

23.  Brown  v.  State.  72  Md.  468, 
20  Atl.   186. 

Held,  that  facts  that  defendant 
kept  a  bawdy-house  and  that  pros- 
ecutrix was  brought  tliere,  were 
prima  facie  evidence  that  prosecu- 
tri.x  was  taken  there  for  purpose  of 
prostitution.  Also  held  that  defend- 
ant, to  rebut  this  prima  facie  case, 
might  prove  that  prosecutrix  was 
permitted  at  her  own  request,  to 
remain  in  the  house,  for  the  pur- 
pose of  securing  employment  on  the 

Vol.  I 


day  after  her  arrival.  Also,  that 
while  in  the  house,  prosecutrix  did 
not  have  se.xual  intercourse. 

In  State  v.  Ruhl,  8  Iowa  447,  it  is 
stated  that  if  it  be  proven  that  de- 
fendant took  prosecutrix  to  a  house 
of  ill-fame,  prostitution,  or  other 
place  where  she  would  be  in  the 
society  alone  of  lewd  and  lascivious 
persons,  a  conviction  might  be  sup- 
ported, upon  the  principle  that  pros- 
titution of  the  female  might  be 
regarded  as  almost  necessarily  to 
follow,  every  person  being  presumed 
to  intend  the  natural,  necessary  and 
even  probable  consequences  of  his 
act. 

See  also  State  v.  Chisenhall,  106 
N.  C.  676,  II  S.  E.  518;  Reg.  V. 
McNamara,  20  O.  R.  (Can.)   489. 

24.  U.  S.  V.  Zes  Cloya,  35  Fed. 
493 ;  State  v.  Feasel,  74  Mo.  524. 

Single  Act  Held  Sufficient State 

V.  Feasel,  74  Mo.  524. 

25.  U.   S.  V.   Zes   Cloya,   35   Fed. 

493- 

In  State  v.  Feasel,  74  Mo.  524,  it 
was  held  that  cohabitation  for  a 
single  night  with  a  female  under 
the  age  prescribed  by  the  statute   is 


ABDUCTION. 


39 


CO  Previous  Chastity  Material-  —  Previous  chastity  of  the  female 
must  be  proved.-" 

(3.)  Carnal  Knowledge.  —  Under  some  statutes  the  offense  is  com- 
mitted by  taking  a  female  under  designated  age  for  purpose  of 
sexual  intercourse.-' 

c.  Taking  Minor  From  Parent  or  Guardian  Without  His  Consent. 
(1.)  Taking  From  Custody.  —  (A.)  What  Constitutes  —  An  actual  for- 
cible removal  from  parent's  custody  need  not  be  shown.-»  It 
suffices  to  prove  any  act  which  deprives  the  parent  of  the  custody 
or  possession  of  his  child.-'' 


sufficient  to  sustain  a  conviction  for 
taking  for  purposes  of  concubinage. 
The  question  arose  upon  an  exception 
to  a  certani  instruction  in  whicn  the 
court  instructed  the  jury  tliat  if 
defendant  took  the  female  from  her 
father  for  the  purpose  of  concubin- 
age, that  is,  for  the  purpose  of 
cohabiting  with  her  as  man  and  wife 
in  sexual  intercourse  for  any  length 
of  time,  even  for  a  single  night, 
without  the  authority  of  a  valid  mar- 
riage, the  jury  would  find  defend- 
ant  guilty. 

Single  Act  Not  Sufficient — State 
V.  Feasel,  74  Mo.  524,  is  overruled 
by  State  v.  Gibson,  ill  Mo.  92,  19  S. 
W.  980,  which  is  itself  approved  by 
State  V.  Johnson,  115  Mo.  480,  22 
S.  W.  463,  and  State  v.  Wilkinson, 
121   Mo.  48s.  26  S.  W.  366. 

But  State  V.  Feasel,  74  Mo.  524, 
is  approved  in  State  v.  Overstreet, 
43  Kan.  299,  23  Pac.  572.  Although 
in  the  Overstreet  case  the  court  held 
that  there  was  evidence  of  other 
than  one  night's  cohabitation  which 
showed    defendant's    intent. 

26.  Previous  Chastity — In  State 
V.  Gibson,  11 1  Mo.  92,  19  S.  W.  980, 
defendant  was  indicted  under  a 
statute  directed  against  taking  female 
under  the  age  of  eighteen  for  pur- 
pose of  concubinage.  The  court  held 
that,  while  the  statute  in  question 
did  not,  in  terms,  require  that  the 
female  should  have  been  of  previous 
chaste  character,  such  a  requirement 
was  necessarily  included  in  a  defini- 
tion of  the  ofifense. 

Contra. — State  v.  Johnson,  115 
Mo.  480,  22  S.  W.  463. 

27.  HufTz/.  Commonwealth,  (Ky.) 
37  S.  W.  1046;  People  V.  Seeley,  Z7 


Hun  (N.  Y.)  190;  People  v.  Shep- 
pard,  44  Hun    (N.  Y.)   565. 

As  to  method  of  proving  age  see 
the  article,  "  Age." 

28.  Force  Not  Necessary — Roscoe 
Crim.  Ev.,  /th  Am.  Ed.,  p.  263; 
citing  Rex  v.  Booth,  12  Cox  Crim. 
Cas.,  231  and  Reg.  v.  Handley,  I  F. 
&    F.    648;    Russ.    Crimes,    9th    Ed. 

954- 

29.  Acts  Which  Constitute  Taking 

From    Custody Where   A.    went   at 

night  to  house  of  B.,  and  held  a 
ladder  for  F.,  B.'s  minor  daughter, 
to  descend,  arid  then  eloped  with 
and  married  her,  it  was  held  that 
there  was  a  taking  of  the  girl  from 
the  possession  of  her  father,  although 
F.  herself  proposed  the  use  of  the 
ladder.  Roscoe  Crim.  Ev.,  7th  Am. 
Ed.,  citing  Rex.  v.  Robins,  I  Car.  & 
K.  456. 

So  when  defendant  persuaded  a 
girl  to  meet  him  secretly,  and  then 
took  her  away.  Roscoe  Crim.  Ev.  7th 
Am.  Ed.,  p.  263,  citing  Reg.  v.  Mank- 
telow,  I  Dears.  C.  C.  I59,  where  a 
girl  has  left  home  without  any  in- 
ducements offered  her  by  defend- 
ant, and  come  to  defendant,  if  he 
avails  himself  of  her  having  left  to 
induce  her  not  to  return,  he  is  guilty 
of  an  unlawful  taking.  Roscoe 
Crim.  Ev.  7th  Am.  Ed.,  p.  263,  citing 
Rex.  V.  Olifier,  lo  Cox  Crim.  Cas. 
402. 

Defendant  being  related  to  the 
father  of  a  girl,  and  frequently  in- 
vited to  the  house,  induced  the  girl 
to  elope  with  and  secretly  marry 
him,  using  no  inducements  or 
seduction  other  than  the  ordinary 
blandishments  of  a  lover.  Held  that, 
father's  non-consent  being  shown,  de- 

Vol.  I 


40 


ABDUCTION. 


(a.)  Fraud.  —  Defendant  takes  the  child  from  the  custody  of  its 
parent  when  he  entices  it  away  by  the  use  of  false  representations.^" 
But  it  is  held  that  the  force  or  fraud  must  be  exercised  or  practiced 
against  the  minor,  and  that  evidence  showing  the  exercise  of  force 
or  the  practice  of  fraud  against  the  parent  or  guardian  is  not  suffi- 
cient to  sustain  an  indictment.'^ 

(b.)  Bad  Intent  Immaterial.  —  It  is  immaterial  that  defendant  was 
not  actuated  by  bad  intent  in  the  taking. "- 

Intent.  —  The  only  intent  necessary  to  be  proven,  is  an  intent  to 
deprive  a  parent  of  his  child.'' 

(c.)  Intent  Inferred.  — An  intent  to  abduct  may  be  inferred  from 
evidence  of  solicitations  made  to  minor  by  defendant,  or  from 
preparations  made  by  him.'* 

(d.)  Ignorance  of  Minority  Immaterial.  —  Testimony  that  a  minor 
who  was  taken  away  told  defendant  that  she  was  over  designated 
age,  and  that  he  believed  her,  is  irrelevant.'^ 

(B.)  Actual  Removal  Necessary. —  Custody.  —  Before  an  unlawful 
taking  can  be  shown,  it  must  be  established  that  the  minor  was  in 
the  custody  or  charge  of  his  parent  or  guardian,'"  and  was  actually 


fendant  was  guilty  of  abduction. 
R.  V.  Twisleton,  i  Lev.  257  as  cited 
at  p.  246  of  Roscoe  Crim.  Ev.  See 
Reg.  V.   Burrell,   L.   &  C.  354. 

Acts  Which  Do  Not  Constitute 
Taking — Defendant  does  not  take  a 
girl  out  of  the  possession  of  her 
father,  where  he  finds  her  on  the 
street,  produces  partial  into.\ication, 
and  has  intercourse  with  her.  Reg. 
V.  Green,  3  F.  &  F.  274. 

30.  I  Russ.  Crimes,  gth  Ed.  pp. 
952,   9SS. 

Contra. — But  in  Reg.  v.  Meadows, 
I  Car.  &  K.  399,  it  was  held  that 
inducing  a  girl  to  go  with  defend- 
ant by  his  representing  that  his 
mother  needed  a  servant,  and  would 
pay  her  a  certain  sum  as  wages,  and 
then  taking  her  away  with  himself, 
did  not  constitute  a  taking  from 
the  possession  or  against  the  will  of 
her  father.  This  case  is  doubted  in 
case  of  Reg.  v.  Manktelow,  6  Co.x. 
Crim.    Cas.    143. 

31.  Reg.  V.  Barnett,  15  Co.x  Crim. 
Cas.    658. 

Contra. — Reg.  v.  Hopkins,  i  Car. 
&  M.  254,  where  it  is  held  that  of- 
fense is  committed  when  consent  of 
parent    is    obtained   by    fraud. 

32.  Roscoe  Crim.  Ev.,  7th  Am. 
Ed.,  p.  264,  citing  Re.\  v.  Booth,  12 

Vol.  I 


Co.\    Crim.    Cas.    231.      See    also    I 
Russ.   Crimes,  9th  Ed.,  p.  955'. 

But  in  Reg.  v.  Tinkler,  i  F.  &  F. 
513,  it  was  held  that  when  the  evi- 
dence showed  that  defendant,  who 
had  taken  a  girl  from  the  custody  of 
a  person  with  whom  she  had  been 
placed  by  an  elder  sister,  believed 
he  had  a  right  to  the  custody  of  the 
child,  she  being  a  sister  of  his  de- 
ceased wife,  defendant  having  prom- 
ised the  child's  father  on  his  dying 
bed  that  he  would  take  care  of  her, 
abduction  was  not  committed,  no 
improper  motive  appearing. 

33.  Roscoe  Crim.  Ev.,  7th  Am. 
Ed.,  p.  264,  citing  Re.x.  v.  Timmins, 
8  Co.x  Crim.  Cas.  401. 

34.  Roscoe  Crim.  Ev.,  7th  Am. 
Ed.,  264. 

35.  State  v.  Ruhl,  8  Iowa  447 ; 
Reg.  V.  Prince,  L.  R.  2  C.  C.  R. 
154;   I   Whart.  Crim.  Law.  §88. 

36.  Custody  Must  Be  Shown. 
Reg.  V.  Miller,  13  Cox  Crim.  Cas. 
179.  In  this  case  the  evidence 
showed  that  a  girl  working  as  a 
servant  had  had  various  meetings 
with  defendant.  While  going  to 
visit  her  father,  she  called  on  de- 
fendant. She  had  leave  to  remain 
with  her  father  from  Sunday  till 
Monday  night.     She  left  her  father's 


ABDUCTION. 


41 


removed  therefrom/'^ 

(a.)  Constructive  Custody  Sufficient.  —  But  it  is  sufficient  if  it  be 
shown  that  the  minor  was  constructively  in  the  custody  of  his  parent 
or  guardian.^* 

(,b.)  Constructive  Service  Sufficient.  —  And  where  it  must  be  shown 
that  services  were  rendered  by  the  minor,  constructive  service  is 
sufficient.^" 

(c.)  IVIio  Untitled  to  Custody. — It  is  sufficient  to  siio»v  that  the 
minor  Hved  with  the  guardian  of  his  estate  in  the  absence  of  his 
father  and  with  the  consent  of  the  mother ;  and  the  letters  of  guar- 
dianship of  estate  are  admissible  in  evidence/" 

(d.)  Distance  Removed  or  Time  of  Detention  Immaterial.  —  It  is  not 
necessary  to  show  that  the  female  was  taken  any  given  distance 
from  the  person  entitled  to  her  custody ;"  or  that  she  was  detained 
any  given  time/- 


house  Sunday ;  but,  instead  of  re- 
turning to  service,  met  defendant  and 
spent  Sunday  night  with  him ;  and 
remained  with  him  till  Thursday, 
when  her  father  accidently  met  her 
and  returned  her  to  her  employer. 
The  girl  testified  that  she  might 
have  returned  to  her  master's  at 
any  time  after  Monday  night;  also 
that  she  never  intended  to  stray 
away  till  Monday  night.  Held,  that 
abduction  was  not  committed  as  girl 
was  not  in  the  custody  of  her  father. 

i>ee  also  Reg.  v.  Green,  3  F.  &  F. 
274,  in  which  it  was  held  that  the 
girl  was  not  in  charge  of  her  father. 

See  also  Reg.  v.  Hinkers,  10  Cox 
Crim.    Cas.    246. 

Defendant's  Knowledge  of  Custody. 
See  Reg.  v.  Hilbert,  II  Co.x  Crim. 
Cas.  246,  in  which  it  is  held  that  the 
offense  is  not  committed  unless  de- 
fendant knew  that  the  girl  was  under 
the  care  of  her  father,  or  had  reason 
for  believing   that   she  was. 

37.  Actual  Removal Slocum   v. 

People,   go   111.   274. 

38.  Constructive  Custody  Suffi- 
cient— Possession  of  parent  con- 
tinues until  put  an  end  to  by  de- 
fendant's taking  the  female  into  his 
own  possession.  Reg.  v.  Manktelow, 
I  Dears.  C.  C.  159;  and  Rex  v.  Kipps, 
4  Co.x  Crim.  Cas.   167. 

See  also  Russ.  Crimes,  (9th  Ed.) 
p.  9S4;  2  Whart.  Crim.  Law  (gth 
Ed.)  §1765;  State  v.  Round,  82  Mo. 
679. 

If,    in    prosecution    for   abduction. 


the  evidence  shows  that  there  was 
an  intention  on  the  girl's  part  to 
return  home,  she  is  still  in  the  con- 
structive custody  of  her  father. 
Roscoe  Crim.  Ev.  (7th.  Am.  Ed.)  p. 
263,  citing  Rex.  v.  Mycock,  12  Cox 
Crim.   Cas.  28. 

"Surely  a  father  to  protect  his 
child  ought  not  to  be  obliged  to 
keep  his  arms  clasped  constantly 
around  her  waist."  Bish.  Stat. 
Crimes,  §  636. 

In  State  v.  Round,  82  Mo.  679,  a 
girl  had  gone  with  consent  of  her 
father,  who  lived  in  Missouri,  to 
visit  an  uncle  in  Iowa.  Defendant, 
by  false  representations,  induced 
the  girl  to  leave  her  uncle's  house 
with  him.  They  drove  into  Miss- 
ouri, where  they  had  se.xual  inter- 
course. Held,  that  tlie  girl  was 
taken   from   her   father's   custody. 

39.  Gandy  v.  State,  81  Ala.  68,  i 
So.  35,  holding  that  it  is  presumed 
that  the  services  of  the  minor  are 
lawfully  due  to  the  parent  as  long 
as  the  child  remains  in  the  family 
and  under  the  control  of  the  parent. 

40.  People  v.  Carrier,  46  Mich. 
442,  9.  N.  W.  487.  As  to  custody, 
see  State  v.  Ruhl,  8  Iowa  447. 

41.  Slocum  V.  People,  90  111.  274; 
I  Russ.  Crimes,  (gth  Ed.)  p.  956; 
South  V.  State,  97  Tenn.  496,  37  S. 
W.  210. 

42.  State  v.  Round,  82  Mo.  679; 
Slocum  V.  People,  90  III.  274;  South 
V.  State,  97  Tenn.  496,  37  S.  W.  210; 
Roscoe    Crim.    Ev.    (7th    Am.    Ed.) 

Vol.  I 


42 


ABDUCTION. 


(e.)  Parental  Control  Lost. —  Under  indictment  for  forcibly,  mali- 
ciously or  fraudulently  taking  or  enticing  away  from  its  parent 
a  child  under  designated  age,  defendant  may  show  that  the  control 
of  the  child  had  passed  from  the  parent  and  vested  in  a  guardian, 
the  presumption  of  parental  control  being  disputable/^ 

(2.)  Non-Consent  of  Parent  or  Guardian.  —  To  establish  an  unlawful 
taking  of  a  minor,  it  must  be  shown  that  the  taking  was  done  with- 
out the  consent  of  the  parent  or  guardian. 

(A.)  Non-Consent  Presumed.  —  Want  of  consent  of  parent  will  be 
presumed,  if  it  appears  that  had  his  consent  been  asked,  he  would 
have  refused  it.^* 

(B.)  Consent  Obtained  by  Fraud.  —  If  the  evidence  show  that 
parents'  consent  to  removal  was  obtained  by  fraud,  the  oflfense  is 
committed.''" 

(C.)  Defendant's  Knowledge  of  Non-Consent  Immaterial.  —  In 
prosecutions  for  taking  away  minor  female  without  the  consent  of 
her  parent  or  guardian,  it  is  immaterial  whether  or  not  defendant 
wa's  notified  of  parent's  unwillingness  to  surrender  the  custody  of 
his  child.*" 

(D.)  Father's  Treatment  Immaterial.  —  Defendant  will  not  be 
permitted  to  show  that  the  father  treated  the  girl  harshly.*' 

(E.)  Consent  Immaterial. — In  prosecution  for  taking  female  under 
designated  age  for  purpose  of  prostitution,  evidence  as  to  the 
father's  consent  is  immaterial.*' 


p.  263,  citing  Reg.  v.  Timmins ;  8 
Cox  Crini.  Cas.  401.  See  also  i 
Russ.   Crimes    (9th   Ed.)    956. 

43.  Parental  Control  Lost. 
Pruitt  V.  State,  102  Ga.  688,  29  S.  E. 

437- 

44.  Roscoe  Crim.  Ev.  (7th  Am. 
Ed.)  p.  264,  citing  Reg.  v.  Handley, 
I    F.   &  F.  648. 

Acquiescence — In  Reg.  v.  Primelt, 
I  F.  &  F.  50,  defendant  met  a  young 
girl  at  a  dance  house,  took  her  away 
and  had  intercourse  with  her.  Held 
that  the  taking  was  not  against  the 
consent  of  her  mother,  when  the 
evidence  showed  that  the  mother 
knew  of  the  girl's  habit  of  being  out 
late  at  night  and  visiting  dance 
houses,  and  permitted  her  to  do  so. 

See  also  1  Russ.  Crimes  (9th 
Ed.)     p.    958;     Bish.     Stat.     Crimes 

§  635. 

45.  Consent    By    Fraud Reg.    v. 

Hopkins,  I  Car.  &  M.  254.  In  this 
case  defendant  represented  to  a 
mother  that  he  would  give  her 
daughter  employment,  if  she  should 
be  permitted   to  go   with   him.     The 

Vol.  I 


father,  on  being  informed  of  this 
statement,  consented  to  the  girl's 
going   with   defendant. 

Defendant  did  not  take  the  girl 
to  the  place  to  which  he  had  prom- 
ised to  take  her,  but  kept  her  with 
him,  and  occupied  the  same  bed  with 
her. 

The  father  testified  that  he  let 
the  girl  go,  relying  upon  defend- 
ant's representations.  Held,  that  the 
taking  was  unlawful,  on  the  ground 
that  consent  obtained  by  fraud  is  no 
consent. 

See  also  Roscoe  Crim.  Ev.  (7th 
Am.  Ed.)  p.  26,3;  Russ.  Crimes  (9th 
Ed.)   p.  951, 

46.  Gravett  v.   State,  74  Ga.   191. 

47.  Gravett  v.  State,  74  Ga.  191. 
In  this  case  defendant  offered  to 
prove  that  the  father  was  harsh  in 
his  treatment  of  the  girl  taKen  away, 
for  the  purpose  of  showing  that  she 
left  home  voluntarily  to  avoid  such 
treatment.  Held,  that  the  testimony 
was   properly   excluded. 

48.  State  v.  Chisenhall,  106  N.  C. 


ABDUCTION. 


43 


Assisting  Mother  in  Taking  Child  From  Parent.  —  In  prosecution 
inider  statute  against  taking  child  under  designated  age,  with  intent 
to  conceal  it  from  its  parent,  evidence  that  defendant  simply  assisted 
the  mother  in  taking  the  child  from  the  father  is  not  sufficient  to 
sustain  conviction. ■''■' 

d.  Previous  Chaste  Character  of  Female.  —  Under  some  statutes 
the  offense  of  taking  a  female  for  certain  prohibited  purposes  is 
not  complete  unless  it  be  shown  that  the  female  was  of  chaste 
character  previous  to  the  taking. 

(1.)  Chastity  Prior  to  Taking. — To  secure  conviction  under  statutes 
directed  against  taking  away  a  female  of  previous  chaste  character 
for  the  purposes  of  prostitution  or  concubinage,  the  state  must 
prove  that  up  to  the  time  of  the  commission  of  the  offense,  she 
had  been  chaste  and  pure  in  character,  conduct  and  principle.'*^ 

(2.)  Chastity  Must  Be  Proved.  —  Chastity  must  be  proved  by  posi- 
tive evidence. "*- 

(A.)  Presumption  of  Innocence  iNSUFnciENT.  —  The  fact  of  chastity 
is  not  established  by  applying  in  favor  of  the  female  the  presump- 
tion of  innocence.'^'' 


676,  II   S.  E.  518;   State  V.  Jamison, 
38  Minn.  21,  35  N.  W.   712. 

But  in  Brown  v.  State,  72  Md. 
468,  20  Atl.  186,  it  was  held  that 
defendant  might  show  that  prosecu- 
trix went  with  defendant  with  her 
mother's    consent. 

49.  State  v.  Angel,  42  Kan.  216, 
21  Pac.  1075.  In  this  case  the  evi- 
dence showed  that  the  mother  of  an 
infant  took  it  away  from  the  father, 
and  that  defendant  aided  and  assisted 
her.  Held,  that  such  evidence  would 
not  sustain  a  conviction.  The  de- 
cision proceeded  upon  the  theory 
that  under  the  Constitution  of  Kan- 
sas the  mother's  right  to  the  child 
was  equal  with  that  of  the  father ; 
that,  consequently,  she  had  a  right 
to  remove  the  child,  and  could  not 
be  prosecuted  for  so  doing ;  and  that 
defendant,  in  assisting  her  in  a  law- 
ful act.  committed  no  oflfense. 

50.  Previous — In  such  connection 
the  word  "  Previous "  refers  to  a 
period  terminating  immediately  pre- 
vious to  the  commencement  of  the 
guilty  conduct  of  defendant.  Car- 
penter V.  People,  8  Barb.  (N.  Y.) 
603. 

Reformation — If  the  female  had 
fallen  once,  but  had  reformed,  she 
might  be  the  subject  i  f  the  offense. 
Id. 


51.  Character,     Not     Reputation. 

This  means  actual  personal  virtue, 
chaste  character,  not  a  reputation  for 
chastity.  Carpenter  v.  People,  8 
Barb.  (N.  Y.)  603;  Kauffman  v. 
People,  II  Hun  (N.  Y.)  82,  87; 
Slocum  V.  People,  90  111.  274,  281 ; 
Kenyon  r.  People,  26  N.  Y.  203,  84 
Am.  Dec.  177. 

Previous  Chastity — On  the  sub- 
ject of  previous  chastity,  and  the 
proof  necessary  to  establish  it,  see 
Slocum  V.  People,  90  111.  274,  281 ; 
Lyons  V.  State,  52  Ind.  426 ;  Crozier 
V.    People,    I    Park.    Crim.    (N.    Y.) 

453. 

52.  Chastity     Must     Be     Proved. 

People  V.  Roderigas,  49  Cal.  9;  Com. 
V.  Whittaker,  113  Mass.  224;  Kaufif- 
man  v.   People,  11  Hun    (N.  Y.)  82. 

53.  Presumption  of  Innocence. 
In  Com.  V.  Whittaker,  113  Mass. 
224,  it  is  held  that  the  presumption 
of  innocence,  which  the  law  indulges 
in  favor  of  the  female,  will  not  so 
far  overcome  the  presumption  of  in- 
nocence in  favor  of  defendant,  as  to 
dispense  with   proof  of  chastity. 

Contra. — Slocum  v.  People.  90  111. 
274.  In  this  case  the  court  uses  this 
language : 

"  It  is  argued  that  Miss  Templcton 
was  not  a  female  of  chaste  life  and 
conversation,      and      therefore      the 

Vol.  I 


44 


ABDUCTION. 


(B.)  c>HowN  BY  Circumstances. —  Evidence  may  be  offered  of  cir- 
cumstances which  raise  presumption  of  chastity.^* 

(3.)  Unnecessary,  When._'(A.)  When  Force  Is  Employed.— In  prose- 
cution under  statute  directed  against  taking  any  woman  against  her 
will,  and  by  force  compelling  her  to  be  defiled,  evidence  of  previous 
chastity  of  the  female  is  not  required.'*'' 

(.B.)  Female  Under  Designated  Age. —  So  when  prosecution  is  for 
taking  a  female  under  a  designated  age  for  the  purpose  of  prostitu- 
tion.'*" 

(4.)  TJnchastity  As  Defense.  —  When  the  rule  requires  proof  of  pre- 
vious chastity,  defendant  may  show,  as  a  defense,  that  previous  to 
the  time  of  the  alleged  taking,  the  female  was  unchaste,  and  may 
offer  evidence  of  a  single  act  of  illicit  intercourse  on  the  part  of 
prosecutrix.^'' 


statutory  crime  was  not  committed. 
We  admit  that  this  clause  requires 
that  she  shall  possess  actual  personal 
virtue  as  distinguished  from  a  good 
reputation.  The  presumption  of  law 
is,  that  her  previous  lite  and  con- 
versation were  chaste,  and  the  onus 
was  upon  the  defendants  to  show 
otherwise." 

To  same  effect  is  Bradshaw  v. 
People,   153  HI-   156,  38  N.   E.  652. 

54.  Presumption        of        Chastity 

Created   by   Circumstances Slocum 

V.  People,  90  HI.  274 ;  Bradshaw  v. 
People,   153  111.   156,  38  N.  E.  652. 

Among  the  circumstances  compe- 
tent to  be  shown  for  the  purpose  of 
raising  presumption  of  chastity,  is 
the  fact  that  an  unmarried  female 
was  at  the  time  of  the  act  in  ques- 
tion residing  with  her  parents  or 
guardian ;  that  she  was  living  in  a 
respectable  household,  or  by  proof  of 
any  circumstances  consistent  with 
and  the  usual  concomitants  of 
chaste  female  character.  People  v. 
Roderigas,   49   Cal.   9. 

In  Andre  v.  State,  5  Iowa  389,  68 
Am.  Dec.  708,  it  is  held  that,  to 
show  that  female  was  unchaste  it  is 
not  necessary  that  it  be  shown  that 
she  had  had  se.xual  intercourse.  Un- 
chastity  may  be  established  by  proof 
ot  lewd,  indecent  and  lascivious  con- 
duct. 

55.  Taking  by  Force — Kauffman 
V.   People,   II   Hun     (N.   Y.)   82. 

56.  Female  Under  Designated 
Age Kauffman  v.   People,   11   Hun 

Vol.  I 


(N.  Y.)  82;  People  v.  Demousset, 
71  Cal.  611,  12  Pac.  788.  In  the 
case  last  cited  defendant  was  in- 
dicted under  a  statute  making  it  an 
ofifense  to  take  a  female  under  the 
age  of  eighteen  years  from  the  per- 
son entitled  to  her  custody,  without 
his  consent,  for  the  purposes  of 
prostitution.  It  was  held  that  evi- 
dence, that  prior  to  the  alleged  tak- 
ing, prosecutrix  had  had  intercourse 
with  a  number  of  men,  was  immate- 
rial. See  also  People  v.  Dolan,  96 
Cal.  315,  31  Pac.  107;  State  v. 
Bobbst,  131  Mo.  328,  32  S.  W.  1 149. 

In  People  v.  Demoussett,  71  Cal. 
611,  12  Pac.  788,  and  People  v.  Do- 
lan, 96  Cal.  315,  31  Pac.  107,  the  pros- 
ecutions were  under  §  267,  Penal 
Code  of  California,  which  is  directed 
against  taking  a  female  under  the 
age  of  eighteen  from  her  parents  for 
purposes  of  prostitution;  while  in 
People  V.  Roderigas,  49  Cal.  9,. 
prosecution  was  under  §  266,  which 
provides  that  any  one  taking  a  fe- 
male of  previous  chaste  character, 
under  the  age  of  eighteen,  for  pur- 
pose of  prostitution,  is  punishable, 
etc. 

57.  Unchastity  As  Defense. 
In  Lyons  v.  State,  52  Ind.  426,  the 
court  held  that  it  was  error  to  ex- 
clude defendant's  offer  to  prove  acts 
of  illicit  intercourse  on  the  part  of 
prosecutrix,  and  that  it  was  proper 
to  permit  the  defendant  to  show  a 
single  act  of  illicit  intercourse  on  her 
part.  Crozier  v.  People,  i  Park. 
Crim.  (N.  Y.)  453. 


ABDUCTION. 


45 


(5.)  TTnchastity  After  Taking  Immaterial. — Defendant's  evidence  as 
to  unchastity  of  prosecutrix  is  limited  to  time  preceding  the  taking ; 
and  evidence  of  subsequent  acts  of  unchastity  is  incompetent.^** 

B.  Burden  of  Proof.  —  The  burden  of  proof  is,  of  course,  upon 
the  prosecution  to  establish  every  element  of  thel  ofifense.  See 
"  Burden  of  Proof." 

C.  Evidence  for  Prosecution.  —  witnesses.  —  a.  Female 
Taken. — The  female  who  was  taken  may  testify  as  to  the  taking, 
as  to  defendant's  conduct,'*''  as  to  his  statements  to  her,  as  to  her 
reason  for  being  in  his  society,""  or  as  to  statements  made  to  her, 
or  in  her  presence  by  accomplice  of  defendant."^ 

(1.)  Wife  Witness  For  or  Against  Husband.  —  In  prosecution  for 
taking  a  female  and  marrying  her  by  force,  the  female  taken  may 
testify  against  defendant,'-'-  especiall}'  when  marriage  is  disputed."'' 
She  may  also  testify  for  him.""' 

(2.)  Corroboration.  —  (A.)  When  Required. —  A  conviction  may  be 
had  upon  the  uncorroborated  testimony  of  the  female,  unless  the 
statute  under  which  prosecution  is  conducted  requires  corroborating 
testimony."^ 

(B.)   Scope  AND  Nature  OF  Evidence.  — When     corroborative    testi- 


58.  Unchastity  After  Taking. 
Scruggs  V.  State,  go  Temi.  8i,  15  S. 
W.  1074.  See  also  Slociun  v.  Peo- 
ple, 90  111.  274.  In  this  case  the 
court  held  that  defendant  was 
estopped  to  rely  upon  circumstances 
showing  lewd  life  and  character  of 
female  after  commission  of  the  of- 
fense, it  being  shown  that  defend- 
ant's inducements  caused  her  to  lead 
a   life  of  prostitution. 

59.  Beyer  v.  People,  86  N.  Y.  369; 
■  Schnicker  v.  People,  88  N.  Y.  192. 

60.  People  v.  Seely.  37  Hun  190; 
Slocum  V.  People,  go  111.  274;  Peo- 
ple V.  DeLeon,  109  N.  Y.  226,  16  N. 
E.  46,  4  Am.  St.  Rep.  444. 

61.  People  V.  Brown,  71  Hun 
601,  24  N.  Y.  Supp,  nil. 

62.  Wife  Competent  Against 
Husband — The  common  law  inhibi- 
tion against  a  wife's  testifying 
against  her  husband  applies  only  in 
case  of  a  valid  marriage.  There- 
fore, in  prosecution  for  forcibly 
marrying  a  woman,  she  may  testify 
against  defendant,  as  there  was  no 
marriage  between  them,  she  being 
wife  de  facto  only,  and  not  dc  jure. 
State  V.  Gordon,  46  N.  J.  Law  432 ; 
Respublica  v.  Hevice.  2  Yeates  (Pa.) 
114:  2  Stark.  Ev.,  p.  711;  I  Greenl. 
(14th   Ed.),   §343. 


.See  tlie  article  "  Husband  and 
Wife." 

Rule  Questioned But  if  the  wo- 
man freely  and  without  constraint 
cohabits  with  defendant  a  considera- 
ble time  after  the  marriage,  it  is 
questionable  if  she  may  be  a  witness 
against  him.  i  Russ.  Crimes  (gth 
Ed.),  949;  2  Stark.  Ev.,  p.  711. 

63.  In  State  v.  Gordon,  46  N.  J. 
Law  432,  it  is  held  that  in  cases  of 
abduction  where  the  female  is  called 
as  a  witness  by  the  State  and  de- 
fendant objects  on  the  ground  that 
she  is  his  wife,  it  is  proper  to  exam- 
ine the  woman  on  her  voir  dire,  and 
if  she  denies  the  marriage  and  so 
states  the  facts  as  to  the  alleged 
marriage  as  to  leave  the  fact  of  mar- 
riage questionable,  then  the  State 
should  be  permitted  to  examine  in 
chief.  A  different  question,  it  is 
said,  would  be  presented  if  on  I'oir 
dire  she  admitted  herself  defendant's 
wife. 

64.  Wife  Competent  for  Husband. 
I  Russ.  Crimes  (gth  Ed.)  p.  949, 
citing  Perry's  case,  Bristol  1794.  See 
also  2  Stark.  Ev.,  p.  711. 

65.  State  v.  Stone,  106  Jilo.  1.  16 
S.  W.  890. 

Vol.  I 


46 


ABDUCTION. 


mony  is  required,  it  must  show  the  existence  of  every  fact  which 
constitutes  an  ingredient  of  the  offense. '"' 

But  it  is  not  required  that  corroborative  evidence  shall  be  in 
itself  sufficient  to  convict  defendant.*" 

(C.)  May  Be  by  Circumstances.  —  But,  when  corroborative  testi- 
mony is  required,  it  may  be  supplied  by  proof  of  circumstances 
which  raise  a  presumption  as  to  the  existence  or  non-existence  of 
material  facts. "^ 


66.  Corroboration  Must  Extend 
to  Every  Point — In  People  v.  Plath, 
100  N.  Y.  590,  53  Am.  Rep.  236,  tlie 
court  uses  this  language : 

"  It  was  essential  to  the  support  of 
this  conviction  that  the  people  show, 
not  only  a  taking  by  the  defendant 
within  the  meaning  of  the  statute, 
but  also  that  such  taking  was  for  the 
purpose  of  prostitution.  (Penal 
Code,  §  282,  as  amended  by  §  2, 
chap.  46,  Laws  of  1884.)  If  the 
evidence  establishes  only  a  taking 
and  fails  to  show  that  it  was  for  the 
prohibited  purpose,  it  is  insufficient 
to  sustain  the  conviction,  and  so 
proof  of  the  fact  that  the  person  of 
the  female  was  used  for  purposes  of 
prostitution  without  proof  of  the 
abduction,  would  not  bring  the  ac- 
cused within  the  condemnation  of 
the  statute.  It  is  elementary,  when 
a  specific  intent  is  required  to  make 
an  act  an  offense,  that  the  doing  of 
the  act  does  not  raise  a  presumntion 
that  it  was  done  with  the  snecific  in- 
tent. (Lawson  on  Presumptive  Evi- 
dence,  472.  V 

See  also  State  v.  Keith,  47  Minn. 
<5Q.  50  N.  W.  6qi. 

For  a  full  statement  of  the  rules 
as  to  Corroboration,  see  tliat  article. 

67.  State  v.  Keith.  47  Minn.  559. 
SO  N.  W.  601. 

68.  Corroboration  by  Circum- 
stances— People  V.  Plath.  100  N.  Y. 
SQO,  53  Am.  Ren.  236:  State  v. 
Shean,  32  Iowa  88 ;  .Andre  v.  State, 
S  Iowa  389.  68  Am.  Dec.  708. 

As  an  examnle  of  circumstances 
held  insufficient  to  corroborate  prose- 
cutrix, see  People  v.  Plath.  too  N. 
Y.  "^go- 

See  also  People  t'.  Wah  Lee  Mon, 
37  N.  Y.  St.  283,  13  N.  Y.  Supp. 
767.  In  this  case  the  court  held  that 
prosecutrix  was  corroborated  by  the 

Vol.  I 


circumstances  that  she  did  come 
with  defendant  to  the  place  where 
the  offense  was  committed ;  that 
they  had  had  previous  acquaintance; 
that  at  defendant's  solicitation  she 
entered  a  cab ;  that  defendant  gave 
the  cabman  a  false  address ;  that, 
when  arrested,  defendant  made  false 
statements  as  to  the  relations  be- 
tween himself  and  prosecutrix,  and 
as  to  his  object  in  inducing  her  to 
enter  the  cab  with  him. 

In  State  v.  Keith,  47  Minn.  559, 
S'o  N.  W.  691,  it  was  held  proper  to 
permit  a  physician  to  testify  that 
eight  months  after  the  date  of  the 
alleged  offense,  he  examined  prose- 
cutrix, and  to  state  the  condition  of 
her  person,  and  his  opinion  that  the 
ascertained  condition  resulted  from 
sexual   intercourse. 

But  in  People  v.  Betsinger,  49  N. 
Y.  St.  597.  21  N.  Y.  Supp.  136.  it 
was  held  that  the  evidence  of  physi- 
cians who  made  an  examination  of 
prosecutrix  four  vears  after  the  date 
of  the  alleged  offense,  during  which 
they  found  certain  physical  condi- 
tions which  would  indicate  that 
prosecutrix  had  had  sexual  inter- 
course, was  not  admissible. 

In  Crozier  v.  People,  i  Park. 
Crim.  (N.  Y.)  453,  it  was  held  that 
a  charge  to  the  jury  that  evidence 
as  to  illicit  intercourse  was  sun- 
ported  by  the  fact  that  prosecutrix 
gav-e  birth  to  a  child,  and  that  de- 
fendant was  a  regular  visitor,  was 
proper,  when  the  evidence  showed 
that  prosecutrix  had  given  birth  to 
a  child,  that  defendant  was  a  regu- 
lar visitor,  that  he  proposed  mar- 
riage, that  he  admitted  his  engage- 
mumU.  that  he  was  alone  with  her  late 
nt  night,  and  that  angry  words  passed 
between  them  when  defendant  was 
about   to  marrv  another, 


ABDUCTION. 


47 


(D.)  By  Defendant.  —  The  female  may  be  corroborated  by  the  tes- 
timony of  the  defendant,""  or  by  letters  written  to  her  by  him,'"  or 
by  his  confession.''' 

b.  Parent  or  Guardian  As  IVitiiess.  —  When  statute  is  directed 
against  taking  female  under  a  designated  age  from  the  custody  of 
her  parent  or  guardian,  the  parent  or  guardian  may  testify  as  to 
her  age ;'-  as  to  his  non-consent  ;'^  or  as  to  statement  of  other 
parent,  showing  non-consent  ;'*  or  as  to  his  efforts  to  prevent  the 
girl's  leaving  home ;'"'  or  as  to  his  efforts  to  find  her ;'"  or  to  induce 
her  to  return  home ;'"  or  as  to  her  habits.'' 

2.  Defendant's  Evidence. — A.  Non-Criminal  Intent. — Defend- 
ant may  offer  evidence  showing  the  existence  of  circumstances 
inconsistent  with  a  criminal  intent,  and  consistent  with  lawful  con- 
duct and  intent  on  his  part.'" 


69.  Corroboration  by  Testimony 
of  Defendant — People  v.  Wah  Lee 
Mon,  37  N.  Y.  St.  283,  13  N.  Y. 
Supp.   767. 

70.  Letters  of  Defendant Brad- 

shaw  V.  People,  153  111.  156,  38  N. 
E.  652. 

71.  Confession  of  Defendant. 
Andre  v.  State,  5  Iowa  389. 

72.  Age — Hermann  v.  State,  73 
Wis.  248,  41  N.  W.  171,  9  Am.  St. 
Rep.  789. 

As  to  mode  of  Proving  Age,  see 
Article  "  AcE." 

73.  Non  Consent Reg.  v.  Hop- 
kins, I  Car.  &  M.  254 ;  State  v.  Stone, 
106  Mo.  I,  16  S.  W.  890. 

74.  Statement  of  Other  Parent. 
State  V.  Cliisenhall,  106  N.  C.  676, 
II  S.  E.  518. 

75.  Efforts  to  Prevent  Departure. 
Gravett  v.  State,  74  Ga.  191.  In 
this  case  it  was  held  proper  to  per- 
mit the  father  to  show  that  he  kept 
the  window  of  the  girl's  room 
nailed  np. 

76.  Efforts      to      Find State     v. 

Stone,   106  Mo.   i.  16  S.  W.  890. 

77.  Efforts  to  Induce  Return. 
State  V.  Bobbst,  131  Mo.  328,  32  S. 
W.  1149. 

78.  Habits     of     Girl People     v. 

Dolan,  96  Cal.  315',  31  Pac.  107,  where 
it  was  held  that  evidence  as  to  the 
habits  of  the  girl  in  not  being  at 
home  at  night  conld  not  be  admitted 
to  impeach  the  testimony  of  her 
father  who  had  testified  that  it  was 
her  habit   to  be   in  at  night. 


79.  Beaven  v.  Com.,  (Ky.)  30  S. 
W.  968.  In  this  case  defendant  was 
indicted  for  detaining  a  woman 
against  her  will  for  purpose  of 
carnal  knowledge.  Held,  that  it  was 
proper  to  permit  defendant  to  show 
that  the  place  where  the  alleged 
detention  occurred  there  were  a 
number  of  lewd  women  plying  their 
vocation,  and  that  defendant  was  told 
that    prosecutrix    was    of   that   class. 

Consent  of  Parent.  —  Purpose 
Other  Tlian  Tliat  Cliarged.  —  In 
Brown  v.  State,  72  Md.  468,  20  Atl. 
186,  defendant  was  indicted  for 
taking  female  under  designated  age 
for  purpose  of  prostitution  at  bawdy- 
house  kept  by  defendant.  Held, 
that  defendant  might  show  that 
prosecutrix  came  to  defendant's 
house  with  the  consent  of  her 
mother,  and  was  permitted  to  re- 
main over  night  at  her  own  request, 
in  order  that  she  might  seek  em- 
ployment the  next  day;  and,  as  evi- 
dence as  to  the  intent,  defendant 
might  show  that,  while  in  de  end- 
ant's  house,  prosecutri.x  did  not  have 
intercourse.  A  judgment  of  con- 
viction was  reversed  for  error  in 
excluding   such   evidence. 

Silence      of      Prosecutrix When 

prosecutrix  testifies  that  during  sev- 
eral months  defendant  had  attempted 
to  have  intercourse  with  her,  it  is 
proper  to  permit  defendant  to  ask 
her  why  she  had  not  sooner  made 
known  his  conduct.  Cargill  v.  Com., 
(Ky.),    13    S.   W.   916. 


Vol.  I 


48 


ABDUCTION. 


B.  Unchastity  of  Prosecutrix.  —  In  prosecution  for  taking 
female  of  previous  chaste  character  for  purpose  of  prostitution, 
defendant  may  show  that,  previous  to  the  taking,  prosecutrix  was 
not  of  chaste  character.**" 

C.  Parental  Control  Lost.  - —  In  prosecution  under  indictment 
for  forcibly  or  fraudulently  removing  a  child  from  its  parent, 
defendant  may  show  that  control  of  the  child  has  passed  from  the 
father  and  rested  in  a  guardian.*^ 

Defendant's  Ignorance  of  Age  Inadmissible.  — •  In  prosecution  for 
taking  female  under  designated  age,  evidence  that  defendant  did 
not  know  her  to  be  under  the  designated  age,  is  inadmissible. '- 

Evidence  of  Harsh  Treatment  Inadmissible. —  In  such  case,  evidence 
that  the  father  of  the  female  treated  his  family  harshly  is  not  admis- 
sible.*^ 

D.  Character  oe  Relatives  Immaterial.  —  Evidence  of  lewd 
or  immoral  character  of  mother  or  sisters  of  prosecutrix  is  incom- 
petent.** So  as  to  evidence  that  the  home  where  prosecutrix  lived 
with  her  mother  was  a  house  of  ill-fame.*'* 

II.  AS  A  CIVIL  ACTION. 

Definition.  • —  Abduction  in  its  civil  sense,  consists  in  taking  away 
a  wife,  husband,  child  or  ward  from  the  husband,  wife,  parent  or 
guardian,  against  his  or  her  will.*" 


80.  Unchastity     of     Prosecutrix. 

Lyons  V.  State,  52  Ind.  426 ;  Crozier 
V.    People,    I    Park.    Crim.    (N.    Y.) 

453- 

Unchastity  of  Prosecutrix  As  Il- 
lustrative    of     Defendant's     Intent. 

In  prosecution  for  taking  female 
under  designated  age  for  purpose  of 
prostitution,  defendant  may  show 
that  prior  to  taking,  the  girl  was 
given  to  indiscriminate  intercourse, 
such  evidence  having  a  natural  bear- 
ing upon  the  question  whether  she 
was  enticed  away,  or  went  of  her 
own  accord  and  with  the  knowledge 
of  her  parents.  Brown  v.  State,  72 
Md.    468,    20   Atl.    186. 

81.  Pruitt  V.  State,  102  Ga.  688, 
29  S.  E.  437- 

82.  In  Riley  v.  State,  (Miss.), 
18  So.  117,  the  court  says:  "One 
who  entices  away  a  female  for  the 
purpose  of  debauching  her,  is  not 
reheved  by  the  fact  that  he  did  not 
know  her  to  be  within  the  age  named 
in  the  statute.  It  is  the  fact  that 
she  was  that  controls  and  fixes  the 
offense." 

People   V.    Dolan,   96   Cal.    315,   31 


Pac.  107.  See  also.  Tores  v.  State, 
(Tex.  App.),  63  S.  W.  880;  Roscoe 
Lrim.  Ev.,  7  Am.  Ed.,  p.  263,  citing 
Rex  V.  Mycock,  12  Cox  Crim.  Cas. 
28,  and  Rex.  v.  Booth,  12  Cox  Crim. 
Cas.  231;  Russ.  Crimes  (gth  Ed.), 
P-  953;  State  V.  Johnson,  115  Mo. 
480,  22  S.  W.  463;  Bish.  Stat. 
Crimes,  §§  630,  632. 

Ignorance    As    Defense But    on 

tlie  question  of  ignorance  of  age 
as  a  defense  and  as  to  admissibility 
of  statements  of  female  as  to  her 
age,  in  case  where  statute  provides 
that  under  certain  circumstances,  ig- 
norance of  facts  constitutes  a  de 
fense,  see  Mason  v.  State,  (Tex.), 
14   S.   W.  71. 

83.  Evidence  As  to  Treatment  of 
Family — Gravett  v.  State,  74  Ga. 
191. 

84.  Scruggs  V.  State,  90  Tenn. 
81,    IS    S.   W.    1074. 

85.  Kenyon  v.  People,  26  N.  Y. 
203,  84  Am.  Dec.  177.  Defendant  in 
this  case  was  indicted  for  seduction. 

86.  The  coinmon  law  definition  of 
abduction,  considered  as  a  cause  of 
action,    is :     Taking    away    a    man's 


Vol.  I 


ABDUCTIOM. 


49 


For  Abduction  of  Spouse,  see  "  Ai^ienating  AFi'iiCTioNS." 

1.  Abduction  of  Minor.  —  A.  Plaintifi's  Case.  —  a.  Ultimate 
Facts. — •  (1.)  Custody. —  \n  action  for  damages  for  taking  minor 
child  or  ward,  plaintiff  must  introduce  evidence  showing  that  at  the 
time  of  the  alleged  taking  the  child  was  in  plaintiff's  custody,*'  and 
rendered  service  to  plaintiff.^'* 

(2.)  Takingf  Against  Consent. —  Plaintiff'  must  also  show  that  the 
minor  was  taken**"  against  plaintiff"'s  consent. 

(A.)  Fraud.  —  When  a  parent  is  induced  by  fraud  or  deceit  to 
part  with  the  custody  of  his  child,  the  child  is  taken  from  him 
against  his  consent."" 

(B.)  Circumstantial  Evidence  Sufficient."^ — But  evidence  of  acts 
similar  to  that  alleged  is  not  admissible. "- 


wife,  child,  ward  or  servant  without 
his  consent.  Black.  Bonv.  Law 
Diet. 

87.  Custody — Wodell  v.  Cogges- 
hall,  2  Mete.  (Mass.)  89,  35  Am. 
Dee.    391. 

88.  Loss    of    Service Mage."     v. 

Holland,  3  Dutch.  (N.  J.)  86,  72 
Am.  Dec.  341 ;  Caughey  v.  Smith, 
47  N.  Y.  244.  But  service  may  be 
inferred  from  fact  that  minor  resided 
with'    plaintiff     at     time     of    taking. 

In  Caughey  v.  Smith,  supra,  plaint- 
iff sued  defendant  for  enticing  away 
plaintiff's  minor  son,  and  causing 
him  to  enlist  as  a  soldier.  Defend- 
ant contended,  among  other  matters, 
that  plaintiff  consented  to  the  en- 
listment. Defendant  offered  evidence 
to  show  that  plaintiff  had  taken  out 
letters  of  administration;  and  had, 
as  administrator,  received  bounty 
money  due  his  son ;  also  that  he  had 
collected  arrears  of  pay  due  the  son. 
Held,  that  the  evidence  was  not  ma- 
terial, as  such  acts  did  not  show 
an  abandonment  of  service,  or  rati- 
fication of  contract,  as  plaintiff  re- 
ceived the  bounty  and  arrears  of 
pay,  not  as  father  but  as  adminis- 
trator. 

89.  'When  Force  An  Element. 
In  action  of  trespass  vi  ct  armis, 
plaintiff  must  show  that  the  taking 
was  by  force,  or  that  defendant  knew 
that  the  person  taken  was  a  minor. 
Somboy  %i.  Loring,  2  Cranch.  C.  C. 
318,  22  Fed.  Cas.  No.  13,168. 

90.  Consent  Obtained  by  Fraud. 
Kreag  v.    Anthus,   2   Ind.   App.   482, 


28  N.  E.  773.  In  this  case  plaintiff 
permitted  his  daughter  to  go  to  de- 
fendant's house  to  work  as  a  servant, 
defendant  being  plaintiff's  nephew. 
Defendant  seduced  the  girl  while  she 
was  at  his  IwDuse.  All  the  evidence 
is  not  shown  by  the  report,  but  the 
appellate  court  held  it  to  be  sufficient 
to  justify  the  jury  in  finding  that 
plaintiff's  consent  to  his  daughter's 
being  at  defendant's  home  was  ob- 
tained by  fraud ;  and  held  that,  under 
these  circumstances,  consent  so  ob- 
tained was  not  inconsistent  with 
plaintiff's  claim  of  abduction.  The 
court  says :  "Consent  obtained  by 
fraud    is,    in    law,    no    consent." 

See  also  Lawyer  v.  Fritcher,  130 
N.  Y.  239,  29  N.  E.  267,  14  L.  R.  A. 
700. 

91.  Circumstantial    Evidence In 

Kreag  v.  .'\nthus.  2  Ind.  App.  482, 
28  N.  E.  773,  the  court  also  says : 
"Because  of  the  nature  of  the 
charge,  and  the  difficulty  of  obtain- 
ing direct  evidence  in  this  class  of 
cases  juries  are  awarded  a  wide 
latitude  in  making  deductions  from 
suspicious  conduct  and  circum- 
stances." 

As  to  defendant's  knowledge  of 
minor's  obligation  of  service,  see 
note  94,  post. 

92.  Evidence  of  Similar  Acts 
Inadmissible — :In  action  for  enticing 
plaintiff's  apprentices,  evidence  that 
the  defendant  had  enticed  away  and 
employed  apprentices  of  other  per- 
sons, is  not  admissible.  Stuart  v. 
Simpson,  i  Wend.    (N.  Y.)   376. 

Vol.  I 


50 


ABDUCTION. 


(3.)  Defendant's  Knowledge  of  Minority  and  Obligation  of  Service. 
Plaintiff  must  also  show  that  when  the  taking  occurred,  defendant 
knt]W  that  the  person  taken  was  a  ininor,"^  and  that  the  person 
taken  owed  service  to  plaintiff.""* 

(4.\  Damages.— (A.)  E.XPENSE  OF  Search.  ^ — In  action  for  damages 
causefl  by  abduction  of  minor  child,  plaintiff'  may  prove  the  amount 
of  money  expended  by  him  in  his  eft'orts  to  regain  possession :"° 
plaintiff  may  show  in  aggravation  that  defendant  connived  at  seduc- 
tion of  minor,'"  and  the  mental  suffering  of  the  minor."' 

(B.)  Mental  Suffering  of  Plaintiff. — Evidence  of  damage  caused 
to  plaintiff  by  mental  suffering,  distinct  from  and  in  addition  to  that 
which  shows  the  nature  and  extent  of  the  principal  injury,  is  not 
admissible."^ 

tices.  Held,  that  plaintiff  must 
prove  that  defendant  knew  the  ap- 
prentices to  be  such.  Also  held  that 
the  circumstances  that  the  boys  were 
youthful  ill  appearance,  and  had 
mahogany  dust  on  their  clothes 
(plaintiff  being  a  cabinet  maker) 
were  not  sufficient  to  warrant  the 
jury  in  finding  that  defendant  knew 
the   boys    to   be   apprentices. 

95.  Expense  As  Damage. — Rice  v. 
Nickerson,  9  Allen  (Mass.)  478,  85 
Am.  Dec.  777 ;  Magee  v.  Holland, 
3   Dutch.    (N.   J.)    86,   72  Am.    Dec, 


93.  Knowledge       of       Minority. 

Caughey  v.  Smith,  47  N.  Y.  244; 
Stuart  V.  Simpson,  i  Wend.  (N. 
Y.)  376;  Cutting  V.  Seabury,  i 
Sprague  522,  6  Fed.  Cas.  No.  3521. 

In  action  against  ship  owners  for 
shipping  minor  son  of.  plaintiff  as  a 
sailor  on  defendant's  vessel,  if  it  be 
shown  that  the  employees  of  the 
owner  knew,  or  had  reason  to  know, 
that  the  person  taken  was  a  ipinor, 
this  knowledge  is  imputable  to  the 
owners.  The  Platina,  3  Ware  (U. 
S.  Dist.)  180,  21  Law  Rep.  397,  19 
Fed.  Cas.  No.  11,210.  In  such  ac- 
tion exemplary  damage  cannot  be 
recovered,  unless  it  be  shown  that  the 
owners  had  knowledge  of  facts  of 
minority  and  taking.  Sherwood  v. 
Hall,  3   Sum.   127,  21    Fed.   Cas.   No. 

12,777. 

When  father  sues  in  action  of 
trespass  vi  et  armis  for  taking  away 
minor  son,  it  is  necessary  to  prove 
cither  actual  force,  or  knowledge  on 
part  of  defendant  that  the  young 
man  was  under  age.  Somboy  v. 
Loring,  2  Cranch.  C.  C.  318,  22  Fed. 
Cas.  No.  13,168.  This  case  was 
decided  for  defendant  on  demurrer 
to   evidence. 

94.  Knowledge  of  Obligation  of 
Service — Caughey  v.  Smith,  47  N. 
Y.  244.  In  this  case  it  was  held  that 
defendant's  knowledge  that  the  per- 
son taken  was  a  minor  and  that  his 
father  was  living,  was  sufficient  to 
charge  him  with  notice  of  father's 
right   to   service. 

In  Stuart  v.  Simpson,  i  Wend. 
(N.  Y.)  376,  plaintiff  sued  defend- 
ant   for    enticing    away    his    appren- 

Vol.  I 


341. 

96.  Seduction      As      Element      of 

Damage — Bradley  v.  Shafer,  46  N. 
Y.  §t,  462,  19  N.  Y.  Supp.  640. 
In  this  case  defendant  was  sued 
for  damages  caused  by  enticing 
away  the  minor  daughter  of 
plaintiff.  The  evidence  showed 
tnat  the  girl  was,  by  defendant, 
entice'd— ralmost  coerced — to  defend- 
ant's house,  and  was  there  seduced 
by  defendant's  son ;  that  defendant 
prevented  her  return  home ;  that  de- 
fendant knew  that  her  son  was  hav- 
ing intercourse  with  the  girl  in  her 
house,  and  that  defendant  left  the 
two  together  there  for  days  at  a 
time.  It  was  held  that  the  jury 
might,  in  determining  the  amount 
of  damages,  take  the  seduction  into 
consideration,  on  the  theory  that  de- 
fendant connived  at  and  aided  in 
the    seduction. 

97.  Suffering  of  Minor — Rrown 
V.  Crockett,  8  La.  Ann.  30. 

98.  While,  in  an  action  for 
damages,  caused  by  enticing  away  a 
minor   daughter,   plaintiff   is   entitled 


ABDUCTION. 


51 


B.  Defendant's  Cask.  —  a.  Minor  Not  in  Plaintiff's  Custody. 
Defendant  may  show  that,  at  the  time  of  the  alleged  taking,  the 
minor  was  not  in  plaintiff's  cnstody.'"' 

b.  Abandonment  of  Service.  —  Ur  that  the  father  had  abandoned 
the  service  of  the  minor. ^ 

c.  Belief  That  Minor  Left  With  Consent.  ■ —  Defendant  may  show 
that  he  believed  that  the  minor  had  left  home  with  his  father's  con- 
sen  t.- 

d.  Volnntary  Leaving  by  Minor,  or  that  the  minor  voluntarily  left 
his  father,  and  that  defendant  had  not  employed  him  until  after  he 
had  left.^ 

e.  Proper  Motives.  —  Defendant  may  show  that  he  receive<l  the 
minor  into  his  house  from  motives  of  hospitality,  or  that  he  might 
return  him  to  his  father.* 

Assisting  Mother  to  Take  Child  From  Father.  —  Evidence  that  defend- 
ant assisted  the  mother  of  minors  in  removing  them  from  their 
father,  who  was  entitled  to  their  custody,  is  not  admissible  except 
in  mitigation  of  damages.'^ 


to  recover  damages  for  the  mental 
suffering  inflicted  upon  him  by  the 
act  of  defendant,  evidence  of  such 
suffering,  distinct  from  and  in  ad- 
dition to  the  evidence  wmch  shows 
the  nature  and  e.xtent  of  the  prin- 
cipal injury  is  not  admissible.  Stowe 
V.  Heyvvood,  7  Allen   (Mass.)    118. 

99.  Minor  Not  in  Custody De- 
fendant may  show  that  the  child 
resided  with  its  mother,  \v\it  was 
living  apart  from  her  husband. 
Wodell  V.  Coggeshall,  2  Mete. 
(Mass.)  89,  35  Am.  Dec.  391.  See 
also  Caughey  v.  Smith.  47  N.  Y. 
244. 

1.  Abandonment  of  Service. 
Caughey  v.  Smith,  47  N.  Y.  244; 
Butterfield  v.  Ashley,  6  Cush. 
(Mass.)  249;  Butterfield  v.  Ashley, 
2    Gray    (l\Tass.)    254. 

Shown  by  Circumstances — Eman- 
cipation, or  abandonment  of  service 
may  be  shown  by  circumstances. 
Everett  v.  Sherfey,  i  Iowa  356. 

In  action  for  shipping  minor  as  a 
sailor,  and  carrying  him  beyond 
seas,  although  the  evidence  shows 
that  for  some  time  prior  to  the  tak- 
ing the  minor  had  not  been  a  mem- 
ber of  his  father's  family,  but  had 
lived  apart  and  supported  himself, 
plaintiff  may  recover,  unless  it  ap- 
pear that  he  had  abandoned  all 
claim      to     the     child.       Steele     v. 


Tliacher,  i  Ware.  85,  22  Fed.  Cas. 
No.    13,348. 

2.  Belief  of  Defendant.  —  Butter- 
field V.  Ashley,  2  Gray  (Mass.)  254; 
Butterfield  v.  Ashley,  6  Cush. 
(Mass.)  249;  Caughey  t'.  Smith,  47 
n.  Y.  244. 

3.  Voluntary  Leaving  by  Minor. 
Butterfield  v.  Ashley,  2  Gray  (Mass.) 

254- 

4.  Hospitality. — Sargent  v.  Math- 

ewson,  38  N.   H.   54. 

5.  Assisting    Mother Magee    "'. 

Holland,  3  Dutch.  (N.  J.)  86,  72 
Am.  Dec.  341.  In  this  case  the 
mother  of  three  minor  child- 
ren had  deserted  them  and  her 
husband.  Two  years  after  the 
desertion,  she  and  her  brother 
seized  the  children  and  carried  them 
to  her  house.  The  husband  sued  the 
brother  for  damages.  Defendant  of- 
fered to  prove  that  he  had  simply 
acted  in  aid  of  the  mother.  Held, 
that  such  evidence  was  not  admis- 
sible for  any  purpose,  e.xcept  in  miti- 
gation  of   damages. 

In  Rice  v.  Nickerson,  9  Allen 
(Mass.)  478,  85  Am.  Dec.  777,  it  was 
held  that  evidence  that  defendant 
took  the  children  away  at  the  in- 
stigation of  their  mother  was  prop- 
erly excluded,  no  claim  for  damages 
being  made  on  account  of  malice  or 
oppression. 

Vol.  I 


S2 


ABDUCriOM. 


Good  Treatment  of  Minors  After  Taking  Immaterial. —  111  such  action 
evidence  that  while  the  minors  were  in  the  custody  of  their  mother, 
at  whose  instigation  they  were  taken  hy  defendant,  they  were  well 
treated,  is  immaterial." 

f.  Statciiicnts  of  Minor.  —  Defendant  may  show  statements  of  the 
minor  to  the  effect  that  his  father  permitted'  him  to  leave.  But 
statements  of  a  minor  of  a  desire  to  go  with  his  mother,  who  had 
caused  him  to  be  abducted  are  immaterial,  when  the  father's  right  to 
custody  has  been  proved.'  Statements  of  minor  made  while  being- 
taken  from  defendant's  custod}-  are  not  admissible,*  nor  statements 
of  minor  that  she  would  not  leave  defendant's  house  —  a  bawdy- 
house —  until  she  had  received  the  monev  she  had  earned  while 
there." 

g.  Mitigation  of  Damages. — Necessaries  Supplied  to  Minor.  —  In 
action  against  shipowners  for  shipping  minor  son  of  plaintiff  as  a 
sailor  on  defendant's  vessel,  the  court  may,  in  determining  the 
amount  of  damages,  take  into  consideration  the  amount  of  clothing 
and  other  necessaries  furnished  to  the  minor  during  the  voyage, 
and  evidence  as  to  the  amount  so  furnished  is  admissible.'" 


6.  Treatment     After     Abduction. 

In  Magee  v.  Holland,  3  Dutch.  (N. 
J.  86,  72  Am.  Dec.  341,  tlie  court  also 
held  that  evidence  that  the  mother 
provided  well  for  the  children  while 
they  were  in  her  care  was  prop- 
erly excluded,  on  the  ground  that 
the  action  was  for  damages  caused 
to  the  father  by  the  taking,  and  not 
for  any   injury   done  to  the  children. 

Statements  of  Minor Declara- 
tions of  the  minor,  made  at  the 
inception  of  the  arrangement  be- 
tween himself  and  defendant,  are 
competent  as  part  of  the  transaction. 
Caughey  v.  Smith,  47  N.  Y.  244,  257. 

Such  declarations  are  competent 
as  showing  the  animus  of  defend- 
ant. 

7.  Statements  of  Desire Rice  v. 

Nickerson,  9  Allen  (Mass.)  478,  85 
Am.    Dec.   yyy. 


8.     Statements     During     Removal. 

Dobson    V.    Cothran,    14    S.    C.    si8, 
13  S.  E.  679. 

9-  Dobson  v.  Col  h  ran,  34  S.  C. 
518,  13  S.  E.  679. 

10.  Necessaries  Supplied  to  Minor. 
The  Platina,  3  Ware.  180,  21  Law 
Rep.  397,  19  Fed.  Cas.  No.  11,210. 
The  ruling  in  this  case  seems  to 
have  been  based  upon  the  ground 
that  the  boy  was,  when  shipped, 
nearly  of  full  age ;  that  at  the  end 
of  the  voyage  the  father  did  not 
have  or  make  any  objection  to  the 
nature  of  the  employment,  but 
seemed  disappointed  that  the  wages 
had  been  paid  to  the  boy,  and  not  to 
himself.  The  action  was  for  loss 
of  service  and  violation  of  paternal 
rights. 


Vol.  I 


ABETTING. — See  Accessories,  Aiders  and  Abettors. 


ABILITY— See  Capacity. 


ABODE.— See  Domicile. 


ABORTION. 

By  R.  K.  Wood. 


I.  INTENT,  54 

1.  Generally,  54 

2.  Other  Offenses,  54 

3.  Knoivledge  of  Nature  of  Means  Used,  54 

4.  Intent  to  Kill  Child,  55 

5.  Coercion  to  Slioiv  Want,  55 

A.  Generally,  55 

B.  Presumption  of  Coercion  of  Wife  by  Husband,  55 
II.  MOTIVE,  55 

1.  Relations  of  Defendant  and  Woman,  55 

2.  Desire  to  Save  From  Exposure,  55 

3.  Compliance  With  Woman's  Request,  55 

4.  To  Save  Life,  55 

A.  Necessity  for  Operation,  55 

a.  Generally,  56 

b.  Physician's  Advice,  56 

F).  Burden  of  Proof  As  to  Necessity,  c^6 

III.  OPPORTUNITIES  AND  FACILITIES  FOR  THE  CRIME,  56 

IV.  OTHER  ABORTIONS  AND  ATTEMPTS  BY  DEFENDANT,  57 
V.  THE  MEANS  USED,  57 

1.  Proof  of  Nature  Of,  57 

2.  Defendant's  Kno2vledge  of  Nature  Of,  57 

3.  Administration  Of,  57 
VI.  PREGNANCY,  58 

1.  Generally,  58 

2.  Ouickcnins,.  58 
VII.  MISCARRIAGE,  58 

VIII.  SUBSEQUENT  CONDITION  OF  WOMAN,  S9 
IX.  DEATH,  59 

1.  Of  Woman,  59 

2.  Of  Child.  59 

X.  ADVISING  AN  ABORTION,  59 
XI.  VARIANCE,  Go 
XII.  COMPETENCY  OF  EVIDENCE,  60 

1.  The  Woman  As  a  Witness,  60 

2.  Opinion  Evidence,  62 

A.  Experts,  62 

B.  Non-Experts,  63 

3.  Medical  Books.  63 

4.  Declarations,  63 

A.  Res  Gestae,  63 

Vol.  I 


54 


ABORTION. 


B.  Other  Dcclaratiuiis,  64 

a.  Generally,  64 

b.  Dviiig  Declarations,  65 

CROSS-REFERENCES. 

Accomplices ;  Admissions ; 

Books ; 

Corroboration ; 

Declarations  ;  Dying  Declarations  ; 

Experts ; 

Hearsay ;  Homicide ; 

Intent; 

Mental  and  Physical  State;  Motive; 

Presumptions ; 

Res  Gestae. 

I.  INTENT. 

1.  Generally.  —  For  the  method  of  proving  intent  generally,  ref- 
erence should  be  made  to  the  article  "'  Intent,"  and  to  the  prose- 
cutions for  abortion  cited  below.' 

2.  Other  Offenses.  —  To  establish  intent,  it  may  be  shown  that 
defendant  has  committed  other  abortions  on  the  same-  or  even 
another  woman.' 

3.  Knowledge  of  Nature  of  Means  Used.  —  Defendant's  knowledge 
of  the  nature  of  the  means  employed  need  not  be  shown,*  but  the 
nature  of  the  means  used  may  be  material  as  tending  to  show 
intent.'^ 


1.     Defendant's    Oral    Admissions. 

People  V.  Sessions,  58  Ahcli.  594. 
26  N.  W.  291 ;  Com.  v.  Holmes,  103 
Mass.  440;  Hays  v.  State,  40  Md. 
633;  Watson  V.  State,  9  Tex.  App. 
237 ;  Dougherty  v.  People,  i  Colo. 
514;  Jones  V.  State,  70  Md.  326,  17 
Atl.  89,  14  Am.  St.  Rep.  362. 

Defendant's  Written  Admissions. 
I  Groenl.  on  Ev.,  §§  229,  254. 

loiva.  —  State  v.  MooUiart,  log 
Iowa  130,  80  N.  W.  301. 

Maryland. — Lamb  v.  State,  66  Md. 
285,  7  Atl.  399;  Jones  v.  State,  70 
Md.  326,  17  Atl.  89,  14  Am.  St.  Rep. 
362. 

Massachusetts. — Com.  v.  Barrows, 
176  Mass.  17,  56  N.  E.  830,  79  Am. 
St.  Rep.  296. 

Intent  Presumed  From  Use  Of 
Means. — State  v.  Thnrman.  66  Iowa 
693,   24   N.   W.   511. 

Presumption  That  Natural  Result 
of  Act  is  Intended  Where  Death 
Follows  Abortion.— I  Kisli.  on  Crim. 
Law,   §327. 

Vol.  I 


Act  Committed  to  Shield  Woman 
from  Exposure — If  the  intent  ex- 
isted, it  may  not  be  proved  in  defense 
that  the  purpose  was  to  shield  the 
woman  or  the  defendant  from  ex- 
posure. Com.  V.  Parker,  9  Mete. 
(Mass.)  263,  43  Am.  Dec.  396; 
State  V.  Thurman,  66  Iowa  693,  24 
N.  W.  511;  Reg.  V.  West,  2  Car.  & 
K.  784 ;  Com.  V.  Keeper,  2  Ashm. 
(Pa.)  227;  State  v.  Moore,  25  Iowa 
128,  95  Am.  Dec.  776;  Com.  v.  Wood, 
II  Gray  (Mass.)  85.  But  see  State 
V.  Emericli,  13  Mo.  App.  492. 

2.  Lamb  v.  State,  66  Md.  285,  7 
Atl.  399. 

3.  People  V.  Sessions,  58  Mich. 
594,  26  N.  W.  291 ;  Maine  v.  Peopie, 
9  Hun  (N.  Y.)  113;  Whart.  Crim. 
Ev.   §§32  to  38. 

4.  State  V.  Owens,  22  Minn.  238 ; 
State  V.  Slagle,  83  N.  C.  630. 

5.  State  V.  Crews,  128  N.  C.  581, 
38  S.  E.  293 ;  Carter  v.  State,  2  Ind. 
617;  Hunter  v.  State.  38  Tex.  Crim. 
App.  61.  41  S.  W.  602. 


ABORTION.  55 

4.  Intent  to  Kill  Child.  —  Intent  to  kill  the  child  need  not  be 
shown." 

5.  Coercion,  to  Show  Want  Of. — A.  Gene:r.\lly.  —  Coercion,  As 
Proving  Want  of  Intent.  —  Any  evidence  of  coercion  is  admissible  in 
defense.' 

B.  Presumption  of  Coercion  of  Wife  by  Husband.  —  But  the 
mere  fact  that  the  husband  was  present  at  the  time  of  the  commis- 
sion of  the  offense  is  prima  facie  evidence  only  of  coercion  by  him." 
And  an  offer  by  a  woman  (made  in  absence  of  her  husband)  to 
produce  an  abortion  tends  to  disprove  coercion."  ■ 

It  has  been  said  that  the  fact  of  the  abortion  raises  no  presump- 
tion that  it  was  performed  with  the  consent  of  the  woman." 

II.  MOTIVE. 

1.  Eelations  of  Defendant  and  Woman.  —  As  to  proof  of  motive 
generally,  see  the  article  on  that  topic.  To  establish  motive,  it 
may  be  shown  that  defendant  got  the  woman  with  child,"  or  had 
illicit  intercourse  with  her.^" 

2.  Desire  to  Save  From  Exposure.  —  Motive  As  Defense. 
Desire  to  shield  the  woman  or  himself  from  exposure  cannot  be 
proved  in  defense. ^^ 

3.  Compliance  With  Woman's  Request.  —  Nor  can  the  woman's 
consent  to  the  abortion." 

4.  To  Save  Life.  —  A.  Necessity  for  Operation.  —  But  it  may 
be  shown  that  the  motive  was  to  save  the  woman's  life.^" 

6.  Com.   v.    Snow,    Ii6   Mass.   47.  z'.  Tlnirman,  66  Iowa  693,  24  N.  W. 

7.  Coercion  by  Husband — Tabler  511;  Reg.  v.  West,  2  Car.  &  K.  784; 
v.  State,  34  Ohio  St.  127.  Com.  v.  Keeper,  2  Ashm.   (Pa.)  227; 

8.  IMarshall  v.  Oakes,  51  Me.  308;  State  v.  Moore,  25  Iowa  128;  95  Am. 
Hatchard  v.  State.  79  Wis.  357,  48  Dec.  776;  Com.  v.  Wood,  11  Gray 
N.  W.  380;  Tabler  v.  State,  34  Ohio  (Mass.)  85'.  But  see  State  v.  Emer- 
St.    127.  ich,  13  Mo.  App.  492. 

9.  Hatchard  v.  State,  79  Wis.  357,  14.  Com.  v.  Wood.  11  Gray 
48  N.  W.  380.  (Mass.)    85;    State  v.   Dickinson.  41 

10.  Com.  V.  Reid.  8  Phila.  (Pa.)  Wis.  299;  Com.  v.  Snow,  116  Mass. 
jgj  47 ;    State    v.    Moore,    25    Iowa    128, 

11.  Scott   V.    People,    141    HI.   19,=;.       ''■V^™'?'^-  ~^f , 

30  N.  E.  329:   State  V.   McLeod,   136  ,    ^or    does    a    fatal    variance    e.xist. 

Mo.  109,  37  S.  W.  828.    ■  l'^'^^^'^"    ^"    allegation   that    the   of- 

1:  •  tense  was  committed  with  force  and 

12.  People  V.  Josselyn,  39  Cal.  violence,  and  evidence  that  it  was 
393-  done  with  the  consent  of  the  woman. 

If    defendant    seeks    to    show    that  People  v.  Abbott,   116  Mich,  263,  74 

another    than    he    is    father    of    the  N.   W.   529. 

child,  such  other  may  testify  that  he  15.     ^    Whart     and    Stille's    Med 

has    had    no    intercourse    with    the  j^rjg ,  ggg.  Weed  v.  People,   =;6  N. 

woman.     Dunn  v.   People,  29  N.  Y.  y.    628 ;    Beaslev   v.    People.    89    111. 

523,  86  Am.  Dec.  319.  571;    State    ^.    Rupe,    41    Tex.    33: 

13.  Com.  V.  Parker,  9  Mete.  State  v.  Schuerman,  70  Mo.  App. 
(Mass.)  263,  43  Am.  Dec.  396;  State  518. 

Vol.  I 


% 


ABORTION. 


a.  Generally.  —  In  establishing  such  motive,  it  must  be  shown 
that  it  was  apparently  necessary  to  cause  the  abortion  in  order  to 
save  the  mother's  life.^" 

b.  Physician's  Advice.  —  Such  necessity  may  be  shown  without 
proving  that  a  physician  advised  the  abortion/'  Indeed,  the  physi- 
cian's advice  is  not  evidence  of  such  necessity  except  as  provided 
by  statute.'^  When  evidence  of  such  advice  is  competent,  the 
burden  of  proving  it  is  on  defendant." 

B.  Burden  oi?  Proof  As  to  Necessity.  —  It  has  been  held  that 
the  state  must  in  the  first  instance  prove  the  non-existence  of  this 
motive  by  showing  that  the  abortion  was  not  necessary ;-"  otherwise 
in  New  York."^  Some  courts  have  said  that  there  is  a  presumption 
that  no  such  necessity  exists,  and  that  the  prosecution  may  rest  upon 
such  presumption  in  the  absence  of  evidence  to  the  contrary. ^^ 

III.  OPPOKTUNITIES  AND  FACILITIES  FOR  THE   CRIME. 

It  may  be  shown  that  the  defendant  visited  the  woman  ;-^  that  the 


16.  Beasley  v.  People,  89  111.  571  ; 
State  V.  Rupe,  41  Tex.  33;  State  v. 
Schnerman,   70   Mo.    App.    518. 

17.  State  V.  Fitzporter,  93  Mo. 
390,  6  S.  W.  223. 

18.  State  V.  Fitzporter,  93  Mo. 
390,  6  S.  W.  223;  State  V.  Meek,  70 
Mo.  355,  35  Am.  Rep.  427 ;  Hatchard 
V.   State.  79  Wis.  357,  48  N.  W.  380. 

19.  Hatcliard  v.  State,  79  Wis. 
357.  48  N.  W.  380;  Moody  v.  State, 
17  Ohio  St.  no;  State  v.  Meek, 
70  Mo.  355.  35'  Am.  Rep.  427. 

20.  Moody  v.  State,  17  Ohio  St. 
lib;  Slate  v.  Clements,  15  Or.  237, 
14  Pac.  410;  State  v.  Glass,  S  Or. 
73;  State  V.  Meek,  70  Mo.  35^,  35 
Am.  Rep.  427;  State  v.  Aiken,  109 
Iowa  643.  80  N.  W.  1073;  State  v. 
Lee,  69  Conn.   186,   37  Atl.   75. 

State  Must  Prove  This  Beyond  a 
Reasonable  Doubt Howard  v.  Peo- 
ple. 185  111.  552,  57  N.  E.  441. 

"Every  presumption  is  in  favor 
of  defendant's  innocence,  and,  if  the 
facts  shown  are  capable  of  ex- 
planation on  any  reasonable  hypo- 
thesis in  favor  of  innocence,  there 
can  be  no  rightful  conviction." 
State  V.  Aiken,  T09  Iowa  643,  80 
N.  W.  1073. 

21.  Bradford  v.  People,  20  Ilun 
(N.  Y.)  300;  People  v.  McOonegal, 
TO  N.  Y.  Cr.  141,  17  N.  Y.  Supn. 
IJ7.  But  see  People  v.  Meyers,  5  N. 
V.    Crini.    T20. 

Vol.  I 


22.  State  v.  Lee,  69  Conn.  186, 
37  Atl.  75;  Moody  V.  State,  17  Ohio 
St.  no;  State  v.  Meek.  70  Mo.  355', 
35  Am.  Rep.  427;  People  v.  Mc- 
Gonegal,  10  N.  Y.  Cr.  141,  17  N.  Y. 
Supp.  147;  State  V.  Schuerman,  70 
Mo.  App.  518. 

There  being  no  evidence  to  the 
contrary,  the  presumption  that  the 
abortion  was  not  necessary  to  save 
the  woman's  life  will  satisfy  the 
burden.  State  v.  Lee.  69  Conn.  186, 
37   Atl.   75- 

The  woman's  threats  of  committing 
suicide  imless  relieved  of  the  child 
do  not  constitute  such  necessity. 
Hatchard  v.  State,  79  Wis.  357.  48 
N.   W.  380. 

"The  presumption  as  to  sanity  is 
founded  upon  the  cominon  experi- 
ence that  sanity  is  the  general  rule, 
insanity  the  comparatively  rare  ex- 
ception, and  that  what  is  common  In 
general  prevails  in  the  particular 
case.  We  think  it  equally  a  matter 
of  common  experience  that  the  abil- 
ity to  bear  and  bring  forth  children 
is  the  rule,  and  that  the  necessity  of 
procuring  an  abortion  or  miscar- 
riage in  order  to  save  the  life  of 
mother  or  child  is  the  rare  ex- 
ception ;  that  the  presumption  is 
against  such  necessity."  State  7'. 
Lee.  69  Conn.  186,  37  Atl.  75. 

23.  People  v.  AfcDowell.  63  Mich. 
229.    10    N.    W.    68:    Com.    v.    Mit- 


ABORTION. 


57 


place  of  the  commission  of  the  offense  was  a  house  of  ill-fame;^* 
that  he  had  facilities  for  producing-  abortion  f^  that  he  furnished 
the  same  to  the  woman. °° 

IV.  OTHER  ABORTIONS  AND  ATTEMPTS  BY  DEFENDANT. 

Except  as  stated  above  under  "  Intent,"  evidence  is  not  admissible 
of  the  commission  of  a  similar  oft'ense,  amounting  to  another  sepa- 
rate transaction." 

V.  THE  MEANS  USED. 

1.  Proof  of  Nature  Of.  —  Statutory  provisions  excepted,^'  it  is 
not  necessary  to  prove  either  the  kind  of  substance  administered 
or  that  it  was  capable  of  producing-  miscarriage.""  But  where  it  is 
necessary  to  establish  the  nature  of  the  means  einployed,  the  state 
has  the  burden  of  proof  to  show  their  noxious  character.'" 

2.  Defendant's  Kno-wledge  of  Nature  Of.  — Defendant's  knowledge 
of  the  nature  o'f  the  means  used  need  not  be  shown. '^ 

3.  Administration  Of.  —  Defendant's  personal  administration 
need  not  be  shown  in  a  prosecution  for  counselling  or  advising  an 


chell,  6  Pa.  Super.  Ct.  369;  People  v. 
McGonegal,  136  N.  Y.  62,  32  N.  E. 
616. 

24.  Hays  v.   State,  40  Md.  633. 

25.  People   v.    Sessions,   58   Mich. 

594,  26  N.  W.  201 ;  Moore  v.  State, 
:iy  Tex.  Crim.  App.  552,  40  S.  W. 
287;  Com.  V.  Brown,  121  Mass.  6g; 
Com.  V.  Blair,  126  Mass.  40;  People 
V.  Vedder.  34  Hun     (N.  Y.)   280. 

2S.     State    V.    Forsytlie,     78     Iowa 

595.  43  N.  W.  548. 

"  Presuniptions  resting  on  antece- 
dent preparations  are  not  presump- 
tions of  law.  but  merely  inferences 
of  fact,  as  to  wliicli  it  is  the  judge's 
duty,  not  to  declare  a  positive  rule, 
but  simply  to  notice  the  processes 
of  reasoning  hy  which  a  just  con- 
clusion may  be  reached.  Evidence 
of  preparation  is  always  admissible 
for  the  prosecution ;  evidence  to  ex- 
plain it  is  always  admissible  for  the 
defense." 

27.  Baker  v.  People.  105  III.  452; 
Crichton  v.  People,  i  Abb.  Dec.  (N. 
Y.)   467. 

"When  nfTercd  simply  for  the  pur- 
pose of  proving  his  commission  of 
the  offense  on  trial,  evidence  of  his 
participation,  either  in  act  or  design, 
in  commission  or  in  preparation,  in 
other  independent  crin-iei;,  cannot  be 


received."     Whart.  Crim.  Ev.,  §  30. 

The  testimony  of  a  druggist  that 
he  refused  to  prepare  an  abortifacient 
prescription  made  by  a  certain  doctor 
and  presented  by  a  woman  who  sub- 
sequently died  of  an  abortion,  was 
held  inadmissible.  State  v.  Gunn, 
106  Iowa  120,  76  N.  W.  510. 

28.  State  v.  Gedicke.  43  N.  J. 
Law,  86;  Williams  v.  State  (Tex. 
App.),  19  S.  W.  897- 

29.  Colorado. — Dougherty  v.  Peo- 
ple, I  Colo.  514. 

Indiana.  —  State  v.  Vawter,  7 
Blackf.   592. 

Iowa.  — State  v.  Fitzgerald,  49 
Iowa  260,  31   Am.   Rep.    148. 

North  Carolina. — State  v.  Crews, 
128  N.  C.  581.  38  S.  E.  293- 

Texas. — Watson  v.  State,  9  Tex. 
App.  237. 

West  Virginia. — State  v.  Lilly,  47 
W.   Va.  496,  35   S.   E.   837- 

30.  State  V.  Gedicke,  43  N.  J. 
Law  86. 

31.  State  V.  Owens.  22  Minn.  238; 
St.nte  V.   Slasrle.  8^  N.   C.  630. 

But  Such  Xnowledee  May  Be  Im- 
portant On  the  Matter  of  Intent. 
Weed  V.  People,  56  N.  Y.  628;  Slat- 
terv  V.  People.  76  111.  217. 

Under  an  English  statute  making 
it      criminal      to      administer     "any 

Vol.  I 


58 


ABORTION. 


abortion,^-  or  that  he  procured  the  means  f^  maiHng  the  drug  used 
is  evidence  of  an  administering.'''' 

VI.  PREGNANCY. 

1.  Generally.  —  Under  '  statutory  indictments  for  procuring  or 
attempting  to  procure  an  abortion,  pregnancy  of  the  woman  need 
not  be  proved  f'^  and  where  death  from  the  abortion  is  the  gravamen 
of  the  offense,  the  rule  is  the  same  in  Maine,^''  but  in  Idaho  and 
Iowa  it  is  otherwise.'' 

2.  ftuickening.  —  In  most  states  quickening  need  not  be  proved.-^' 

VII.  MISCARRIAGE. 

•     Where  under  the   statute  the  use  of  means  with  the   intent  to 


medicine  or  other  thing"  with  intent 
to  procure  an  abortion,  it  was  held, 
this  intent  being  shown,  that  the  na- 
ture of  the  thing  need  not  be  in  evi- 
dence, though  it  were  but  "  a  bit  of 
bread."  Rex  v.  Coe,  6  Car.  &  P. 
40.?,  25   Eng.   C.   L.  403- 

In  citing  this  decision,  Mr.  Bishop 
says :  "  Yet,  should  the  prisoner 
know  it  to  be  incapable  of  producing 
the  result,  plainly  he  would  not  com- 
mit the  crime ;  because  he  could  not 
have  the  required  evil  intent."  i 
Crim.  Law.  §  769.  Comt<are  Id.  §  7S.V 

32.  McCaughey  v.  State,  l=;6  Ind. 
41,  S9  N.  E.  169;  State  v.  Morrow, 
40  S.  C.  221,  18  S.  E.  85.1;  Jones  V. 
State,  70  Md.  t.2(>,  17  Atl.  89,  14 
Am.    St.    Rep.    362. 

But  under  a  statute  denouncing 
the  selling  or  causing  to  be  sold 
iModicines  for  procuring  an  abortion, 
it  was  held  not  sufficient  to  show 
that  the  accused  advised  and  solicited 
the  taking  of  such  medicines,  with- 
out showing  that  the  woman  took 
the  same.  Lamb  v.  State,  67  Md. 
S24,  10  Atl.  208.  (But  see  dissent- 
ing opinion.  Lamb  v.  State,  67  Md. 
524,  10  Atl.  298;  and  State  v.  Mur- 
phv.  27  N.  J.  Law   112.) 

33.  State  v.  Crews,  128  N.  C.  s8i. 
.38  S.  R,  293. 

34.  State  v.  Moolhart,  109  Iowa 
130.  80  N.  W.  .301. 

35.  Reg.  V.  Goodhall,  i  Den.  C. 
C.  187 ;  Eggart  v.  State,  40  Fla.  527, 
25  So.  144:  Com.  V.  Taylor,  132 
Mass.   261  ;   Com.   v.   Follansbee,    15s 

Vol.  I 


Mass.  274,  29  N.  E.  471 ;  State  v. 
Fitzgerald,  49  Iowa  260,  31  Am.  Rep. 
148;  Wilson  V.  Com.,  22  Ky.  L.  Rep. 
251,  60  S.  W.  400. 

But  where  the  terms  of  an  English 
statute  were  "  the  miscarriage  of  any 
woman  then  being  sick  with  child," 
evidence  of  the  pregnancy  was  held 
essential.  Rex  v.  Scudder,  I  Moody 
216. 

Canada. — Pregnancy  is  immaterial 
where  crime  charged  is  using  in- 
strument with  intent  to  procure 
abortion.  Reg.  v.  Andrews,  12  O. 
R.    184. 

36.  State  v.  Smith.  32  Me.  369,  54 
.\m.  Dec.  578;  Smith  v.  State,  33 
Me.  48.  54  Am.  Dec.  607. 

37.  State  v.  Stewart.  52  Iowa  284, 
3  N.  W.  oq;  State  v.  Alcorn, 
(Idaho)  64  Pac.  1014,  but  in  this 
case  the  indictment  alleged  that 
deceased  was  pregnant. 

38.  State  v.  Alcorn  (Idaho")  64 
Pac.  1014;  State  v.  Slagle,  83  N.  C. 
6.^0;  Com.  V.  Wood,  II  Gray  (Mass.) 
8.=;;  Mills  v.  Com.,  13  Pa.  St.  631; 
Smith  V.  State,  33  Me.  48,  54  Am. 
Dec.  607;  State  v.  Murphy,  27  N.  J. 
Law  112.  (See  Lamb  v.  State,  67 
Md.  524,  10  Atl.  298,  the  dissenting 
opinion   of   Alvey.    C.    J.) 

To    Be    Proved    in    Manslaughter 

From    Abortion State    v.    Reed.    45 

Ark.  333;  Hatfield  v.  Gano,  is  Iowa 
177:  Evans  7'.  People.  49  N.  Y.  86. 

Must  Be  Proved  At  Common  Law. 
Idalw.- — State  ''.  .Mcnrn,  (Idaho) 
64  Pac.  1014, 


ABORTION. 


59 


produce  the  abortion  is  the  offense,  it  is  not  necessary  to  prove  that 
in  fact  there  was  any  resulting  miscarriage.^" 

VIII.  SUBSEQUENT  CONDITION  OF  WOMAN. 

Tlie  condition  of  the  woman  —  health  and  spirits  —  after  the  time 
of  the  supposed  commission  of  the  offense  may  be  shown  to  prove 
the  offense,""*  and  to  show  the  attitude  of  the  woman  toward  the 
defendant  and  the  jirobabilit)'  of  his  guilt." 

IX.  DEATH. 

1.  Of  Woman.  —  This  need  not  be  proved,^-  but  may  be  given  in 
evidence  in  aggravation  of  the  offense,''^  and  as  part  of  the  history 
of  the  case.** 

2.  Of  Child.  —  Proof  of  the  death  of  the  child  is  not  required." 
Hut  under  some  statutes  it  may  be  necessary  to  sln)w  that  the  foetus 
had  not  lost  its  vitality  at  the  time  the  abortion  was  induced.*" 

X.  ADVISING  AN  ABOKTION. 

L'nder  statutes  making  advice  to  commit  an  abortion  an  oft'ense, 


lova. — Abrams  v.  Foshce,  3  Iowa 
274,  66  Am.  Dec.  77. 

Kentucky. — Mitchell  v.  Com.,  78 
Ky.  204,  39  Am.  Dec.  227. 

Massachusetts. — Com.  v.  Bangs,  9 
Mass.  387 ;  Com.  v.  Parker,  9  Mete. 
263,  43  Am.  Dec.  396. 

Nciv  Jersey. — State  v.  Cooper,  22 
N.  J.  Law  52,  51   Am.   Dec.  248. 

ATcic  York. — Evans  v.  People,  49 
N.  Y.  86. 

Ohio. — Wilson  v.  State,  2  Ohio  St. 

319- 

39.  Colorado. — Dougherty  v.  Peo- 
ple,  I   Colo.  514. 

lo'a'a. — State  v.  Moothart,  109  Iowa 
130,  80  N.  W.  301. 

Kentucky. — Wilson  v.  Com.  22  Ky. 
Law    1251,  60   S.   W.  400. 

Maine. — Smith  v.  State,  a  Me. 
48,  54  Am.  Dec.  607. 

Minnesota.  —  State  v.  Owens,  22 
Minn.    238. 

New  Jersey. — State  v.  Murphy,  27 
N.  J.   Law   112. 

South  Carolina. — State  v.  Morrow, 
40  S.  C.  221,   18  S.  E.  853. 

Te.vas. — Willingham  zi.  State,  33 
Tex.   Crim.   App.  98.   25   S.   W.   424. 

Otherwise  At  Common  Law.  — 
Com.  v.  Bangs,  9  Mass,  387. 


40.  People  v.  Olmstead,  30  Mich. 
431 ;  State  v.  Lee,  69  Conn.  186,  37 
Atl.  75';  Com.  v.  Wood,  11  Gray 
(Mass.)  85;  Com.  v.  Follansbee,  155 
Mass.  274,  29  N.  E.  471 ;  Com.  v. 
Fenno,   134  Mass.  217. 

41.  Howard  v.  People,  185  111. 
552,  57  N.  E.  441 ;  State  v.  Lee,  69 
Conn.  186,  37  Atl.  75. 

42.  Com.  V.  Thompson,  108  Mass. 
461. 

43.  Com.  V.  Adams,  127  Mass. 
15;  Railing  v.  Com.,  no  Pa.  St.  100, 
I    .^.tl.   314. 

44.  People  v.  Van  Zile,  73  Hun 
534,  26  N.  Y.  Supp.  390.  (.See 
Homicide.) 

45.  Reg.  V.  West,  2  Car.  &  K. 
784;  Com.  z'.  Snow,  116  Mass.  47. 
But  see  Mitchell  v.  Com.  78  Ky. 
204,  39  Am.  Dec.  227. 

46.  Com.  V.  Wood,  11  Gray 
(Mass.)  8s,  where  the  prosecution 
was  under  a  statute  incriminating 
one  who  sought  the  miscarriage  of 
a  woman  "then  pregnant  with  child;" 
but  under  a  statute,  making  an 
offender  of  one  who  thus  sought 
the  miscarriage  of  "any  woman,"  it 
was  held  inadmissible  as  a  defense 
to  show  that  the  foetus  had  lost  its 

Vol.  I 


60 


ABORTION. 


it  need  not  be  shown  that  the  advice  was  acted  upon,"  but  under  a 
statute  making  it  an  offense  to  provide  the  means  with  an  intent 
to  procure  an  abortion,  proof  of  the  mere  advice  will  not  sustain 
a  conviction  in  the  absence  of  proof  that  the  advice  was  acted  upon.'" 

XI.  VARIANCE. 

It  is  sufficient  to  establish  the  essential  elements  of  the  offense 
and  not  necessary  to  prove  every  fact  as  laid  in  the  indictment  ;*" 
thus  it  is  not  a  fatal  variance  if  the  evidence  shows  commission  by 
means  and  in  a  manner  cognate  but  not  identical  with  those 
alleged  f  in  a  charge  against  two,  the  guilt  of  one  only  may  be 
shown. ^^     Time  is  immaterial. '^" 

XIX.   COMPETENCY  OF  EVIDENCE. 

1.  The  Woman  As  a  Witness.  —  The  woman  on  whom  the  abor- 
tion was  produced,  although  consenting,  is  a  competent  witness,'^' 
and  is  a  competent  witness  against  her  husband  ;^^  but  the  fact  that 


vitality.  Com.  v.  Surles,  165  Mass. 
59,  42  N.  E.  502;  State  v.  Howard, 
32  Vt.  380. 

47.  State  v.  Murphy,  27  N.  J. 
Law  112;  Eggert  v.  State,  40  Fla. 
527,   25    So.    144. 

Contrary  Rule  in  New  York — 
People  v.  Phelps,  133  N.  Y.  267,  30 
N.  E.   1012. 

48.  Lamb  v.  State,  67  i\id.  524,  10 
Atl.  208;  Cochran  v.  People,  175  111. 
28,   SI    N.   E.   845. 

49.  Scott  V.  People,  14:  111.  lys. 
30  N.  E.  329;  State  v.  Lilly,  47  W. 
Va.  496,  35  S.  E.  837;  Rhodes  v. 
State,  128  Ind.  189,  27  N.  E.  866.  25 
Am.  St.  Rep.  429;  King  v.  State, 
35  Tex.  Crim.  App.  472,  34  S.  W. 
282. 

50.  Enough  to  Show  Offense  Con- 
summated in  Pursuance  of  Intent. 
Ungland. — Re.\   v.    Philips,    3    Camp. 

73- 

Colorado. — Dougherty  v.  People,  i 
Colo.    514. 

///iHoi'.?.— Scott  z:  People.  141  111. 
195,  30  N.  E.  329- 

A/at)ic.— State  v.  Smith,  32  Me. 
369,  54  Am.  Dec.  578. 

Massachusetts. — Com.  v.  Corkin, 
136  Mass.  429. 

Missouri. — State  v.  Dean,  85  Mo. 
App.  473- 

Nezi'  York. — Crichton  v.  People,  i 
Abb.  Dec.  467. 

Vol.  I 


0/iui.— Tabler  v.  State,  34  Ohio 
St.    127. 

Pennsylvania. — Railing  v.  Com.  no 
Pa.   St.   100,   I   Atl.  314. 

South  Carolina. — State  v.  Morrow, 
40  S.   C.  221,   18  S.  E.  853. 

Tc.vas. — Moore  v.  State,  37  Te.\. 
Crim.   App.  552,  40   S.  \V.   287. 

Commission  By  Cognate  Means. 
State  V.  Smith,  32  Me.  369,  54  Am. 
Dec.  578;  Moore  v.  State,  37  Tex. 
Crim.  App.  552,  40  S.  W.  287.  People 
-'.  Abbott,  116  Mich.  263,  74  N.  W. 
529 ;  Crichton  v.  People,  i  Abb. 
Dec.   (N.  Y.)   467. 

51.  Baker  v.   People,   105  111.  452. 

52.  Com.  V.  Snow,  116  Mass.  47; 
Cook  V.  People,  177  111.  146,  52  N. 
E.   273. 

53.  California. —  People  v.  Jos- 
selyn,  39  Cal.  393. 

Colorado. — Solander  v.  People,  2 
Colo.  48. 

Maine.  —  State  v.  Dyer,  59  Me. 
303. 

.Massachusetts. — Com.  v.  Wood,  11 
Cray  85. 

Neiv  York. — People  v.  Costcllo,  I 
Denio  83 ;  Frazer  v.  People,  54  Barb. 
306. 

Rhode  Island. — State  v.  Briggs,  9 
R.   I.  361,   II   Am.   Rep.  270. 

54.  State  v.  Moore,  25  Iowa  128. 
95  Am.  Dec.  776 ;   State  v.  Dyer,  59 


ABORTION. 


(.1 


she  is  a  consenting  part}  may  be  considered  as  affecting  her  credi- 
bility,"'"' rendering  corroboration  appropriate  f''  and  some  statutes 
require  such  corroboration.^'  In  the  absence  of  a  statute  denounc- 
ing the  attempt  of  a  woman  to  procure  her  own  miscarriage,  she  is 
not  regarded  as  an  accomplice,  even  where  her  consent  is  shown."* 
Even  where  she  is  an  accomplice,  her  uncorroborated  evidence  may 


Me-  303 ;  Navarro  v.  State,  24  Tex. 
App.  378,  6  S.  W.  542. 

"  The  rule  of  e.xclusion,  it  is  well 
known,  is  based  upon  the  unity  in 
view  of  the  law  of  husband  and  wife, 
and  the  idea  that  her  testimony 
would  tend  to  destroy  domestic 
peace,  and  introduce  discord,  ani- 
mosity and  confusion.  The  e.xcep- 
tions  which  necessity  soon  forced 
upon  the  courts  are  based  primarily 
on  the  idea  that  the  protection  of  the 
person  of  the  wife  from  actual 
violence  and  assault  or  cruel  treat- 
ment by  the  husband,  is  of  more 
practical  importance  than  the  legal 
assumption  of  unity,  or  the  theoreti- 
cal fears  of  domestic  discord."  State 
V.  Dyer,  59  Me.  303. 

But  under  the  Te.xas  Criminal 
Code,  Art.  775,  forbidding  husband 
and  wife  to  testify  against  each 
other,  "  except  in  a  criminal  prosecu- 
tion for  an  ofTense  committed  by  one 
against  the  other,"  a  wife's  testimony 
is  inadmissible  against  her  husband 
on  his  trial  for  an  abortion  com- 
mitted on  her  prior  to  their  mar- 
riage. Miller  v.  State,  37  Tex.  Crini. 
App.  575,  40  S.  W.  313- 

55.  Com.  v.  Brown,  121  Mass.  6g ; 
Watson  V.  State,  9  Tex.  App.  237 ; 
Frazer  v.  People,  54  Barb.  (N.  Y.) 
306;  Com.  V.  Wood,  II  Gray  (Mass.) 
85. 

"Assuming  her  not  to  be  indict- 
able, still,  on  an  indictment  against 
the  guilty  party,  her  testimony  is 
open  to  special  observation,  and 
perhaps  it  ought  to  be  confirmed." 
I   Bish.  on  Crim.   Proc,  §1173. 

In  State  v.  Moothart,  109  Iowa 
130,  80  N.  W.  301,  it  was  held  that, 
where  "the  jury  was  sufficiently  in- 
structed as  to  rules  for  determining 
the  credibility  of  witnesses,  and  the 
weight  to  be  given  to  their  testi- 
mony," there  was  no  error  in  failing 
specifically  to  tell  the  jury  that  the 
testimony  of  the  woman  is  to  some 


extent  discredited  because  she  was 
a    willing   accomplice. 

56.  Watson  v.  State,  9  Tex.  App. 
237;  Com.  V.  Drake,  124  Mass.  21. 

57.  State  v.   Crook,   16  Utah  212, 

51  Pac.  1091 ;  People  v.  Josselyn,  39 
Cal.  393 ;  State  v.  Owens,  22  Minn. 
23S;  Wandell  v.  State,  (Tex.  Crim. 
.\pp.),  25   S.  W.  27. 

58.  Woman's  Testimony  Suffi- 
cient— People  V.  Costello,  l  Denio 
83;  Dunn  V.  People,  29  N.  Y.  523, 
86  Am.  Dec.  319;  Com.  v.  Boynton, 
116  Mass.  343. 

Not    Accomplice    Unless    Made    So 

By    Statute As     in     England,     see 

Bish.  Stat.  Crimes,  §749;  Reg.  v. 
Cramp,   14  Cox  C.   C.   390. 

"Woman  Regarded  As  'Victim 
Rather  Than  Accomplice. — Califor- 
)iht. — People  V.  Josselyn,  39  Cal.  393. 

Colorado. — Solander  z>.  People,  2 
Colo.  48. 

Kentucky. — Peoples  v.  Com.,  87 
Ky.  487,  9  S.  W.  509. 

Massachusetts. ^Com.  v.  Wood,  11 
Gray  85;  Com.  v.  Boynton,  116  Mass. 
343;  Com.  V.  Follansbee,  155  Mass. 
274,  29  N.  E.  471. 

Minnesota. — State    v.     Owens,    22 
Minn.  238;  State  v.  Pearce,  56  Minn. 
226,   57   N.   W.  652. 
■  Ne-M  Jersey. — State  v.  Hyer,  39  N. 
J.    Law    598. 

Neiu  York. — Dunn  v.  People,  29 
N  .Y.  523,  86  Am.  Dec.  319;  People 
V.  Vedder,  34  Hun  280;  People  v. 
McGonegal,  136  N.  Y.  62,  32  N.  E. 
616.  See  Frazer  v.  People,  54  Barb. 
306. 

Tt'-ra.?.— iSIiller  v.  State,  37  Tex. 
Crim.  App.  575,  40  S.  W.  313; 
Hunter  v.  State,  38  Tex.  Crim.  App. 
61,  41  S.  W.  602 ;  Willingham  v. 
State,  33  Tex.  Crim.  App.  98,  25  S. 

W.  424. 
May    Be    Accomplice    by    Rule    of 

Statute — Fixmer  v.  People,  153  111. 
123,  38  N.  E.  667;   State  v.  McCoy, 

52  Ohio  St.   157,  39  N.  E.  316. 

Vol.  I 


62 


ABORTION. 


suffice  to  sustain  a  conviction.^''     As  to  corroboration  generally,  see 
that  article. 

2.  Opinion  Evidence.  —  A.  Expekts.  —  The  physician  who  has 
examined  the  alleged  victim  of  an  abortion  may  give  his  opinion  as 
to  whether  or  not  the  offense  has  been  committed,""  and  as  to  the 


59.  Accomplice's  Evidence  Suffi- 
cient— Reg.  V.  Boyes,  i  B.  &  S.  311, 
loi  Etig.  C.  L.  309;  Dunn  v.  People, 
29  N.  Y.  523,  86  Am.  Dec.  319;  State 
V.  Hyer,  39  N.  J.  Law  598. 

"  It  is  a  question  for  the  jury, 
who  are  to  pass  upon  tlie  credibility 
of  an  accompUce,  as  they  must  upon 
that  of  every  other  witness.  His 
statements  are  to  be  received  with 
great  caution,  and  the  court  should 
always  so  advise ;  but,  after  all,  if 
his  testimony  carries  conviction  to 
the  mind  of  the  jury  and  they  are 
fully  convinced  of  its  truth,  they 
should  give  the  same  effect  to  sucli 
testimony  as  should  be  allowed  to 
that  of  an  unimpeached  witness,  who 
is  in  .no  respect  implicated  in  the  of- 
fense. Such  testimony  will  author- 
ize a  conviction  in  any  case.  "  Peo- 
ple V.  Costello,  I  Dcnio   (N.  Y.)  83. 

"  The  legal  competency  of  accom- 
plices as  witnesses  is  clearly  estab- 
lished. Indeed,  it  is  said  to  be  the 
policy  of  the  law  to  invite  such  per- 
sons to  come  forward  and  expose 
undiscovered  participants  in  their 
guilt.  (Jordaine  r.  Lashbrooke,  7  T. 
R.  609.)  Yet,  tainted  as  they  are 
with  confessed  criminality,  and  testi- 
fying, as  they  often  do,  under  the 
strong  motive  of  hope  of  favor  or 
pardon,  it  is  but  natural  to  withhold 
from  them  that  faith  in  their  testi- 
mony which  we  accord  to  tlie  up- 
right, disinterested,  and  innocent. 
It  was  reasonable  that  courts  should 
regard  their  testimony  with  suspi- 
cion, and  look  carefully  into  the  se- 
cret motives  that  might  actuate  1)ad 
minds  to  draw  in  and  victimize  the 
innocent ;  and,  consequently,  there 
has  grown  up  in  the  courts  a  settled 
practice  quite  universal,  and  entitled 
in  its  observance  almost  to  the  rev- 
erence of  law,  to  advise  jurors,  in 
the  strongest  cautionary  terms,  not 
to  convict  defendants  on  such  testi- 
mony, unless  they  can  find  corrobo- 
ration in  the  testimony  of  other  and 

Vol.  I 


unsuspected  witnesses,  upon  such 
material  circumstances  as  tend  di- 
rectly to  establish  the  guilt  of  the 
accused.  And  quite  frequently  do 
the  courts,  in  their  discretion,  direct 
juries  to  acquit  and  set  aside  ver- 
dicts founded  on  the  testimony  of 
uncorroborated  accomplices.  But  I 
think  it  may  be  asserted  as  the  law 
that,  when  the  jury  acting  upon 
such  testimony,  he  being  a  legal  wit- 
ness, find  a  verdict  of  guilty,  it  is  a 
lawful  verdict,  and  cannot  be  dis- 
turbed on  error."  State  v.  Hyer,  39 
N.   T.  Law  598.    ' 

Character  of  Corroborating  Evi- 
dence— Reg.  V.  Boyes,  i  B.  &  S.  311, 
loi  Eng.  C.  L.  309;  Com.  v.  Drake, 
124  Mass.  21  ;  Frazer  v.  People,  54 
Barb.  (N.  Y.)  306;  People  v.  Ved- 
der,  34  Hun    (N.  Y.)  280. 

60.  State  V.  Glass,  5  Or.  73 ;  State 
V.  Smith,  32  Me.  369,  54  Am.  Dec 
578;  People  V.  Sessions,  58  Mich. 
594,  26  N.  W.  291. 

Hypothetical  Questions  to  Expert. 
Howard  1:  People,  185  111.  552. 
57  N.  E.  441 ;  Cook  v.  People,  177 
ill.  146,  52  N.  E.  273;  People  V. 
Aiken,  66  Mich.  460,  33  N.  W.  821, 
II  Am.  St.  Rep.  512;  People  v.  Ses- 
sions, 58  Mich.  594,  26  N.  W.  291. 

A  physician  testifying  as  an  expert 
that  he  has  discovered  no  traces  of 
abortion  in  a  certain  case,  may  prop- 
erly be  asked  whether  such  traces 
would  exist  under  certain  circum- 
stances, even  though  no  proof  of  such 
circumstances  has  been  offered,  as 
the  evidence  of  having  discovered  no 
traces  might  mislead  the  jury  into 
believing  that  was  proof  of  no 
crime's  having  been  committed. 
Bathrick  7'.  Detroit  P.  &  T.  Co.,  50 
Mich.   629,    16    N.    W.    172.    45    Am. 

Rep-  63.  .         .       .      ,     .     .^, 

But     a     question     is     inadmissible, 

which  asks  of  a  physician  called  as 

a    witness,    in    reference    to    certain 

testimony   of  another,   if  on   hearing 

such   testimony   he   would   lose   faith 


ABORTION. 


(y?. 


manner  in  which  it  was  produced.'''  Jrlis  opinion  based  upon  the 
woman's  narration  at  the  time  of  the  examination  is  inadmissible."" 

As  to  Pregnancy.  —  After  examination  of  the  woman  the  physi- 
cian ma\'  give  liis  opinion  as  to  her  pregnancy."" 

B.  Non-Experts.  —  Persons  not  expert  can  not  testify  to  an 
opinion  whether  or  not  an  abortion  had  been  attempted  or  constim- 
mated."* 

3.  Medical  Books.  —  As  to  the  use  of  medical  works  in  prosecu- 
tions for  al)ortions,  sec  the  article  on  "Books.  " 

4.  Declarations.  —  A.  Res  Gestae.  —  As  part  of  a  continuing 
transaction,  the  contempcrary  actions  of  the  defendant  and  of  the 
woman  may  be  shown;"''  their  correspondence;""  the  condition  of 
her  person  and  immediate  surroundings ;""  the  fact  that  the  defend- 
ant was  her  seducer  ;"*'  but  these  facts  must  be  ancillar\'  to  the 
identical  crime  charged,  or  thev  are  inadmissible."" 


in  the  character  of  any  person  who 
had  theretofore  in  snch  respect  stood 
high  in  his  esteem.  Beasley  v.  Peo- 
ple, 89  111.   5/1-  • 

61.  State  V.  Wood,  S3  N.  H.  ^84; 
State  V.  Glass,  5  Or.  73;  Slate  v. 
Slagle,  83  N.  C.  630;  Hank  v.  State, 
148  Ind.  238,  46  N.  E.  127;  People  v. 
Sessions,  58  Alich.  594,  26  N.  W.  291. 

The  opinion  of  a  medical  expert 
as  to  what  snbslance  had  been  ad- 
ministered the  woman  is  admissible, 
though  he  has  made  no  chemical 
analysis.  State  i'.  Slagle,  83  N.  C. 
630. 

62.  People  v.  Murphy.  lOi  N.  Y. 
126,  4  N.  E.  326.  54  Am.  Rep.  661. 

63.  May  State  His  Reasons  for 
Such  Belief — State  v.  Smith,  32  Me. 
369,  54  Am.  Dec.  578;  State  v. 
Gedicke,  43  N.  J.  Law  86. 

64.  People  v.  Olmstead.  30  Mich. 
431 ;  Navarro  v.  State,  24  Tex.  App. 
378,  6  S.  W.  S42;  King  V.  State,  35 
Tex.  Crim.  472,  34  S.  W.  282. 

"  When  a  claimed  result  becomes 
so  remote  that  conclusion  and  deduc- 
tion are  necessary  to  connect  it  with 
a  cause,  then  the  non-expert  witness 
may  only  state  physical  facts  and 
symptoms  experienced,  leaving  the 
conclusion  from  them  to  the  jury;" 
hence,  a  woman's  testimony  that  an 
abortion  had  been  produced  on  her 
by  a  kick,  was  held  inadmissible. 
Navarro  v.  State,  24  Tex.  App.  378, 
6  S.  W.  542. 

65.  All  Attending  Circumstances 
May  Be  Shown — Whart.  Crim.  Ev., 
§24. 


The    Actions    of    the    Defendant. 

Illinois. — Cook  V.  People.  177  111. 
146,  52  N.  E.  273 ;  Cochran  v.  Peo- 
ple, 175  111.  28,  51  N.  E.  84s;  How- 
ard V.  People,  185  111.  552,  57  N.  E. 
441- 

luzua. — State  v.  Montgomery,  71 
Iowa,  630,  3i  N.  W.   143. 

Massacliust'tts. — Com.  v.  Adams, 
127  Mass.  15 ;  Com.  v.  Thompson, 
108  Mass.  461. 

Missouri. —  State  v.  McLeod,  136 
Mo.  109,  37  S.  W.  828. 

Ne%i<  York. — People  v.  Van  Zile, 
73  Hun  534,  26  N.  Y.  Supp.  390; 
Frazer  v.   People,  54  Barb.  306. 

Tcvas. — Hunter  v.  State,  38  Tex. 
Crim.  App.  61,  41   S.  W.  602. 

The  Actions  of  the  Woman. 
Com.  V.  Drake,  124  Mass.  21 ;  How- 
ard V.  People,  185  111.  552,  57  N.  E. 
441  ;  Moore  v.  State,  37  Tex.  Crim. 
App.  552,  40  S.  W.  287;  State  v. 
Dickinson,  41  Wis.  299;  Coo.c  v. 
People,  177  111.  146,  52  N.  E.  273 ; 
People  V.  Van  Zile,  73  Hun  534,  26 
N.  Y.  Supp.  390. 

66.  Hays  v.  State,  40  Md.  633; 
State  V.  Moothart,  109  Iowa  130,  80 
N.  W.  301. 

67.  People  v.  Olmstead,  30  Mich. 
431;  Com.  V.  Wood,  II  Gray 
(Mass.)   85. 

68.  State  v.  McLeod,  1,^6  Mo.  109, 
37  S.  W.  828;  State  v.  Montgomery, 
71  Iowa  630,  33  N.  W.  143;  Cook  v. 
People,  177  111.  146,  52  N.  E.  273; 
Cochran  v.  People,  175  111.  28,  51  N. 
E.  845. 

69.  Com.     V.     Hersey,     2     Allen 

Vol.  I 


64 


ABORTION. 


B.  Other  Declarations.  —  a.  Generally.  —  Declarations  of  the 
woman  may  be  admissible  under  the  rules  of  res  gestae,'"  for  which 
reference  must  be  made  to  the  article  on  that  subject.  Except  as 
admissible  under  the  rules  of  res  gestae,  statements  by  the  woman 
are  hearsay,  especially  if  made  in  the  absence  of  the  accused."'  Her 
declarations  as  to  the  purpose  of  a  visit  to  the  defendant  made  at 
the  time  of  her  departure  may  be  admissible  where  the  fact  of  the 
visit  is  material  to  the  issues.'^  The  declarations  of  the  woman 
indicative  of  present  pain  and  suffering  are  admissible  for  the  pur- 
pose of  showing  physical  condition,''  and  so  may  be  her  statements 
touching  her  pregnancy,  whether  made  to  her  physician''*  or  to 
others  ;"^  but  as  to  the  general  method  of  proof  of  mental  and  phy- 
sical states,  see  the  article  on  "  Mental  and  Physical  States." 


(Mass.)    173;   People  v.  Abbott,   116 
Mich.  263,  74  N.  W.  529. 

Evidence  of  a  conversation  two 
years  previous  to  the  offense,  in 
which  defendant  sought  information 
on  the  subject  of  procuring  an  abor- 
tion was  excluded.  Com.  i'.  Hersey, 
2  Allen    (Mass.)    173. 

70.  Colorado. — Solander  v.  Peo- 
ple, 2  Colo.  48. 

Idaho. — State  v.  Alcorn,  (Idaho). 
64  Pac.   1014. 

Maryland. — Jones  v.  State.  70  Md. 
326,  17  Atl.  89,  14  Am.  St.  Rep.  362. 

Massachusetts. — Com.  v.  Brown, 
121  Mass.  69;  Com.  v.  Fenno,  134 
Mass.  217. 

Vermont. — State  v.  Howard,  32 
Vt.  380. 

Wisconsin.—State  v.  Dickinson,  41 
Wis.  299. 

71.  Illinois. — Siebert  v.  People, 
143  111.  571,  32  N.  E.  431 ;  Howard 
V.  People,  185  III.  552,  57  N.  E.  44i- 

Indiana. — Hank  v.  State,  148  Ind. 
238,  46  N.   E.   127. 

Kansas. — State  v.  Young,  55  Kan. 
349,  40  Pac.  659. 

Maryland. — Hays  v.  State,  40  Md. 
633. 

Massachusetts. — Com.  v.  Leach,  156 
Mass.  99,  30  N.  E.  163;  Com.  v. 
Felch,   132  Mass.  22. 

Michigan. — People  v.  .A.iken,  66 
Mich.  460,  Zi  N.  W.  821,  II  Am.  St. 
Rep.  512. 

New  Hamf'shire. — Com.  v.  Wood, 
53  N.  H.  484. 

Neiv    York. — People   v.    Davis,    56 

N.   Y.  95;   Maine  v.   People,  9  Hun 

113;    People  V.    Murphy,    loi    N.    Y. 

126,  4  N.   E.  326,  54  Am.   Rep.  661. 

Vol.  I 


Oregon, — State  v.  Clements,  15  Or. 
237,   14  Pac.  410. 

So  a  statement  by  the  deceased 
that  she  was  pregnant  by  a  person 
other  than  defendant,  and  that,  if 
such  person  did  not  procure  her 
miscarriage,  she  would  perform  the 
operation  herself,  was  held  inadmis- 
sible.    Com.  V.   Felch,   132  Mass.  22. 

And  statements  of  the  woman, 
made  in  the  absence  of  the  defend- 
ant after  her  return  from  his  office, 
as  to  the  fact  and  manner  of  what 
took  place  there,  together  with  her 
statement  that  defendant  then  gave 
her  a  medicine  she  exhibited  and 
told  her  how  to  take  it,  were  ex- 
cluded as  no  part  of  the  res  gestae. 
People  V.   Davis,  56  N.  Y.  95'. 

So  were  statements  of  the  woman 
that  she  had  operated  on  herself, 
when  made  prior  to  the  time  of  the 
alleged  offense.  Hank  v.  Stale,  148 
Ind.  238,  46  N.  E.  127. 

72.  State  v.  Howard,  32  Vt.  380; 
Solander  v.  People,  2  Colo.  48;  State 
V.  Dickinson,  41  Wis.  299;  State  v. 
Power,  24  Wash.  34,  63  Pac.  11 12; 
State  V.  Alcorn,  (Idaho,)  64  Pac. 
1014. 

73.  People  v.  .Mken.  66  Mich. 
460,  33  N.  W.  821,  II  Am.  St.  Rep. 
512;  Com.  V.  Leach,  156  Mass.  99, 
30  N.  E.  163;  Rhodes  v.  State,  128 
Ind.  189.  27  N.  E.  866,  25  Am.  St. 
Rep.  429;  State  v.  Glass,  5  Or.  73; 
State  V.  Gedicke,  43  N.  J.  Law  86. 

74.  State  v.  Gedicke,  43  N.  J. 
Law  86;  People  v.  Josselyn,  39  Cal. 
393;  State  7'.  Alcorn,  (Idaho,)  64 
Pac.   1014. 

75.  Stale  v.  Glass,  5  Or.  73. 


IHOkTlO.W 


()5 


b.  Dying  Declarations.  —  As  to  the  admissibility  of  dying  decla- 
rations in  general,  see  the  article  on  that  subject.  In  prosecutions 
for  abortion  such  declarations  are  not  admissible'''  unless  otherwise 
provided  by  statute." 


76.  linglaiid. — Rex.  v.  Lloyd,  4 
Car.  &  P.  233,  19  Eng.  C.  L.  49' ; 
Rex  V.  Hutchinson,  2  Barn.  &  C.  608. 

Georgia. — Wootcn  v.  Wilkins,  39 
Ga.  223,  99  Am.  Dec.  456. 

Massachusetts. — Com.  v.  Homer, 
153  Mass.  343,  26  N.  E.  872. 

Neiu  Jersey. — State  v.  Meyer,  64 
N.  J.  Law  382,  45  Atl.  779. 

Nezv  Yorli. — People  v.  Davis,  56  N. 
Y.  95;  Wilson  V.  Boercni,  15  Johns. 
286. 

Ohio. — State  v.  Harper,  35  Ohio 
St.  78,  35  Am.  Rep.  596. 

Pennsylvania. — Railing  v.  Com., 
no  Pa.  St.   100,  I   Atl.  314. 

See  "  Deci..\r.\tions.  Dying  Dec- 
larations." 

"The  court  also  erred  in  receiv- 
ing proof  of  the  declarations'  of  the 
deceased  made  after  she  had  aban- 
doned all  hopes  of  life.  Such  evi- 
dence is  admissible,  in  cases  of 
homigide,  only  where  the  death  of 
the  deceased  is  the  subject  of  the 
charge,  and  the  circumstances  of  tlie 
death  are  the  subject  of  the  dying 
declarations,  (i  Greenl.  Ev.,  §  156, 
and  cases  cited  in  note;  Wilson  v. 
Boerem,  15  J.  R.,  286.)  This  is  the 
settled  rule,  and  it  is  unnecessary  to 
discuss  the  reasons  upon  which  it  is 
founded.     Applying  the   rule   to   this 


case,  the  declarations  were  not  ad- 
missible. The  charge  against  the 
prisoner  was  not  homicide  in  any 
degree.  The  crime  charged  against 
him  is  that  of  persuading  the  de- 
ceased to  submit  to  the  use  of  an 
instrument  upon  her  person,  and  to 
take  drugs  with  intent  to  produce 
her  miscarriage  —  in  consequence  of 
which  the  death  of  the  child,  and  her 
own,  were  produced.  The  death  of 
the  deceased  was  not  a  necessary  in- 
gredient of  the  crime;  that  of  the 
child  was  sufficient  to  make  the  of- 
fense a  felony.  The  act  alleged  to 
have  been  perpetrated  by  the  pris- 
oner was  a  crime  under  the  third 
section  of  the  statute,  in.  the  absence 
of  the  death  of  the  mother  or  child. 
Such  death  only  increased  the  degree 
of  the  crime  and  the  punishment  to 
be  inflicted."  People  v.  Davis,  56  N. 
Y.  95,  103. 

77.  Com.  V.  Homer,  153  Mass. 
343,  26  N.  E.  872;  Maine  v.  People, 
9  Hun    (N.  Y.)    113. 

Apparent  Conflict.  —  But  in  Clark 
V.  People,  16  Colo.  511,  27  Pac.  724, 
the  dying  declaration  of  the  female 
was  held  to  be  admissible  for  the 
defendant,  and  the  court  does  not 
put  this  on  the  ground  of  any  stat- 
ute. 


Vol.  I 


ABSTRACTS  OF  TITLE. 

By  Edgar  \\ .  Camp. 

I.  IN  ABSENCE  OF  STATUTE,  66 

1.  General  Rule,  66 

2.  As  Secondary  Evidence,  66 

3.  In  Ex  Parte  Proceedings,  67 

4.  By  Stipulation,  67 

5.  Against  the  One  Furnishing  It,  67 

II.  STATUTORY  PROVISIONS,  67 

1.  Generally,  67 

2.  Construction,  68 

3.  Preliminary  Proof,  68 

4.  Copies  of  Abstracts,  69 

5.  Explanation  of  Abstracts,  69 

6.  Waiver  of  Objections,  70 

7.  Introducing  Part  of  Abstract,  70 

CROSS-REFERENCES. 

Best  and  Secondary  Evidence ; 

Records ;  * 

Title. 

I.  IN  ABSENCE  OF  STATUTE. 

1.  General  Rule.  —  An  abstract  of  title  is  not  competent  evidence 
of  conveyances  in  the  absence  of  a  statnte  permittino;-  its  introduc- 
tion.' 

2.  As  Secondary  Evidence.  —  It  has  been  held  that  in  so  far  as 
an  abstract  can  be  proved  to  be  copies  of  conveyances,  it  may  be 
used  as  secondary  evidence  under  the  rules  for  secondary  evidence 
of  writint^s." 

1-     Reed  v.  Banks,  10  U.  C.  C.   P.  stract  of  his  title,  lie  may  introduce 

(Can.)    202;    People   v.    VVemple,   67  such   abstract   in   evidence.      Hart   r'. 

Hun  495,  22  N.  Y.  Supp.  497;  Hart-  McGrew,  (Pa.  St.),  11  .\t\.  617.     See 

ley  V.  James,  50  N.   Y.  .;8;   Kane  v.  also  Kane  v.  Rippey,  22  Or.  296,  2.? 

Rippey,  22  Or.  296,  2.3  Pac.  180.  Pac.    180. 

"  Without     some     proof     that     the  When  No  Objection  Is  Made  to  an 

laws   of   Indiana    recognize   such    in-  abstract  when  offered,  it  may  be  con- 

struments     (abstracts    of    title),    we  sidered,  or  if  it  be  objected  to  only 

are  somewhat  at  a  loss  to  understand  as    to   one   matter   therein    stated,    it 

how  tbey  can  sbow  title."     Weeks  v.  may  be  examined  and  considered  in 

Downing,  ,?o  Mich.  4.  respect  to  all  other  matters.     Reed  v. 

In  Pennsylvania,  it  has  been  held  Banks,  10  U.  C.  C.  P.  (Can.)  202. 

that    if    the    rules    of    court    require  2.     Halsey    v.    Blood,    29    Pa.    St. 

plaintiff    in    cjcclnient    to   file   an    ab-  319. 

Vol.  I 


ABSTR.lcTS  OJ-   TITLE. 


67 


3.  In  Ex  Parte  Proceedings.  —  In  the  United  States,  an  abstract 
may  sometimes  be  used  in  e.v  parte  proceedings.-' 

4.  By  Stipulation.  —  It  may  be  used  by  stipulation.^ 

5.  Against  One  Furnishing  It. —  It  may  be  used  against  the  one 
who  furnished  it.'' 

II.  STATUTORY  PROVISIONS. 

1.   Generally.  —  Many  of  the  states  have  statutes  permitting  the 
use  of  abstracts  in  evidence." 


3.  People  V.  Weniple,  67  Huii 
495,  22  N.  Y.  Supp.  497. 

4.  Weeks  v.  Downing,  jo  Mich.  4. 

Stipulation  That  Abstract  Is  Cor- 
rect   Sufficient    to    Admit In     the 

case  of  Garrett  v.  Hanshue,  53  Ohio 
St.  482,  42  N.  E.  256,  35  L.  R.  A. 
321,  an  attorney  endorsed  upon  an 
abstract  and  signed  a  stipulation  that 
the  abstract  showed  the  true  con- 
dition of  the  lands  therein  dcscribL-d, 
but  did  not  stipulate  that  the  ab- 
stract might  be  used  in  evidence. 
The  court,  however,  held  that  the 
abstract  was  admissible  on  the 
ground  that  whatever  is  true  may, 
if  relevant,  be  received  in  evidence. 
The  truth  of  the  abstract  being  ad- 
mitted plaintiff  had  a  right  to  use 
it  as  evidence,  without  the  further 
agreement  of  the  defendant  that  he 
might  do  so. 

5.  Abstract  Furnished  By  Vendor 

Admissible  Against  Him In  an  ac 

tion  to  rescind  a  contract  to  pur- 
chase, the  vendee  may  put  in  evi- 
dence the  abstract  furnished  by  the 
vendor  to  show  what  title  the 
vendor  claimed  to  have.  Hartley  ;■. 
James.   50   N.   Y.   38. 

Abstract  Furnished  In  An  Action 
Under  Statute — Where  a  party  has 
been  required,  under  statute,  to  file 
an  abstract  of  his  title,  such  ab- 
stract may  be  put  in  evidence 
against  him,  e.  g.  to  show  that  he 
claimed  under  a  certain  deed.  Wich- 
ita Land  &  Cattle  Co.  v.  Ward,  i 
Tex.  Civ.  App.  307.  21  S.  W.  128; 
Evans  V.  Foster,  79  Tex.  48,  iq  S. 
W.   170. 

6.  Generally  Admissible  by  Stat- 
ute— Indiana. — Ply  order  of  court, 
Rev.   Stat.  '94,  §  366. 

Michigan.  —  Comp.  Laws,  '97, 
§§3244,  3413. 

Nebraska.  —  .'Xftcr  notice.  Stats. 
'99,   §4158. 


A'l'ii'    .Mc.vico. — Comp.     Laws.    '97, 

§  3934- 
in    Actions    by    Ejectment Ala- 

Ininia. —  After     notice,     C.      C.      '96, 

§  1531. 

Georgia.  —  Code,  '95,  §  4963 ;  see 
also   §4927. 

/oii'o.— Ann.    Code,    '97,    §  4188. 

Mississipt^i. — Ann.    Code,    §  1652. 

In  Action  for  Partition — Califor- 
nia.—C.  c.  P.  §§799.  i^. , 

lozi'a. — Ann.   Code,  '97,  §  4242. 

Montana. — After   notice,    C.    C.    P. 

§§  1397,  1398. 

North  Dakota. — After  notice.  Rev. 
Codes,    95,  §5841. 

South  Dakota.— Ann.  Stats.  '99, 
§§  6639,  6640. 

Utah.  — Rev.  Stats.  '98,  §§3569. 
3570. 

Wisconsin. — Rev.  Stats,  page  2166. 

Under  "  Quieting  Title  Act."— On- 
tario: Re  Cummings  8  P.  R.  473, 
holding  that  .abstract  must  be 
brought  down  to  date  of  certificate 
of  title  before  certificate  can  issue. 
Re  Morse  8  P.  R.  477,  holding  that 
abstract  can  be  dispensed  with  on 
proper   showing. 

Where  Original  Records  Are  Lost. 
Illinois.  —  Ann.  Stats.  Chap.  30, 
§§36-38,  Chap.  116,  §28. 

.hiississil'fi. — Ann.    Code,    §  2792. 

0/1/0.— Bates'   Ann.    Stats.   §  5339'-'. 

Te.vas.—'Rev.  Stats.  '95,  Art.  231-3; 
applies  to  records  lost  prior  to   1876. 

Wisconsin. — Rev.    Stats.   §66in. 

A^ebraska. — In  the  case  of  Gate 
City  Abstract  Co.  v.  Post,  55  Neb. 
742,  76  N.  W.  471,  the  court  referred 
to  the  Act  of  1887,  Chap.  64  the 
second  section  of  which  provides 
that  abstracts  prepared  by  bonded 
abstracters  shall  be  received  in  all 
courts  as  t>rima  facie  evidence  of  the 
existence  of  the  record  of  deeds, 
mortgages  and  other  instruments  or 
liens   aflfecting   the   real    estate   men- 

Vol.  I 


68 


ABSrR.lCTS  01'  TITLE. 


In  Illinois,  the  statute  is  known  as  the  ■'  I'.urnt  Records  Act," 
and  was  enacted  soon  after  the  Chicai,^  fire.  This  act  has  been 
referred  to  in  many  cases  in  that  state.' 

2.  Construction.— It  is  held  that  such  acts  are  highlv  remedial, 
and  therefore  to  be  liberally  construed.** 

3.  Preliminary  Proof. —  Thus,  it  is  held,  that  an  abstract  of  the 
record  may  be  used  to  prove  the  contents  of  a  deed  actually  recorded, 
although  not  so  acknowledged  as  to  be  entitled  to  record.'' 

But  it  must  appear  that  the  records  are  destroyed  ;'»  the  convev- 


tioned  in  the  abstract  and  that  such 
record  is  as  described  in  the  abstract. 
The  third  section  requires  one  who 
desires  to  use  an  abstract  in  evi- 
dence at  a  trial  to  serve  a  copy 
thereof  on  his  adversary  at  least 
three  days  before  the  trial.  The 
court  remarks  tliat  such  abstracts 
may  be  used  as  evidence  in  an  action 
to  enforce  the  specific  performance 
of  a  contract,  and  in  every  other 
form  of  action  in  which  the  validity 
of  the  title  or  the  existence  or  non- 
existence of  liens  or  encumbrances 
are  questions  directly  or  collaterally 
involved ;  that  the  right  to  use  an 
abstract  as  evidence  is  not  limited  to 
the  person  to  whom  it  is  issued; 
anyone  may  use  it. 

7.  Richley  v.  Farreli,  69  III,  264; 
Russell  V.  Alandell,  y^  III.  136;  King 
V.  Worthington,  75  III.  161  ;  Smith 
V.  Stevens,  82  111.  554;  Miller  v. 
Shaw,  103  111.  277;  Compton  v.  Ran- 
dolph, 104  III.  555 ;  Heinsen  v.  Lamb, 
117  111.  549,  7  N.  E.  75;  Conver.se  v. 
Wead,  142  111.  132,  31  N.  E.  314; 
Chicago  &  A.  R.  Co.  v.  Keegan, 
152  111.  413,  39  N.  E.  33;  Walton  v. 
Follansbee,  165  111.  480,  46  N,  E. 
459;  Cooney  v.  A.  Booth  Packing 
Co.,   169  III.  370,  48  N.  E.  406. 

8.  Smith  V.  Stevens,  82  III.  554. 
In  that  case,  it  was  held  that  such 
abstracts  are  admissible  under  the 
statute,  even  against  one  in  posses- 
sion unless  his  possession  is  adverse 
and  has  so  continued  for  twenty 
years. 

See  also.  Heinsen  v.  Lamb,  117 
111.  .■;49,  7  N.  E.  75 ;  Chicago  &  A. 
R.  Co.  V.  Keegan,  152  III.  413,  39 
N.   E.  3.r 

Illustration — In  the  case  of  Sauers 
V.  Gidclings,  90  Mich.  5:0,  51  N.  W. 
265,  the  court  had  under  considera- 
tion an  Act  of   1865    (p.  667)   being 


an  Act  to  declare  certain  abstracts 
of  the  county  of  Kent  to  be  public 
records,  which  provides  that  such 
abstracts  shall  be  a  public  record 
and  be  prima  facie  evidence  in  all 
courts  of  the  state,  and  in  all  suits 
and  proceedings  of  the  matters 
therein  stated  and  have  the  same 
virtue  and  effect  as  by  present  pro- 
visions of  tazi'  the  records  of  the 
office  of  the  Register  of  Deeds 
possess.  It  was  held  that  under  this 
statute  such  an  abstract  could  be 
used  to  prove  a  deed  by  an  ad- 
ministrator and  by  proving  such 
deed,  establish  prima  facie  the  regu- 
larity of  all  proceedings  required 
by  law  anterior  to  such  deeds,  al- 
though the  Act  making  an  adminis- 
trator's deed  prima  facie  evidence 
of  his  authority  was  not  enacted 
until  two  years  after  the  law  above 
referred  to.  The  court  held  that  the 
abstract  under  the  Act  of  1865  had 
the  same  effect  and  virtue  as  the 
records  themselves  would  have 
possessed  at  the  time  of  the  trial 
in   the  absence  of  that   law. 

9.  Heinsen  v.  Lamb,  117  III.  549, 
7  N.  E.  75',  hul  not  so  under  the 
Texas  statute  for  the  case  of  Robins 
V.  Ginocchio,  (Tex.  Civ.  App.),  33 
S.  'VV.  747,  holds  that  the  abstract 
can  have  no  greater  effect  than  a 
certified  copy,  and  that  since  a  copy 
of  a  deed  showing  no  acknowledge- 
ment would  not  show  due  record, 
and  would  not  be  sufficient  as  proof 
of  a  deed  under  the  statute  allowing 
proof  by  certified  copy  of  record, 
therefore  an  abstract  showing  no 
acknowledgement  is  likewise  insuffi- 
cient. 

10.  'Walton  V.  Follansbee.  i6,s  111. 
480,  46  N.  E.  459;  Chicago  &  A.  R. 
Co.  V.  Keegan,  i.!;2  III.  413,  30  N.  E. 
33;    Heinsen   v.    Lamb,    117   111.   549, 


Vol.  I 


ABSTRACTS  OF  TITLE. 


69 


ance  destroyed  or  lost;"  and,  that  the  abstract  was  made  in  ordi- 
nary course  of  business,'-  before  the  destruction  of  the  records.'^ 

4.  Copies  of  Abstracts.  —  A  letter-press  copy  of  a  lost  abstract 
cannot  be  used.'"* 

5.  Explanation  of  Abstracts.  —  Whenever  used  in  evidence,  an 
abstract  may  be  supplemented  by  an  explanation  of  abbreviations 
and  signs  shown  upon  it,''''  but  not  by  evidence  of  the  abstracter's 
methotls  and  habits  to  which  no  reference  is  luade  on  the  abstract 
itself."' 


7  N.  E.  75;  Russell  v.  Mundcll,  73 
111.  136;  Robins  v.  Ginocchio,  (Tex. 
Civ.   App.),  33   S.   W.   747. 

11.  Chicago  &  A.  R.  Co.  v. 
Kecgan,  152  111.  413,  39  N.  E.  a; 
Russell  V.  iMandell,  73  111.  136. 

12.  Russell  V.  Mandell,  73  III. 
136;  Heinsen  v.  Lamb,  117  111.  549, 
7  N.  E.  75. 

Presumption  as  to  Ordinary 
Course  of  Business It  will  be  pre- 
sumed that  an  abstract  shown  to  be 
in  the  handwriting  of  an  abstracter 
was  made  in  ordinary  course  of  busi- 
ness. Chicago  &  A.  R.  Co.  v.  Keegan, 
152  111.  413,  39  N.  E.  33;  Cooney  v. 
A.  Booth  Packing  Co.,  169  HI.  370, 
48  N.  E.  406. 

In  the  last  case,  it  was  proved 
that  the  abstract  was  in  the  writing 
"that  was  in  vogue  in  the  office" 
of  the  abstracters  whose  work  it 
purported  to  be. 

It  also  appeared  that  it  had 
been  for  more  than  thirty  years  in 
possession  of  owners  of  part  of  the 
premises   mentioned   in   the   abstract. 

13.  Russell  V.  Mandell,  73  HI- 
136;  Heinsen  v.  Lamb,  117  III.  549, 
7  N.  E.  75- 

It  will  be  presumed  that  an  ab- 
stract was  made  at  the  time  it  bears 
date.  Chicago  &  A.  R.  Co.  v. 
Keegan,   152  III.  413,  39  N.  E.  33. 

14.  In  King  v.  Worthington,  73 
111.  i6r,  it  is  held  that  a  letterpress 
copy  of  an  abstract  taken  from  an 
abstract  made  before  the  destruction 
of  the  records,  is  not  competent  evi- 
dence under  the  "  Burnt  Records 
Act;"  that  that  act  only  admits  the 
abstracts  themselves,  and  not  copies 
thereof,  no  matter  how  made. 

Copy    of    Letterpress    Copy In 

Conipton   V.   Randolph,    104   III.   555, 


the  ruling  in  King  v.  Worthington 
was  approved,  and  it  was  also  held 
that  a  copy  of  the  letterpress  copy 
could   not   be   admitted. 

JJ.  Dickey  and  Sheldon  dissented, 
being  of  opinion  that  the  letterpress 
copy  was  competent  secondary  evi- 
dence, the  abstract  having  been 
destroyed. 

15.  Converse  v.  Wead,  142  111. 
132,  31   N.  E.  314. 

Offered  Under  Stipulation — If  ab- 
stracts are  introduced  in  evidence 
under  a  stipulation  not  determining 
the  effect  to  be  given  them,  they  are 
not  sufficient  to  establish  title  if 
they  are  unintelligible  without  ex- 
planation of  abbreviations  and  signs 
used  in  them.  Weeks  v.  Downing, 
30  Mich.  4. 

16.  In  Robins  v.  Ginocchio,  (Tex. 
Civ.  App.),  33  S.  W.  747,  it  is  held 
that,  no  fact  can  be  taken  to  be  es- 
tablished which  is  not  shown  by  data 
or  memoranda  expressed  upon  the 
abstract.  The  form  of  abstract  used 
contained  no  space  for  an  entry  con- 
cerning acknowledgments  and  there 
was  testimony  that  the  practice  was 
to  make  no  mention  of  the  acknowl- 
edgment in  the  abstract  except 
where  the  acknowledgment  was  ir- 
regular, in  which  case  it  was  noted 
u'-.der  a  space  left  in  the  abstract 
form  for  "  remarks,"  but  there  was 
nothing  upon  the  face  of  the  abstract 
to  show  that  where  the  acknowledg- 
ments were  regular  in  form  no  men- 
tion was  made  of  them.  If  there 
had  been  such  a  memorandum  upon 
the  abstract  it  might  be  claimed  the 
regularity  of  the  acknowledgment 
was  shown  by  the  abstract  itself,  but 
the  testimony  of  the  witness  to  sup- 
ply a  fact  not  in  any  way  shown 
upon   the   abstract   was   inadmissible. 

Vol.  I 


70  JBSTR.ICTS  or  TITLE. 

6.  Waiver  of  Objections.  —  ( )l)jcctions   for  want   of  preliminary 
proof  to  let  in  an  abstract  should  be  made  when  it  is  offered." 

7.  Introducing  Part  of  Abstract.  —  A  party  may  introduce  part 
of  an  abstract,  but  his  adversary  may  then  introduce  the  remainder." 

17.     Rol)ins    V.     C.iiioccliio,     (Tc.x.  18.     Hcinsen  v.  Lamli.  117  111.  549, 

Civ.   App.'),  3?   S.   W.  7A7;   Reed  z:       7   N.   E.   "S- 
lianks.  10  U.  C.  C.  P.   (Can.)   202. 


ABUTTING  OWNERS.— See  Adjoining   Land  Own- 
ers; Highways;  Eminent  Domain. 


ACCEPTANCE.— See  Bills  and  Notes;  Contracts;  In- 
surance; Indictment;  Gifts;  Wills;  Statute  of  Frauds. 


ACCESS.— See    Husband   and   Wife;    Bastardy; 
Legitimacy. 


ACCESSION.— See  Confusion  of  Goods. 

Vol.  I 


ACCESSORIES,  AIDERS   AND  ABETTORS. 

By  W.  L.  Campbell, 

I.  ACCESSORIES  BEFORE  THE  FACT,  72 

1.  C II  ill  of  Principal,  72 

A.  Necessity  of  Establishing,  72 

a.  Generally,  72 

b.  Coiuniission  of  .-let  by  Principal,  j;^ 

c.  Principal's  Gnilty  Intent,  jt, 

d.  Tliat  Act  Was  a  Felony,  74 

c.   That  it  IVas  in  Terms  of  Adz'ice,  74 

B.  Modes  of  Proof  on  Onestion  of  Principal's  Gnilt,y4. 

a.  Evidence  of  Guilt  Generally,  74 

b.  Record  of  Conviction,  75 

c.  Evidence  of  Non-Guilt  Generally.  76 

d.  Acquittal  of  Principal,  76 

2.  Acts  of  Accessorx,  jj 

A.  Proof  of  the  Advice,  Jj 

a.  Must  Be  Shozcn   to  Haz'c  Been   Given  and 

Comnniuicated,  jy 

b.  But  Not  That  Principal   Would  Not  Have 

Acted  Without  It.  77 

c.  Advice  Must  Have  Been  Positive,  jj 

d.  Need  Not  Have  Been  by  JVords.  yj 
L).  Intent  in  Giving  Advice,  yy 

a.  Must  Appear  From  the  Ec'idence.  yy 

b.  Criminal  Effect  Must  Be  Intended.  78 

c.  Specific  Crime  A^eed  Not  Be  Intended,  78 

C.  Jurisdiction.  79 

D.  Kepentance  of  Accessory,  So 

II.  ACCESSORIES  AFTER  THE  FACT,  80 

I.   The  State's  Case,  80 

A.  Principal's  Guilt  Must  Be  Sho'H'u.  80 

B.  Accessory's  KnoiAedge  of  Principal's  Guilt  Must 

Be  Shoivn.  81 

C.  Positive     Assistance     by     Accessory     Must     Be 

Sho7vn.  81 

a.  Generally.  81 

b.  Character  of  Assistance,  82 

Vol.  I 


72  ACCESSORIES,  AIDERS  AND  ABETTORS. 

D.  Accessory's  Intent,  83 
2.  Defense,  84 

A.  Princi/^ars  Acquittal.  84 

B.  Relationship  As  Defense,  85 

C.  Duress,  85 

III.  AIDERS  AND  ABETTORS,  8(1 

1.  Proof  of  Presence,  86 

A.  Necessity  Of,  86 

B.  Tl/fliv  Be  a  Constructive  Presence,  86 

2.  Proo/  0/  Aiding,  87 

A.  Generally,  87 

B.  Assisting  in  Unlazvful  Act,  89 

C.  Aiding  in  One  of  Several  Acts  Constituting  One 

Crime,  cp 

3.  Criminal  Intent  of  Aider,  90 

4.  Proof  Must  Sliow  Crime  Committed,  91 

5.  Record    of    Principal's    Conviction    or    Acquittal    Irrele- 

vant, 91 


CROSS-REFERENCES. 


Accomplices ; 
Corroboration : 
Intent. 


I.  ACCESSORIES  BEFORE  THE  FACT. 

1.  Guilt  of  Principal.  —  A.  Xkckssity  of  Estari.i.suinc.  —  a. 
Generally.  —  Before  conviction  of  the  accessory  it  is  necessary  to 
prove  the  offense  of  tlic  i>rincipal.' 


1.     California. —  Pcciiilf   v.    Collins,  PcHiisylviuiia. — liiick   z\    Com.,    107 

53  Cal.   185'.  Pa.  St.  486;  Sloops  V.  Com.,  7  Scrg. 

Florida. — Boweti   v.  State,   25    Fla.       &  R.  491,  10  Am.  Dec.  482. 

645,  6  So.  459.  Texas. — Poslon  v.    State,    12  Tc.x. 

Georgia.— Kdws.rtU  i'.     State,     80       .\pp.    408;    .iVrmstrong    v.    State,    33 

Ga.  127,  4  S.  E.  268.  Te.x.  App.  417,  26  S.  W.  829. 

Kentucky. —  Tnlly  Z'.     Com.,     11            I'irgiiiia. — Ilatchctt     v.     Com.,     75 

Bush.  154.  \'a.  925. 

Vol.  I 


ACCUSSORIlSS.   .IIDURS  AND   ABETTOKS.  73 

b.  Coiiniiission  of  Act  by  Priiici[>a!. — The  felony  must  also  be 
shown  to  have  been  committed  by  or  through  the  pruicipal,  and  not 
by  another  operating  upon  independent  lines,  so  that  there  is  no 
privity  between  him  and  the  accessory. - 

c.  Principal's  Gidlty  Intent.  —  To  prove  the  offense  of  the  prin- 
cipal it  is  necessary  to  establish  not  only  his  criminal  acts  that  go  to 
make  up  the  felony,  but  also  tlic  criminal  intention  on  his  part.' 


Il'iscnnsiii. — Ogdcn  v.  State,  12 
Wis.  5,!_>,  78  :\m.  Dl-c.  754. 

2.  Act  of  Independent  Criminals. 
Ill  Ogdeii  t'.  State,  12  Wis.  532, 
78  Am.  Dec.  754,  the  court  said : 
"In  order  to  establish  the  guilt  of 
Ogden,  it  was  first  incumbent  on  the 
prosecutor  to  prove  the  guil"  of 
Wright  as  alleged  in  the  indictment. 
This  done  he  must  prove  that  Og- 
den previously  procured,  hired,  ad- 
vised or  commanded  Wright  to  com- 
mit the  felony.  .  .  .  For  how- 
ever clear  it  may  have  appeared  that 
Ogden  counseled  and  advised  Wright 
to  commit  the  offense,  yet  if  Wright 
never  did  so  in  point  of  fact,  and 
the  barn  was  set  on  fire  by  some  one 
else,  or  by  other  means,  then  Ogden 
was  innocent  of  the  crime  with  the 
commission  of  which  he  stood 
cliarged. 

Principal  Uncertain  or  Unknown. 
In  State  -■.  Jones.  7  Nev.  408.  it 
is  held  that  while  there  must  be  a 
principal  with  whom  the  accessory 
should  be  shown  to  be  connected,  it 
is  not  necessary  that  he  be  identi- 
fied, and  his  guilt  proven.  The  evi- 
dence tended  to  show  that  the 
horses  were  stolen  either  by  the  man 
Jackson  or  Big  Ben,  which  of  the 
two  did  not  satisfactorily  appear. 
The  court  instructed  that  "  the  de- 
fendant might  be  found  guilty  re- 
gardless of  the  guilt  or  innocence  of 
Big  Ben."  And  this  instruction  was 
held  to  be  correct. 

Ill  Snics  V.  Peoole.  122  III.  I.  12 
N.  E.  865.  3  .'Xm.  St.  Rep.  320.  there 
was  considerable  evidence  that  the 
bomb  by  which  Degan  was  killed 
was  thrown  by  an  unknown  person, 
but  some  one  in  privity  with,  and 
acting  in  furtherance  of  the  objects 
of  the  conspiracy.  The  court  held, 
that  proof  of  a  crime  committed  by 
an  unknown  principal  was  sufficient 
to  charge  the  accessory  if  the  princi- 


pal is  charged  in  one  count  of  the 
indictment   to   be   unknown. 

3.  Detectives. — People  v.  Collins, 
53  Cal.  185;  Com.  V.  Hollistcr,  157 
Pa.  St.  13,  27  Atl.  386;  State  v. 
Douglass,  44  Kan.  618,  26  Pac.  476; 
People  V.  Noelke,  29  Hun  (N.  Y.) 
461. 

In  People  v.  Collins,  53  Cal.  185', 
the  court  said :  "  If  Parnell  entered 
the  building  and  took  the  money 
with  no  intention  of  stealing  it,  but 
only  in  pursuance  of  a  previously 
arranged  plan  between  him  and  the 
Slieriff,  intended  solely  to  entrap  the 
defendant  into  the  apparent  commis- 
sion of  a  crime,  it  is  clear  that  no 
burglary  was  committed,  there  be- 
ing no  felonious  intent  in  entering 
the  building  or  taking  the  money. 
If  the  act  of  Parnell  amounted  to 
burglary,  the  Sheriff  who  counseled 
and  advised  it  was  privy  to  the  of- 
fense ;  but  no  one  would  seriously 
contend,  on  the  foregoing  facts,  that 
the  Sheriff  was  guilty  of  burglary. 
The  evidence  for  the  prosecution 
showed  that  no  burglary  was  com- 
mitted bj'  Parnell.  for  want  of  a 
felonious  intent,  and  the  defendant 
could  not  have  been  privy  to  a 
burelary  unless  one  was  committed" 

Innocent  Actor Com.  v.  Hill.   11 

A  lass,  i.to;  Reg.  v.  Clifford,  2  Car.  & 
K.  902,  61  Eng.  C.  L.  201  ;  Adams  v. 
Pconle,  I  Comstock  CN.  Y.l  173: 
Collins  V.  State,  3  Heisk.  CTenn.') 
ij,  J  Blk.  Com.  35:  Gregory  v.  State. 
26  Ohio  St.  ^TO.  20  .\m.  Rep.  774. 

In  Re?,  t'.  Clifford.  2  Car.  &  K. 
002.  61  Eng.  C.  L.  201.  A.  by  letter 
desired  B..  an  innocent  agent,  to 
write  the  name  W.  S.  to  a  receipt  on 
n  postofhce  order,  it  was  held  that 
Vk  beine  an  innocent  agent,  was  not 
a   orincipal. 

In  Gregorv  z:  State.  26  Ohio  St. 
=;io,  20  Am.  Rep.  774.  by  the  fraudu- 
lent procurement  of  another,  an   in- 


Vol.  I 


74 


ACCESSORIES.  AIDERS  AND  ABETTORS. 


d.  Tliat  Act  Jl'as  a  felony.  —  The  evidence  must  show  the  com- 
mission of  a  felony.^ 

e.  Tliat  it  Was  in  Terms  of  Adz'ice.  —  If  the  crime  proveil  is  not 
shown  to  have  been  committed  within  the  terms  oi  the  advice  or 
encouragement,  it  will  not  authorize  a  conviction  of  one  as  acces- 
sory.^ 

B.  Modes  of  Proof  on  Oukstion  of  Pkincipai^'s  Gl'ii.t. — a. 
Evidence  of  Guilt  Generally.  —  The  general  rule  for  the  purpose  of 
establishing  the  guilt  of  the  ]jrincipal  on  the  trial  of  the  accessory, 
is,  that  any  evidence  is  admissible  which  would  be  admissible  against 
the  principal  himself  were  he  on  trial." 


nocent  agent  signed  the  name  of  one 
who  could  not  read  to  a  note,  he 
intending  to  have  it  signed  to 
another  paper.  It  was  held  that  the 
party  who  fraudulently  procured  the 
signing  was  guihy  as  forger  and  not 
accessory. 

4.  United  States — U.  S.  v.  Sykts, 
S8  Fed.  1000 ;  U.  S.  v.  Gooding,  I2 
Wheat.  460;  U.  S.  v.  Mills,  7  Pet. 
138. 

England. — Reg.  v.  Tracy,  6  Mod. 
30. 

Arkansas. — Hubbard  v.  State,  10 
Ark.  378. 

Georgia. — Kinnebrew  v.  State,  80 
Ga.  232,  5  S.  E.  S6. 

Illinois. — Stevens  v.  State,  67  111. 
587. 

Massachusetts. — Com.  i'.  Gannett, 
I  Allen  17,  79  Am.  Dec.  693 ;  Brown 
V.  Perkins,  i  Allen  8g ;  Com.  v.  Wil- 
lard,  39  Mass.   (22  Pick.)   476. 

Mississippi. — Williams  v.  State.  20 
Miss.  58. 

Nezu  York. — People  v.  Erwin,  4 
Denio  129;  Lowenstein  v.  People.  54 
Barb.  299. 

North  Carolina. — Slate  v.  Cheek, 
13  Ired.  114;  State  v.  Jones,  83  N.  C. 
60s,  35  Am.  Rep.  586. 

South  Carolina. — State  v.  West- 
field,  I   Bailey  132. 

Te.vas. — Dunman  v.  Stale,  I  Tex. 
App.   593- 

No  Accessories  Before  the  Fact  in 
Manslaughter.— I  Hale  P.  C.  616; 
Adams  v.  Stale,  65  Ind.  565';  People 
V.  Newberry,  20  Cal.  439;  Stipp  v. 
State,  II  Ind.  62;  State  t>.  Bogue,  52 
Kan.  79,  34  Pac.  410. 

Nor  in  Treason — 4  Blk.   Com.   36. 

5.  When  Within  Terms  of  En- 
couragement— Com.    V.    Campbell,    7 


.\llen  (Mass.)  541,  83  Am.  Dec.  705; 
Butler  V.  People,  125  III.  641,  18  N. 
K.  338,  8  Am.  St.  Rep.  423.  i  L.  R.  A. 
211;  State  V.  Lucas,  55  Iowa  321,  7 
N.  W.  583 ;  State  v.  Lucas,  57  Iowa 
SOI,  10  N.  W.  868;  Huling  v.  State, 
17  Ohio  St.  583;  People  v.  Knapp, 
26  Mich.  112;  Watts  v.  Stale,  5  W. 
Va.  532;  State  v.  Davis,  87  N.  C. 
S14;  People  V.  Keefer,  65  Cal.  232,  3 
"Pac.  818. 

Independent  Crime. —  People  v. 
Knapp,  26  Mich.  112. 

In  Watts  v.  State,  J  W.  Va.  S32, 
one  incited  another  to  break  open 
and  rob  a  dwelling  house,  and  while 
so  doing  the  principal  committed  a 
rape.  It  was  held  that  the  person 
inciting  the  burglary  and  robbery 
could  not  be  convicted  as  accessory 
to  the  rape,  and  thai  evidence  in  re- 
gard to  a  rape  so  committed  was 
inadmissible,  it  being  a  distinct  sub- 
stantive offense,  and  a  total  and  sub- 
stantial departure  from  the  crime  in- 
structed. 

In  People  v.  Keefer,  65  Cal.  232,  3 
Pac.  818,  there  was  some  evidence 
that  the  defendant  was  not  person- 
ally present,  but  had  advised  the 
party  who  actually  committed  the 
murder,  to  follow  and  tie  the  China- 
man, and  that  this  was  not  for  the 
])urpose  of  robbery  or  other  felony. 
On  that  theory  the  court  held  the 
defendant  not  guilty  a?  accessory  to 
tin-  nnn-(ler. 

6.  Evidence  Competent  on  Trial 
of  Principal  Competent  to  Prove 
His  Guilt  on  Trial  of  Accessory. 
United  States.— V.  S.  v.  Hartwell,  3 
Cliff.  221,  26  Fed.  Cas.  No.  15,318. 

Arkansas. — Vaughan  v.  Slate,  57 
Ark.  I,  20  S.  W.  588. 


Vol.  I 


ACCESSORIES,  AIDERS  AND  ABETTORS. 


b.  Record  of  Cotiviction.  —  Tlie  rccoril  of  the  principal's  convic- 
tion is  competent,  but  as  to  the  guilt  of  the  principal,  it  is  only 
prima  facie  evidence.' 


Georgia. — Smith  v.  State,  46  Ga. 
298 ;   Groves  v.   State,   76  Ga.  808. 

Nc'M  Ha)HpsIiirc. — State  v.  Kaiid, 
33  N.  H.  216. 

A'cw  Mexico.  —  Territory  v. 
Dwenger,  2  N.  M.  73. 

Nortli  Carolina. — State  v.  Duncan, 
6   I  red.   98. 

Pennsylvania. — Buck  v.  Com.,  107 
Pa.  St.  486. 

rc'/Du-.s.si.'t'.— Self  v.  State,  65  Ttiin. 
(6  Ba.xt.)  244;  Hensley  v.  State,  g 
Humph.  243. 

Te.x-as. — Simnis  v.  State,  10  Tex. 
App.  131 ;  Armstrong  v.  State,  33 
Tex.  Crim.  App.  417,  26  S.  VV.  829. 

In  Arnold  v.  State,  9  Tex.  App. 
435,  it  is  held  that,  "  it  is  not  nec- 
essary that  the  principal  should  he 
first  convicted,  nor  that  he  he  put  on 
trial  with  the  accomplice ;  but  to  con- 
vict the  accomplice,  the  guilt  of  the 
principal  must  be  shown.  It  being 
then  necessary  for  the  State  to  show 
the  guilt  of  the  principals,  all  legal 
evidence  of  whatever  character  is  ail- 
missible.  Therefore,  motives,  threats 
and  confessions  of  the  principals, 
and,  in  fact,  evidence  from  every 
legal   source  is   competent." 

In  Buck  V.  Com.,  107  Pa.  St.  486, 
it  was  held  that  on  the  trial  of  an 
accessory,  the  State  could  show  that 
sandbags  and  revolvers  were  found 
on  the  principal,  when  arrested ;  that 
it  being  necessary  to  prove  the  prin- 
cipal's guilt,  the  testimony  that  would 
have  been  adinissible  against  him 
was  admissible  against  the  acces;ory. 

Confessions  of  Principal  Not  Ad- 
missible.—  Casey  •;■.  State,  37  .\rk. 
67;  Ogden  V.  State,  12  Wis.  532,  78 
Am.  Dec.  754 ;  State  v.  Rand,  33  N. 
11.  216:  Rex  V.  .A.ppleby,  3  Stark.  33. 
In  Vaughan  r.  State,  57  Ark.  i, 
20  S.  W.  588,  a  witness  was  permittel 
to  make  the  statement :  "  Hamilton 
showed  us  where  he  got  over  the 
fence  and  where  he  stood  at  the  time 
of  the  shooting."  Hamilton  was 
charged  as  principal  and  the  appel- 
lant as  accessory.  The  Supreme 
Court  held  the  evidence  inadmissible, 
and  said:  "In  general,  any  evi- 
dence tending  to  prove  the  guilt   of 


the  principal  is  admissible  to  prove 
the  fact  on  the  trial  of  one  charged 
as  accessory.  2  Bish.  Crim.  Proc. 
§  13.  Confessions  of  the  principal 
seem  to  be  an  exception  to  the  rule, 
at  least,  where  the  principal  can  be 
called  as  a  witness  to  the  fact.  2 
Bish.  Crim.  Proc.  §13;  i  Russ. 
Crimes,  43;  i  Roscoe  Crim.  Ev.,  53; 
Reg.  V.  Hansill,  3  Cox  Crim.  Cas. 
597.  Hamilton  was  called  as  a  wit- 
ness in  this  case,  and  testified  fully 
to  his  own  guilt.  The  statement 
made  to  the  witness.  Berry,  set  out 
above,  was  an  indirect  confession. 
It  was  made  after  the  event,  and  not 
at  a  time  so  near,  as  to  be  regarded 
as  of  the  res  gestae.  It  was,  accord- 
ing to  the  authorities,  only  hearsay 
as  against  Vaughan." 

Confessions  of  Principal  Admissi- 
ble— The  following  cases  hold  that 
confessions  of  the  principal  are  ad- 
missible to  prove  his  guilt  on  the 
trial  of  the  accessory :  U.  S.  v.  Hart- 
well,  3  Cliff.  221,  26  Fed.  Cas.  No. 
15,318;  Smith  V.  State,  46  Ga.  298; 
Groves  v.  State,  76  Ga.  808;  Martin 
V.  State,  95  Ga.  478,  20  S.  E.  271 ; 
Lynes  v.  State,  36  Miss.  617;  Ter- 
ritory v.  Dwenger,  2  N.  M.  73; 
Crook  z:  State,  27  Tex.  App.  198,  11 
S.  W.  444;  Bluman  v.  State,  33  Tex. 

•  Crim.  43,  21  S.  W.  1027 ;  Morrow  i'. 
State,  14  Lea  (Tenn.)  475;  Self  v. 
State,   65   Tenn.    (6   Baxt.)    244. 

7.  Record  of  Conviction  Is  Evi- 
dence— State  V.  Duncan,  26  N.  C. 
(6  Ired.)  236;  West  v.  State,  27  Tex. 
App.  472,   II   S.  W.  482. 

In  Keithler  v.  State,  18  Miss. 
(10  Smedes  &  M.)  192,  the  record  of 
the  conviction  of  the  principal  was 
read  to  the  jury  on  trial  of  the  acces- 
sory. It  was  objected  to,  but  the 
report  does  not  state  on  what 
grounds,  and  the  objection  was  over- 
ruled. The  supreme  court  said: 
"  That   the   record  of  the   conviction 

.  of  the  principal  is  evidence  against 
the  accessory,  will  surely  not  be 
doubted.  It  was  evidence  to  prove 
the  conviction  of  Silas  and  all  the 
legal  consequences,  though  of  course 

Vol.  I 


76 


ACCESSORIES,  AIDERS  AND  ABETTORS. 


c.  Evidence  of  Non-Guilt  (Jeiierally.  —  As  the  record  of  the  prin- 
cipal's conviction,  while  conclusive  as  to  him,  is  only  prima  facie 
evidence  of  his  guilt  as  against  the  accessory,  such  accessory  may 
introduce  any  evidence  tending  to  show  that  the  principal  was  not, 
in  fact,  guilty,  or  ought  not  to  have  been  convicted.* 

d.  Acquittal  of  Principal.  —  When  the  principal  has  been  regu- 
larly tried  and  acquitted  in  a  court  having  jurisdiction,  proof  of 
such  acquittal  is  a  complete  defense  to  the  accessory,  although  he 
may  have  advised  and  encouraged  the  felony,  and  the  principal  may, 
in  fact,  be  guilty." 


not  evidence  of  the  fact  of  the  guilt 
of  the  prisoner." 

In  Baxter  v.  People,  7  111.  (2 
Gilm.)  578,  on  the  trial  of  the  ac- 
cessory, the  record  of  the  principal's 
conviction  was  introduced  without 
stating  the  object  for  which  it  was 
introduced.  It  was  objected  to.  by 
the  defendant,  but  it  does  not  appear 
from   the  report  upon  what  grounds. 

Conclusive  As  to  Fact  of  Convic- 
tion.— In  Anderson  v.  State,  63  Ga. 
675,  the  record  of  the  principal's  con- 
viction was  held  on  the  trial  of  an 
accessory  after  the  fact  to  be  con- 
clusive evidence  of  his  conviction, 
but  only  prima  facie  evidence  of  his 
guilt. 

In  State  v.  Chitteni,  13  N.  C.  (2 
Dev.)  49,  it  is  held  that  the  record 
of  the  conviction  of  a  felon  is  con- 
clusive evidence  of  the  conviction  of 
the  principal,  but  prima  facie  evi- 
dence of  his  guilt. 

Only  Prima  Facie  Evidence  of' 
Conviction — In  Levy  v.  People,  80 
N.  Y.  327,  the  court  holds  that, 
"the  record  showing  the  conviction 
of  the  principal  is  proof  sufficient 
prima  facie  of  that  fact ;  and  proof 
that  he  was  convicted  is  proof  prima 
facie  that  he  was  properlv  convic- 
ted." 

Prima  Facie  Evidence  of  Princi- 
pal's Guilt — State  v.  Crank,  2  P.ai- 
ley  (S.  C.)  66,  23  Am.  Dec.  T17; 
Re.x  V.  Baldwin,  3  Camp.  265 ;  Rex 
V.  Smith,  1  Leach  C.  C.  288;  Stud- 
still  V.  State,  7  Ga.  2;  State  v.  Mos- 
ley,  31  Kan.  355',  2  Pac.  782;  Ander- 
son V.  State,  63  Ga.  675;  Com,  ?>.• 
Knapp.  27  Mass.  (10  Pick.")  477,  20 
Am.  Dec.  534;  State  v.  Glcini,  17 
Mont.  17,  41  Pac.  ggS,  52  .\m.  St. 
Rep.   655,   31    L.   R.   A.   294;    Levy   v. 

Vol.  I 


People,  80  N.  Y.  327;  State  v.  Chit- 
teni 13  N.  C.  (2  Dev.)  49;  People 
V.  Buckland,  13  Wend.  (N.  Y.)  592; 
State  V.  Sims,  2  Bailey  (S.  C.)  29; 
People  V.  Gray,  25  Wend.  (N.  Y.) 
465;  Lynes  v.  State,  36  Miss.  617; 
State  V.  Duncan,  26  N.  C.  (6  Ired.) 
236. 

8.  Accessory  May  Show  Principal 
Not  Guilty — State  v.  Crank,  2  Bai- 
ley (S.  C.)  66,  23  Am.  Dec.  117; 
Levy  V.  People,  80  N.  Y.  327. 

In  State  v.  Sims,  2  Bailey  (S.  C.) 
29,  the  court  said :  "  It  seems  to  have 
been  thought  formerly  that  the 
record  of  the  conviction  of  the  prin- 
cipal was  conclusive  evidence  of  his 
guilt  on  the  trial  of  the  accessory; 
but  this  opinion  is  most  satisfactorily 
combated  by  Foster,  C.  L.  365,  and 
it  is  now  well  understood  that  it  is 
only  prima  facie  evidence,  and  may 
be  rebutted  on  the  trial  of  acces- 
sory, by  showing  that  he  was  not 
guilty,  or  that  the  ofTense  was  not 
committed." 

In  Com.  J'.  Knapp,  10  Pick. 
(Mass.)  477,  the  court  said:  "The 
verdict  is  to  be  taken  as  prima  facie 
evidence  of  the  guilt  of  J.  Francis 
Knapp.  It  may  be  rebutted  by 
showing  that  there  was  no  nnirder, 
or  that  Francis  was  not  in  a  situation 
where  he  could  take  a  part  as  prin- 
cipal. We  can  not  stop  the  evidence 
offered  in  limine.  The  prisoner  has 
the  burden  of  proof.  He  must  show 
the  jury  that  Francis  ought  not  to 
have  been  convicted.  He  is  not  to 
make  the  propriety  of  the  conviction 
questionable  merely.  He  must  prove 
it  to  have  been  clearly  wrong." 

9.  Acquittal  of  Principal  Acquits 
Accessory — Johns  r.  State,  ig  Ind, 
421,  81   Am.  Dec.  408;  Ray  v.   State, 


.tCCI'SSOk'lliS.   AIDERS  AND   ABETTORS.  77 

2.  Acts  of  Accessory.  —  A.  1'koui'  ui'  Triii  ^\dvice. — a.  Must  Be 
Slioicn  To  Have  Been  Given  and  Coiniiiunicated.  —  It  must  be 
proved  that  the  accessory's  advice  or  encouragement  was  given  and 
actually  communicated  to  the  principal.'" 

b.  But  Not  'That  Priueipal  IVould  Not  Have  Acted  Without  It. 
But  it  need  not  be  proved  that  the  crime  would  not  have  been  com- 
mitted without  it." 

c.  Advice  Must  Have  Been  Positive.  —  The  evidence  must  show 
some  positive  advice  or  encouragement  from  the  accessory  to  pro- 
cure the  commission  of  the  crime  by  the  principal.  Proof  of  mere 
passive  acquiescence  is  not  sufficient. '- 

d.  Need  Not  Have  Been  by  IVords.  —  But  it  is  sufficient  to  prove 
any  word,  sign  or  act,  communicated  to  the  principal  for  the 
purpose  of  bringing  about  or  encouraging  the  commission  of  the 
crime. ^' 

B.  Intent  in  Gix'ixg  Anvicic.  —  a.  Must  Apl^ear  Eroin  the  Evi- 


13  Neb.  55,  13  N.  W.  2:  U.  S.  V. 
Crane,  4  McLean  317,  25  Fed.  Cas, 
No.  14,888;  Bowen  v.  State,  25  Fla. 
64s,  6  So.  459. 

In  McCarty  v.  State,  44  Ind.  214, 
IS  Am.  Rep.  232,  the  defendant  was 
found  guilty  of  being  accessory  be- 
fore the  fact,  but  before  the  judg- 
ment, the  principal  was  tried  and 
acquitted.  The  statute  provided  that 
an  accessory  "may  be  indicted  and 
convicted  before  or  after  the  prin- 
cipal offender.  The  supreme  court 
held  that  there  is  no  authority,  either 
in  the  principles  of  the  common  law 
or  under  the  statute  for  proceeding 
to  final  conviction  of  the  accessory 
if  at  any  time  before  such  final  con- 
viction the  principal  has  Vjccn  tried 
and  acquitted." 

10.  Must  Be  Communicated  to 
Principal — Spies  v.  People.  122  111. 
I.   12  N.  F,.  865.  3  .\m.  St.  Rep.  320. 

11.  Guilt  of  Accessory  Not  De- 
pendent on  Whether  Felony  Would 
Have  Been  Committed  WitJiout  His 
Advice — State  z'.  Tally,  102  .\la.  23, 
15  So.  722. 

In  Spies  V.  People,  122  111.  I.  12  N. 
E.  865,  3  .\m.  St.  Rep.  320,  it  was 
held  that,  "  although  the  defendants 
may  have  spoken  and  also  published 
their  views,  advocating  force  to  ef- 
fect a  social  revolution,  that  dynamite 
should  be  used  in  resisting  the  law, 
etc.,  and  although  such  language 
might  cause  persons  to  desire  to 
carry  out   the  advice  given,   yet   the 


bomb  may  have  been  thrown  by 
some  one  unfamiliar  with,  and  un- 
prompted by  the  teacliings  of  de- 
fendants, or  any  of  them.  There- 
fore the  jury  must  be  satisfied  be- 
yond all  reasonable  doubt,  that  the 
person  throwing  said  bomb  was  act- 
ing as  the  result  of  the  teaching  or 
encouragement    of    defendants." 

12.  Mere  Passive  Acquiescence. 
In  I  Hale  P.  C.  616,  the  author 
says :  "  That  which  makes  an  ac- 
cessory before  is  command,  counsel, 
abetment  or  procurement  by  one  to 
another,  to  coinmit  a  felony,  when 
the  commander  or  counselor  is  ab- 
sent at  the  time  of  the  felony  com- 
mitted, for  if  he  be  present  he  is 
principal.  And  therefore  words  that 
sound  in  bare  permission  make  not 
an  accessory  as  if  A.  says  he  witi 
kill  J.  S.  and  B.  says:  'You  may  do 
your  pleasure,  for  mc.'  this  makes 
not  B.  accessory." 

13.  Advice  or  Encouragement 
May   Be   by   Words,   Acts   or   Signs. 


Br 


People,     15     111.     511; 


McKee  v.   State,   in   Ind.  378.  12  N. 
E.    510. 

In  Spies  V.  People,  122  111.  I,  12 
N.  E.  865,  3  .Am.  St.  Rep.  320,  news- 
paper articles  and  public  speeches 
were  held  to  be  good  evidence 
against  the  defendants,  and  properly 
introduced,  not  because  they  gave 
general  advice  to  commit  murder, 
but  because  they  advised  and  en- 
couraged  a   particular   class    in   Chi- 

Vol.  I 


78 


.ICCBSSORinS.   AIDIIRS   .IND   ABETTORS. 


deuce.  —  The  circunistaiiccs  attending  the  advice  or  encouragement 
may  satisfactorily  prove  the  intention,  but  it  must  be  proved,  not 
merely  assumed,  and  unless  "the  jury  are  satisfied  on  this  point  from 
the  evidence  in  the  case,  they  ought  not  to  convict." 

b.  Criminal  Effect  Must  Be  Intended.  —  Deliberately  using  words 
or  signs,  or  doing  anything  which  actually  has  the  effect  to  encour- 
age another  in  the  commission  of  a  felony,  or  to  procure  him  to 
commit  it,  is  not  alone  sufficient  to  charge  one  as  accessory.  The 
jury  must  be  satisfied  from  the  evidence,  that  he  intended  his  words 
or  acts  to  have  the  effect,  or  be  taken  in  the  sense  that  would  tend 
to  bring  about  the  commission  of  the  crime. '^ 

c.  The  Specific  Crime  Need  Not  Be  Intended.  —  Within  reasona- 
ble limits  the  accessory  is  considered  as  having  contemplated  the 


cago,  to  wit ;  the  members  of  the 
international  groups,  and  such  other 
working  men  as  could  be  persuaded 
to  join  tlieni,  to  arm  themselves  with 
guns,  revolvers  and  dynamite,  and 
kill  another  particular  class  in  Chi- 
cago, to  wit,  the  police,  at  a  par- 
ticular time,  about  j\Iay  I,  1886,  there 
being  evidence  in  the  record  tending 
to  show  that  the  death  of  Degan 
occurred  during  the  prosecution  of  a 
conspiracy  planned  by  members  of 
the  international  groups,  who  read 
these  articles  and  heard  these 
speeches. 

14.  Prosecution        Must        Prove 

Criminal    Intent Hicks    z'.    V.    S., 

150  U.  S.  140;  Spies  V.  People,  122 
111.  I,  12  N.  E.  86s,  3  Am.  St.  Rep. 
320;  Com.  V.  Campbell,  7  Allen 
(Mass.)  541,  83  Am.  Dec.  705;  State 
V.  Hickam,  95  Mo.  322,  8  S.  W.  252, 
6  Am.   St.  Rep.  54. 

15.  Person  Giving  Advice,  etc.. 
Must  Intend  Criminal  Effect. 
Slate  V.  Hickam,  95  .Mo.  322.  8  S. 
W.  252,  6  Am.  St.  Rep.  54;  Spies  v. 
People.  122  111.  I,  12  N.  E.  865,  3  .\m. 
St.  Rep.  320;  Com.  V.  Campbell,  7 
Allen   (Mass.)  541,  83  Am.  Dec.  705. 

In  Hicks  v.  U.  S.,  150  U.  S.  140, 
it  is  said :  "  The  acts  or  words  of 
encouragement  and  abetting  must 
have  been  used  by  the  accused  with 
the  intention  of  encouraging  and 
abetting  Rowe.  So  far  as  the  in- 
struction goes,  the  words  may  have 
been  used  for  a  difTcrent  purpose, 
and  yet  have  had  the  actual  effect 
of  inciting  Rowe  to  commit  the  mur- 
derous   act.      Hicks    indeed    testified 

Vol.  I 


that  the  expressions  used  by  him 
were  intended  to  dissuade  Rowe 
from  shooting.  But  the  jury  were 
left  to  find  Hicks  guilty  as  prin- 
cipal, because  the  effect  of  his  words 
may  have  had  the  result  of  en- 
couraging Rowe  to  shoot,  regardless 
of  Hicks'  intention.  .  .  .  Hicks, 
no  doubt,  intended  to  use  the  words 
he  did  use,  but  did  he  thereby  intend 
that  they  were  to  be  understood  by 
Rowe  as  an  encouragement  to  act?" 
In  State  v.  Hickam,  95  Mo.  322,  8 
S.  W.  252,  6  Am.  St.  Rep.  S4,  which 
was  a  prosecution  for  an  assault  to 
kill,  and  several  parties  were  indicted 
as  accessories,  it  was  held  that 
malice  and  intent  to  kill  being  essen- 
tial elements  of  the  offense  with 
which  the  defendant  was  charged,  it 
devolved  upon  the  state  to  prove 
them  the  same  as  any  other  facts  in 
the  case  necessary  to  establish  guilt. 
And  as  to  the  accessories,  it  was 
held  that  neither  of  them  could  prop- 
erly be  convicted  of  the  offense 
charged  in  the  indictment,  unless  the 
jury  found  either  that  there  was  a 
common  purpose  in  the  ininds  of 
Samuel  Hickam  and  such  defendants 
to  kill  Davenport,  and  the  shooting 
was  done  in  the  attempted  accom- 
plishment of  such  common  purpose, 
or  that  such  shooting  was  done  by 
Samuel  Hickam  in  the  attempted  ac- 
complishment of  a  purpose  in  his 
mind  to  kill  Davenport,  of  which 
said  defendant  had  knowledge,  and 
that  they  did  some  act  in  furtherance 
of  the  attempted  accomplishment  of 
such  purpose. 


.iccnssoRJEs.  .iiniiRS  and  .ibettoks. 


,') 


consequences  of  attempts  to  carry  out  his  own  suggestions  or  of  any 
encouragement  given  by  him  in  the  commission  of  a  crime,  and  if 
the  proof  shows  that  the  crime  was  accomphslied  in  a  manner  or 
under  circumstances  chffering  from  those  suggested,  or  that  there 
was  no  suggestion  of  time,  phice  or  manner,  it  will  make  no  differ- 
ence so  long  as  the  act  is  shown  to  be  in  furtherance  of  the  common 
design.^" 

C.  Jurisdiction. — Un  the  trial  of  the  accessory  it  must  be  proved 
that  the  advice  or  encouragement  was  within  the  jurisdiction  of  the 
court,  and  the  jurisdiction  is  not  necessarily  in  the  place  where  the 
felony  was  committed,  for,  if  there  is  a  difference,  and  the  acces- 
sory is  indicted  where  the  felony  is  committed,  evidence  showing 
advice  or  encouragement  in  another  jurisdiction  will  not  justify  his 
conviction." 


16.     When   Guilty,   Though   Crime 

Committed   Not   Intended U.   S.  v. 

Ross,  I  Gall.  6j4,  2y  Fed.  Cas.  No. 
16,196;  State  V.  Nash.  7  Iowa  347; 
People  V.  Pool,  27  Cal.  572;  State  v. 
Shelledy,  8  Iowa  477. 

In  Vv'ynn  v.  State,  63  Miss.  260, 
the  defendant,  Wynn,  loaned  to  At- 
kinson the  pistol  with  which  he  shot 
and  killed  AlcPherson.  Just  before 
the  shooting,  he  shouted  "  Shoot 
him,"  and  just  after  the  first  shot 
was  fired,  he  shouted,  '  Shoot  him 
again,"  There  was  evidence  that 
Wynn  intended  that  Johnson,  and 
not  McPherson,  should  be  killed.  It 
was  held  that  he  was  guilty,  even  if 
this  was  true. 

In  State  v.  Davis,  87  N.  C.  514. 
where  A.  instigates  B.  to  rob  C. 
a!id  B,  murders  C,  in  carrying  out 
the  robbery,  A  is  held  to  l)e  an  ac- 
cessory before  the  fact  to  the  mur- 
der. 

In  People  v.  Vasquez,  49  Cal,  560, 
it  is  held,  "  no  defense  to  a  party 
associated  with  others  in,  and  en- 
gaged in  a  robbery  that  he  did  not 
propose  or  intend  to  take  life  in  its 
perpetration,  or  that  he  forbade  his 
associates  to  kill,  or  that  he  dis- 
approved or  regretted  that  any  per- 
son was  thus  slain  by  his  associates. 
If  the  homicide  in  question  was 
committed  by  one  of  his  associates 
engaged  in  the  robbery  in  furtheranc ; 
of  their  common  purpose  to  rob,  he 
is  as  accountable  as  though  his  own 
hand  had  intentionally  given  the 
fatal  blow." 

In  Stephens  v.   State,  42  Ohio   St. 


150,  where  two  persons  burglarized 
a  house  and  committed  a  robbery, 
and  while  so  doing,  murdered  the 
person  robbed,  it  was  held  that 
another  person  who  did  not  enter  the 
house  was  responsible  for  the  kill- 
ing, and  equally  guilty  with  the 
others,  although  he  had  not  pre- 
viously agreed  that  life  should  be 
taken  in  the  attempt  to  rob,  if  he 
was  associated  with  them  in  the 
robbery,  and  was  engaged  in  further- 
ance of  fhe  common  purpose,  and 
the  killing  was  done  in  the  executiou 
of  the  common  purpose,  and  was  a 
natural  and  probable  result  of  the 
aitenipt   to  rob. 

Not  Guilty  of  Independent  Crime. 
State  :'.  May,  142  Mo.  135;  43  S. 
Vv .  637 ;  People  v.  'Keefer,  65  Cal. 
232.  3  Pac.  818;  State  v.  Lucas,  55 
Iowa  321,  7  N,  W,  583, 

In  Saunder's  Case,  Plow.  475,  A. 
counseled  B.  to  poison  C, ;  B,  gave  C, 
a  poisoned  apple,  C,  handed  the 
apple  to  D„  who  ate  it  in  B,'s 
presence  and  died.  It  was  held  that 
A,  was  not  an  accessory  to  the  mur- 
der of  D. 

In  Watts  V.  State.  5  W,  Va.  532, 
one  incited  another  to  break  open 
and  rob  a  dwelling  house,  V,'hile 
so  doing,  the  principal  committed  a 
rape.  It  was  held  that  the  person 
inciting  the  burglary  and  robbery 
could  not  be  convicted  as  accessory 
to  the  rape,  because  there  was  a  total 
and  substantial  departure  from  the 
crime  intended. 

17.  Crime  of  Accessory  In  An- 
other   State — State    v.     Chapin.     17 

Vol,  I 


80 


ACi'iissoh'iiis.  .-iiDJih'S  .1X1)  .innrioKS. 


D.  RijpfiNTANCE  OF  AcciisSORY.  —  Until  the  felony  is  actually 
committed,  the  offense  of  the  accessory  is  incomplete,  and  he  may 
prove  in  his  defense  that  before  the  actual  perpetration  of  the  felony, 
he,  in  good  faith,  withdrew  the  advice  and  encouragement  given, 
and  endeavored  to  prevent  the  crime.  But  in  such  case,  to  make  the 
repentance  a  good  defense,  he  must  prove  that  the  principal  was 
notified  by  him,  and  actually  received  the  notice  of  such  repentance.'* 

Innocent  Intent. — The  defendant  may  show  that  the  advice  or 
encouragement  given  by  him  was  without  the  criminal  intent  neces- 
sary to  constitute  him  an  accessory  before  the  fact.'" 

11.  ACCESSOKY  AFTER  THE  FACT. 

1.  The  State's  Case.  —  A.  Principal's  Guilt  Must  Be  Shown. 
Before  the  accessory  after  the  fact  can  be  convicted,  it  must  be 
proved  that  the  felony  in  respect  of  which  he  is  charged  as  such 
accessory  has  been  committed  by  the  principal.-" 


Ark.  561,  65  Am.  Dec.  452;  Johns  v. 
btate,  ig  Ind.  421,  81  Am.  Dec.  408; 
People  V.  Adams,  3  Denio  (N.  Y.; 
190,  45  Am.  Dec.  468;  State  v.  VVyc- 
koff,  ii  N.  J.  Law  65. 

Where    Jurisdiction    in    Different 

Counties    by    Statute In"    btate    v. 

iMoore,  26  N.  H.  448,  59  Am.  Dec. 
354,  the  court  said :  "  There  is  no 
doubt  that  by  the  provisions  01  the 
revised  statutes,  Chapter  225,  Sec- 
tion 2,  the  English  law  is  so  far 
altered  that  if  the  commission  of  a 
crime  be  procured  in  one  county  in 
this  state.,  to  be  committed  in  another, 
and  the  =amc  be  actually  committed 
in  the  other  by  the  principal  offender, 
the  accessory  may  be  tried  in  either 
county. 

18.     Repentance    and    Notice 3 

Greenl.  Ev.  45 ;  Sessions  v.  State, 
^,7  Tex.  Crim.  App.  58,  38  S.  \V. 
605. 

In  I  Hale  P.  C.  618,  the  author 
says :  "A.  commands  B.  to  kill  C. 
but  before  the  execution  thereof,  A. 
repents  and  countermands  B.  and 
yet  B.  proceeds  in  the  execution 
thereof.  A.  is  not  acces.sory,  for  his 
consent  continues  not,  and  he  gave 
timely  countermand  to  B.  Co.  P.  C. 
Chap.  7,  p.  51  Plow.  Com.  474, 
Saunder's  Case ;  but  if  A.  had  re- 
pented, yet  if  B.  had  not  been  ac- 
tually countermanded  before  the  fact 
committed,   A.    had  been   accessory.'' 

In  Pinkard  v.  State,  30  Ga.  757,  it 

Vol.  I 


was  held  error  to  refuse  to  charge  in 
a  criminal  trial  that  "if  the  jury 
believed  that  the  defendant  agreed 
with  certain  persons  to  commit  a 
crime,  yet,  if  they  believed  that  he 
abandoned  the  purpose,  and  went  oft 
and  did  not  participate  in  the  crime, 
they   must   find   him   not  guilty." 

19.  Circumstances      Tending      to 

Prove    Innocent    Intent in    Bedell 

V.  Chase,  34  N.  Y.  386,  in  reply  to 
proof  tending  to  establish  a  fraudu- 
lent design  on  the  part  of  vendors, 
the  court  permitted  evidence  that  the 
entire  proceeds  of  the  sale  were  im- 
mediately applied  to  payment  ol 
debts  of  the  firm.  The  supreme 
court  held  that  this  was  not  error, 
and  that  it  was  also  legitimate  to 
permit  the  examination  of  plaintiffs 
as  to  their  intention  in  making  the 
purchase. 

20.  Evidence  Must  Establish 
Principal's  Guilt — Holmes  v.  Com., 
25  Pa.  St.  221  ;  Poston  v.  State,  12 
Te.x.  App.  408;  Simmons  v.  State, 
4  Ga.  465 ;  vVren  v.  Com.,  26  Graft. 
(Va.)  952;  Harrel  v.  Slate,  39  Miss. 
702,  80  Am.  Dec.  95 ;  Edwards  v. 
State,  80  Ga.  127,  4  S.  E.  268;  Hat- 
chctt    V.    Com.,    75    V.i.    925. 

Degree    of    Proof    Required In 

Poston  V.  State,  12  Tex.  .\pp.  408, 
it  was  held  that  the  guilt  of  the 
principal  must  be  established  with 
the  same  degree  of  certainty  as  if  he 
were   on    trial ;    and    that    the   court 


ACCESSORIES,   AIDERS  AND  ABETTORS.  81 

B.  Accessory's  Knowlkuck  of  Principal's  Guilt  Must  Be 
Shown.  — ■  It  must  be  proved  that  the  defendant  knew  when  he 
rendered  the  assistance  or  harbored  the  felon,  that  the  felony  had 
been  committed  and  that  the  person  so  aided  was  the  felon.-' 

C.  Positive  Assist.vnce  by  Accessory  Must  Be  Shown. — a. 
Generally.  —  It  must  be  proved  that  the  defendant  did  some  posi- 
tive act  in  receiving,  relieving,  comforting  or  assisting  the  princi- 


niust  charge  the  law  in  regard  to 
the  offense  against  the  principal  on 
the  trial  of  the  accessory,  as  fully  as 
if  such  principal  was  on  trial. 

Proof  Where  There  Are  Several 
Principals.— in  Stoops  v.  Com.,  7 
Serg.  &  R.  (Pa.)  491,  10  .\m.  Dec. 
482,  it  is  held  that  if  one  be  charged 
as  accessory  to  a  felony  conimittea 
by  several,  some  of  whom  oniy  arc 
convicted  and  others  not  proceeded 
against  to  conviction  or  outlawry, 
he  may  be  arraigned  and  tried  as 
accessory  to  such  as  have  been  con- 
victed, but,  if  he  be  tried,  convicted 
and  sentenced  as  accessory  to  all 
without   his   consent,   it   is   error. 

In  Edwards  v.  State.  80  Ga.  i2y, 
4  S.  E.  268,  it  was  held  that  one 
could  not  be  convicted  as  accessory 
after  the  fact  where  the  alleged  prin- 
cipal had  been  acquitted,  because  at 
the  time  of  the  offense  he  was  so 
young  that  the  statute  did  not  per- 
mit his  conviction.  In  that  case, 
Edwards  was  charged  as  accessory 
to  two  principals ;  one  the  infant, 
the  other  had  escaped. 

Evidence  Must  Show  That  Felony 
Was  Completed — 4  Blk.  .Com.  38;  2 
Hawk  320;  3  Greenl.  Ev.  §47;  i 
Hale   P.   C.  618. 

In  Harrel  v.  State,  39  .Miss.  702, 
80  Am.  Dec.  95,  the  defendant  was 
indicted  as  accessory  after  the  fact 
to  a  murder.  The  evidence  adduced 
on  the  trial  rendered  it  highly 
probable,  if  not  certain,  that  the  aid 
and  assistance  were  in  point  of  fact, 
given  after  the  mortal  blow  was  dealt, 
but  before  the  death  of  the  party 
whose  life  had  been  assailed.  But 
the  death  occurred  within  a  short 
time  thereafter.  The  supreme  court 
held  that  until  the  death,  the  felony 
alleged  in  the  indictment  and  in 
respect  to  which  the  plaintiff  in  error 
was   charged   as   accessory   after   the 


fact  was  not  consummated  —  that  in 
order  to  fix  the  guilt  of  the  party 
charged  as  accessory  after  the  '^act, 
it  is  essential  that  such  felony 
should  be  complete.  Until  such 
felony  has  been  consummated,  any  as- 
sistance rendered  to  a  party  in  order 
to  enable  him  to  escape  the  con- 
sequences of  his  crime,  will  not  make 
the  person  affording  such  assistance 
guilty  as  accessory   after  the   fact, 

21.  Guilty  Knowledge  Must  Be 
Proved — Street  r.  State,  39  Te-x. 
r.rim.  App.  134,  45  S.  W.  577;  Loyd 
V.  State,  42  Ga.  221  ;  State  v.  Davis, 
14  R.  I.  281 ;  State  v.  Douglas,  3 
Ohio  Dec  340 ;  Rex  v.  Grcenacre,  8 
Car.   &  P.  3S. 

In  Wren  v.  Com.,  26  Gratt.  (Va.) 
952,  it  is  held  that  knowledge  of  the 
commission  of  the  felony  must  be 
brought  home  to  the  accused,  and  is 
always   a  question   for  the  jury. 

In  State  v.  Empey,  79  Iowa  460,  44 
N.  W.  707,  the  court  instructed  the 
jury,  "  if  you  find  that  after  the  com- 
mission of  said  act.  defendant  aided, 
abetted  or  assisted  said  VVatkins  in 
the  disposition  of  said  property,  then 
he  will  be  guilty;  if  you  fail  to  so 
find,  then  you  will  find  the  defendant 
not  guilty."  The  supreme  court  said  ; 
"  The  last  sentence  of  the  instruction 
is  plainly  erroneous,  in  holding  that 
assistance  in  the  disposition  of  stolen 
property  will  render  one  guilty. 
Surely,  assistance  in  disposing  of 
property  without  the  knowledge  that 
it  was  stolen,  will  not  be  the  ground 
of  charging  one,  either  as  principal 
or  accessory  :  knowledge  of  the  crime 
is  essential  to  constitute  an  accessory 
after  the  fact." 

What  Is  Proof  of  Knowledge. 
State  ="    Douglass,  3  Ohio  Dec.   540. 

In  Wren  v.  Com.,  26  Gratt.  (Va.) 
952,  it  was  held  that  an  accessory 
after  the  fact  must  have  notice  ex- 
press  or   implied. 

Vol.  I 


82 


.ICCISSSOKinS,   AIDliliS   .1X1)   ABETTORS. 


pal   to   effect   liis   escajte.     Mere  passive  acquiescence   is   not   suffi- 
cient.-- 

b.  Chanictcr  of  .-Issi.'itaiicc.  —  The  evidence  must  show  that  after 
the  commission  of  the  crime  assistance  was  given  Ijy  the  defendant 
to  the  felon  of  such  a  character  as  would  tend  to  facilitate  his  per- 
sonal escape  from  arrest,  trial  or  punishment.-" 


In  Re.N  V.  Burridge,  3  x^ere  Wil- 
liams 439,  497,  the  attainder  of  the 
felon  is  held  not  in  itself  notice  to 
all  persons  in  the  same  county,  and 
neither  in  justice  nor  in  reason  does 
it  create  an  absolute  presumption  of 
notice,  though  it  may  be  evidence 
to  go  to  a  jury. 

In  Tully  V.  Com..  13  Bush  (Ky.) 
142,  it  is  held  "  sufficient  that  ap- 
pellant had  good  reason  to  believe 
Osborn  was  guilty  of  the  murder 
charged,  and  was  fleeing  from  justice, 
to  render  aid  or  comfort  given  him 
unlawful.  It  was  not  necessary  to 
prove  he  had  actual  knowledge  of 
the   facts." 

22.  Positive    Acts    of    Assistance 

Must  Be  Proved State  i'.  Hann,  40 

N.  J.  Law  228;  People  i'.  Dunn,  7 
N.  Y.  Crim.  173,  6  N.  Y.  bupp.  805; 
People  V.  Garnett,  129  Cal.  364.  61 
Pac.  1 1 14;  Street  v.  State,  39  Te.x. 
Crim.   App.    134,   45    S.    W.   577. 

In  Reg.  V.  Chappie,  9  Car.  &  P. 
355.  various  persons  charged  with 
the  oflfense  of  harboring  the  felons 
had  been  found  possessed  of  various 
sums  of  money  derived  from  the  dis- 
posal of  the  property  stolen,  but  it 
did  not  appear  that  they  had  re- 
ceived any  of  the  stolen  property 
itself,  or  had  done  any  act  to  assist 
the  felons  personally.  It  was  held 
that  the  oflfense  charged  was  not 
made  out  by  the  evidence,  as  there 
was  no  act  shown  to  have  been  done 
by  the  defendants  to  assist  the  felons 
personally. 

Concealing  Knowledge — Carroll  ^'. 
Stale,  45  Ark.  539;  Slate  7'.  Hann.  40 
11.  J.  Law  228;  Noftsinger  j'.  State, 
7  Tex.  App.  301  ;  Wren  v.  Com.  26 
Gratt.    (Va.")    95-' 

23.  What  Is  Assistance  Generally. 
Chitister  v.  State,  a  Tex.  Crim. 
App.  635.  28  S.  W.  683;  State  V. 
Stanley,  48  Iowa  221  :  White  T'.  Peo- 
ple. 81  111.  3i3:  Wren  r:  Com.  25 
Grair   (Va.)  952. 


Sufficient  If  It  Avoids  Present 
Arrest  or  Punishment — Blakely  v. 
State,  24  Tex.  App.  616,  7  S.  W.  233, 
5  Am.  St.  Rep.  912;  Gatlin  z:  State, 
40   Tex.    Crim.    .\pp.    116,   49    S.    W. 

87. 

In  Blakely  v.  State,  24  Tex.  App. 
616,  7  S.  W.  233,  the  defendant  was 
indicted  as  accessory  after  the  fact. 
The  evidence  showed  that  Duffen 
was  killed  by  May,  in  the  presence 
of  the  defendant  and  two  other  wit- 
nesses. There  was  evidence  that 
after  the  homicide,  May  and  the 
defendant  had  a  private  conversa- 
tion, and  then  May  mounted  his 
horse  and  rode  ofif.  When  he  was 
gone,  the  defendant  told  the  other 
two  witnesses  that  they  must  swear 
before  the  coroner's  jury  to  a  state 
of  facts  which  he  then  and  there 
detailed.  Acting  upon  these  sug- 
gestions and  through  fear  of  May 
and  defendant,  the  two  witnesses  did, 
at  the  coroner's  inquest  swear,  as 
did  the  defendant,  to  the  fabricated 
statement  devised  by  him. 

The  supreme  court  held  that  aid 
rendered  to  the  felon  in  this  way  was 
sufficient.  "  It  certainly  aided  him," 
said  the  court,  "  to  the  extent  that 
he  was  not^irrested  and  punished  for 
the  crime  until  the  perjury  was  dis- 
covered, and  but  for  this  discovery 
the  aid  which  defendant  attempted 
to  give  him,  would  have  proved 
efifectual  in  afifording  him  complete 
immunity  from  appreliension,  trial 
and  punishment." 

Witness  Accepting  Bribe.  —  In 
Chitister  7:  State,  M  Tex.  Crim.  .'\pp. 
635,  28  S.  W.  683,  it  was  held  that 
where  a  witness  accepted  property 
to  secure  his  departure  from  the 
state  in  order  to  be  rid  of  his  tes- 
timony against  a  felon,  it  did  not, 
of  itself,  constitute  him  an  accessory 
after  the  fact,  but  that  he  must  have 
concealed  the  accused  or  given  him 
some  aid,  .so  that  he  may  have  evaded 


Vol.  I 


.ICCl-SSOKIISS.   .lIDIiRS  .IND   ADBTTOKS. 


D.  Accessory's  Intent.  —  It  must  be  shown  that  the  assistance 
of  whatever  kind,   piven  b\-  the  defendant   to   the   principal   felon. 


ail  arrest  or  trial,  or  the  cxcculioii 
of  his   sentence. 

Averting  Suspicion,  Taking  Care 
of  Families,  etc. — hi  State  v.  Stan- 
ley, 48  Iowa  221,  averting  suspicion 
against  the  parties,  agreeing  to  or 
taking  care  of  their  families  while 
absent,  and  other  similar  acts,  are 
held   sufficient. 

Relieving  a  Felon  With  Clothes, 
Food,  etc — From  Charily. — in  4  Blk. 
Com.  38,  the  author  says :  "  To 
relieve  a  felon  in  jail  with  clothes 
or  other  necessaries  is  no  offense, 
for  the  crime  imputable  to  this 
species  of  accessories  is  the  hindrance 
to  public  justice  by  assisting  the 
felon  to  escape  the  vengeance  of 
the    law." 

Intention  Must  Be  to  Aid  in  Es- 
caping  From   Arrest,   Conviction   or 

Punishment State  v.   Reed,  85   Mo. 

iy4;  .Melton  r.  State.  43  Ark.  357; 
Carroll  i\  State,  45  Ark.  539;  I  learn 
V.   State    (Fla.),  29   So.  433. 

In  Gatlin  v.  State,  40  Tex.  Crim. 
App.  u6,  49  S.  W.  87,  it  is  held 
that  it  is  not  essential  that  the  aid 
rendered  the  criminal  shall  be  of  a 
character  to  enable  him  to  effect  his 
personal  escape  or  concealment,  but 
it  is  sufficient  if  it  enables  him  to 
evade  present  arrest  and  prosecutioi. 

Contrary  Rule — In  People  v.  Pe- 
dro, 19  .Misc.  300,  43  N.  Y.  Supp.  44. 
the  court  having  instructed  the  jury 
that  "  there  is  only  one  element  of 
doubt  in  the  case  .  .  .  and  that 
is  this:  Whether  or  not  this  de- 
fendant, on  the  day  named  in  the 
indictment  was  at  Sheepshead  Bay 
with  the  intention  merely  to  relieve 
his  friend,  honestly,  who  was  in 
trouble,  or  whether  he  was  there  to 
shield  a  person  who  had  committed 
a  crime  against  the  laws,  and  to  aid 
him  to  escape  from  justice,"  the 
supreme  court  said  of  this  portion 
of  tlie  charge :  "  It  is  also  to  be  noted 
that  the  words  'to  shield  a  person 
■who  had  committed  a  crime  against 
the  laws,  and  to  aid  him  to  escape 
from  justice'  is  not  a  correct  defini- 
tion  of  the  crime  charged.     It   con- 


veys to  the  jury  the  idea  that  if  the 
defendant  had  used  any  means  to 
shield  Fino,  and  enable  him  to  es- 
cape justice,  he  was  guilty  of  being 
an  accessory.  But  this  is  far  from 
being  the  law.  One  cannot  be  found 
guilty  as  an  accessory  to  a  felony, 
except  upon  proof  that  he. gave  per- 
sonal assistance  to  the  felon,  with 
intent  to  enable  him  to  physically 
get  away ;  such  as  to  conceal  nim,  to 
furnish  him  with  a  horse,  and  the 
like.  Whart.  Crim.  Law,  §241;  Peo- 
ple V.  Dunn,  53  Hun  381,  6  N.  Y. 
Supp.  805.  That  he  endeavored  to 
get  the  complainant  to  fail  to  iden- 
tify, or  to  forget,  or  not  to  prosecute, 
or  suborned  witnesses,  or  the  like, 
does   not   make   out   the   crime." 

Aid  After  Felon  Has  Escaped  in 
Foreign  Country. — In  People;'.  Dunn. 
53  Hun  381.  6  N.  Y.  Supp.  805,  it 
was  claimed  that  several  witnesses 
produced  on  behalf  of  the  state  were 
accessories,  and  therefore,  accom- 
plices whose  testimony  required 
corroboration.  ,  The  supreme  court 
said.  "  To  constitute  an  accessory, 
it  is  not  sufficient  to  assist  the 
prisoner  to  elude  punishment,  be- 
cause failing  to  prosecute  or  prevent- 
ing the  attendance  of  witnesses  would 
produce  that  result.  But  to  consti- 
tute the  offense,  one  must  help  the 
principal  to  elude  or  evade  capture. 
None  of  the  witnesses  referred  to 
were  cognizant  of  the  crime  until 
long  after  its  commission  and  until 
the  defendant  was  secure  from  cap- 
ture by  his  escape  to  a  foreign 
country.  None  except  his  wife  ren- 
dered any  aid  or  assistance  to  him, 
except  so  far  as  they  intervened  or 
assisted  in  negotiating  for  a  com- 
promise   with     the    bank." 

Aid  Must  Be  An  Act;  Not  Mere 
Words — A  mother,  to  shield  her 
husliand,  advised  her  daughter  to 
testify  falsely  as  to  the  paternity  of 
the  daughter's  child.  The  court  said 
that  no  overt  act  was  done  by  the 
mother,  nothing  more  tlian  mere 
words,  and  that  she  was  not  an  ac- 
cessory after  the  fact.  Stale  i'.  Doty, 
57  Kan.  835,  48   Pac.   M.'^ 

Vol.  I 


84 


ACCESSORIES,  AIDERS  AND  ABETTORS. 


was  so  given  with  the  criminal  intent  of  aiding  him  to  escape  arrest, 
conviction  or  punishment.-* 

2.  Defense.  —  A.  Principal's  Acquittal.  —  Proof  of  the  princi- 
pal's acquittal  operates  under  the  common  law  as  a  complete  defense 
of  the  accessory,  but,  by  statute  in  several  of  the  states,  the  rule  has 
been  changed  or  modified.-'' 


24.  In  Wren  z'.  Com.,  26  Granl 
(Va.)  952,  the  court  said:  "The 
true  test  (says  Bish.  §  634)  whether 
what  he  did  was  after  the  fact  is  to 
consider  whether  what  he  did  was 
done  by  way  of  personal  help  to  his 
principal  with  the  view  of  enabHng 
his  principal  to  elude  punishment, 
the  kind  of  help  rendered  appearing 
to   be    unimportant." 

In  State  v.  Fry,  40  Kan.  311,  19 
Pac.  742,  the  evidence  tended  to  show 
that  the  defendant  knew  of  the  prin- 
cipal's crime,  and  on  account  of  that 
knowledge,  went  to  the  principal's 
office,  for  the  purpose  of  securing 
himself  in  some  business  transactions. 
It  was  held  that  if  the  defendant 
went  into  the  principal's  office  for 
any  legitimate  object,  and  in  accom- 
plishing that  object,  incidentally 
stated  to  the  principal  that  a  war- 
rant was  about  to  issue  lor  his  ar- 
rest, but  without  any  intention  of 
enabling  the  principal  to  escape,  that 
would  not  render  the  defendant 
guilty,  even  if  the  principal,  because 
of  such  information,  accomplished 
his  escape.  To  constitute  this  of- 
fense, there  must  always  be  a  guilty 
intent. 

Double  Intent — In  State  v.  Reed, 
85  Mo.  194,  it  is  held  that  while  the 
aid  must  be  with  intent  and  in  order 
that  the  felon  may  escape,  or  avoid 
arrest,  trial,  conviction,  or  punish- 
ment, yet,  if  he  has  the  guilty  intent 
necessary  to  constitute  tlie  offense, 
and  also  some  other  intent,  it  will 
be    sufficient. 

Anxiety  for  Personal  Safety. —  In 
Melton  V.  State,  43  Ark.  367,  and  in 
Carroll  v.  State,  45  Ark.  539,  it  is 
held  that  concealment  of  crime  from 
anxiety  for  personal  safety  is  not 
sufficient  to  constitute  one  accessory 
after  the  fact. 

25.  Acquittal  a  Complete  Defense. 
Ray  V.  State.  13  Neb.  55.  73  N. 
\Y.   2 ;   Bowen  v.   State,  25   Fla.  645, 

Vol.  I 


6  So.  459;  McCarthy  v.  State,  44 
Ind.  214,  15'  Am.  Rep.  232;  State  v. 
Ludwick,  Phill.  (N.  C.)  401;  State 
V.  Jones,  Id  N.  C.  719,  8  S.  E.  147; 
Johns  V.  State,  19  Ind.  421,  81  Am. 
Dec.  408. 

In  U.  S.  i:  Crane,  4  McLean,  317, 
25  Fed.  Cas.  No.  14,888,  it  was 
charged  that  P.  stole  the  United 
States  mail,  and  that  the  defendant 
furnished  assistance  to  P.,  and  felo- 
niously afforded  and  furnished  com- 
fort and  assistance  by  keeping  and 
secreting  the  money  taken  from  the 
stolen  mail.  P  had  been  acquitted 
on  a  count  for  stealing  mail  contain- 
ing bank  notes,  etc.,  and  the  court 
held,  that  if  the  accessory  is  charged 
with  stealing  bank  notes,  the  princi- 
pal must  be  convicted  of  stealing 
from  the  mail  bank  notes.  It  is  not 
sufficient  to  show  that  he  did,  in 
fact,  steal  them,  but  if  found,  he 
must  be  convicted  of  stealing  them, 
before  the  accessory  can  be  punished. 

When  Acquittal  No  Bar Reg.  z'. 

Pulham.  Q  Car.  &  P.  280;  Reg.  v. 
Hughes,  Bell  Crim.  Cas.  242;  Peo- 
ple T.  Bearss,  10  Cal.  68;  People  v. 
Newberry,  20  Cal.  439 ;  State  v. 
Bogue,  52  Kan.  79.  34  Pac.  410; 
State  1:  Patterson,  S2  Kan.  33s,  34 
Pac.  784;  People  r.  Kief,  126  N.  Y. 
661,  27  N.  E.  536;  Noland  7:  State. 
10  Ohio  131  ;  Evans  v.  State.  24 
Ohio  St.  458;  State  v.  Mosley.  31 
Kan.  355.  2  Pac.  782 ;  State  v.  Cas- 
sady,  12  Kan.  550;  State  v.  Jones,  7 
Nev.  408:  Spies  v.  People,  122  Til. 
T,  12  N.  E.  865.  3  Am.  St.  Rep.  320. 

Effect  of  Statutory  Provision. 
State  V.  Bogue,  52  Kan.  79.  34  Pac. 
410:  State  V.  Patterson,  52  Kan.  335, 
34  Pac.  784 ;  People  7'.  Bearss.  10 
Cal.  68;  People  Z'.  Newberry.  20  Cal. 
430 ;  Evans  v.  State,  2J  Ohio  St. 
458;  Noland  v.  State.  19  Ohio  131. 
'  In  People  v.  Kief,  126  N.  Y.  661, 
27  N.  E.  556,  it  is  held  that  it  was 
not  error  to  reiect  the  record  of  a 
nrincinal's  acnuittal.  T!ie  court  said : 
"  Willi    the    change    effected    by    the 


ACCESSOKIBS.   AIDERS  AND  ABETTORS. 


85 


B.  RelationsiiH'  As  Defense:.  —  Under  ihc  common  law,  proof 
that  the  person  who  assisted  the  felon  to  escape  was  his  wife  at  the 
time  of  snch  assistance,  was  a  complete  defense,  but  the  exemption 
did  not  extend  to  any  other  of  the  felon's  relatives.  Now,  by  stat- 
utes in  many  of  the  states,  it  includes  various  other  members  of  the 
family.-" 

C.  Duress.  ■ —  Proof  that  the  defendant,  in  whatever  assistance 
he  may  have  given  the  principal,  was  acting  from  motives  of  per- 
sonal safety,  and  not  from  any  desire  to  aid  him  in  his  escape,  is 
competent  evidence  for  the  defense.-' 


Penal  Code,  the  distinction  between 
principal  and  accessory  has  disap- 
peared, and  it  is,  therefore,  immate- 
rial whether  one  jointly  indicted  has 
been  acquitted  or  not,  the  question  of 
one  defendant's  guilt  can  not  turn 
upon  the  establishment  of  the  other's 
guilt;  it  is  an  independent  issue  to 
be  tried  out  alone.  Because  of  the 
changed  conditions  brought  about  by 
the  Penal  Code  provision,  reasoning 
upon  previous  practice  is  useless. 
At  present,  defendant  must  go  to  the 
jury  upon  such  competent  and  rele- 
vant evidence  as  tends  to  prove  his 
guilt  and  quite  irrespectively  of  the 
extrinsic  and  irrelevant  fact  that  one 
or  more  defendants  jointly  charged 
as  accomplices  have  been  acquitted 
upon    their   separate   trials." 

26.  The  Common  Law  Rule. —  4 
Blk.  Com.  38;  2  Hawk.  P.  C.  ^20;  i 
Hale   P.  C.  621. 

Relationship  As  a  Defense  Under 
State  Statutes —  State  v.  Jones,  3 
Wash.  175.  28  Pac.  254'  Moore  v. 
State,  40  Tex.  Crim.  App.  389,  51  S. 
W.  1108;  State  t'.  Davis,  14  R.  I.  281. 

In  Edmonson  v.  State,  51  .-Vrk. 
115,  10  S.  W.  21,  the  defendant  was 
convicted  of  robbing  the  safe  in  the 
County  Treasurer's  office.  Landers, 
another  of  the  robbers,  was  a  witness 
against  him,  and  the  prosecution  in- 
troduced his  wife  for  the  purpose  of 
corroboration.  On  the  objection 
that  she  was  an  accessory  after  the 
fact,  and  as  such  an  accomplice 
could  not  corroborate  another  accom- 
plice, it  was  held  that  she  was  not  an 
accessory   after   the    fact. 

In  Arkansas,  an  "  accessory  after 
the  fact,"  as  defined  by  the  statute, 
is  a  person  who,  after  full  knowledge 
that  a  crime  has  been  committed, 
conceals   it    from   the   magistrate,   or 


harbors  and  protects  the  person 
charged  with  or  found  guilty  of  a 
crime,  provided  that  persons  stand- 
ing to  the  accused,  in  the  relation  of 
parent,  child,  brother,  sister,  husband 
or  wife,  shall  not  be  deemed  accesso- 
ries after  the  fact,  unless  to  resist  the 
lawful  arrest  of  such  offenders.  The 
wife  in  concealing  the  husband  also 
concealed  the  other  felon.  The  Su- 
preme Court  said:  "Whatever  else 
may  be  the  intent  of  the  statute,  it  is 
certain  it  does  not  compel  a  wife  to 
become  an  informer  against  her  hus- 
band. He  was  particcps  criminis 
with  Edmonson  in  the  case.  If  the 
evidence  of  his  guilt  was  so  inter- 
woven with  that  of  Edmonson's 
criminality  that  she  could  not  in- 
form against  one  without  implicat- 
ing the  other,  the  statute  would  not 
visit  her  with  the  criminality  of  the 
offense  for  failing  to  do  so.  Her 
concealment  of  the  crime  would  not, 
in  that  event,  be  attributed  to  the  in- 
tent to  shield  Edmonson,  which  was 
necessary  to  make  her  an  accom- 
plice." 

27.  In  Melton  v.  State,  43  Ark. 
367,  a  witness  was  a  member  of  an 
unlawful  organization  called  the 
Southern  Brotherhood,  or  Ku  Klux, 
and  as  such  assisted  in  whipping  a 
person  who  was  afterwards  murdered 
by  order  of  the  organization.  He  was 
present  when  the  death  was  resolved 
upon,  but  opposed  it.  and  did  noth- 
ing to  further  the  execution  of  the 
plot.  After  the  conunission  of  the 
murder,  he  concealed  it.  This  was 
done  from  motives  of  anxiety  for 
his  own  safety,  and  not  from  any 
design  to  shield  the  guilty  parties. 
It  was  held  that  these  facts  did  not 
make  him  an  accessory  after  the 
fact. 

Vol.  I 


86 


JCCBSSOh'lLiS,   .11  DISKS   .IXD   ABETTORS. 


III.  AIDERS  AND  ABETTORS. 

1.  Proof  of  Presence.  —  A.  XiicESSiTv  Ok.  —  Aiders  and  abettors, 
called  accessorie.s  at  the  fact  by  ancient  common  law  writers,  and 
now  more  generally  known  as  principals  in  the  second  degree,  can- 
not be  convicted  as  such  without  proof  of  legal  presence  at  the 
commission  of  the  offense.-* 

Where  Presence  Not  Required.  —  In  States  where  the  common  law 
distinction  between  principals  in  the  first  and  second  degrees,  and 
accessories  before  the  fact  has  been  abolished,  it  is  held,  that  proof 
of  presence,  either  actual  or  constructive,  is  unnecessary.-'' 

B.  M.w  Be  a  CoNSTRi-cTi\ic  Presence.  —  But  proof  of  such 
facts  as  make  out  what  the  law  calls  a  constructive  presence  will  be 
sufficient.-'" 

What  Is  Constructive  Presence.  —  A  constructive  presence  so  as  to 
make  one  who  is  aiding  and  abetting  a  principal  in  the  crime  will  be 
established  by  proof  showing  that  he  acted  at  one  and  the  same  time, 
for  the  consummation  of  the  crime,  and  was  so  situated  as  to  be  able 
to  give  aid  with  a  view  to  insure  the  success  of  the  common  enter- 
prise.'" 


28.  Presence  Necessary Eng- 
land.— Reg.   V.    Cuddy,    i    Car.   &   K. 

210. 

-Arkansas. — Smith  v.  State,  37  Ark. 
274._ 

Kentucky. — Able  v.  Com.,  68  Kv. 
(5   Bush)   698. 

Tc.\-as. — Little  v.  State,  35  Tex. 
Crim.  App.  96,  31  S.  W.  677;  Truitt 
V.  State,  8  Te.x.  App.  148. 

•Vermont. — State  v.  Valwell,  66  Vt. 
558,   29  Atl.    1018. 

Wisconsin. — Connaughty  v.  State, 
I  Wis.  143 ;  Ogden  v.  State,  12  Wis. 
S32,  78  Am.  Dec.  754;  Miller  v. 
State,  25  Wis.  384. 

In  State  v.  Snell,  46  Wis.  524,  i 
N.  W.  225',  the  court  said :  "  Persons 
whose  will  contributes  to  a  felony 
committed  by  another  as  principal, 
while  themselves  too  far  away  to  aid 
in  the  felonious  act,  are  accessories 
before  the  fact.  Bish.  Crim.  Law 
§  673.  Connaughty  v.  State,  i  Wis. 
143.  When  sucli  persons  are  not 
actually  or  constructively  present, 
aiding  or  abetting  in  the  commission 
of  the  felony,  or  in  the  conspiracy 
to  commit  it,  they  are  not  chargeable 
as  principals,  but  only  of  the  substan- 
tive offense  of  being  accessories,  if 
guilty  of  any  offense." 

29.  Alabama. — Raiford  v.  State, 
59  Ala.  106;  Jolly  v.  State,  94  Ala. 
19,  10  So.  606;  Griffith  V.  State,  90 
Ala.  583,  8  So.  812. 

Vol.  I 


California. —  People  v.  Newberry, 
20  Cal.  439 ;  People  v.  Bearss,  10 
Cal.   68;    People   v.    Rozelle,   78   Cal. 

84,  20  Pac.  36 ;   People  v.  Outeveras, 
48  Cal.   19. 

////)it)i.s.— Baxter  v.  People,  8  111. 
(3   Gilm.)    368. 

lo'a'a. —  State  v.  Comstock,  46 
Iowa  265. 

Missouri. — State  v.  Fredericks,  85' 
Mo.  145 ;  State  v.  Schuchmann,  133 
Mo.  Ill,  33  S.  W.  3S.  34  S.  W.  842. 

Nczi'  York. — People  v.  Winant,  24 
Misc.  361,  53  N.  Y.  Supp.  695. 

Oregon. — State   v.    Steves,    29   Or. 

85,  43  Pac.  947;  State  Z'.  Branton,  xi 
Or.  533,  56  Pac.  267. 

30.  Actual  Presence  Not  Neces- 
sary—  Alabama.—  State  r.  Tally, 
102  Ala.  25,   15  So.  722. 

Indiana.— Tate  v.  State  6  Blackf. 
III. 

Louisiana. — State  v.  Douglass,  34 
La.  Ann.  523 ;  State  v.  Poynier,  36 
La.  Ann.  572. 

Missouri. — Green  r.  State,  13  Mo. 
382.  • 

New  York. — McCarney  v.  People, 
83  N.  Y.  408,  38  Am.  Rep.  456. 

0/1 10.— State  V.  Town.  Wright  75. 

Tc.ras.—Coker  v.  State,  37  Tex. 
App.  284.  39  vS.  W.  576. 

I'irginia.—Du'W  v.  Com.  25  Graft. 
965. 

31.  United  .States.— n.  S.  v.  Har- 


.Kl'liSSORIIiS.   AiniiRS   ASn   .lIUiT'l'OKS. 


2.  Proof  of  Aiding.  —  A.  Gknekai^uv.  —  V^nl  nic-rc  presence  will 
not  alone  justify  a  conviction  as  an  aider  and  abettor,  but  it  must  be 
proved  that  there  is,  either  actual   substantive  aid,  or  a  previous 


j6   Fed.   Cas.    No. 
102  Ala. 
)   Blackt. 


ries,  2   Bond  jii, 

15-309- 

Alabama. — State  v.  TalK 
25,  IS.  So.  722. 

Indiana. — Tate  v.    State, 
III. 

Louisiana. — State  v.  Douglass,  34 
La.  Ann.  523 ;  State  v.  Poynier,  36 
La.  Ann.  572. 

Massachusetts. — Com.  z'.  Knapp,  g 
Pick.  49S,  20  Am.   Dec.  491. 

Mississippi. — Hogsett  v.  State,  40 
Miss.  522. 

Missouri. — Green  v.  State,  13  Mo. 
382. 

Nevada. — State  v.  Hamilton.  13 
Nev.  386. 

Neiv  York. — McCarney  v.  People, 
83  N.  Y.  408,  38  Am.  Rep.  456. 

Ohio. — Breese  v.  State,  12  Ohio 
St.  146.  80  Am.  Dec.  340. 

Vermont. — State  v.  Valwell,  66  Vt. 
558,  29  Atl.  1018. 

Virginia. — Uhl  v.  Com.,  6  Gratt. 
706;  Dull  V.  Com.,  25  Gratt.  965. 

In  Com.  i>.  Lucas,  2  Allen  (Mass.) 
170,  court  said  that  it  was  sufficient 
to  hold  a  party  as  principal  if  it  was 
proved  that  he  acted  with  another  in 
pursuance  of  a  common  design ;  that 
they  acted  at  one  and  the  same  time 
for  the  fulfillment  of  the  same  pre- 
concerted end,  and  that  the  former 
was  so  situated  as  to  be  able  to  fur- 
nish aid  to  his  associate  in  the  com- 
mon  enterprise. 

When  Part  of  Criminal  Transac- 
tion   Is    at    Distance In    State    v. 

Tally,  102  Ala.  2$,  15  So.  y22,  it 
appeared  that  defendant  sent  a  mes- 
sage from  one  town  to  another  to 
prevent  delivery  of  another  message 
l5y  which  a  victim  would  have  been 
warned  and  would  have  escaped,  and 
defendant  was  held  constructively 
present  where  his  message  was  de- 
livered and  the  murder  committed. 

In  McCarney  v.  People.  83  N.  Y. 
408,  38  .Am.  Rep.  456.  defendant  was 
not  shown  to  have  been  present  at 
the  house  where  the  property  was 
taken  nor  in  the  immediate  vicinity, 
but  it  was  shown  that  he  had  a  part 
in  planning  the  theft,  spying  out  the 
premises,    learning   the    ways   of   the 


keeper,  it  was  held  that  this  was 
sufficient  to  go  to  the  jury  as  evi- 
dence of  aidmg  and  abetting;  that 
constructive  presence  was  made  out 
when  it  was  shown  that  defendant 
acted  with  another  with  a  common 
purpose;  that  he  acted  at  the  same 
time  with  the  other  for  the  fullill- 
ment  of  the  same  end,  and  was  so 
situated  as  to  be  able  to  give  aid ; 
and  that  waiting  and  watching  at  a 
convenient  distance  is  sufficient,  as  if 
he  be  placed  where  he  may  learn  the 
whereabouts  and  movements  of  the 
custodian  of  the  property  and  be 
prepared  to  lure  him  away,  or  retard 
him,  or  give  warning  of  his  ap- 
proach. 

In  Berry  v.  State,  4  Te.x.  App.  492, 
the  court  said  that  where  there  are 
several  acts  constituting  one  crime, 
each  act  done  by  a  different  person 
in  the  absence  of  the  rest,  but  in 
the  coinmon  design,  all  are  jointly 
principals. 

In  State  v.  Hamilton,  13  Nev.  386, 
a  party  built  a  tire  on  top  of  a  moun- 
tain in  Eureka  county  which  could 
be  seen  by  his  confederate  in  Nye 
county,  thirty  or  forty  miles  distant, 
and  was  the  signal  agreed  on  to  tell 
when  the  Wells  Fargo  &  Co.  treasure 
left  Eureka.  It  was  held  that  he 
was  an  aider  and  abettor  in  an  at- 
tempt to  rob  the  stage  in  Nye 
county  and  not  an  accessory. 

In  U.  S.  V.  Harries.  2  Bond  311, 
26  Fed.  Cas.  No.  I5',.?09,  it  was  held 
that  where  parties  who  were  owners 
or  interested  in  whiskey,  though  not 
personally  present  when  the  saine 
was  illegally  removed,  yet  w.ith  intent 
to  evade  the  tax  aided  in  or  took 
part  in  the  means  by  which  the 
spirits  were  removed,  as  by  hiring 
the  canal  boat  for  the  purpose,  giv- 
ing orders  and  directions  for  the 
removal,  etc.,  they  are  so  connected 
with  the  offense  as  to  be  construc- 
tively present. 

Near  Enough  to  Render  Aid. 
Com.  V.  Knapp,  9  Pick.  (Mass.) 
495,  20  Am.  Dec.  491 ;  State  v. 
Walker,  98  Mo.  9'^,  9  S.  W.  646; 
Dull  V.   Com.,  25   C'.ratt.    (Va.)    965; 

Vol.  I 


88 


ACCESSORinS.   .-UniiRS   .LVD   ABBTTORS. 


understanding  w  uh  ihe  principal,  or  knowledge  on  his  part  that  the 
party  is  there  for  the  purpose  of  aid  and  encouragement. ■'- 

Persons  Present  and  Aiding  Principal.  —  In  the  following  cases  it  is 
held  that  all  persons  who  are  present  either  actually  or  construc- 
tively at  the  place  where  the  crime  is  committed,  and  are  either 
aiding,  abetting,  assisting  or  advising  its  commission,  or  are  present 
for  such  purpose,  are  principals  in  the  crime.''^ 


State  V.  Pearson,  i  ig  N.  C.  871,  26 
S.  E.  117;  Anderson  v.  State,  147 
Ind.  445,  46  N.  E.  901. 

In  Tate  v.  State,  6  Blackf.  (Ind.) 
Ill,  the  court  said:  "If,  with  the 
intention  of  giving  assistance,  a  per- 
son should  be  near  enough  to  afford 
it  should  it  be  needed,  he  is,  in  con- 
struction of  law,  present  aiding  anil 
abetting." 

32.  Mere  Presence  Not  Sufficient. 
In  Reg.  V.  Young,  8  Car.  &  P.  644, 
a  prosecution  for  dueling,  it  was 
said  concerning  persons  present,  not 
principals  or  seconds,  .that  the  ques- 
tion was  whether  they  gave  aid  and 
assistance  by  countenance  and  en- 
couragement ;  that  mere  presence 
was  not  enough  but  advice  or  as- 
sistance or  going  to  the  place  to 
encourage  and  forward  the  conflict 
even  if  they  said  or  did  nothing, 
would    sustain    a    conviction. 

United  States. — U.  S.  v.  Neverson, 
I  Mackey  152. 

Alabama. — State  v.  Tally,  102  Ala. 
25,   IS    So.   722. 

California. — People  v.  .\h  Ping,  27 
Cal.  489. 

Iowa.  —  State    v.     Farr,     T,i    Iowa 

55.3. 

Kentucky. — Ward  v.  Com.,  77  Ky. 
(14   Bush)    233. 

North  Carolina. — State  v.  Hild- 
reth,  9  Ired.  440,  51  Am.  Dec.  369. 

rc;ra.s.— Tittle  v.  State,  35  Tex. 
Crim.  App.  96,  31    S.  W.  677. 

•Virginia. — Kemp  v.  Com.,  80  \  a. 
443;     Reynolds    v.     Com.,     •?3    Graft. 

II'  ashlngton. — State  i'.  Klein,  19 
Wash.  .368,  53  Pac.  364. 

Presence      'Without,    Interference 

to   Prevent   Crime Ward   v.    Com., 

77  Ky.  2,y ;  People  v.  Ah 
Ping,  27  Cal.  489;  People  7'.  Wood- 
ard,  45  Cal.  29?,  13  .Vm.  Rep.  176; 
State  V.  Hildrcth,  9  Ired.  (N.  C.) 
440,  51  Am.  Dec.  .369;  Brown  t'. 
Perkins,    i    .Mien    (Afass.)    Sg. 

Vol.  I 


Presence  and  Constrained  Sanction 
of  Crime — Butler  v.  Com.,  03  Ky. 
(J    Uuvall)    435. 

Mental  Approval  Not  Sufficient. 
In  State  ;•.  Wolf,  (.Iowa)  84  N.  W. 
536,  the  court  said ;  "  It  has  never 
been  held  so  far  as  we  are  advised, 
that  mere  presence  at  the  scene  of 
crime  constitutes  aiding  and  abetting 
.  .  .  Nor  is  it  sufficient  in  ad- 
dition thereto  that  the  person  pres- 
ent mentally  approves  what  is  done." 

Mere  Presence  Where  There  Is 
Previous  Conspiracy — In  Leslie  v. 
State,  (Te,\.  Crnn.  App.),  57  S.  W. 
659,  it  is  held  that  where  defendant 
has  previously  agreed  with  the  prin- 
cipal to  kill  deceased,  and  is  present 
at  the  time  of  killing,  in  pursuance 
of  the  conspiracy  he  would  be  guilty 
although  he  may  have  done  no  act. 
That  under  certain  circumstances 
mere  presence  at  the  place  where  the 
crime  is  committed  may  be  a  suffi- 
cient act  of  encouragement. 

Must  Be  Both  Aiding  and  Abet- 
ting—  People  V.  Ciiniptiiu,  123  Cal. 
403,  56  Pac.  44;  People  v.  Dole,  122 
Cal.  486,  S5  Pac.  =;8i,  68  .\m.  St. 
Rep.  50;  White  1:  People,  81  111. 
333-  Sec  Connaughty  i'.  State,  I 
Wis.    143. 

In  Lawrence  r.  State,  68  Ga.  289, 
il  is  held  error  to  charge  that  aiding 
or   abetting    is    sufficient. 

33.  United  States.— V.  S.  v.  Wil- 
son, Baldw.  78,  28  Fed.  Cas.  No. 
16,730:  U.  S.  V.  Snyder,  14  Fed. 
554;  U.  S.  V.  Hughes,  34  Fed.  732: 
U.  S.  V.  Boyd,  45  Fed.  851. 

Alabama.— Amos  v.  State,  83  Ala. 
I,  3  So.  749,  3  .^m.  St.  Rep.  682. 

Connecticut. — State  v.  Wilson,  ,30 
Conn.    500. 

Georgia.  —  Hawkins  t'.  State,  13 
Ga.  322,  58  Am.  Dec.  517. 

Illinois. — Bremian  j'.  People,  l^ 
III.    (5    Peck)    S^\. 

Indiana. — Williams  v.  State,  47 
Ind.    ^68. 


.ICCliSSORlHS.   .linUKS   .IXD   ABETTORS. 


8') 


B.  Assisting  in  Unlawful  Act.  —  One  may  be  guilty  of  mur- 


Kansas. — State  v.  Sheiiklc,  30  Kan. 
43,   12  Pac.  309. 

Louisiana. — State  v.  Ellis,  12  La. 
Ann.  390;  State  v.  Littell,  45  L,a. 
Ann.  655,  12  So.  750. 

Massachusetts. — Com.  v.  Steven.-;, 
10   Mass.    181. 

Michigan. — People  v.  Repke,  103 
Mich.  459,  61   X.  \V.  861. 

Mississippi. — McCarty  v.  State,  4 
Cushni.  299. 

Missouri. — State  v.  Nelson,  98  Mo. 
414,  II  S.  W.  997;  State  V.  Miller, 
100  Mo.  606,  13  S.  W.  832;  State  v. 
Crab,  121  Mo.  554,  26  S.  W.  548; 
State  V.  Brown,  104  Mo.  365,  ib  S. 
W.  406. 

Nebraska.— W\\\  z:  State,  42  Neb. 
503,   60   N.   W.   91&. 

Nevada. — State  v.  Squaires,  2  Nev. 
226. 

New  Hampshire.  —  State  v.  Mc- 
Gregor, 41  N.  H.  407. 

Neze  Jersey. — State  v.  Hess,  (N. 
J.)   47  Atl.  806. 

North  Carolina. — State  v.  Gaston, 
73  N.  C.  93,  21  Am.  Rep.  459. 

0/iio.— Warden  v.  State,  24  Ohio 
St.   143. 

South  Carolina. — State  v.  Fley,  2 
Brev.  338,  4  Am.   Dec.   583. 

Tc.vas. — Dunman  i'.  State,  i  Te.x. 
App.  593;  Mills  V.  State,  13  Te.x. 
.^pp.  487. 

Mere  Presence  for  the  Purpose  of 
Aid  Without  Principal's  Knowledge. 
In  State  v.  Tally,  102  Ala.  25,  15 
So.  722,  the  conrt  said  that  mere 
presence  for  the  purpose  of  rendering 
aid,  is  not  aid,  in  the  substantive 
sense;  nor  is  it  aid  in  the  original 
sense  of  abetting,  nor  abetting  in  any 
sense,  unless  at  the  very  least,  the 
principal  knew  of  the  presence  witli 
intent  to  aid  of  such  person ;  for 
manifestly  in  such  case,  the  only  aid 
possible  would  be  the  incitement  and 
encouragement  of  the  fact  that  an- 
other was  present  for  the  purpose  of 
assistance  and  with  the  intent  to 
assist  if  necessary;  and  the  fact  of 
presence  and  purpose  to  aid,  could 
not  incite,  encourage  or  embolden 
the  principal,  unless  he  knew  of  the 
existence    of   that    fact. 

Watching  to  Prevent  Surprise,  etc. 
Arkansas.  —  Thomas  v.  State.  43 
Ark.   149. 


Indiiina. — Doan    v.    State,    26    Ind. 

495- 

Jjassaehusetls. — Com.  v.  Knapp,  9 
Pick.  495,  20  Am.  Dec.  491. 

Miclugan. — People  v.  Kcpke,  103 
Mich.  459,  61   N.  W.  861. 

New  York. — McCarney  v.  People, 
83  N.  Y.  408,  38  Am.  Rep.  456;  Peo- 
ple V.   Boujet,  2   Park.   Crim.    11. 

Ohio. — Stephens  v.  State,  42  Ohio 
St.  150;  Hess  V.  State,  5  Ohio  (5 
Ham. )  5,  22  Am.  Dec.  767 ;  State  v. 
Town,  Wright  75. 

Te.ras. — Selvidge  v.  State,  30  Tex. 
60;  Earp  V.  State,  (Tex.),  13  S.  \V. 
888 

In  .McCarney  v.  People,  83  N.  Y. 
408,  38  Am.  Rep.  456,  the  court  said ; 
"A  waiting  and  watching  at  con- 
venient  distance   is    enough." 

In  Selvidge  v.  State,  30  Tex.  60, 
it  was  held  that  if  defendants  did  not 
remove  stolen  horses  from  the  lot 
of  the  owner  but  were  near  enough 
to  keep  watch  and  were  actually 
acting  with  those  who  went  for  and 
took  possession  of  the  horses,  they 
were  guilty  as  principal. 

When  Knowledge  by  Principal 
Essential —  In  State  v.  Tally,  102 
.\la.  25,  15  So.  722,  four  men  went  in 
pursuit  of  a  man  to  inurder  him. 
A  warning  dispatch  was  sent.  If 
this  dispatch  had  been  delivered  in 
time  it  might  have  aided  the  man 
to  get  away.  But  another  person 
not  connected  by  the  evidence  with 
the  original  plot  to  murder,  but  who 
had  the  same  motive  for  murder  as 
the  others,  having  found  out  .  the 
contents  of  the  message,  and  for  the 
purpose  of  enabling  the  pursuers  to 
succeed,  sent  a  message  to  the  op- 
erator where  the  first  message  was 
to  be  delivered,  in  consequence  of 
which  the  first  was  not  delivered, 
and  the  man  was  murdered.  It  was 
held  that  there  was  such  aid  as  made 
the  sender  of  the  second  message 
guilty  as  an  aider  and  abettor, 
although  the  principals  did  not  know 
of  the  assistance  so  given. 

In  Jordan  v.  State,  81  Ala.  20,  I 
So.  577,  it  was  held  that  in  order  to 
convict  the  defendant  as  an  aider  and 
abettor  the  jury  should  be  satisfied 
beyond  a  reasonable  doubt,  that  there 
was  either  a  previous  understanding 

Vol.  I 


90 


.iCCESSOklliS.  .liniikS  .IXD  .ibhttons. 


ilcr,  akhough  he  neither  look  pan  in  ihe  kiiUng  nor  assented  to  any 
arrangement  having  for  its  object  the  death  of  the  person  murdered. 
It  is  sufficient  to  prove  that  he  combined  with  those  committing 
the  deed,  to  do  an  unlawful  act,  as  to  beat  or  rob  the  person,  who 
was  killed  in  the  attempt  to  carry  out  the  common  purpose.-'* 

C.  Aiding  in  One  of  Sever.\l  Acts  Constituting  One  Crime. 
A  crime  may  consist  of  many  acts  which  must  all  be  committed  in 
order  to  complete  the  offense ;  evidence  that  defendant  was  present, 
consenting  to  the  commission  of  the  offense  and  doing  any  one  act 
which  is  either  an  ingredient  in  the  crime  or  immediately  connected 
with  or  leading  to  its  commission,  is  sufficient  for  his  conviction 
as  a  principal. ■'•' 

3.  Criminal  Intent  of  Aider.  —  It  is  not  sufficient  to  prove  that 
assistance  was  actually  given  b_\-  the  defendant  to  the  princijial, 
but  it  must  be  proved  that  such  assistance  was  given  with  intent  to 
aid  in  commission  of  the  crime. ■"' 

4.  Proof  Must  Show  Crime  Committed.  —  The  evidence  must  not 
only  show  that  the  principal  did  the  criminal  act,  but  that  it  was 


to  kill  or  injure  the  deceased,  or 
that  he  had  knowledge  of  the  intent 
or  design  of  his  brother  or  of  facts 
from  which  such  knowledge  may  be 
inferred. 

Where  There  Is  Actual  Aid  No 
Previous  Agreement  Required. 
People  v.   Jamarillo,   57   Cal.    iii. 

34.  Brennan  v.  People,  15  HI.  511. 

35.  U.  S.  V.  Wilson,  Baldw.  78,  28 
Fed.  Cas.  No.  16,730;  Com.  v.  Low- 
rey,  158  Mass.  18,  32  N.  E.  940. 

Aid  or  Assistance  By  One  In- 
capable of  Committing  the  Crime. 
U.  S.  V.  Snyder,  8  Fed.  805  an<l  14 
Fed.  554;  State  v.  Sprague.  4  R.  I. 
257;  Boggns  I'.  State.  34  Ga.  275"; 
State   V.    Comstock,   46    Iowa    265. 

36.  An  Individual  Criminal  In- 
tent Necessary — People  v.  Leith,  52 
Cal.  251  ;  State  v.  Farr,  33  Iowa 
553 ;  State  v.  Maloy,  44  Iowa  104 ; 
Ward   V.    Com.,   77    Ky.    (14    Bush) 

In  Leslie  v.  State,  (Tex.  Crim. 
App.),  57  S.  W.  659,  it  is  held  that 
every  defendant  on  a  trial  for  homi- 
cide is  to  be  judged  according  to 
his  own  intent,  and  where  he  is  a 
principal  in  the  second  degree,  he 
is  not  to  be  tried  solely  according 
to  the  intent  of  his  own  principal  in 
the  first  degree,  but  is  to  be  tried 
according  to  the  intent  with  which 
he  may  have)  participated.  It  is  held 
that  it  must  he  proved  that  the  prin- 
cipal   in    the    second    degree    of    his 

Vol.  I 


malice  aforethought,  etc.  was  present 
aiding,  etc.;  that  the  doctrine  which 
everywhere  pervades  our  criminal 
law,  that  a  defendant  is  to  be  judged 
according  to  his  own  intent  should 
never  be  ignored,  especially  in  a 
capital  case. 

Detectives. — State  v.  Douglass,  44 
Kan.  618,  26  Pac.  476;  Allen  v. 
State,  40  Ala.  334,  91  Am.  Dec.  477 ; 
Speiden  v.  State,  3  Tex.  App.  156, 
30  Am.  Rep.  126;  Reg.  v.  Johnson, 
41  Eng.  C.  L.  123;  State  v.  Jansen, 
22   Kan.  498. 

Aiding    Detective    or    Decoy In 

Allen  I'.  State.  40  .\la.  334,  91  Am. 
Dec.  477,  the  proof  showed  that  the 
prisoners  proposed  to  a  servant  a 
plan  for  robbing  his  employer's  oflfice 
by  night.  The  servant  disclosed  the 
plan  to  his  master,  who  then  fur- 
nished the  servant  with  keys,  and 
the  servant  and  prisoner  went  to- 
gether to  the  office ;  the  servant 
opened  the  door  with  the  key,  and 
they  both  entered  and  were  at  once 
arrested.  It  was  held  the  prisoner 
could  not  be  convicted  of  burglary, 
because  whatever  was  done  was  done 
by  his  supposed  accomplice,  who 
had  no  criminal  intent. 

In  Savage  v.  State,  18  Fla.  909,  it 
is  held  that  in  order  to  convict  of 
murder  in  the  first  degree,  it  should 
be  shown  that  the  person  aiding  and 
alietting  knew  or  believed  the  prin- 
cipal   intended    to    kill,    or    that    the 


.ICCBSSOh'ins.   .IfDHRS  .IXP   .  I  BETTORS. 


91 


done  by  him  with  such   intent,  or  in   such   way,  as  to  make  it  a 
crime.''' 

5.  Record  of  Principal's  Conviction  or  Acquittal  Irrelevant.  — The 
facts  constituting  one  an  aider  and  abettor,  are  proved  as  the  same 
facts  are  proved  in  any  other  criminal  prosecution.  There  is  no 
such  relation  of  dependence  as  exists  in  the  case  of  accessories 
before  and  after  the  fact ;  but,  the  defendant  is  tried  without  any 
regard  to  the  trial  of  his  principal,  and  the  record,  either  of  con- 
viction or  acquittal  of  such  principal,  is  not  competent  evidence  on 
the  trial  of  an  aider  and  abettor.''* 


person  aiding  and  abetting  acted  on  a 
premeditated   design    to   lake    life. 

37.  Crime  Committed  Need  Not 
Be  in  Pursuance  of  Intent  Common 
to  All — Where  tlie  statnte  authorizes 
the  conviction  of  one  who  shall  have 
aided,  counseled,  advised  or  encour- 
aged another  in  an  offense,  it  need 
not  be  shown  that  the  one  aiding,  etc. 
must  have  done  so  in  pursuance  of 
an  understanding  or  intent  common 
to  any  or  all  the  participants.  How- 
ard  V.   Com.,   96   Ky.    ig,   27   S.   W. 

854. 

In  State  v.  Douglass,  44  Kan.  618, 
26  Pac.  476,  it  is  held  that  proof 
that  one  who  acted  in  the  employ 
of  a  railroad  company  for  the  pur- 
pose of  entrapping  another  into  the 
commission  of  a  crime,  placed  an 
obstruction  on  the  track,  with  an 
understanding  that  another  agent  of 
the  company  would  come  along  and 
remove  it,  did  not  show  a  crime 
committed  by  the  person  so  placing 
the     obstruction,     and     that     though 


another  consented  to  the  act  with  the 
criminal  intention  that  it  should 
wreck  the  train,  yet,  he  was  not 
guilty  as  an  aider  and  abettor.  The 
law  does  not  make  the  consenting 
to  a  thing  which  is  innocent  in  it- 
self an  offense,  although  the  person 
consenting  tliereto  may  have  behoved 
the    thing    to    be    an    offense. 

38.  Acquittal  of  Principal  Not 
Competent  Evidence.  —  State  v. 
Ricker.  29  Me.  84;  State  t.  Phillips, 
24  Mo.  475 ;  State  v.  Jones,  7  Nev. 
■  408 ;  People  v.  Buckland,  13  Wend. 
(N.  Y.)   592. 

In  State  v.  Ross,  29  Mo.  32,  the 
record  of  the  acquittal  of  one 
charged  as  principal  in  the  first 
degree,  is  held  to  be  inadmissible 
as  evidence  on  trial  of  aider  and 
abettor. 

In  State  v.  Whitt,  113  N.  C.  716, 
18  S.  E.  715,  it  is  held  that  one  may 
be  convicted  of  murder  in  the  second 
degree,  though  the  person  who  did 
the    killing    has    been    acquitted. 

Vol.  I 


ACCIDENT. — See  Death;  Insurance;  Negligence. 


ACCIDENT  INSURANCE.— See  Insurance. 


ACCOMMODATION    PAPER.— See  Bill  and  Notes. 


ACCOMPLICES. 

By  W.  L.  Campbell. 

I.  GENEEAL  CLASSIFICATION,  94 
II.  TESTIFYING  UNDER  PROMISE,  94 

1.  Acceptance  of  the  Witness,  94 

A.  Must  Be  Accepted,  94 

B.  Modern  Practice  As  To,  94 

a.  A  Continuation  of  Common  Lazi',  94 

b.  Promise  to  the  Witness,  95 

c.  Terms  of  the  Promise,  95 

d.  Authority  of  Public  Prosecutor,  95 

e.  Motion  and  Order  of  Court,  96 

(i.)   Statement  of  Public  Prosecutor,  96 
(2.)    When  Order  Should  Be  Made,  97 

2.  Evidence  Accepted  From  Necessity,  97 

3.  Character  As  an  Accomplice  Assumed  at  Outset,  98 

4.  Examination,  98 

A.  Refusing  to  Criminate  Self,  98 

a.  Before  Testifying,  98 

b.  After  Testifying,  99 

c.  As  to  Other  Crimes,  99 

5.  Corroboration,  99 

A.  When  Not  Required,  99 

a.  Accomplice  Not  Without  Credit,  99 

b.  In  Absence  of  Statute,  100 

c.  Statutes  Requiring  Corroboration,  100 

B.  Judge  Advising  Jury,  100 

a.  Common  Laiv,  100 

b.  General  Practice  in  Absence  of  Statutes,  toi 

c.  Discretion  of  Court,  loi 

(1.  Verdict    of    Guilty    N otzvithstanding    Ad- 
vice, 102 

Vol.  I 


ACCOMPLICES.  93 

C.  Jury  Misled,  102 

1).  Instructions  Under  Statute,  102 

E.  What  Is  Corroboration,  103 

a.  Definition,  103 

b.  One   Accomplice    Cannot    Corroborate   An- 

other, 103 

c.  Not  Aided  by  Testimony  of  Accomplice,  104 

d.  Need  Not  Be  Sufficient  to  Conz'ict,  104 

e.  What  Is  Sufficient,  104 

f.  As  to  Non-Bssential  Matters,  105 
g.  The  Corpus  Delicti,  105 
h.  Corroboration  As  to  Defendant,  106 

( I.)   As  to  the  Particular  Defendant,  106 
(2.)  Must  Connect  Him    JVith   Crimes, 

107 
(3.)   Association  With  Criminals,  107 

F.  il/«j/  More  Than  Raise  Suspicion,  108 

G.  By  Proof  of  Intention,  108 

H.  By  Circumstantial  Evidence,  108 
I.  B\  Proving  Possession  of  Stolen  Property,  108 

a.  When  Sufficient,  108 

b.  Explanation  of  Possession,  109 

J.  Defendant's  Conduct  As  Corroboration,  log 

K.  Confessions  and  Admissions  As  Corroboration,  no 

a.  Confessions,  no 

b.  Admissions,  1 10 

III.  TESTIFYING  AS  ORDINARY  WITNESS,  no 

1.  Character  Not  Assnincd  at  Outset,  no 

A.  IVhen  a  Question  for  the  Court,  ni 

B.  Wlien  for  the  Jury.  1 1 1 

a.  When  it  Depends  on  Evidence,  1 1 1 

b.  What  Evidence  Sufficient,  \\2 

2.  What  Constitutes  an  Accomplice,  \\2 

A.  Common  Lazv  Definition.  i\2 

B.  Other  Definitions,  112 

C.  Who  Are  Accomplices.  \\2 

■A.  Intention  Necessary,  i\2 

b.  Knowledge  and  Concealment,  113 

c.  Independent  Crime,  113 

<1.  Participation  in  Moral  Offense  Only.  1 14 
e.  Accessories  After  the  Fact.  n5 

3.  Admission  to  Testify,  115 

A.  Not  Discretionary  With  Court,  w^ 

B.  At  Discretion  of  Party  Calling,  115 

4.  Corroboration,  115 

A.   JVhcn  Called  by  Defendant.  115 

Vol.  I 


94 


ACCOMPLICES. 


CROSS-REFERENCES. 


Accessories ; 
Corroboration ; 
Intent;   Impeachment. 


I.  GENERAL  CLASSIFICATION. 

All  accomplice  in  the  law  of  evidence  signifies  a  witness  who  is 
implicated  in  the  crime  about  which  he  testifies.' 

There  are  two  classes  of  accomi)liccs :  ( i  )  Where  the  witness 
testifies  under  a  promise  of  imnnmity  from  punishment;  (2)  where 
he  testifies  as  an  ordinary  witness. 

IL  TESTIFYING  UNDER  PROMISE. 

1.  Acceptance  of  the  Witness.  — A.  Must  Be  AccEPTiin. — Where 
the  accomplice  testifies  under  a  promise  his  testimony  is  not  received 
as  of  course,  like  that  of  other  witnesses,  but  he  must  be  accepted. - 

B.  Modern  Practice  As  To.  —  a.  A  Continuation  of  Common 
Law.  —  The  modern  practice  of  using  accomplices  as  witnesses  for 
the  state,  with  a  promise  of  immunity,  is  a  continuation  of  the 
common  law,  where  accomplices  were  generally  witnesses  for  the 
crown,  who,  having  confessed  their  own  guilt,  were  permitted  to 
testify  against  those  associated  with  them  in  the  same  crime.'' 


1.  A  fuller  discussion  of  tlic 
meaning  of  the  word  accomplice,  and 
what  constitutes  an  accomplice,  will 
he  found  in  Part  III,  Subdivision  2. 
where,  being  treated  as  ordinary 
witnesses,  the  character  is  not  as- 
sumed at  the  outset,  but  left  to  bo 
decided  by  the  court  or  jury. 

2.  Wight  V.  Rindskopf,  43  Wis. 
344;  People  V.  Whipple,  g  Cow.  (N. 
Y.)  707;  Lindsay  v.  People.  63  N. 
Y.   143- 

3.  Whence  Derived The  com- 
mon law  on  tlie  subject  is  derived 
from  the  ancient  doctrine  of  ap- 
provement which  Lord  Hale  in  his 
Pleas  of  the  Crown  speaks  of  as 
having  been  already  long  disused. 
3  Russ.  on  Crimes  (9th  Ed.)  596. 
But  in  Illinois  this  obsolete  usage 
was  so  far  recognized  that  a  statute 
was  passed  expressly  providing  that 
"  An  approver  .shall  not  give  evi- 
dence." Myers  v.  People,  26  TIL 
173.  In  Gray  v.  People,  26  111.  344. 
the  court  said : 

Vol.  I 


"  By  the  conmion  law.  approve- 
ment is  said  to  be  a  species  of  con- 
fession, and  incident  to  the  arraign- 
ment of  a  prisoner  indicted  for 
treason  or  felony,  who  confesses  the 
fact  before  plea  pleaded,  and  appeals 
or  accuses  others,  his  accomplices, 
in  the  same  crime,  in  order  to  obtain 
his  own  pardon.  Tn  this  case  he  in 
called  an  approver,  or  prover,  pyi<- 
hator.  and  the  parly  appealed  or 
accused  is  called  the  appellee.  Such 
approvement  can  only  be  in  capital 
offense,  and  it  is,  as  it  were,  equiva- 
lent to  an  indictment,  since  the  ap- 
pellee is  equally  called  upon  to 
answer  it.     4  Blackstone's  Com.  267. 

"  This  course  of  admitting  ap- 
provements has  been  long  disused, 
and  is  now  more  a  matter  of 
curiosity  than  use,  and  it  is  strange 
that  the  legislature  should  have 
turned  their  attention  to  it.  Porter 
was  in  no  sense  an  approver.  He 
was  not  indicted  with  Gray  and 
\';\\\    .Mien.      lie   w;\s   .-m   accomplice, 


ACCOM  ruciis. 


95 


b.  Promise  to  the  Witness.  — This  testimony  was  upon  a  ])roniise. 
express  or  implied,  that  the  witness  should  secure  immunity  from 
punishment  b)-  faithful  compliance  with  the  terms  on  which  his 
evidence  was  obtained.* 

c.  Terms  of  the  Promise.  —  The  terms  were  to  tell  the  truth  in 
his  testimony  about  the  crime  and  all  persons  concerned  in  it  so  far 
as  he  knew,  as  well  of  himself  as  of  others.^ 

d.  Antliority  of  Public  Prosecutor.  —  Some  authorities  hold  that 
if  the  public  prosecutor  sees  fit  to  enter  a  nolle  prosequi  as  to  an 
accomplice,    for   the   jnirposc   of   tisinsj   him    as   a    witness   against 


and,  being  such,  turned  state's  evi- 
dence, no  doubt  with  the  hope  of 
escaping  a  prosecution.  The  evi- 
dence of  such  persons  is,  in  general, 
admissible  against  the  prisoner  on 
trial." 

4.  Compliance  With  Terms  Neces- 
sary. —  Com.  I'.  Knapp,  lo  Pick. 
(Mass.)  477,  20  Am.  Dec.  534;  Peo- 
ple 7'.  Whipple,  g  Cow.  (N.  Y.)  707; 
Whiskey  Cases,  99  U.  S.  594;  Re.x 
z\  Rudd.   I   Leach   115. 

Nature    of    Rig^ht    Acquired If 

they  did  this  to  the  satisfaction  of 
the  court  they  secured  equitable 
rights  to  recommendation  for  pardon. 
These  rights  were  not  pardons  and 
a  witness  might  even  be  indicted, 
tried  and  punished  afterwards  and 
could  not  plead  the  right  so  acquired 
to  save  himself  from  prosecution, 
conviction  and  execution  of  sentence. 
Whiskey    Cases.    U.    S.    v.    Ford,   99 

U.   S.   594. 

Where  No  Pardoning  Power  Ex- 
ists Before  Conviction In  New- 
Jersey  where  the  ])ardoning  power 
did  not  exist  until  the  conviction  of 
the  offender,  the  court  in  State  v. 
Grahain,  41  N.  J.  Law  18.  32  .\m. 
Rep.    I7<     said: 

"  I  think  it  has  been  quite  a  com- 
mon practice  in  this  state  for  the 
court  to  assent  to  the  abandonment 
of  indictments  against  accomplices 
who  have  been  witnesses ;  indeed.  I 
do  not  know  of  any  instance  in  which 
a  recommendation  to  mercy  has  ever 
been  sent  to  the  pardoning  power 
in  behalf  of  a  criminal  who  had  been 
used  as  a  witness,  at  the  instance 
of  the  state,  a  circumstance  wdiicb 
shows  conclusively  that  it  has  been 
the  prevailing  mode  either  to  let 
the  indictment  drop,  or  for  the  court, 
with  the  assent  of  the  prisoner,  so  to 


adjust  its  sentence  as  lo  supersede 
the  necessity  of  a  recommendatioi 
for  a  remission  of  the  sentence  o' 
the  law." 

Continuance  to  Apply  for  Pardon. 
He  miglit  obtain  a  continuance  for 
the  purpose  of  giving  him  time  to 
apply  for  a  pardon  and  thus  secure 
exemption  from  punishment.  £.r 
fart'-  Wells,  18  How.  (L'.  S.)  307; 
Whiskey  Cases,  L'.  S.  f.  Ford,  99 
U.   S.  594. 

5.  Should  Not  Promise  to  Tes- 
tify Against   Defendant lu    State 

I'.  Miller,  100  Mo.  bob,  13  S.  W.  832, 
Mortimer  agreed  with  the  prosecu- 
ting attorney,  that  if  that  official 
would  accept  a  plea  from  him  of 
murder  in  the  second  degree,  and 
would  also  nolle  several  indictments 
pending  against  him,  that  then  he 
would  "  testify  against  Miller."  Thi 
court  said :  "'  I  do  not  believe  that 
such  a  bargain  as  this  to  testify 
against  the  life  of  another  should 
receive  any  countenance,  or  sanction 
in  a  court  of  justice,  or  that  in  the 
circumstances  mentioned,  Mortimer 
sliould  have  been  admitted  as  a  wit- 
ness in  the  cause." 

Necessary  to  Confess  Guilt.  —  In 
a.v  parte  Bird,  2  Gilm.  (Va.)  134.  a 
person  accused  of  the  crime  of  mur- 
der, and  jointly  indicted  with  others 
for  that  offense,  was  not  put  on  his 
trial  but  was  used  by  the  state's 
attorney  as  a  witness  on  the  trial 
of  the  others,  who  were  convicted 
and  executed.  In  giving  his  testi- 
mony he  did  not,  in  any  way  admit 
that  he  participated  in  the  commis- 
sion of  the  murder,  neither  did  it 
appear  in  his  petition  by  him  filed 
that  he  was  guilty  or  had  been  con- 
victed of  any  crime.  Held  that  he 
was    not    in    condition    lo    avail    liim- 

Vol.  I 


96 


ACCOMPLICES. 


another  person  concerned  in  the  crime,  it  shonld  be  permitted  as  a 
matter  of  course." 

e.  Motion  and  Order  of  Court. —  (1.)  Statement  of  Public  Prosecutor. 
But  other  authorities  hold  that  there  should  be  a  positive  order  of 
the  court  made  upon  the  motion  of  the  public  prosecutor/  and  that 
he  should  state,  on  making  such  motion,  in  substance,  that  he  has 
investigated  the  facts  of  the  case,  and  believes  from  such  investiga- 
tion, that  the  evidence  of  the  accomplice  is  necessary  to  conviction, 
and  will  probably  result  in  the  conviction  of  the  defendant.* 


self   of   the   privileges   of  an   accom 
plice. 

6.  Cases  Holding  Plenary  Au- 
thority in  Public  Prosecutor Run- 
nels V.  State,  28  Ark.  121 ;  U.  S.  v. 
Hartwell,  26  Fed.  Cas.  No.  15,319. 

In  Whiskey  Cases,  U.  S.  i'.  Ford. 
99  U.  S.  594,  the  court  says  :  "  But 
the  course  of  proceeding  in  the 
courts  of  many  of  the  states  is  quite 
different  from  that  just  described, 
the  rule  being  that  the  court  will  not 
advise  the  attorney-general  how  he 
shall  conduct  a  criminal  prosecution. 
Consequently  it  is  regarded  as  the 
province  of  the  public  prosecutor 
and  not  of  the  court  to  determine 
whether  or  not  an  accomplice,  who  is 
willing  to  criminate  himself  and  his 
associates  in  guilt,  shall  be  called 
and   examined   for   the   state. 

"  Of  all  others,  the  prosecutor  is 
best  qualified  to  determine  that  ques- 
tion, as  he  alone  is  supposed  to  know 
what  other  evidence  can  be  adduced 
to  prove  the  criminal  charge.  Ap- 
plications of  the  kind  are  not  always 
to  be  granted,  and  in  order  to  ac- 
quire the  information  necessary  to 
determine  the  question,  the  public 
prosecutor  will  grant  the  accomplice 
an  interview,  with  the  understanding 
that  any  communication  he  may  maki 
to  the  prosecutor  will  be  strictly 
confidential.  Interviews  for  the  pur 
pose  mentioned  are  for  mutual  ex- 
planation, and  do  not  absolutely  com- 
mit eitlier  party;  but  if  the  accom- 
plice is  subsequently  called  and  ex- 
amined, he  is  equally  entitled  to  a 
recommendation  for  executive  clem- 
ency. Promise  of  pardon  is  never 
given  in  such  an  interview,  nor  any 
inducement  held  out  beyond  what 
the  bcforementioned  usage  and  prac- 
tice   of   the    courts    allow. 

"  Prosecutors      in      such      a     case 


should  explain  to  the  accomplice  that 
he  is  not  obliged  to  criminate  him- 
self, and  inform  him  just  what  he 
may  reasonably  expect  in  case  he 
acts  in  good  faith,  and  testifies  fully 
and  fairly  as  to  his  own  acts  in  the 
case,  and  those  of  his  associates. 
When  he  fulfills  those  conditions 
he  is  equitably  entitled  to  a  pardon, 
and  the  prosecutor,  and  the  court 
if  need  be,  when  fully  informed 
of  the  facts,  will  join  in  such  a  re- 
commendation." 

See  also  the  following  Texas 
cases  where  it  seems  that  the  pros- 
ecuting officer  acted  after  consulta- 
tion with  tlie  court,  but  without  an 
order  of  the  court.  Bowden  v.  State, 
I  Tex.  Crim.  App.  137;  Hardin  v. 
State,  12  Tex.  Crim.  App.  186;  Cam- 
ron 
180, 

763 
7. 

Y.) 


1'.    State,    32    Tex.    Crim.    App. 
22  S.   W.  682,  40  \m.   St.  Rep. 


People  V.  Whipple.  9  Cow.  (N. 
707;  Ex  parte  Bird,  2  Gilm. 
(Va.)  134;  Rex  v.  Brunton,  R.  &  R. 
454;  Ray  V.  State,  i  Greene  (Iowa) 
31(1.  48  Am.  Dec.  379. 

8.    Judicial  Discretion .\dmitting 

an  accomplice  to  testify  against  his 
associates  involves  a  selection  be- 
tween two  or  more  persons,  one  of 
whom  is  guilty  by  his  own  con- 
fession, and  is  an  exercise  of  judi- 
cial   discretion.      People   v.   Whipple, 

g  Cow.  m.  \.^  707. 

Implied  Promise  Although  Accom- 
plice More  Guilty  Than  Was  Sup- 
posed—  If  the  court  admits  an  ac- 
complice and  he  testifies  as  agreed 
there  is  an  implied  promise,  although 
the  evidence  shows  the  accomplice 
to  be  more  guilty  than  was  supposed. 
U.   S.  V.   Hinz.  35  Fed.  272. 

Order  Necessary.  —  The  court,  in 
Wight  V.  Rindskopf.  43  Wis.  344, 
takes     the     grounil     that      the     ad- 


Vol.  I 


ACCOMPLICES.  97 

(2.)  When  Order  Should  Be  Made. —  And  the  court  sliould  not  make 
an  order  unless  it  appears  that  the  ends  of  pubHc  justice  will  be  best 
subserved  in  that  way.'-' 

2.  Evidence  Accepted  From  Necessity.  —  The  evidence  obtained 
from  the  testimony  of  such  witnesses  is  now  universally  looked  upon 


mission  of  an  accomplice  as  a 
witness  for  the  government  upon 
an  implied  promise  of  pardon  in 
any  case  is  not  at  the  pleasure  of 
the  public  prosecutor,  but  rests  in 
the  judicial  discretion  of  the  court, 
and  says ; 

"  In  a  proper  case,  it  is  doubtless 
the  duty  of  a  public  prosecutor  to 
move  for  leave  to  use  the  accom- 
plice as  a  witness.  But  there  his 
discretion  stops.  And  though  courts 
must  necessarily  trust  largely  in 
such  cases,  to  the  view  of  the  public 
prosecutor,  yet  they  do  not  lightly 
give  leave;  and  are  always  presumed 
to  exercise  their  own  judgment  in 
view  of  all  the  circumstances.  A 
public  prosecutor  may  propose  to 
an  accomplice  to  become  a  witness 
for  the  prosecution ;  but  an  agree- 
ment to  use  him  as  a  witness,  upon 
any  condition,  without  the  sanction 
of  the  court,  is  a  usurpation  of  au- 
thority, an  abuse  of  official  character 
and  a  fraud  upon  the  court." 

The  following  cases  also  hold  that 
an  order  of  court  is  necessary. 
Keech  v.  State,  15  Fla.  591 ;  State  v. 
Cook,  20  La.  .\nn.  145 ;  People  v. 
Lohman,  2  Barb.  (N.  Y.)  2i6;  State 
V.  Copperburg,  2  Strob.  (S.  C.)  273. 
In  Whitney  v.  State,  53  Neb.  287,  73 
N.  W.  6g6,  where  a  special  counsel 
had  made  an  agreement  with  the 
accomplice,  and  he  had  performed 
his  part  of  the  agreement  and  tes- 
tified in  behalf  of  the  State  against 
one  Mills,  the  court  said: 

"  The  decided  weight  of  authority 
sustains  the  doctrine  that  an  agree- 
ment to  turn  state's  evidence,  made 
with  the  prosecuting  officer  alone, 
without  the  court's  advice  or  con- 
sent, affords  the  defendant  no  pro- 
tection in  the  event  he  is  placed  on 
trial   in  violation  of  the  agreement." 

9.  Accomplice  Not  Usually  Ac- 
cepted where  more  deeply  involved 
in    crime    than    principal.      U.    S.    v. 


Hinz,  35  Fed.  272;  People  v.  Whip- 
ple, 9   Cow.    (N.   Y.)    707. 

Discretion  of  Court  Not  Always 
Governed  by  question  whether  ac- 
complice more  or  less  guilty.  U.  S. 
V.  Hinz,  3S  Fed.  272. 

In  Lindsay  v.  People,  63  N.  Y. 
143,  the  court  said: 

"  It  is  next  objected  that  Vader, 
the  confessed  accompHce  in  the  mur- 
der, was  not  a  competent  witness  for 
the  prosecution.  The  objection  is 
made  to  rest  upon  the  ground  that 
the  witness  was  a  principal,  at  least 
equally  guilty  with  the  accused  in 
the  commission  of  the  offense 
charged.  It  was  in  the  discretion 
of  the  court  of  Oyer  and  Terminer 
to  refuse  the  application  of  the  dis- 
trict attorney  to  enter  a  nolle  prose- 
qui of  the  indictment  against  'Vader, 
and  thus  deprive  The  People  of  his 
evidence,  but  the  exercise  of  that 
discretion  is  not  reviewable  upoir 
error.  Accomplices  may  in  all  cases, 
by  the  permission  of  the  court,  be 
used  by  the  government  as  witnesses 
in  bringing  tlieir  confederates  and  as- 
sociates to  punishment,  and  whether 
more  or  less  guilty  docs  not  affect 
their  competency,  but  the  extent  of 
their  guilt,  and  the  nature  of  their 
offence  go  to  their  credit  with  the 
jury.  The  rule  contended  for  by 
counsel  for  the  accused  would  ex- 
clude all  guilty  parties,  except  ac- 
cessories before  or  after  the  fact, 
or  those  who  act  under  some  duress, 
or  by  the  direction  or  under  the  in- 
fluence of  others." 

In  People  -■.  Whipple,  9  Cow.  (N. 
Y. )  707.  where  a  wife  was  indicted 
for  murdering  her  husband,  and 
Strang,  who  originated  the  plot  to 
murder,  and  liimself  actually  fired 
the  fatal  shot,  and  had  been  con- 
victed of  the  crime,  was  before  judg- 
ment offered  as  an  accomplice 
against  her,  the  court  rejected  the 
offer  and  refused  to  receive  his  tes- 
timony. 


Vol.  I 


98 


ACCOMPLICES. 


as   coming   from   a   polluted  source.     They    are   nowhere   received 
but  from  necessity  and  policy.'" 

3.  Character  As  an  Accomplice  Assumed  at  Outset.  —  Where  a 
witness  is  accepted  as  an  accomplice,  and  permitted  to  testify  under 
a  promise,  his  character  is  assumed  at  the  outset,  and  as  against 
the  state,  he  is  conclusively  presumed  to  be  an  accomplice  at  every 
stage  of  the  case  whether  so  in  fact  or  not.'' 

4.  Examination.  — A.  Refusing  to  Criminate  Self. — a.  Before 
Testifying.- — Although  the  accomplice  has  before  the  trial  admitted 
his  guilt,  yet  he  may  on  the  stand  refuse  to  criminate  himself,  but 
in  that  event  he  forfeits  his  claim  for  immunity.'^ 


10.  Not  Now  Favored.  _  United 
States. — U.  S.  v.  Lancaster,  2  Mc- 
Lean, 431,  26  Fed.  Cas.  No.  15,556; 
U.  S.  V.  Henry,  4  Wash.  428,  26  Fed. 
Cas.  No.  15,351 ;  U.  S.  v.  Troax,  3 
McLean  224,  28  Fed.  Cas.  No.  16,- 
540;  U.  S.  V.  Smith,  2  Bond  323,  27 
Fed.  Cas.  No.   16,322. 

Alabama. — Marler  v.  State,  67  Ala. 
55,  42  Am.  Rep.  95 ;  Marler  v.  State, 
68   Ala.   580. 

Colorado. — Solander  v.  People,  2 
Colo.   48. 

Connecticut.— Slate  v.  Shields,  45 
Conn,    256. 

Illinois. — Gray  v.  People,  26  111. 
344;  Earll  V.  People,  73  III.  329. 

Indiana. — Johnson  v.  State,  2  Ind. 
652;  Ayers  v.  State,  88  Ind.  275. 

/oK'O. — Ray  v.  State,  i  Greene  316, 
48  Am.   Dec.  379. 

Louisiana. — State  v.  Cook,  20  La. 
Ann.  145. 

Maine. — Moulton  v.  Moulton,  13 
Me.  no;  Sinclair  i'.  Jackson,  47  Me. 
102,    74   Am.    Dec.   476. 

Montana. — Territory  v.  Corbett,  3 
Mont.   50. 

New  York. — People  v.  Costello,  i 
Denio  83 ;  People  t>.  Lohman,  2 
Barb.    216. 

Ohio. — Noland    v.    State,    19    Ohio 

131- 

In  People  v.  Whipple,  9  Cow.  (N. 
Y.)  707,  the  court  said:  "The  evi- 
dence of  accomplices  has  at  all  times 
been  admitted,  either  from  a  princi- 
ple of  public  policy,  or  from  judicial 
necessity,  or  from  both.  They  are, 
no  doubt,  requisite  as  witnesses  in 
particular  cases ;  but  it  has  been  well 
observed,  that  in  a  regular  system  of 
administrative  justice,  they  are  liable 
to  great  objections.  'The  law,'  says 
one    of   the    ablest    and    most    useful 

Vol.  I 


modern  writers  upon  criminal  juris- 
prudence, '  confesses  its  weakness, 
by  calling  in  the  assistance  of  those 
by  whom  it  has  been  broken.  It 
offers  a  premium  to  treachery  and 
destroys  the  last  virtue  which  clings 
to  the  degraded  transgressor.  On 
the  other  hand,  it  tends  to  prevent 
any  extensive  agreement  among 
atrocious  criminals,  makes  them  per- 
petually suspicious  of  each  other, 
and  prevents  the  hopelessnes ;  of 
mercy  from  rendering  them  desper- 
ate." 

Has  Been  Favored  In  England. 
In  Ray  v.  State,  i  Greene  (Iowa) 
316,  48  Am.  Dec.  379,  it  is  said  that 
courts  in  England  have  in  some  in- 
stances regarded  this  class  of  ac- 
complices with   favor. 

11.  Admission  of  Character  Con- 
clusive  In    Com.    V.    Desmond,    5 

Gray  (Mass.)  80,  the  court  says: 
"  The  bill  of  exceptions  shows  that 
the  counsel  for  the  Commonwealth 
assumed  and  claimed  that  Healy,  the 
witness,  was  an  accomplice.  He  was 
offered  as  such,  and  from  the  facts 
reported  it  would  seem  rightly. 
But  whether  this  were  so  or  not  ihe 
admission  of  the  fact  in  court  by  the 
district  attorney  for  the  purposes  of 
the  trial  was,  as  against  the  govern- 
ment, conclusive  evidence  of  such 
fact." 

12.  Forfeits  Right.  _  In  U.  S.  v. 
Hinz,  35  Fed.  272,  the  accomplice, 
Hinz,  having  testified  fully  before 
the  grand  jury,  afterwards  refused 
to  go  on  the  stand  as  a  witness,  and 
by  so  doing  compelled  the  prosecut- 
ing attorney  to  seek  other  evidence 
and  grant  immunity  to  another  con- 
spirator. By  this  action  it  was  held 
that   he   forfeited   all   right   equitable 


ACCOMPLICES. 


99 


b.  After  Testifying.  ■ —  But  if  he  testifies  to  his  own  guilt  on  the 
examination  in  chief,  the  privilege  is  no  longer  of  any  value,  and  he 
can  not  claim  it  on  cross-examination.^^ 

c.  As  to  Other  Crimes  — As  the  implied  promise  concerning  the 
pardon  does  not  extend  to  other  crimes  than  that  for  which  the 
defendant  is  on  trial,  the  accomplice  does  not  forfeit  his  right  under 
such  promise  by  refusing  to  testify  as  to  his  own  guilt  of  other 
crimes.'* 

6.  Corroboration. — A.  When  Not  Required.  —  a.  Accomplice 
Not  IVithoiit  Credit. — Although  the  accomplice  being  guilty  is  in 
a  measure  an  impeached  witness,  yet  he  is  not  for  that  reason  alone 
wholly  without  credit." 


or    otherwise,    to    immunity    or    len- 
iency. 

Statements  Elsewhere  Do  Not 
Waive  Privilege.  —  In  Overend  v. 
San  Francisco  Superior  Court,  131 
Cal.  280,  63  Pac.  372,  the  court  said : 
"  It  appears  that  the  tri.il  court  based 
its  judgments  of  contempt  largely 
upon  the  ground  that  the  witness 
had  without  objection,  testified  at 
the  preliminary  examination  of  Min- 
nie Campbell,  and  for  that  reason 
had  waived  his  right  to "  refuse  to 
testify  at  the  trial  upon  the  ground 
that  his  evidence  would  tend  to  con- 
vict him  of  a  felony.  The  position 
of  the  court  in  this  regard  is  unten- 
able. The  question  of  waiving  the 
privilege  is  discussed  and  decided  in 
Temple  v.  Com.,  75  Va.  896,  and 
Cullen's  Case,  24  Gratt.  624.  It  is 
said  in  those  cases  that  the  witnesses' 
statements  have  nothing  to  do  with 
the  question." 

13.  Minnesota.  —  State  v.  Nichols, 
29  Minn.  357,  13  N.  W.  153. 

Mississippi,  —  Jones  v.  State,  65 
Miss.  179,  3  So.  379. 

New  Hampshire.  —  Amherst  v. 
Mollis,  9  N.  H.  107. 

Neti.'  York.  —  People  v.  Lehman,  2 
Barb.  216. 

Cannot  Refnse  to  Answer —  In 
Foster  V.  People,  18  Mich.  266, 
where  the  question  was  whether  the 
accomplice,  after  voluntarily  under- 
taking to  explain  the  transactions 
connected  with  the  larceny,  and  the 
disposition  of  the  property  involved 
in  the  charge  on  trial,  and  after 
answering  fully  the  direct  question- 
ing of  the  prosecution,  and  unequivo- 
cally criminating  himself  to  the  ex- 
tent  of   complete   legal   guilt   of   lar- 


ceny of  that  property,  can  then  re- 
fuse to  answer  further  and  be  pro- 
tected against  further  disclosures 
relating  to  the  same  transactions, 
the  court  holding  that  he  could  not 
be  so  protected,  said : 

"  It  would  certainly  lead  to  most 
startling  results  if  an  accomplice, 
who  has  made  out  a  clear  showing 
of  a  prisoner's  guilt,  and  has,  in 
doing  so,  criminated  himself  to  an 
equal  degree,  could  refuse  to  have 
his  veracity,  or  fairness,  or  bias,  or 
corruption,  tested  by  a  cross-exam- 
ination, and  yet  be  allowed  to  stand 
before  court  and  jury  on  the  same 
footing  with  any  other  witness  who 
has  been  perfectly  candid,  but  who 
may  have  been  convicted  of  a  similar 
felony.     .     .     . 

"  Accordingly,  where  a  witness  has 
voluntarily  answered  as  to  material 
criminating  facts,  it  is  held  with  uni- 
formity that  he  cannot  then  stop 
short  and  refuse  further  explanation, 
but  must  disclose  fully  what  he  has 
attempted  to  relate.  This  view  is 
adopted  by  the  text_  writers,  and  is 
very  well  explained  in  several  of  the 
authorities,  where  the  principle  is 
laid   down  and   enforced." 

14.  When  May  Claim  His  Priv- 
ilege  In     Pitcher    v.     People,     16 

Mich,  142,  the  court  said :  "No  man 
can  be  made  a  witness  to  testify  to 
his  own  crimes  except  by  his  own 
consent;  and  consent  i"  testify  as  to 
one  transaction  does  not  entitle 
either  the  government  or  the  defense 
to  make  the  examination  inquisito- 
rial, and  thereby  obtain  evidence 
which  might  be  used  against  him  in 
future  prosecutions." 

15.  Extent   of  Credit. —  In   State 

Vol.  I 


100 


ACCOMPLICES. 


b.  In  Absence  of  Statute.  —  Where  there  is  no  statute  on  the 
subject,  a  conviction  on  the  uncorroborated  testimon)-  of  an  accom- 
plice is  valid.'" 

c.  Statutes  Requiring  Corroboration.  —  JJy  statute  in  some  states, 
the  common  law  rule  that  a  defendant  can  be  legally  convicted  on 
the  uncorroborated  testimony  of  an  accomplice  has  been  changed. ^''^ 

B.  Judge  Advising  Jury.  —  a.  Common  L,aiv. — While  admitting 
that  a  verdict  of  guilty,  based  upon  the  uncorroborated  testimony 
of  an  accomplice  is  valid,  yet  courts  have  always  looked  upon  such 
evidence  with  distrust,  and  have  from  a  very  early  time  usually 
advised  the  jury,  that  unless  the  accomplice  is  corroborated  it  is 
safer  to  acquit.'* 

Georgia. — Parsons  r'.  State.  43  Ga. 
197;  Phillips  V.  State,  34  Ga.  502. 

////(lou.— Collins  V.  State,  98  III 
584,  38  Am.  Rep.  105 ;  Earll  v.  Peo- 
ple, 73  III.  329;  Gray  v.  People,  26 
111.  344;  Cross  V.  People,  47  111.  152, 
95  Am.  Dec.  474. 

Indiana. — Johnson  v.  State,  2  Ind. 
652 ;  Ayers  v.  State,  88  Ind.  275 ; 
Stocking  V.  State,  7  Ind.  326. 

lo'^i'a. — State  v.  Schlagel,  19  Iowa 
169. 

Louisianlt. — State  v.  Cook,  20  La. 
Ann.   145. 

Maine. — State  v.  Litchfield,  58  Me. 
267. 

Miclngan. — Foster 
Mich.  266. 

Mississiffi.  —  Dick 
Miss.   593. 

Missouri. — State     1 
.Mo.  361. 

Nebraska. — State  1'. 
481,  35  N.  W.  219. 

Nc7V  York. — People  v.  Haynes,  55 
P.arh.  450. 

Oliio.—hee   V.    Slate,   21    Ohio    St. 

151. 

South  Carolina. — State  r.  Brown, 
3  Strob.  508. 

Te.vas.— Lopez    v.    State.    34    Tex. 

13.3. 

PVni!. III/. —State  ?'.   Potter.  42   Vt. 

40.S- 

17.  People  r.  .\mes.  39  Cal.  403  ; 
People  r.  Melvane,  39  Cal.  614;  Peo- 
ple 7'.  Cloonan,  50  Cal.  449;  People 
V.  Farrell,  30  Cal.  316;  People  v. 
Smith,  98  Cal.  218,  33  P^c.  58; 
Moses  V.  State,  58  .-Ma.  117;  Smith 
7'.  State,  59  Ala.  104;  Lumpkin  v. 
State,  68  Ala.  56;  Marler  r.  State,  6; 
.\la.   S';,  42  .^m.  Rep.  05- 

18.'   Practice   Generally   Observed. 


V.  Wolcott,  21  Conn.  272,  the  court 
said  :  "  The  testimony  of  an  accom- 
plice is  admissible  and,  of  course,  to 
some  extent,  is  presumed  to  be  credi- 
ble. The  law  would  not  admit  proof 
which  it  had  decided  a  priori  should 
not  be  believed  when  admitted." 
Craft  V.  State,  3  Kan.  450;  People  v. 
Costello,  I  Denio  (N.  Y.)  83;  Peo- 
ple V.  Lee,  2  Utah  441. 

16.  Conviction  Held  Valid. 
England.  —  Rex.  i>.  Boyes,  i  B,  ui  S. 
311,  1 01  Eng.  C.  L.  309. 

Illinois.  —  Cross  r'.  People,  47  111. 
152,  95  Am.  Dec.  474. 

Missouri.  —  State  v.  Crab,  121  Mo. 
554,  26  S.  W.  548;  State  v.  Harkins, 
100  Mo.  666,  13  S  W.  830;  State  v. 
Jackson,   106  Mo.   174,  17  S.  W.  301. 

Nezi'  York.  —  People  v.  Costello,  i 
Denio  83 ;  Dunn  i'.  People,  29  N.  Y. 
523,  86  Am.  Dec.  319;  Haskins  v. 
People,  16  N.  Y.  344;  People  v. 
Haynes.  38  How.   Pr.  369. 

No  Positive  Rule  for  Corrobora- 
tion   at    Common    taw Canada.  — 

Reg.  V.  Fellowes,  19  U.  C.  Q.  B.  48. 

United  States. — U.  S.  t'.  Flenmiing, 
18  Fed.  907;  Steinhau  v.  U.  S.,  2 
Paine  168,  22  Fed.  Cas.  No.  13,355; 
U.  S.  V.  McKee,  3  Dill.  546,  26  Fed. 
Cas.  No.  15,685. 

.'irkansas. — McKenzic 
Ark.  636. 

California. — People   7' 
Cal.  622. 

Colorado. — Solander 
Colo.  48. 

Connectieut. — State  "' 
Conn.     272 ;     State    v. 
Conn.   463,   79  Am.   Dec.   223;    State 
7'.  Williamson,  42  Conn.  261. 

florida.Sumpler  v.  State.  11  Fla. 
247. 

Vol.  I 


18 


30 


V.     People, 
V.     State, 

Watson,     31 
SnefT,  22  Neb. 


',:    State,   24 

Garnett,   29 

'.    People,    2 

Wolcott,  21 
Stebbins,    29 


ACCOMPLICES. 


101 


b.  General  Practice  in  Absence  of  Statutes  — The  general  prac- 
tice now,  where  the  suljject  is  not  regulated  by  statute,  is  to  advise 
the  jury  not  to  convict  unless  the  testimony  is  corroborated.'" 

c.  Discretion  of  Court.  —  But  the  authorities  are  not  uniform  as 
to  how  far  the  giving  of  the  advice  is  in  the  discretion  of  the  court. ^° 


In  Reg.  V.  Farler,  8  Car.  &  P.  io6, 
34  Eng.  C.  L.  314,  Lord  Abinger,  C. 
B.,  said :  "  It  is  a  practice  which 
deserves  all  the  reverence  of  law, 
that  judges  have  uniformly  told 
juries  that  they  ought  not  to  pay  any 
respect  to  the  testimony  of  an  ac- 
complice unless  the  accomplice  is 
corroborated  in  some  material  cir- 
cumstance." State  7'.  Potter,  42  Vt. 
495 ;  Collins  V.  People,  98  111.  584,  38 
Am.  Rep.  105. 

19.  Omission  to  Advise  an  Omis- 
sion of  Duty.  —  In  Solander  v.  Peo- 
ple, 2  Colo.  48,  the  court  said : 
"  Courts  will  in  their  discretion  ad- 
vise a  jury  not  to  convict  of  a  felony 
upon  the  testimony  of  an  accomplice 
alone  and  without  corroboration,  and 
it  is  now  so  generally  the  practice  to 
give  them  such  advice  that  its  omis- 
sion would  be  regarded  as  an  omis- 
sion of  duty  on  the  part  of  the 
judge."  Com.  v.  Boswortb,  22  Pick. 
(Mass.)  397.  See  also  State  v. 
Coldman,  (N.  J.,)  47  Atl.  641;  State 
V.  Concannon,  (Wash.,)  69  Pac.  534; 
Smith  I'.  State  (Wyo.,)  67  Pac.  977; 
Reg.  •;■.  Beckwith,  8  U.  C.  C.  P. 
(Can.)    274. 

20.  Kegardless  of  Request. 
Other  cases  hold  that  advising  the 
jury  is  altogether  in  the  discretion  of 
the  court  whether   requested  or  not 

Colorado. — Solander  v.  State,  2 
Colo.  48;  Wisdom  v.  People,  11 
Colo.  170,  17  Pac.  519. 

Connecticut. — State  v.  Maney,  54 
Conn.   178,  6  Atl.  401. 

F/onrfa.— Keecher  v.  State,  15  Fla, 

591- 

///i«ow.— Collins  v.  People,  98  111. 
584,  38  Am.  Rep.  105;  Earll  v.  Peo- 
ple, 73  111  329- 

Indiana.  —  Stocking  v.  State,  7 
Ind.  326. 

Massachusetts.— Com.  v.  Larrabee. 
99  Mass.  413;  Com.  v.  Clune,  162 
Mass.  206,  38  N.  E.  435;  Com.  v. 
Savory,  10  Cush.  535- 

Minnesota.— State  v.  McCartey,  17 
Minn.  76. 


Mississippi. — George  i>.  State,  39 
Miss.  570;  Strawhern  v.  State,  37 
Miss.  422;  Lee  v.  State,  51  Miss.  566; 
White  V.  State,  52  Miss.  216;  Fitz- 
cock  V.  State,  52  Miss.  923. 

Nebrasl!a.—C3.rTol\  v.  State,  5  Neb. 

31- 

Neii'  York. — Lindsay  v.  People,  63 
N.  Y.  143 ;  People  v.  Costello,  i 
Denio  83. 

0/iio.— Allen  v.  State,  10  Ohio  St. 
288;  Brown  v.  State,  18  Ohio  St.  497. 

Vermont. — State  v.   Potter,  42  Vt. 

495- 

JVest  Virginia.  —  State  v.  Betsall, 
II  W.  Va.  703. 

Request  Not  Necessary —  Cases 
in  which  it  is  held  that  advice  or 
instruction  is  necessary  whether  re- 
quested or  not,  and  the  neglect  to 
give  it,  reversible  error. 

Connecticut. — State  v.  Stebbins,  29 
Conn.  463,  79  Am.  Dec.  223. 

Iowa.  —  Ray  v.  State,  i  Greene  316, 
48  Am.  Dec.  379. 

Massachusetts. — Com.  v.  Boswortb, 
22   Pick.   397. 

Missouri. — State  v.   Jones,   64   Mo. 

391- 

r^'.fo.s.— .Parr  v.  State,  36  Tex. 
Crim.  App.  493,  38  S.  W.  180;  Winn 
V.  State,  IS  Tex.  App.  169;  Howell 
V.  State,  16  Tex.  App.  93;  Stone  v. 
State,  22  Tex.  App.  185,  2  S.  W.  585 ; 
Boren  v.  State,  23  Tex.  App.  28,  4 
S.  W.  463;  Boyd  V.  State,  24  Tex. 
App.  570,  6  S.  W.  853.  S  Am.  St. 
Rep.  908;  Wicks  v.  State,  28  Tex. 
App.  448,  13  S.  W.  748;  Owens  v. 
State,  (Tex.  Crim.  App.,)  20  S.  W. 
558;  Stewart  v.  State,  35  Tex.  Crim. 
App.  174,  32  S.  W.  766,  60  Am.  St. 
Rep.  35;  Martin  v.  State,  36  Tex. 
Crim.  App.  632,  ,?6  S.  W.  587;  Co- 
burn  V.  State,  36  Tex.  Crim.  App. 
257,  36  S.  W.  442;  Brown  v.  State, 
(Tex.  Crim.  App.,)  20  S.  W.  924; 
White  V.  State  (Tex.  Crim.  App.,) 
62   S.   W.   749- 

Rule  Stated.  —  In  State  v.  Jack- 
son, 106  Mo.  174,  17  S.  W.  301,  the 
trial    court    instructed    the    jury   that 

Vol.  I 


102 


ACCOMPLICES. 


d.  Verdict  of  Guilty  Notwithstanding  Advice.  —  Such  charge  is 
in  the  nature  of  advice,  and  the  jury  may  nevertheless  render  a 
verdict  of  guilty.-' 

C.  Jury  Misled.  —  Even  in  jurisdictions  where  a  jury  may  ren- 
der a  verdict  upon  the  uncorroborated  testimony  of  an  accomplice, 
if  they  have  been  or  may  have  been  led  to  believe  that  such  testi- 
mony has  been  corroborated  when  the  evidence  is  not  legally  suffi- 
cient for  that  purpose,  a  verdict  of  guilty  will  be  set  aside.-- 

D.  Instructions  Under  Statute.  —  Where  by  statute  it  has 
become  necessary  to  the  validity  of  the  verdict  that  the  testimony 
of  the  accomplice  should  be  corroborated,  the  charge  of  the  court 
constitutes  an  instruction  and  not  mere  advice,  and  must  be  fol- 
lowed.''^ 


the  defendant  could  not  be  convicted 
.  on  the  testimony  of  the  accomplice 
without  corroboration,  and  the  court 
stated  the  true  rule  to  be  tl.at  "  a 
conviction  can  be  had  upon  the  tes- 
timony of  an  accomplice,  if  the  jury, 
after  being  duly  cautioned  by  the 
court,  is  fully  satisfied  that  his  tes- 
timony is  true."  State  v.  Koplan, 
(Mo.,)    66   S.   W.   967- 

Duty  of  Court  to  Give  Caution. 
The  court  reversing  judgment  of 
conviction  in  Parr  v.  State,  36  Tex. 
Crim.  App.  493,  38  S.  W.  180,  says : 
"  Regardless  of  any  e-xceptions  taken 
at  the  time,  if  there  was  testimony 
tending  to  show  that  any  of  the 
witnesses  upon  whom  the  state  relied 
for  a  conviction,  were  accomplices, 
it  was  the  duty  of  the  court  to  give 
in  charge  to  the  jury  the  rule  gov- 
erning accomplices."  See  Winn  v. 
State,  15  Tex.  App.  169;  Howell  v. 
State,  16  Tex.  App.  93;  Stone  v. 
State,  22  Tex.  App.  185,  2  S.  W.  585 ; 
Bowen  v.   State,  23  Tex.  App.  28,  4 

S.  W.  463. 
Duty    to    Advise    TIpon    Request. 

In  other  cases  it  is  held  that  if  the 
court  refuses  to  give  the  advise  upon 
being  requesed  to  do  so,  it  is  reversi- 
ble error.  Hoyt  v.  People,  140  111. 
588,  30  N.  E.  31S.  16  L.  R.  A.  239; 
Sullivan  v.  State,  75  Wis.  659,  44  N. 
W.  647. 

21.  It  Is  a  Question  for  the  Jury. 
People  V.  Haynes,  38  How.  Pr.  (N. 
Y.)  369;  State  V.  Litchfield,  58  Me. 
267;  People  V.  Costello,  i  Denio  (N. 
Y.)  83;  Com.  V.  Bosworth,  22  Pick. 
(Mass.)  397;  People  v.  Hare,  57 
Mich.   505,   24   N.   W.  843;   State   v. 

Vol.  I 


Harras,  (Wash.,)  65  Pac.  774; 
Myers  v.  State,  (Fla.,)  31  So.  275. 

22.  Evidence  Improperly  Admit- 
ted  In      Com.      V.      Holmes,      127 

Mass.  424,  34  Am.  Rep.  391,  it  was 
said :  "  The  decision  in  Common- 
wealth V.  Bosworth,  22  Pick.  397, 
has  for  forty  years  been  treated  as 
settling  that,  if  evidence  is  admitted 
for  the  purpose  of  so  far  corroborat- 
ing the  testimony  of  an  accomplice 
as  to  make  it  safe  for  a  jury  to  con- 
vict, which  is  not  legally  to  be  con- 
sidered as  corroborative  in  that 
sense,  the  error  may  be  revised  by 
bill  of  exceptions.  Com.  v.  Des- 
mond, S  Gray  80;  Com.  v.  Savory, 
10  Cush.  5'35,  538 ;  Com.  v.  Larrabee, 
1)9  Mass.  413,  416." 

23.  Must  Be  Followed —  People 
V.  Ronney,  98  Cal.  278,  a  Pac.  98; 
Craft  V.  Com.,  80  Ky.  349. 

Under  What  Circumstances  In- 
structions Should  Be  Given Cal- 
ifornia.—In  People  V.  O'Brien,  96 
Cal.  171,  31  Pac.  45,  it  was  held  not 
proper  to  give  the  instruction  where 
the  witness  is  for  the  defense. 

In  People  v.  Bonney,  98  Cal.  278. 
a  Pac.  98,  where  the  witness  was 
for  the  people,  it  was  held  a  proper 
occasion  for  the  instruction  when 
the  crime  can  only  be  established  by 
means  of  the  testimony  of  an  accom- 
plice. People  V.  Strybe,  (Cal.,)  36 
Pac.  3- 

Kentucky.— In  Craft  v.  Com..  80 
Ky.  349,  it  is  held  the  duly  of  the 
court  to  instrvict  the  jury  to  acquit 
when  there  are  no  corroborating  cir- 
cumstances. The  testimony  of  an 
accomplice      cannot     be      considered 


ACCOMPLICES. 


103 


E.  W  iiAT  Is  CoRKUBOKATioN.  —  a.  Definition.  —  Legal  corrobo- 
ration, when  applied  to  accomplices,  consists  of  independent  evi- 
dence, tending  to  support  their  testimony.-* 

b.  One  Accomplice  Cannot  Corroborate  Another.  —  Such  facts 
cannot   be   established   by   other   accomplices"'*    unless   they    are   so 


as  a  factor  in  the  problem  of  guilt 
or  innocence,  until  the  jury  first  de- 
termines that  the  other  evidence 
heard  proves  the  existence  of  corrob- 
orative facts.  If  the  evidence 
claimed  to  be  corroborative  does  not 
tend,  when  its  truth  is  admitted,  to 
this  end,  it  is  the  duty  of  the  court 
to  exclude  it;  but  by  its  admission 
the  court  does  not  pass  upon  its 
truth,  and  the  court  should  instruct 
for,  by  failure  to  do  so,  the  jury  is 
permitted  to  consider  the  evidence  of 
an  accomplice  as  they  would  any 
other  evidence. 

In  Taylor  v.  Com.,  lo  Ky.  Law 
169,  8  S.  VV.  461,  where  a  conviction 
was  had  principally,  if  not  wholly, 
upon  the  testimony  of  an  acknowl- 
edged accomplice,  the  court  in- 
structed that  a  conviction  cannot  be 
had  upon  testimony  of  an  accom- 
plice unless  corroborated  by  other 
evidence  tending  to  connect  the  de- 
fendant with  the  commission  of  the 
offense,  but  did  not  instruct,  as  re- 
quired by  §241  of  the  Criminal 
Code  that  "  the  corroboration  is  not 
sufficient  if  it  merely  shows  that  the 
offense  was  committed  and  the  cir- 
cumstances thereof."  It  was  held 
that  the  defendant  was  entitled  to  an 
instruction  given  in  the  language  of 
the  Code. 

Smith  V.  State,  42  Tex.  394; 
Boren  v.  State,  23  Tex.  App.  28,  4 
S.  W.  463;  Roach  V.  State,  4  Tex. 
App.  46;  Irvin  v.  State,  i  Tex.  App. 
301 ;  Davis  v.  State,  2  Tex.  App.  588; 
Coffelt  V.  State,  19  Tex.  App.  436. 
Held,  that  instruction  on  this  subject 
must  be  given  where  applicable 
whether  asked  or  not.  Brace  v. 
State,  (Tex.  Crim.  App.,)  62  S.  W. 
1067. 

24.  In  People  v.  Elliott,  5  N.  Y. 
Crim.  204,  it  is  said  that  "  to  suffi- 
ciently corroborate  the  testimony  of 
the  accomplice  there  should  be  some 
fact  testified  to  entirely  independent  of 
the  accomplice's  evidence  which, 
taken  by  itself,  leads  to  the  inference 


not  only  that  a  crime  has  been  com- 
mitted, but  that  the  defendant  is 
implicated  in  it."  State  v.  McLain, 
159  Mo.  340,  60  S.  W.  736;  Com.  V. 
Holmes,  127  Mass.  424,  34  Am.  Rep. 
391.  See  re  Monteith,  10  Ont.  (Can.) 

529- 

25.  Testimony  of  Accomplice 
Must  Be  Corroborated In  John- 
son V.  State,  4  Greene  (Iowa)  65, 
the  court  said:  "  It  is  just  as  neces- 
sary that  the  corroborating  witness 
should  be  strengthened  and  con- 
firmed as  that  the  principal  one 
should  be,  and  however  abundant 
their  kind  of  testimony,  the  accom- 
plice first  called  in  is  still  uncorrobo- 
rated, and  his  testiinony  entitled  to 
no  credit.  The  law  regards  accom- 
plices in  cases  of  felony,  when  called 
to  testify,  as  impeached  witnesses, 
and  hence  their  testimony  is  of  no 
effect  unless  confirmed  by  other  tes- 
timony. As  one  impeached  witness 
cannot'  support  the  testimony  of  a 
witness  previously  impeached,  it  fol- 
lows that  one  accomplice  cannot  be 
a  witness  to  corroborate  the  testi- 
mony of  another  accomplice  in  the 
same  crime."  State  v.  Williamson. 
42  Conn.  261 ;  Porter  v.  Com.,  22 
Ky.  Law  1657,  61  S.  W.  16;  Howard 
V.  Com.,  22  Ky.  Law  1845,  61  S.  W. 
756;  Powers  V.  Com.,  22  Ky.  Law 
1807,  61  S.  W.  735,  S3  L.  R.  A.  245. 

Court  Should  Instruct —  In  Whit- 
low V.  State,  (Tex.  Crim.  App.,)  8 
S.  W.  86s,  the  defendant  asked  the 
court  to  instruct  that,  "  if  the  jury 
believed  that  either  or  all  the  Kyle 
witnesses  were  accomplices  in  the 
commission  of  the  offense  charged, 
they  cannot  corroborate  each  other; 
and  though  their  testimony  may 
agree,  yet  if  they  are  accomplices, 
such  corroboration  is  not  sufficieiit. 
It  was  held  that  the  court  erred  in 
refusing  to  give  the  instruction. 

In  McConnell  v.  State,  (Tex. 
App.,)  18  S.  W.  645,  the  conviction 
was  reversed  because  the  trial  court 
omitted  to  instruct  the  jury  that  one 

Vol.  I 


104 


ACCOMPLICES. 


situated  as  to  negative  the  idea  of  collusion.-" 

c.  Not  Aided  by  Testimony  of  Accomplice.  —  The  corroborative 
evidence  must  of  itself,  and  without  the  aid  of  the  testimony  of  the 
accomplice,  tend  in  some  degree  to  connect  the  defendant  with  the 
commission  of  the  ofiEense ;  and  independent  evidence  merely  con- 
sistent with  the  main  story  is  not  sufficient  corroboration  if  it 
requires  any  part  of  the  accomplice's  testimony  to  make  it  tend  to 
connect  the  defendant  with  the  crime.'" 

d.  Need  Not  Be  SufRcicnt  to  Convict.  —  It  need  not  of  itself  be 
sufficient  to  establish  his  guilt. ^^ 

e.  What  Is  Sufficient.  —  There  must  be  some  evidence,  which  of 
itself,  and  without  aid  from  the  accomplice's  testimony,  tends  to 
connect  the  defendant  with  the  offense  committed.-" 


accomplice     could     not     corroborate 
another. 

26.  Circumstances  Negative  Con- 
nivance — In  Reg.  v.  Aylmer,  i  Craw. 
&  Dix  (Irish)  Crim.,  Bush.,  C.  J., 
said :  "  If  in  this  case  there  could 
have  been  no  communication  between 
the  approvers,  the  testimony  of  one 
of  them  might  be  brought  forward 
to  support  the  testimony  of  the 
other.  This  was  done  in  the  case  of 
the  Wild  Goose  Lodge,  where  the 
approvers  had  been  confined  in  sepa- 
rate gaols  so  that  there  could  have 
been  no  communication  between 
them." 

27.  Facts  Stated   By   Accomplices 

Will  Not  Help  Corroboration Han- 

nahan  i>.   State,  7  Te.x.  App.  664. 

In  Chambers  v.  State,  (Tex.  Crim. 
'Kpp.,)  44  S.  W.  495,  the  court  says: 
"  It  makes  not  the  slightest  differ- 
ence how  thorough  the  corroboration 
of  the  accomplice  may  be  in  regard 
to  facts  related  by  him,  yet  unless 
there  is  some  proof,  independent  of 
his  testimony,  tending  to  connect  the 
defendant  with  the  commission  of 
the  crime,  there  is  no  sufficient  cor- 
roboration." 

28.  Malachi  v.  State,  89  Ala.  134, 
8  So.  104;  Vaughan  v.  Stale,  58 
Ark.  353,  24  S.  W.  885 ;  Williams  v. 
State.  69  Ga.  i  i ;  Watson  r.  State,  9 
Tex.  Crim.  App.  237;  State  v. 
Clements,  82  Minn.  434,  85  N.  W. 
229;  Chapman  7'.  State.  112  Ga.  56, 
37  S.  E.  102 ;  State  v.  Stevenson 
(Mont.),  67   Pac.   looi. 

In  Malachi  v.  State,  89  Ala.  T34,  8 
So.  104.  the  court  said,  "  that  the 
finding  of  an   overcoat  belonging  to 

Vol.  I 


a  murdered  man  in  the  hands  of  the 
defendant  inore  than  three  months 
after  the  homicide  was  not  sufficient 
evidence  to  convict,  but  it  is 
sufficient  to  meet  the  requirements  of 
the  statute  as  to  corroboration.  It 
is  not  required  that  of  itself  it  should 
establish  the  guilt  of  the  accused :  to 
require  that  would  be  to  render  the 
testimony  of  the  accoinplice  unneces- 
sary and  redundant." 

29.  Canada. — Reg.  v  Fellowes,  19 
U.  C.  Q.  B.   (Can.)  48. 

Alabama.  —  Malachi  v.  State,  89 
.\la.  134,  8  So.  104. 

Georgia. — Chapman  v.  State,  112 
Ga.  56,  37  S.  E.  102. 

Io7va. — State  v.  Allen,  57  Iowa 
431,  10  N.  W.  805;  State  V.  Hen- 
nessy,   55  Iowa  299,  7   N.   W.  641. 

Minnesota. — State  z'.  Clements,  82 
Minn.  434,  85  N.  W.  229;  State  v. 
I.awlor.  28  Minn.  216,  9  N.  W.  678. 

Missouri. — State  v.  Koplan,  (Mo.,) 
66  S.  W.  967- 

Montana.  —  State  v.  Stevenson, 
I  Mont.)  67  Pac.  lOOi. 

New  York.— 'Peop\e  v.  Elliott,  106 
N.  Y.  288,  12  N.  E.  602;  People  v. 
Ogle.  104  N.  Y.  Sii.  II  N.  E.  53: 
People  V.  Plath,  100  N.  Y.  590,  3  N. 
E.  790;  People  V.  Everhardt,  104  N. 
Y.  591.  II  N.  E.  62;  People  v.  rfut- 
Icr.  62  .^pp.  Div.  508,  71  N.  Y.  Supp. 
129. 

In  Malachi  v.  State.  89  Ala.  1.34, 
8  So.  104,  possession,  three  months 
after  a  murder,  of  an  overcoat 
claimed  to  have  belonged  to  a  mur- 
dered man,  was  relied  upon  as  cor- 
roborative evidence.  The  court  said: 
"  Tf    the   only   testimony   against    the 

1  -"1 


ACCOMPLICES. 


105 


f.  As  to  N oil-Essential  Matters.  —  Evidence  which  merely  shows 
that  the  testimony  of  the  accomplice  is  consistent  with  the  truth  in 
regard  to  matters  not  essential,  and  unconnected  with  the  body  of  the 
crime,  is  not  corroboration.^" 

gf.  The  Corpus  Delicti.  —  The  law  requires  corroboration  as  to 
the  circumstances  of  the  crime  tending  to  show  that  a  crime  was 
actually  committed.'^ 


defendant  was  the  finding  of  the 
overcoat  in  his  possession  more  than 
ihree  months  after  the  homicide,  we 
should  think  it  wholly  insufficient  to 
justify  his  conviction  of  the  murder. 
That  is  not,  however,  the  form  in 
which  the  question  comes  before  us. 
It  is  offered  not  as  sole  evidence  of 
guilt,  but  as  corroboration  of  the  tes- 
timony of  Elzy,  the  accomplice."  It 
was  therefore  held  that  the  evidence 
was  properly  submitted  to  the  jury 
as  corroboration. 

In  People  v.  Ogle,  104  N.  Y.  511, 
II  N.  E.  53,  the  court  was  asked  to 
charge  in  relation  to  the  acts  neces- 
sary for  the  corroboration  of  an  ac- 
complice, "  that  they  must  be  incon- 
sistent with  the  innocence  of  the 
defendant,  and  which  exclude  every 
hypothesis  but  that  of  guilt."  The 
court  refused  and  counsel  excepted. 
In  this  the  court  was  clearly  right. 
There  is  not  and  never  was  any  such 
rule  as  to  corroboration.  The  whole 
law  of  evidence  will  be  searched  in 
vain  for  it.  The  authorities  cited  by 
prisoners'  counsel  maintain  no  such 
rule.  The  rule  is  stated  in  one  of 
them  (People  v.  Plath,  100  N.  Y. 
590,  3  N.  E.  790,)  and  is  wholly  dif- 
ferent from  the  request  herein  made. 
It  only  requires  a  corroboration  as 
to  some  material  fact  which  goes  to 
prove  the  prisoner  was  connected 
with  the  crime."  People  v.  Ardell, 
("Cal.,)  66  Pac.  970;  State  v.  Jones. 
anwa.~)  88  N.  W.  196. 

30.  Must  Relate  to  Matters  Ma- 
terial to  the  Issue —  Frazer  v. 
People,  54  Barb.  (N.  Y.)  306;  Peo- 
ple V.  Plath,  100  N.  Y.  590,  3  N.  E. 
790;  People  V.  Josselyn,  39  Cal.  393; 
Com.  V.  Holmes,  127  Mass.  424,  34 
-\m.  Rep.  391 ;  Com.  z'.  Bosworth,  22 
Pick.    (Mass.')    ,397. 

Must  Corroborate  Material  Matter. 
The  court,  in  Com.  i'.  Bosworth,  22 
Pick.  (Mass.)  397.  said:  "We  think 
the    rule    is.    that    the    corroborative 


evidence  must  relate  to  some  portion 
of  the  testimony  which  is  material 
to  the  issue.  To  prove  that  an  ac- 
complice had  told  the  truth  in  rela- 
tion to  irrelevant  and  immaterial 
matters  which  were  known  to  every- 
body, would  have  no  tendency  to 
confirm  his  testimony  involving  the 
guilt  of  the  party  on  trial.  If  this 
were  the  case,  every  witness,  not  in- 
competent for  the  want  of  under- 
standing, could  always  furnish  mate- 
rials for  the  corroboration  of  his 
own    testimony. 

"  The  inquiry  of  the  accomplice 
by  the  defendant's  counsel,  whether 
he  had  been  offered  a  reward  or 
promised  an  indemnity,  were  rele- 
vant questions,  and  the  answers  to 
them  became  material  evidence.  We 
are  therefore  inclined  to  think,  that 
the  testimony  in  confirmation  of 
these  answers  was  admissible.  But 
this  can  scarcely  be  brought  withii 
the  line ;  and  we  are  of  opinion,  that 
the  testimony  of  the  sheriff  and 
jailer,  as  to  the  location  of  the  rooms 
in  the  jail  and  the  situation  of  the 
prisoners,  etc.,  falls  on  the  other  side 
of  the  line.  We  cannot  perceive 
how  the  circumstance  that  the  wit- 
ness told  the  truth  about  these  public 
and  common  objects,  concerning 
which  he  knew  that  proof  was  at 
hand,  has  any  tendency  to  confirm 
the  material  parts  of  his  testimony, 
involving  the  guilt  of  the  defend- 
ant" 

But  in  Com.  v.  Holmes.  127  Mass. 
424,  3  N.  E.  790,  the  opinion  in  Com. 
V.  Bosworth,  22  Pick.  (Mass.)  397, 
is  criticised,  and  it  is  said  thatthe 
evidence  confirming  the  accomplices' 
answer  as  to  reward  and  indemnity 
was  not  corroboration  at  all,  but  the 
general  rule  stated  as  to  corrobora- 
tive evidence  is  not  questioned. 

31.  Must  Tend  to  Prove  That 
Crime  Was  Committed —  Marler  v. 
State.  68  .Ma.  ,=;8o  and  67  Ala.  55,  42 

Vol.  I 


106 


ACCOMPLICES. 


h.  Corroboration  As  to  Defendant. —  (1.)  As  to  Particular  Defendant. 
It  is  not  sufficient  corroboration  to  prove  that  the  crime  was  com- 
mitted in  the  manner  described  by  the  accomphce,  but  his  testimony 
must  be  corroborated  as  to  the  particular  defendant. '''- 


Am.  Rep.  95;  Crowell  v.  Stat.',  24 
Tex.  App.  404,  6  S.  W.  318;  Cole- 
man V.  State,  44  Tex.  log;  Davis  v. 
State,  2  Tex.  App.  588;  State  v. 
Calahan,  47  La.  Ann.  444,  17  So.  50. 

Must  Corroborate  as  to  Corpus 
Delicti. —  In  Crowell  v.  State,  24 
Tex.  App.  404,  6  S.  W.  318,  there 
was  no  evidence  proving  the  corpus 
delicti  except  the  testimony  of  an 
accomplice.  The  court  said  :  "  It  is 
only  from  the  testimony  of  this  ac- 
complice that  we  are  informed  that 
the  animal  killed  by  defendant  was 
one  of  Carrington's  cattle,  and  not 
the  defendant's  own  property.  Can 
such  testimony  support  a  conviction? 
We  think  not.  Our  view  of  the 
statute  relating  to  accomplice  testi- 
mony is  that,  where  the  corpus 
delicti  of  the  offense  is  proved  alone 
by  accomplice  testimony,  such  testi- 
mony must  be  corroborated  by  other 
evidence  tending  to  establish  the 
commission  of  the  ofTense,  and  the 
defendant's  connection  with  the 
commission  of  the  same.  It  will  not 
suffice  to  corroborate  such  testimony 
to  the  extent  only  of  connecting  the 
defendant  with  the  commission  of  an 
act  alleged  to  be  an  offense."  State 
:;.  Koplan,  (Mo.),  66  S.  W.  967; 
State  V.  Stevenson,  (Mont.),  67  Pac. 
looi ;  Smith  v.  State,  (Wyo.),  67 
Pac.  977. 

32.  Evidence  to  Connect  Defend- 
ant  Arkansas.  —  Polk  v.  State,  36 

Ark.  117;  Scott  V.  State,  63  Ark. 
310,  38  S.  W.  339- 

California.  —  People  v.  Cloonan. 
%o  Cal.  449. 

Oregon.  —  State  v.  Odell,  8  Or.  30. 

Tc.rai.  —  Smith  v.  State.  27  Tex. 
.\pp.  196,  n  S.  W.  113;  Gillian  v. 
State,  3  Tex.  App.  132;  Davis  v. 
State,  2  Tex.  App.  588;  Harper  v. 
State,  II  Tex.  App.  i;  Welden  v. 
State.  10  Tex.  App.  400. 

Instruction  as  to  Connectinj;  De- 
fendant With   Offense Watson  v. 

State,  9  Tex.  App.  237;  Crowell  v. 
State,  24  Tex.  App.  404.  6  S.  W. 
318;  Conway  v.  State,  33  Tex.  Crim 
App    327,   26   S.   W.   401 ;    Beach   v. 

Vol.  I 


State,  (.Tex.  App.),  12  S.  W.  868; 
People  V.  Clough,  Ji  Cal.  348,  15 
Pac.  5 ;  People  v.  Eckert,  16  Cal. 
no;  State  v.  Odell,  8  Or.  30;  Wright 
V.  State,  43  Tex.  170;  Dill  v.  State,  i 
Tex.  App.  278;  Davis  v.  State,  2  Tex. 
-•^pp.  588;  Cohea  v.  State,  11  Tex. 
App.  622;  Clapp  V.  State,  94  Tenn. 
186.  30  S.  W.  214. 

Must  Identify  the  Accused  With 
the  Crime.  —  In  State  v.  Miller, 
100  Mo.  606,  13  S.  W.  832,  the 
court  said :  "  Corroboration  should 
go  to  the  e.Ktent  of  identifying 
the  person  of  the  prisoner  against 
whom  the  accomplice  speaks.  The 
object  of  the  rule  which  requires 
that  the  testimony  in  corroboration 
of  that  of  the  accomplice  should  go 
to  the  extent  mentioned  is  that  the 
danger  may  be  guarded  against  of 
an  accomplice  relating  the  circum- 
stances of  the  criminal  transaction 
truly,  except  that  he  substitutes  the 
name  of  the  accomplice  for  his  own ; 
thus  practicing  a  fraud  upon  the 
triers  of  the  issues,  as  well  as  upon 
the  prisoner." 

Where  There  Is  More  Than   One 

Defendant In     Dill     v.     State,     l 

Tex.  App.  278,  where  two  were  in- 
dicted and  tried  together,  the  court 
said :  "  When  an  accomplice  speaks 
as  to  the  guilt  of  two  or  more  per- 
sons, and  his  testimony  is  confirmed 
as  to  one  or  more  of  them,  and  not 
as  to  all,  the  jury  would  not  be  au- 
thorized to  act  on  his  testimony  alone 
as  to  the  prisoner  in  respect  of  whom 
he  is  not  confirmed.  At  the  same 
time  we  do  not  think  it  would  be 
proper  for  the  court  to  instruct  the 
jury  that,  if  the  testimony  of  the 
accomplice  was  confirmed  as  to  one 
or  more,  and  not  to  all,  they  should 
acnuit   all   the   defendants." 

Connecting  Defendant  With  One 
of  a  Series  of  Acts —  In  Com.  7'. 
Hayes.  140  Mass,  366,  5  N.  E.  264. 
where  a  conspiracy  was  formed  and 
carried  out  to  steal  goods  in  neigh- 
boring counties  and  carry  them  to 
Boston  to  be  disposed  of.  evidence 
that  the   defendant   took   part   in   the 


ACCOMPLICES. 


107 


(2.)  Must  Connect  Him  With  Crime.  —  It  is  not  sufficient  for  this 
purpose  merely  to  connect  the  defendant  with  the  accomphce,  or 
other  person  participating  in  the  crime,  but  evidence,  independent 
of  the  testimony  of  the  accomphce,  must  tend  to  connect  him  with 
the  crime  itself,  and  not  simply  with  its  perpetrators.^^ 

(3.)  Association  With  Criminals.  —  But  the  fact  of  being  thus  asso- 
ciated, together  with  other  slight  circumstances,  thus  connecting 
the  defendant  with  the  transaction,  may  afiford  sufficient  corrobora- 
tion.'* 


original  larcenies  in  another  county, 
it  was  held,  tended  to  connect  him 
with  the  crime  committed  in  Boston. 
The  transaction  of  stealing  the  goods 
and  disposing  of  them  in  Boston  was 
a  single  connected  one. 

33.  Connecting  Defendant  With 
Particeps  Criminis  Not  Sufficient. 
Fort  V.  State,  52  Ark.  180,  11  S.  W. 
959,  20  Am.  St.  Rep.  163 ;  Smith  v. 
Com.,  13  Ky.  Law  369,  17  S.  W.  182; 
State  V.  Odell,  8  Or.  30;  Wright  v. 
State,  43  Tex.  170;  People  v.  Lar- 
sen,  (Cal.),  34  Pac.  514;  State  v. 
Mikesell,  70  Iowa  176,  30  N.  W.  474. 

Must    Tend    to    Show    Connection 

of  Accused  With  Crime Wright  v. 

State,  43  Tex.  170,  held  that  "  the 
evidence  must  not  only  connect  the 
prisoner  and  the  accomplice  together, 
but  must  show  that  the  prisoner  was 
engaged  in  the  transaction  which 
forms  the  subject  matter  of  the 
charge  under  investigation." 

Must  Corroborate  Testimony  of 
Participation  in  Crime — In  Gillian  v. 
State,  3  Tex.  App.  132,  which  was  a 
prosecution  for  breaking  jail  and  re- 
leasing prisoners,  the  court  said : 
"  There  is  evidence  going  to  show 
that  the  defendant  was  in  the  town 
that  night,  and  that  the  next  morn- 
ing he  was  seen  a  few  miles  beyond 
the  town,  traveling  in  company  with 
one  of  the  released  prisoners.  It  is 
further  in  proof  that  he  was  arrested 
in  an  adjoining  county  in  company 
with  this  same  prisoner,  and  that, 
when  arrested,  he  was  passing  un- 
der an  assumed  name.  Tt  is  admitted 
that  these  may  be,  and  are,  suspicious 
facts,  but  stiil  they  do  not  corrobo- 
rate the  material  testimony  of  the 
accomplice,  to  wit :  that  the  defend- 
ant was  present  at  the  time  and 
place,  aiding,  assisting,  and  partici- 
pating in  breaking  open  the  jail  and 


rescuing  the  prisoners.  Wright  v. 
State,  43  Tex.  170;  Bavara  v.  State, 
42  Tex.  263 ;  Williams  &  Smith  v. 
State,  42  Tex.  392;  Bruton  v.  State, 
21  Tex.  348;  Rice  &  Dill  v.  State, 
I  Tex.  Cl.  App.  278;  Eliza  Davis  v. 
State,  2  Tex.  Ct.  App.  588." 

Insufficient        Corroboration In 

State  V.  Willis,  9  Iowa  582,  the  ourt 
said  :  "  The  corroborating  evidence 
in  this  case  tended  merely  to  show 
that  an  offense  had  been  committed, 
and  the  manner  and  circumstances 
of  its  commission ;  but  had  no  ten- 
dency to  connect  the  defendant  there- 
with, unless  it  should  be  held  suffi- 
cient to  convict  a  man  of  burglary 
that  he  is  seen  drunk  and  in  com- 
pany with  a  burglar  at  or  near  the 
time  and  place  when  and  where  a 
burglary  is  committed.  However 
well  founded  a  suspicion  this  may 
justly  authorize,  we  do  not  think  it 
affords  the  corroborating  testimony 
contemplated  by  the  statute."  How- 
ard V.  Com.,  22  Ky.  Law  1845,  61  S. 
W.  756;  State  V.  McLain,  159  Mo. 
340,  60  S.  W.  736. 

34.  Association  With  Accom- 
plice a  Circumstance.  —  State  v. 
Russell,  90  Iowa  493,  58  N.  W.  890; 
People  v.  Mayhew,  150  N.  Y.  346, 
44  N.  E.  971 ;  Looman  v.  State, 
(Tex.  Grim.  App.),  39  S.  W.  571. 

In  State  v.  Townsend,  19  Or.  213, 
23  Pac.  968,  where  a  cow  was  stolen, 
and  the  defendant  and  accomplice 
were  seen  together  at  the  time  and 
place  where  the  theft  occurred  (it 
being  a  place  unusual  for  the  de- 
fendant), and  defendant  was  intro- 
duced by  the  accomplice  under  an 
assumed  name.  The  court  referred 
to  the  case  of  State  v.  Odell.  8  Or. 
30,  where  it  was  held  that  proof  of 
presence  in  the  same  town  was  not 
sufficient  corroboration. 

Vol.  I 


108 


ACCOMPLICES. 


F.  AlusT  Moke  Tiia.\  Raisk  Susimcion.  —  The  corroboraling 
evidence  may  be  sufficient  although  by  itself  slight,''"'  but  it  is  not 
sufficient  if  it  merely  tends  to  raise  a  suspicion  of  guilt.'"' 

G.  By  Proof  of  Intention.  —  Proof  of  intention  on  the  part  of 
the  defendant  to  commit  the  crime  would  sufficiently  connect  him 
with  it,  to  corroborate  the  testimony  of  the  accomplice." 

II.  By  Circumstantial  Ex'iuKnce.  —  It  is  a  sufficient  corrobora- 
tion if  circumstances,  established  by  competent  evidence,  independ- 
ent of  the  accomplice,  tend  to  connect  the  defendant  with  the  crime. ^' 

I.  By    Proving    Possession    of    Stolen    Property. — a.  IVhen 


35.  Slight  Evidence  Sufficient. 
People  V.  Ames,  39  Cal.  403 ;  State  v. 
Schlagel,  19  Iowa  169 ;  State  v. 
Maney,  54  Conn.  178,  6  Atl.  401. 

In  People  i'.  Melvane,  39  Cal.  614, 
it  is  held  that  "  the  corroborating 
evidence  ma}'  be  but  slight,  and  enti- 
tled to  but  little  consideration ;  never- 
theless the  requirements  of  the  stat- 
ute are  fulfilled  if  there  is  any  cor- 
roborating evidence,  which  of  itself, 
tends  to  connect  the  accused  with  the 
commission  of  the  ofifense." 
Any     Independent     Evidence     Is 

Sufficient In  People  v.  Clough,  7i 

Cal.  348,  15  Pac.  5,  the  court  said ; 
"  If  there  is  any  independent  evi- 
dence tending  to  prove  said  connec- 
tion of  the  defendant  with  the  crime, 
the  supreme  court  will  not  be  justi- 
fied in  directing  an  acquittal." 

In  People  v.  McLean,  84  Cal.  480, 
24  Pac.  32,  a  case  of  arson,  an  ac- 
complice swore  that  he  set  the  fire 
by  direction  of  the  defendant.  The 
corroborating  circumstances  were, 
that  there  was  a  difficulty  between 
the  defendant  and  the  owner  of  the 
cabin  concerning  the  land  upon  which 
it  stood.  They  had  angry  interviews, 
and  once  the  defendant  was  roughly 
handled  by  an  employee  of  the 
owner's.  Defendant  made  contra- 
dictory statements  concerning  his 
whereabouts  on  the  night  of  the  fire. 
There  was  evidence  tending  to  show 
that  he  took  measures  to  get  the  ac- 
complice to  leave  the  country,  arid 
wrote  to  his  mother  to  "keep  Bill 
out  of  the  way  for  a  while  till  the 
trouble  blows  over,"  although  the 
letters  did  not  state  what  the  trouble 
was.  The  court  held  the  circum- 
stances evidence  tending  to  show  the 
defendant's  guilty  connection  with 
the  burning,  and  although  more  is 
wanted     by     way     of     corroboration 

Vol.  I 


than  merely  to  raise  a  suspicion,  yet 
the  corroborative  evidence  is  suffi- 
cient, if,  of  itself  it  tends  to  connect 
the  defendant  with  the  commission 
of  the  ofifense,  although  it  is  slight 
and,  when  standing  by  itself,  entitled 
to  but  little  consideration. 

36.  Mere  Suspicion  Not  Sufficient. 
People  v.  Koening,  99  Cal.  574,  34 
Pac.  263 ;  People  v.  Smith,  98  Cal. 
218,  33  Pac.  58;  People  :•.  Plath,  100 
N.  Y.   590,  3   N.   E.   790. 

In  People  v.  Thompson,  50  Cal. 
481,  the  court,  referring  to  the  case 
of  People  V.  Ames,  39  Cal.  403,  said : 
"  We  did  not  intend  to  lay  down  the 
rule  that  if  the  corroborating  evi- 
dence sufficed  to  raise  merely  a  sus- 
picion of  the  defendant's  guilt  and 
nothing  more,  that  it  would  be  a  suf- 
ficient corroboration  within  the 
meaning  of  section  IV." 

37.  People  v.  Davis,  21  Wend. 
(N.   Y.)    309- 

In  People  v.  Josselyn,  39  Cal.  393, 
the  court  holds  that  corroboration  is 
not  required  in  respect  to  every  ma- 
terial fact,  but  only  in  respect  to 
some  of  the  material  facts  which 
constitute  an  element  in  the  crime 
alleged ;  and  that  an  essential  ele- 
ment in  the  crime  is  a  criminal  in- 
tent, that  any  testimony  in  addition 
to  that  of  the  accomplice,  tending  to 
show  such  intent,  would  be  suflficient 
corroboration. 

38.  Specific  Facts  S-worn  to  by  Ac- 
complice Need  Not  be  Corroborated. 
Bonner  v.  State,  107  Ala.  97,  18  So. 
226;  State  V.  Thornton,  26  Iowa  70 
Fort  V.  State,  52  Ark.  180,  11  S.  W. 
059,  20  Am.  St.  Rep.  163;  Com.  v. 
Savory.  10  Gush.  (Mass.)  SM\  State 
V.  Chauvet.  in  Iowa  678,  83  N.  W. 
717.  SI  L.  R  A.  630;  Malachi  v. 
State."  89  -Ma.   13-4.  8  So.   104. 


ACCOMPLICES. 


W) 


SuMciciit.  —  The  testimony  of  an  accomplice  may  be  corruliorated 
by  proof  of  the  possession  of  stolen  property."'' 

b.  Explanation  of  Possession.  —  But  such  evidence  must  be  suffi- 
cient to  do  more  than  create  a  mere  suspicion  of  guilt  when  taken  in 
connection  with  all  explanatory  facts.*" 

J.  Dkfend.^nt's  Conduct  As  Coruobok.m'ion.  —  A  defendant 
may    himself    furnish    corroborating   evidence    of    an    accomplices 


39.  Ford  v.  Slate,  70  Ga.  722 ; 
Pritchett  v.  State,  92  Ga.  jj,  18  S.  E. 
350;  Com.  V.  Savory,  10  Cush. 
(Mass.)  535;  Jernigan  v.  State,  10 
Tex.  App.  546;  Buchanan  v.  State, 
(Tex.  Grim.  App.j,  24  S.  W.  895: 
People  V.  Cleveland,  49  Cal.  577. 

Sufficient  Corroboration In  Peo- 
ple V.  Grandell,  75  Cal.  301,  17  Pac. 
214,  where  the  owner  missed  his 
steer  and  shortly  afterwards  its  hide 
and  some  entrails  were  found  buried 
in  the  defendant's  back  yard,  it  was 
held  sufficient  corroboration  of  an  ac- 
complice. 

In  Roberts  v.  State,  80  Ga.  772,  6 
S.  E.  587,  on  an  indictment  for  steal- 
ing a  hog,  an  accomplice  testified  to 
the  killing  of  the  hog  and  division  of 
the  meat.  On  a  search  warrant 
meat,  supposed  to  be  of  the  lost  hog. 
was  found  at  the  house  of  each  of 
the  defendants.  Held,  sufficient  cor- 
roboration. 

Possession  of  Stolen  Goods  Suffi- 
cient.—Boswell  V.  State,  92  Ga.  581, 
17  S.  E.  805,  held  that  after  proof  of 
corpus  delicti,  the  testimony  of  an  ac- 
complice is  sufficiently  corroborated 
to  authorize  a  conviction  for  burg- 
lary by  other  evidence  showing  that 
two  days  after  the  burglary  was  com- 
mitted the  accused  was  in  possession 
of  goods  which  were  in  the  house 
when  burglarized,  the  possession  not 
having  been  satisfactorily  explained. 
40.  Explanation  of  Possession. 
If  the  evidence  introduced  to  show 
such  possession  also  satisfactorily  ex- 
plains it  .so  as  to  leave  nothing  but  a 
mere  suspicion  of  crime,  it  will  not 
amount  to  corroboration.  People  v. 
.\h  Ki,  20  Cal.   177. 

Naked  Possession  Not  Sufficient 
for  Conviction.  —  In  Clackner  v. 
State,  33  Ind.  412,  the  court  held  that 


facta  much  short  of  giving  a  reason- 
able account  of  how  the  accused 
came  by  them,  will  rebut  the  pre- 
sumption arising  from  the  possession 
of  stolen  goods,  and  quotes  with  ap- 
proval note  183,  p.  634,  Cowen  and 
Hills'  Notes  to  Phillips  on  Evidence, 
that  "  the  presumption  arising  from 
the  possession,  or  other  circum- 
stances, may  of  course  be  explained 
away  or  repelled  by  opposing  circum- 
stances. The  better  opinion  seems  to 
be  that  the  presumption  arising  from 
possession  alone  is  completely  re- 
moved by  good  character  alone,  of 
the  prisoner.  The  possession  may 
also  be  accompanied  with  circum- 
stances (such  as  unsuspicious  con- 
duct)   repelling  the  presumption." 

In  Smith  v.  State,  58  Ind.  340,  the 
court  holds  it  necessary  for  the  pros- 
ecutor to  add  the  proof  of  other  cir- 
cumstances indicative  of  guilt,  in  or- 
der to  render  the  naked  possession 
of  the  thing  available  toward  a  con- 
viction. Citing  Curtis  v.  State,  6 
Cold.  (Tenn.)  9;  State  v.  Brady,  27 
Iowa  126;  State  v.  Creson,  38  Mo. 
372;  State  V.  Merrick,  19  Me.  398; 
State  V.  Floyd,  15  Mo.  349;  Smath- 
ers  V.  State,  46  Ind.  447 ;  Turbeville 
'c'.  State,  42  Ind.  400. 

In  People  v.  Chambers,  18  Cal. 
382,  the  court  says :  "  There  are 
many  cases  in  which  an  explanation 
would  be  impossible ;  and  in  such 
cases  to  throw  the  burden  of  expla- 
nation upon  the  accused  would  be  to 
slam  the  door  of  justice  in  his  face. 
We  think  the  true  rule  upon  the  sub- 
ject is  that  laid  down  by  Greenleaf: 
"  It  is  necessary,"  says  he,  "  for  the 
prosecutor  to  add  the  proof  of  other 
circumstances  indicative  of  guilt  in 
order  to  render  the  naked  posses- 
sion of  the  thing  available  toward 
a  conviction." 


Vol.  I 


110 


ACCOMPLICES. 


testimony  as  by  his  threats;*'  his  contradictory  or  false  statements.''^ 
K.  Confessions  and  Admissions  As  Corroboration.  —  a.  Con- 
fessions.—  Extra  judicial  confessions  are  sufficient  for  corrobora- 
tion of  the  testimony  of  an  accomplice.*" 

b.  Admissions.- — Admissions  made  by  a  defendant  which  tend 
strongly  to  connect  him  with  the  crime  for  which  he  is  on  trial  are 
sufficient  corroboration.** 


III.  TESTIFYING  AS  ORDINARY  WITNESS. 

1.  Character  Not  Assumed  at  Outset.  —  Where    the    accomplice 
testifies  as  an  ordinary  witness,  his  character  as  an  accomplice  is 


41.  Threats.  —  Com.  v.  Holmes, 
127  Mass.  424,  34  Am.  Rep.  391. 

In  Com,  V.  Chase,  147  Mass.  597, 
18  N.  E.  565,  the  prosecution  relied 
mainly  on  the  testimony  of  an  ac- 
comphce,  but  there  was  other  evi- 
dence of  threats  made  by  the  defend- 
ant. While  these  threats,  to  injure 
and  to  revenge  themselves,  connected 
Wfith  evidence  of  taunts  showing 
malice  and  ill  will  were  numerous, 
they  were  not  the  same  as  those  tes- 
tified to  by  the  accomplice.  They 
were  held  admissible  as  independent 
evidence,  having  a  tendency  to  show 
that  defendants  were  the  guilty 
parties.  Citing  Com.  v.  Goodwin,  14 
Gray  (Mass.)  55.  Proof  of  motive 
and  intent  to  commit  a  crime  which 
there  was  evidence  to  show  had  been 
committed,  would  legitimately  tend 
to  strengthen  the  belief  in  the  state- 
ment of  the  accomplice  that  they  had 
committed  it. 

42.  Contradictory  and  False 
Statements. -^  In  U.  S.  v.  Randall, 
Deady  524,  27  Fed.  Cas.  No.  16,118, 
it  is  held  that  false  and  contradictory 
statements  by  the  defendant  about 
the  material  circumstances  of  the 
crime  with  which  he  is  charged  are 
badges  of  guilt.  People  v.  Conroy, 
97  N.  Y.  62. 

In  Com.  V.  Chase,  147  Mass.  597, 
18  N.  E.  565,  the  court  instructed 
the  jury  that  if  they  believed  the 
evidence  that  the  defendants,  at  the 
time  of  their  arrest,  denied  that  the 
Coats  boy  was  witli  them  on  .Sun- 
day, the  day  of  the  fire,  this  would 
be  a  legal  corroboration  of  the  ac- 
complice.    This   ruling  was   made  in 

Vol.  I 


connection  with  the  fact  that  at  the 
trial  the  defendants  had  both  testified 
that  the  Coats  boy  was  with  them  on 
Sunday.  The  court  said:  "The 
circumstance  that  the  accomplice  was 
with  the  defendants  on  that  day  was 
of  the  utmost  importance.  If  he 
was  not,  his  story  was  necessarily 
false.  Their  original  denial,  showing 
that  they  were  seeking  to  maintain 
by  falsehood  a  defense  to  the  charge 
made  against  them,  bore  directly  on 
the  question  of  their  guilt,  and 
tended  to  prove  it.  Whether  the 
mere  fact  that  the  boy  was  with 
them  on  that  day,  if  that  were  all, 
would  corroborate  his  testimony,  we 
need  not  consider.  Their  denial  that 
he  was  there,  and  the  subsequent 
proof  of  its  falsity  were  facts  of  im- 
portance." 

43.  Extra  Judicial  Confessions. 
Patterson  v.  Com,,  86  Ky,  313,  S  S. 
W,  387 ;  same  case  on  second  appeal, 
5  S.  W.  765;  Snoddy  v.  State,  75 
.Ma.  23. 

44,  Admissions  Sufficient  Corrobo- 
ration  People     V.     Cleveland,     49 

Cal,  577;  State  v.  Chauvet,  11 1  Iowa 
6S7,  83  N,  W,  717.  SI  ^  R.  v.  630; 
People  V.  Davis,   (Cal,),  67  Pac.  59, 

In  State  v.  Hennessy,  55  Iowa  299, 
7  N.  W,  641,  the  court  sustained  an 
instruction  that  "admissions  made 
by  the  defendant  to  Detective  Smith, 
and  other  admissions  made  to  Mo- 
ran,  and  to  the  deputy  sheriff, 
Ratlian,  arc  competent  evidence,  and 
if  yon  find  that  they  tend  to  connect 
the  defendant  with  the  commission 
of  the  offense,  then  the  accomplices 
are  corroborated." 


ACCOMPLICES. 


Ill 


not  assumed  at  the  outset,  as  in  the  preceding  class, *^  but  must  be 
established  on  the  trial. ^° 

A.  When  a  Question  for  the  Colkt.  —  The  proof  showing 
that  the  witness  is  an  accomplice,  may  be  furnished  by  the  witness 
himself,  or  it  may  be  established  by  other  proof,  and  whether  he  is 
such  an  accomplice  will  be  a  question  for  the  court  or  jury  accord- 
ing to  the  circumstances  of  the  case.  If  all  the  facts  are  admitted 
it  is  for  the  court. ^' 

B.  When  for  the  Jury. — a.  When  it  Depends  on  Evidence. 
But  if  it  depends  at  all  upon  the  evidence,  the  question  is  for  the 
jury  under  proper  instructions  from  the  court.** 


45.  Assumed  as  to  Precedingr 
Class.  —  Barrara  v.  State,  42  Tex. 
260;  Com.  V.  Desond,  J  Gray  (Mass.) 
80. 

46.  U.  S.  V.  Ncverson,  i  Mackey 
(D.  C.)  152;  State  v.  Schlagel,  19 
Iowa  169;  People  v.  Curlee,  53  Cal. 
604.  fi 

47.  People  v.  Sternburg,  11 1  Cal. 
3,  43  Pac.  198 ;  Webb  v.  State.  (Tex. 
Crim.  App.),  60  S.  W.  961;  Carroll 
V.  State,  (Tex.  Crim.  App.),  62  S. 
W.  1061. 

Where  Court  May  Determine. 
In  State  v.  Carr,  28  Or.  389,  42  Pac. 
215,  the  court  said:  "We  under- 
stand the  rule  to  be  that  where  there 
is  any  conflict  in  the  testimony  as  to 
whether  a  witness  is  or  is  not  an 
accompHce,  the  issue  must  be  sub- 
mitted to  the  jury  under  proper  in- 
structions of  the  court ;  but  where 
the  facts  are  all  admitted,  and  no 
issue  thereon  is  raised  by  the  evi- 
dence, it  then  becomes  a  question  of 
law  for  the  court  as  to  the  effect  of 
the   uncontradicted    testimony." 

When  Is  Question  of  law. 
Armstrong  v.  State,  33  Tex.  Crim. 
.A.pp.  417,  26  S.  W.  829. 

Better  Practice  to  Leave  Ques- 
tion to  Jury —  In  Bell  v.  State,  39 
Tex.  Crim.  App.  677,  47  S.  W.  loio, 
the  court  said :  "  It  is  usual  with 
judges,  where  the  matter  of  wit- 
ness's being  an  accomplice,  does  not 
appear  to  be  controverted,  to  instruct 
the  jury  that  such  a  witness  is  an 
accomplice.  In  our  view  much  the 
better  practice  in  all  cases  is  to  in- 
struct the  jury  what  it  takes  to  con- 
stitute an  accomplice,  and  then  leave 
them  free  to  find  whether  or  not  such 
person   is  an  accomplice." 


48.  When  All  the  Tacts  Not  Ad- 
mitted   a    Question    for    the    Jury. 

Washington  v.  State,  58  Ala.  3=:i;: 
People  V.  Bolanger,  71  Cal.  17,  II 
Pac.  799;  State  v.  Schlagel,  19  Iowa 
169;  Herring  v.  State  (Tex.  Crim. 
App.),  42  S.  W.  301;  Hankins  v. 
State  (Tex.  Crim.  App.),  47  S.  W. 
992;  Com.  V.  Ford,  iii  Mass.  394; 
State  V.  Carr,  28  Or.  389,  42  Pac. 
215;  White  V.  State  (Tex.  Crim. 
App.),   62   S.   W.   749. 

Slightest  Evidence  Hakes  Ques- 
tion for  Jury. —  When  it  is  not  ad- 
mitted that  a  witness  is  or  is  not 
an  accomplice,  and  there  is  any  evi- 
dence on  the  subject  however  slight, 
it  should  be  weighed  by  the  jury. 
In  such  case  the  court  should  not 
instruct  either  that  the  witness  is 
or  is  not  an  accomplice.  Hankins 
V.  State  (Tex.  Crim.  App.),  47  S. 
W.  992 ;  Ransom  v.  State  (Tex. 
Crim.  App.),  49  S.  W.  582;  Preston 
V.  State,  40  Tex.  Crim.  App.  72, 
48  S.  W,  581 ;  Bell  V.  State.  39  Tex. 
Crim.  App.  677,  47  S.  W.  lOio;  State 
V.  Carr.  28  Or.  389.  42  Pac.  215 ; 
People  V.  Sansome,  98  Cal.  235.  33 
Pac.  202;  Dill  V.  State,  I  Tex.  App. 
278. 

In  Rios  V.  State  (Tex.  Crim. 
.\pp.),  48  S.  W.  505,  it  is  said  that 
under  no  circumstances  would  the 
courts  be  justified  in  assuming  in  the 
charge  that  a  witness  was  an  ac- 
complice, unless  it  be  placed  beyond 
cavil  or  question,  or  he  an  admitted 
fact. 

Should  Not  Instruct  That  Wit- 
ness Is  Not  An  Accomplice Peo- 
ple V.  Bolanger.  71  Cal.  17,  II  Pac. 
790;  People  v.  Curlee.  53  Cal.  604; 
Preston  v.  State.  40  Tex.  Crim. 
App.  72,  48  S.  W.  581. 

Vol.  I 


112 


ACCOMPLICES. 


Duty  of  Court  to  Instruct.  —  V\  henever  that  question  is  involved  in 
the  evidence,  it  is  the  duty  of  the  court  to  give  the  jury  proper 
instructions  as  to  what  constitutes  an  accomplice/" 

b.  What  Evidence  Sufficient.  —  To  establish  that  a  witness  is  an 
accomplice,  proof  beyond  a  reasonable  doubt  is  not  required.^" 

2.  What  Constitutes  an  Accomplice.  — A.  Common  Law  Defini- 
tion. —  The  word  "  accomplice  "  means  simply  a  participator  in 
crime,  and  at  common  law  it  included  all  the  particcps  criiiiiiiis, 
whether  principals  in  the  first  or  second  degree,  or  accessories 
before  or  after  the  fact.^'' 

B.  Other  Definitions.  —  In  some  jurisdictions  the  term 
"  accomplice  "  is  held  to  include  only  principals  in  the  crime ;  and 
in  others  only  those  equally  concerned  in  a  felony  .^- 

C.  Who  Are  AccoiMPLICES.  —  a.  Intention  Necessary.  —  Since 
there  can  be  no  participation  in  a  crime  either  as  principal  or 
accessory  without  a  criminal  intent,  without  such  intent  a  witness 
is  not  an  accom]^lice  so  as  to  require  corroboration."'' 


49.     Alabama.  —  Washington       v. 
State,   58  Ala.  355. 
California.  —  People    v.     Bolanger, 

71  Cal.    17,    II    Pac.   799;    People   v. 
Curlee,  53  Cal.  604;  People  v.  Kraker, 

72  Cal.  459,  14  Pac.   196;   i  Am.   St. 
Rep.  65. 

lotva. — State  v.  Sclilagel,  19  Iowa 
169. 

Massachusetts. — Com.  v.  Ford,  iii 
Mass.  394;  Com.  v.  Elliot,  no  Mass. 
104. 

Oregon.  ■ —  State  v.  Can-,  28  Or. 
389,  42  Pac.  215. 

Texas.  —  Bell  v.  Stale,  39  Tex. 
Crim.  App.  677,  47  S.  VV.  lOio ; 
Guyer  v.  State  (Te.x.  Crim.  App.), 
Zd  S.  W.  450 ;  Roach  v.  State,  4  Tex. 
App.  46;  Miller  v.  State,  4  Tex.  App. 
251;  Ballew  V.  State  (Tex.  Crim. 
App.),  34  S.  W.  616;  Herring  v. 
State  (Tex.  Crim.  App.),  42  S.  W. 
301;  Hankins  v.  State  (Tex.  Crim. 
.'\pp.),  47  S.  W.  992. 

When  Want  of  Full  Definition 
Not  Ground  for  Reversal.  —  In 
Crass  V.  State,  31  Tex.  Crim.  App. 
312,  20  S.  W.  579,  it  was  held  that 
where  the  defendant  neither  re- 
quested a  spi-'cial  instruction  nor 
excepted  to  the  charge  given  in  rela- 
tion to  accoinplice's  testimony  and 
the  evidence  left  it  very  doubtful 
whether  the  defendant  had  an  ac- 
complice, the  judgment  would  not  be 
reversed  because  the  word  accom- 
plice was  not  ftdly  defined  in  the 
broad    sense   used    in   the   article   re- 

Vol.  I 


kiting    to   accomplice's   testimony. 

50.  Childress  v.  State,  86  Ala.  yj, 
5  So.  775 ;  State  v.  Stnith,  102  Iowa 
656,  72  N.  W.  279;  Com.  V.  Ford, 
III   Mass.  394. 

51.  Russ.  Crimes  (9th  .Am.  Ed.) 
49 ;  4  Blk.  Com.  27 ;  Johnson  v.  State, 
2  Ind.  652 ;  Hudspeth  v.  State,  50 
Ark.  534,  9  S.  W.  I ;  Cross  v.  Peo- 
ple, 47  111.  152,  95  Am.  Dec.  474; 
State  V.  Roberts,  15  Or.  187,  13  Pac. 
896. 

52.  People  v.  Smith,  j8  Hun  (N. 
Y.)  626;  Harris  v.  State,  7  Lea 
(Tenn.)  124. 

In  People  zk  Bolanger,  71  Cal.  17, 
1 1  Pac.  799,  the  court  holding  that  a 
feigned  accomplice  docs  not  require 
corroboration  approves  the  definition 
of  an  accomplice  in  Whart.  Crim. 
Ev.   440. 

Purchaser  of  Stolen  Goods One 

who  Iniys  stolen  cattle  from  the  thief, 
knowing  they  were  so  stolen,  is  an 
accomplice.  Crawford  v.  State 
(Tex.  Crim.  App.).  34  S.  W.  927. 

53.  Who  Are  Accomplices  Within 
Rules       of       Evidence       Generally. 

United  States.— V.  S.  v.  Henry,  4 
Wash.  428,  26  Fed.  Cas.  No.   15,351. 

Illinois. — Cross  v.  People.  47  III. 
152,  95'  Am.  Dec.  474. 

lozva. — State  v.  Reader,  60  Iowa 
527.  15  N.  W.  423 ;  State  v.  Ean, 
90  Iowa  534,  58  N.  W.  898. 

Kentucky. — Sizemore  v.  Com.  ID 
Ky.   Law   T,  6  S.   W.   123;   Thompson 


ACCOMPLICES. 


113 


b.  Kno't^'lcdge  and  Concealment. — Even  knowledge  or  conceal- 
ment or  both,  will  not  make  one  an  accomplice  in  the  absence  of 
criminal  intent."*^ 

c.  Independent  Crime.  —  Unless  the  witness'  criminal  intention 
relates  directly  to  the  crime  for  which  the  defendant  is  on  trial,  the 
witness  is  not  an  accomplice,  although  guilty  as  principal  or  acces- 
sory in  an  independent  crime  of  the  same  character.'''^ 


V.  Com.,  lO  Ky.  Law  i68,  26  S.  W. 
1 100. 

Massachusetts. — Com.  v.  Ford,  iii 
Mass.  394;  Com.  v.  Follansbee,  155 
Mass.  274,  29  N.  E.  471. 

Minnesota. — State  v.  Quinlan.  40 
Minn.  55,  41  N.  W.  299. 

Neiv  Mexico. — Territory  v.  Baker, 
4  N.  M.  117,  13  Pac.  30. 

New  Jersey. — State  v.  Goldman,  65 
N.  J.  Law  394,  47  Atl.  641. 

New  York.  —  People  v.  McGuire, 
13s  N.  Y.  639,  32  N.  E.  146. 

Texas.— Irv'm  v.  State,  i  Te.x.  App. 
301 ;  Nourse  v.  State,  2  Tex.  App. 
304 ;  Davis  v.  State,  2  Tex.  App.  588 ; 
Ortis  V.  State,  18  Tex.  App.  282; 
Hornsberger  v.  State,  19  Tex.  App. 
335 ;  Anderson  v.  State,  20  Tex. 
App.  312;  Hines  v.  State,  27  Tex. 
App.  104,  10  S.  W.  448;  Riley  v. 
State,  27  Tex.  App.  606,  11  S.  W. 
642;  Aldrich  i'.  State.  29  Tex.  Apo. 
394,  16  S.  W.  251 ;  Johnson  v.  State, 
(Tex.   Crim.   App.).  24  S.  W.  285. 

Duress.  —  U.  S.  v.  Henry,  4  Wash. 
428,  26  Fed.  Cas.  No.  15,351;  Beal  i'. 
State,  72  Ga.  200;  Smith  v.  State, 
108  Ala.  I,  19  So.  306.  54  Am.  St. 
Rep.  140;  Burnes  v.  State,  89  Ga. 
527,  15  S.  E.  748- 

In  Mullinix  v.  State  (Tex.  Crim. 
App.),  26  S.  W.  504,  the  defendant 
forced  his  daughter  to  have  crim- 
inal intercourse  with  him.  On  his 
trial  for  incest  it  was  held  that  she 
was  not  an  accomplice  so  as  to  re- 
quire her  testimony  to  be  corrobora- 
ted. But  in  cases  where  the  act  is 
voluntary  on  both  sides  the  female 
is  held  to  be  an  accomplice.  State 
V.  Jarvis,  18  Or.  360,  23  Pac.  251 ; 
Blanchette  v.  State,  29  Tex.  App. 
46,  T4  S.  W.  392 ;  Dodson  v.  State, 
24  Tex.  App.  514.  6  S.  W.  548;  Mer- 
cer V.  State,  17  Tex.  App.  452 ;  Free- 
man V.  State,  II  Tex.  App.  92,  40 
Am.  Rep.  787 ;  Caesar  i>.  State  (Tex. 
Crim.  App.),  29  S.  W.  ySe,;  Ratliff 
V.    State    (Tex.    Crim.    App.).   60   S 


\V.   000;    Soloniau  v.    State,    113   Ga. 
182,  38  S.  E.  332. 

One  Acting  Under  Compulsion. 
In  People  v.  .Miller,  66  Cal.  468,  6 
Pac.  99,  a  thirteen  year  old  boy,  who 
took  part  in  the  commission  of  a 
felony  under  threats  and  coercion 
of  another,  was  held  not  to  be  an 
accomplice  and  his  testimony  was 
held  sufficient  to  sustain  a  conviction 
without  corroboration. 

54.  Arkansas.  —  Melton  v.  State, 
43  Ark.  367;  Green  v.  State,  51  Ark. 
1 8 J,   10  S.  W.  266. 

Georgia. — Lowery  v.  State,  72  Ga. 
649;  Allen  V.  State,  74  Ga.  769. 

Nezu  York.  —  People  v.  Ricker,  51 
Hun  643,  4  N.  Y.  Supp.  70;  People 
V.  McGonegal,  62  Hun  622,  17 
N.  Y.  Supp.  147.  People  ;■.  Mc- 
Gonegal, 136  N.  Y.  62,  32  N.  E.  616. 

Oregon.  —  State  v.  Roberts,  15  Or. 
187,  13  Pac.  896. 

Tennessee.  —  Harris  r.  State,  7 
Lea   124. 

Texas.  —  Rhodes  v.  State.  1 1  Tex. 
App.  563 ;  Norton  v.  State  (Tex. 
App.),  12  S.  W.  407;  Clumney  v. 
State,  28  Tex.  App.  87,  12  S.  W. 
491  ;  McKenzie  v.  State  (Tex.  Crim. 
App.),  32  S.  W.  543;  Noftsinger  v. 
State,  7  Tex.  App.  301  ;  Rucker  v. 
State,  7  Tex.  Apn.  549;  Smith  v. 
State,  23  Tex.  App.  '357.  5  S.  W. 
219,  59  Am.  Rep.  773 ;  Elizando  v. 
State,  31  Te.x.  Crim.  App.  237,  20 
S.  W.  560;  .\lford  V.  State,  31  Tex. 
Crim.  App.  299,  20  S.  W.  553. 

55.  What  Are  Independent 
Crimes  Generally —  England.  —  Rex 
V.  Hargrave,  5  Car.  &  P.  170,  24 
Eng.  C.  L.  260; 

Alabama.  —  Ash  v.  State,  81  Ala. 
76,  I  So.  558;  Bass  V.  State,  37  Ala. 
469;  Smith  V.  State,  37  Ala.  472; 
Bird  V.   State,  36  Ala.   279. 

Georgia.  —  Roberts  r.  State,  55  Ga. 
220. 

loxca.  —  State  ■:■.  Hayden,  45  Iowa 
II. 

Vol.  I 


114 


ACCOMPLICES. 


d.  Participation  in  Moral  Offenses  Only.  —  It  is  not  sufficient 
to  show  that  the  witness  has  participated  in  the  moral  offense 
imputed  to  the  defendant,  but,  to  constitute  him  an  accomplice,  it 
is  necessary  to  show  such  participation  in  the  crime  imputed  to  the 
defendant,  that  he  might  himself  be  charged,  either  as  principal  or 
accessory."^" 


New  York.  —  People  v.  Cook,  5 
Park.  Crim.  351 ;  People  v.  Dunn, 
53  Hun  381,  6  N.  Y.  Supp.  805. 

Oregon.  —  State  v.  Light,  17  Or. 
358,  21   Pac.  132. 

Texas.  —  Crutclifield  v.  State,  7 
Tex.  App.  65';  Peeler  v.  State,  3  Tex. 
App.  533;  Stone  V.  State,  3  Tex. 
Apo.  675. 

Betting  at  Gaines —  In  Dandron 
V.  State,  33  Ala.  350;  Bird  v.  State, 
36  Ala.  278  and  State  v.  Light,  17 
Or.  358,  21  Pac.  132,  it  is  held  that 
a  participant  in  a  game  of  cards  is 
an  accomplice  of  his  adversary. 

In  Smith  v.  State,  37  Ala.  472,  and 
Bass  V.  State,  37  Ala.  469,  it  is  held 
that  spectators  present  and  occasion- 
ally taking  a  hand  to  help  out  un- 
skillful players,  but  not  interested  in 
the  bets  are  not  accomplices. 

Escape     of     Prisoners Ash     v. 

State,  81  Ala.  76,  I  So.  558;  Hillian 
V.  State,  50  Ark.  523,  8  S.  W.  834; 
People  V.  Dunn,  53  Hun  381,  6 
N.  Y.   Supp.  805. 

In  Peeler  v.  State,  3  Tex.  App. 
533.  which  was  an  indictment  for 
conveying  tools  into  the  jail  to  enable 
prisoners  to  escape,  a  witness,  who 
was  a  prisoner  in  the  jail  at  the 
time  of  the  alleged  offense,  was  held 
not  to  be  an  accomplice. 

Guilty  Receipt  of  Stolen  Property. 
Roberts  ■;•.  State,  55  Ga.  220 ;  People 
V.  Cook,  =;  Park.  Crim.  ( N.  Y.)  351; 
Crutchficld  V.   State.  7  Tex.  App.  65. 

Receiving  Stolen  Goods In  State 

7'.  Haydcn,  45  Iowa  U,  the  principal 
witness  on  the  part  of  the  state  tes- 
tified that  defendant  confessed  the 
crime  to  him,  and  that  after  such 
confession  he  received  from  the  de- 
fendant some  of  the  stolen  property 
and  concealed  it.  On  the  trial  for 
burglary  the  court  instructed  that 
"  the  mere  fact  that  Mowry  received 
the  stolen  property,  knowing  the 
same  to  have  been  stolen  did  not 
make  him  an  accomplice."  This  in- 
struction was  held  to  be  correct. 


In  Harris  v.  State,  7  Lea  (Tenn.) 
12a,  two  witnesses  testified  that  on 
the  evening  of  the  robbery  for  which 
the  defendant  was  on  trial,  he  pro- 
posed to  them  to  commit  the  rob- 
bery, and  they  refused  and  supposed 
he  was  in  jest,  but  that  night  he  re- 
turned and  said  he  had  robbed  the 
man  and  got  $2=;o,  and  that  sub- 
sequently he  gave  to  each  of  the  wit- 
nesses thirty  dollars.  Held  that  they 
were  not  accomplices.  State  v.  Jones 
(Iowa),  88  N.  W.   196. 

Perjury  and  Subornation  of  Per- 
jury—  In  U.  S.  V.  Thompson,  31 
f"ed.  331,  the  defendant  was  indicted 
for  procuring  the  witness  to  commit 
perjury  in  taking  an  oath  to  support 
an  application  for  land  under  the 
timber  culture  act.  It  was  held  that 
the  person  solicited  to  commit  per- 
jury, and  who  did  commit  perjury 
under  solicitation,  is  not  an  accom- 
plice so  as  to  require  his  testimony 
to  be  corroborated  in  order  to  con- 
vict the  defendant  of  subornation  of 
perjury. 

In  People  z'.  Evans,  40  N.  Y.  I, 
which  was  a  prosecution  for  subor- 
nation of  perjury,  the  witness  who 
committed  the  perjury  was  held  to  be 
an  accomplice  and  corroboration  was 
held  necessary. 

In  Blakely  v.  State,  24  Tex.  App. 
616,  7  S.  W.  233,  5  Am.  St.  Rep.  912, 
where  the  evidence  to  prove  the 
accused  an  accessory  was  the  tes- 
timony of  two  witnesses  who  claimed 
to  have  been  induced  by  him  to  swear 
falsely  to  prevent  the  arrest  and 
trial  of  the  principal.  It  was  held 
that  such  witnesses  were  accom- 
plices. 

5G.     Miscarriage,   Woman   Taking 

Means  For In  the  following  cases 

it  is  held  that  the  woman  taking 
means  for,  or  submitting  to  an  op- 
eration in  order  to  procure  a  mis- 
carriage, is  not  an  accomplice  al- 
though partaking  of  the  moral  guilt, 
because   she   could   not   herself  be   in- 


Vol.  I 


ACCOMPLICES. 


115 


e.  Accessories  After  the  Fact.  —  At  common  law  accessories 
ifter  the  fact  were  accomplices.  In  some  of  the  states  such  accesso- 
ries are  held  to  be  accomplices,  and    in  others  not.^' 

3.  Admission  to  Testify.  —  A.  Not  Discretionary  With  Court. 
The  doctrine  that  the  admission  of  an  accomplice  to  testify  on 
behalf  of  the  state,  is  in  the  discretion  of  the  court,  and  confined  to 
cases  where  there  is  an  express  or  implied  promise  of  immunity  from 
punishment.^* 

B.  At  Discretion  of  Party  Calling.  —  The  accomplice  may  be 
used  as  an  ordinary  witness  either  for  the  state,  or  for  the  defense.^' 

4.  Corroboration.  —  A.  When  Called  by  Defendant.  —  Where 
the  accomplice  is  a  witness  for  the  defendant  his  testimony  does 
not  require  corroboration  unless  the  conviction  of  another  defendant 
is  based  upon  it."" 


dieted  for  the  offense.  Com.  v. 
Wood,  II  Gray  (Mass.)  8$;  Com.  v. 
Boynton,  ii6  Mass.  343;  Com,  v. 
Follansbee,  155  Mass.  274,  29  N.  E. 
471;  State  V.  Owens,  22  Minn.  238; 
Dunn  V.  People,  29  N.  Y.  523,  86 
Am.  Dec.  319;  People  v.  Vedder,  98 
N.  Y.  630;  State  v.  Hyer,  39  N.  J. 
Law  598;  Watson  v.  State,  9  Tex. 
App.  237;  Com.  V.  Brown,  121  Mass. 
69. 

57.    Held  to  be  Accomplices In 

the  following  cases  accessories  after 
the  fact  are  held  to  be  accomplices. 
Polk  V.  State,  36  Ark.  117;  Hunni- 
cutt  V.  State,  18  Te.x.  App.  498,  51 
Am.  Rep.  330. 

In  Chumby  v.  State,  .^8  Te.x.  App. 
87,  12  S.  W.  491,  a  witness  for  the 
state  testified  that  he  was  employed 
by  the  owner  of  an  animal  to  look 
after  and  water  it ;  that  he  found 
it  in  defendant's  possession ;  that  de- 
fendant told  him  he  intended  to  ap- 
propriate it ;  that  the  owner  offered 
a  reward  for  the  return  of  the 
animal ;  and  that  witness  did  not  in- 
form him  that  defendant  had  the 
animal  until,  a  year  afterward,  when 
having  been  arrested  for  another 
theft,  he  made  terms  with  the  state 
to  turn  informer.  Held  that  the  tes- 
timony of  the  witness  must  be 
treated  as  accomplice  testimony. 

Held  Not  Accomplices The  fol- 
lowing cases  hold  that  accessories 
after  the  fact  are  not  accomplices. 
Lowery  v.  State.  72  Ga.  649 :  State 
■'.  Walker.  98  Mo.  95.  9  S.   W.  646, 


II  S.  W.  1133;  McKenzie  v.  State, 
24  Ark.  636. 

In  People  v.  Chadwick,  7  Utah 
134,  25  Pac.  737,  it  is  held  tliat  ac- 
cessories after  the  fact  are  not  ac- 
complices, but  this  is  by  virtue  of 
the  statute  of  Utah. 

In  State  v.  Umble,  115  Mo.  452,  22 
S.  W.  378,  it  is  held  that  an  acces- 
sory after  the  fact  is  not  an  accom- 
plice whose  testimony  needs  corro- 
boration. 

58.  To  be  Treated  as  Any  Other 

Witness In    Territory    v.    Corbett, 

3  Mont.  50,  an  accomplice  in  a  case 
of  incestuous  cohabitation  was  called 
and  examined  as  an  ordinary  witness. 
One  of  the  grounds  on  motion  for 
a  new  trial  was  error  in  allowing  the 
accomplice  to  testify  until  the  district 
attorney  had  complied  with  the  com- 
mon law  usage  of  asking  permission 
of  the  court  to  dismiss  the  charge 
against  her,  and  the  privilege  of  in- 
troducing her.  The  court  held  that 
she  was  to  be  treated  as  any  other 
witness  save  that  her  credibility  may 
lie  affected  by  the  fact  that  she  is 
charged  with  the  same  offense  as  the 
person  against  whom  she  testifies. 

59.  Territory  v.  Corbett,  3  Mont. 
.SO. 

60.  Josef  V.  State,  34  Tex.  Crim. 
App.  446,  30  S.  W.  1067;  People  v. 
O'Brien,  96  Cal.  171,  31  Pac.  45;  Peo- 
ple V.   Bonney,  98   Cal.   278.  33   Pac. 

In  U.  S.  V.  Sykes,  58  Fed.  1000, 
which  was  a  case  for  removing  un- 
stamped   whiskey,    a    witness    intro- 

Vol.  I 


116  ACCOMPLICES. 

duced   by    defendant    confessed   him-  whiskey,    and    that    his    father    did 

self  to  be  a  confederate  in  the  crime.  not  know  that  the  whiskey  had  been 

The  witness  testified  that  his  father  put  in  unstamped  casks.     The  court 

(the   defendant)    had   given  him   in-  he.d  that  his  testimony  ought  to  be 

structions     to     purchase     tax     paid  corroborated. 

Vol.  I 


ACCORD  AND  SATISFACTION.   . 

By  Edgar  W.  Camp. 

I.  WHERE  RELIED  ON  AS  A  DEFENSE,   117 

1.  Under  IVIiat  Pleas  Evidence  of  Is  Admissible,  117 

2.  Burden  of  Proof,  118 

3.  Necessity  of  Proving  Satisfaction  As  Well  As  Accord,  119 

4.  What  Evidence  Admissible ,  120 

A.  Generally,  120 

B.  In  Cases  of  Liquidated  Demands,  120 

C.  In  Cases  of  Unliquidated  Demands .  123 

D.  Written  Agreements,  126 

E.  Lapse  of  Time,  126 

F.  Discontinuance,  126 

G.  Receipt  in  Full,  127 

5.  Rebutting  Evidence  Of,  127 

6.  Variance,  127 

7.  Sufficiency  and  Submission  to  Jury,  127 

II.  ACTIONS  TO  SET  ASIDE,  128 


CROSS-REFERENCES. 


Compromise  and  Settlement; 
Receipt  and  Release. 


1.  WHERE  RELIED  ON  AS  A  DEFENSE. 

1.  Under  What  Pleas  Evidence  of  Is  Admissible.  —  Under  what 
pleas  evidence  of  accord  and  satisfaction  is  admissible  is  rather  a 
question  of  pleading.  At  common  law  such  evidence  was  admitted 
under  the  general  issue  in  assumpsit,^  in  case,^  in  debt  on  simple 

1.     Chitty  PI.,  vol.  I,  p.  513;  Phil-       372;    Stewart    v.    Saybrook,    Wright 

lips'  Ev.,  vol.  Ill,  p.   131;  Burge  v.       (Oh'o)    .374-    ,         ,    ^ 

rv  t,  -  D.     1  £    /T   J  X     -      D     .  2.     Ch my  P  .,  vo  .  I,  p.  527;  Phil- 

Dishman,  5  Blackf.  (Ind.)  272;  Bank       ,jp^,   ^^^   ^^j    Jjj^   ^  '^^^j-  £'^„^  ^ 

V.    Kimberlands,     16    W.    Va.    555;       Applegate,  i  Stark.  97,  18  Rev.  Rep. 
i.  happell  V.  Phillips,  Wright  (Ohio)       750. 

Vol.  I 


118 


ACCORD  AND  SATISFACTION. 


contract,"  but  not  in  debt  on  a  specialty,'  in  covenant,"'  nor  in  tres- 
pass vi  et  armis.'^ 

It  is  not  admissible  under  a  plea  of  payment.' 

Generally  under  codes  of  procedure  and  practice  acts,  proof  of 
accord  and  satisfaction  is  admissible  only  when  specially  pleaded." 

2.  Burden  of  Proof.  —  The  defendant  has  the  burden  of  proof .'■• 
But  if  the  plaintiit  admits  the  truth  of  the  plea  and  seeks  to  avoid 
it  for  fraud  or  otherwise,  the  burden  is  on  him,^"  and  when  the 


3.  Chitty  PI.,  vol.  I,  p.  517;  Page 
V.    Prentice,  7   Blackf.    (Ind.)    322. 

4.  Chitty  PI.,  vol.  I,  pp.  518  and 
520,  distinguishing  however  between 
cases  where  the  specialty  is  only  in- 
ducement, matter  of  fact  the  founda- 
tion, and  those  in  whom  the  specialty 
itself  is  the  foundation.  In  the 
former,  as  in  debt  for  rent  due  on 
indenture  of  lease,  accord  and  satis- 
faction could  be  proved  under  the 
general  issue,  in  the  latter  not. 

Where  in  an  action  on  a  specialty 
the  defendant  pleads  "nil  debit"  he 
may  prove  accord  and  satisfaction, 
but  not  where  his  plea  is  "  non  est 
factum."  Bailey  v.  Cowles,  86  111. 
333;  Phillips'  Ev.,  vol.  Ill,  p.  148. 

5.  Chitty  PL,  vol.  I,  p.  523; 
Saunders   PI.  &  Ev.,  vol.   I,  p.  23. 

6.  Chitty  PI.,  vol.  I,  p.  545 ;  Phil- 
lips V.  Kelly,  29  Ala.  628 ;  Kenyon  v. 
Sutherland,  8  111.  (3  Gilm.)  99; 
Longstreet  v.  Ketcham,  I  N.  J.  Law 
J70;  Doe  V.  Lee,  4  Taunt.  459;  Bird 
V.  Randall,  3  Burr.  1345'. 

7.  Hamilton  v.  Coons,  5  Dana 
(Ky.)  317;  Wallace  v.  Chandler,  16 
Ark.  651 ;  Smith  v.  Elrod,  122  Ala. 
269,  24  So.  994;  Friermuth  v. 
McKee,  86  Mo.  App.  64. 

Tlie  Contrary  was  suggested  in 
bank  V.  Kimberlands,  16  W.  Va. 
555,  and  in  Ligon  v.  Dunn,  6  Ired. 
Law  (N.  C.)  133,  facts  which  might 
under  a  different  system  of  pleading 
have  sustained  a  plea  of  accord  and 
satisfaction  were  admitted  to  prove 
payment. 

8.  Ingram  v.  Hilton.  &  D.  L.  Co., 
108  Ga.  194,  33  S.  E.  961 ;  Coles 
V.  Soulsby,  21  Cal.  47;  Parker  v. 
Lowell,  II  Gray  (Mass.)  353;  Covell 
V.  Carpenter  (R.  I.),  51  Atl.  425; 
Randall  v.  Brodhead,  60  App.  Div. 
567,  70  N.  Y.  Supp.  43 ;  Brown  v. 
Jones.  17  U.  C.  Q.  B.   (Can.)  50. 

Waiver  by  Failure  to  Object — But 

Vol.  I 


in  some  cases  it  has  been  held  that  if 
evidence  of  accord  and  satisfaction 
offered  under  a  plea  that  would  not 
admit  such  evidence,  is  let  in  with- 
out objection,  this  shows  that  the 
alleged  accord  and  satisfaction  is 
treated  as  an  issue  in  the  case,  and 
the  objection  will  be  deemed  to  have 
been  waived,  and  the  case  treated 
as  though  the  evidence  had  been  ad- 
mitted under  a  proper  pleading. 
Berdell  v.  Bissell,  6  Colo.  162,  Niggli 
V.  Foehry,  64  N.  Y.  St.  658,  31  N.  Y. 
Supp.   931. 

In  Vermont,  evidence  of  accord 
and  satisfaction  is  admissible  under 
the  general  issue,  provided  defend- 
ant gives  notice  of  intention  to  prove 
the  special  matter  of  defense.  Sca- 
ver   V.   Wilder,   68   Vt.   423,   35    Atl. 

351- 

9.  Rosenfeld  v.  New,  32  N.  Y.  St. 
301,  ID  N.  Y.  Supp.  232;  Simmons 
V.  Oullahan,  75  Cal.  508,  17  Pac.  543; 
McDavitt  V.  AIcNay,  78  111.  App.  396; 
Board  v.  Durnell,  (Colo.  Ct.  App.), 
66  Pac.  1073;  Noe  v.  Christie,  51 
N.  Y.  270;  Johnson  v.  Collins,  20 
Ala.  435;  Oilwell  Supply  Co.  v. 
Wolfe,  127  Mo.  616,  30  S.  W.  145. 

To  Prove  Payment  of  Notes  Given. 
If  it  appears  that  notes  were  to 
be  accepted  in  satisfaction  only  when 
paid,  the  defendant  has  the  burden 
of  showing  payment.  Dolson  v.  Ar- 
nold, ID  How.  Pr.  528;  Dickenson  v. 
Burr,  7  Ark.  (7  Eng.)  ?\;  American 
V.  Rimpart,  75  111.  228;  Board  of 
Corn's  of  La  Plata  County  v.  Dur- 
nell, (Colo.),  66  Pac.  1073;  Weldon 
V.  Voughan.  5  S.  C.  R.   (Can.)   35. 

On  burden  of  proof,  generally  see 
that  Title. 

10.  Helling  v.  United  Order  of 
Honor,  29  Mo.  App.  309.  See  infra, 
action  brought  to  set  aside  accord 
and  satisfaction.  Haist  v.  Grand 
Trunk  R.  R.  Co..  22  A.  R.  (Ont.) 
504- 


ACCORD  AND  SATISFACTION. 


119 


plaintift'  in  making  out  his  own  case  shows  that  an  accord  was  made, 
he  has  the  burden  of  showing  that  there  was  no  satisfaction." 

3.  Necessity  of  Proving  Satisfaction  As  Well  As  Accord.  —  It  is 
necessary  to  prove  the  satisfaction  as  well  as  the  accord. '- 

Evidence  of  readiness  to  perform,'^  or  of  tender  of  performance 


!!•  A  suit  was  brought  on  prom- 
issory notes,  which  had  memoranda 
endorsed,  showing  a  compromise  set- 
tlement at  fifty  per  cent.,  and  pay- 
ments made  on  the  compromise. 
The  plaintiff  offered  these  notes  in 
evidence.  The  plaintiff'  claimed  that 
there  had  been  a  default  in  the  per- 
formance of  the  compromise,  which 
gave  them  the  right  to  sue  upon  the 
notes,  but  did  not  explain  wnat  the 
terms  were  that  had  not  been  com- 
plied with,  or  what  the  default  was, 
or  that  they  had  not  assented  to  the 
delay.  It  was  held  that  the  plaintiffs 
were  bound  to  go  far  enough  to 
make  out  a  prima  facie  case  against 
the  accord  which  their  own  evidence 
disclosed.  Browning  v.  Crouse,  43 
Mich.  489,  5  N.  W.  664. 

12.  Canada. — Thomas  v.  Mallory, 
6  U.  C.  Q.  B.  521 ;  Balsam  v.  Robin- 
son, 19  U.  C.  C.  p.  263 ;  Macfarlane 
V.  Ryan,  24  U.  C.  Q.  B.  474. 

United  States.— Way  v.  Russell,  33 
Fed.  s- 

Alabama.  —  Cobb  v.  Malone,  86 
Ala.  571,  6  So.  6;  Smith  v.  Elrod, 
122  Ala.  269,  24  So.  994. 

California. — Simmons  v.  Oullahan, 
75  Cal.  508,  17  Pac.  543;  Hogan  v. 
Burns,  (Cal.),  33  Pac.  631;  Holton 
V.  Noble,  83  Cal.  7,  23  Pac.  58. 

Connecticut. — Francis  v.  beming, 
59  Conn.    108,  21   Atl.   1006. 

Florida. — Sanford  v.  Abrams,  24 
Fla.   181,  2  So.  372- 

Illinois. — Jacobs  v.  Marks,  183  111. 
533,   56   N.   E.    I54- 

Indiana. — Anderson  v.  Scholey  114 
Ind.  553,  17  N.  E.  125;  Eichholtz  v. 
Taylor,  88   Ind.  38. 

lotva. — Ogilvie  v.  Hallam,  58  Iowa 
714,  12  N.  W.  730:  Bradley  v.  Palen. 
78   Iowa   126,  42  N.   W.  623. 

Maine. — Burgess  v.  Denison,  79 
Me.  266,  9  Atl.  726. 

Massachusetts. — Hermann  v.  Or- 
.cutt,  152  Mass.  405,  25  N.  E.  735; 
Dooley  v.  Potter,  146  Mass.  148,  15 
N.  E.  499. 

Missouri. — Goff  v.  Mulholland,  28 
Mo.   ,^97. 


New  York. — Mitchell  v.  Hawley, 
4  Denio  414,  47  Am.  Dec.  260;  Bank 
V.  DeGrauw,  23  Wend.  342,  35  Am. 
Dec.  569. 

Pennsylvania. — Hosier  v.  Hursh, 
151   Pa.   St.  415,  25  Atl.  52. 

Rhode  Island.  —  Clarke  v.  Haw- 
kins,  5'  R.   I.  219. 

Utah. — Whitney  v.  Richards  17 
Utah  226,  53  Pac.   1122. 

I'ennont. — Rising  v.  Cummings,  47 
Vt.   347. 

IVasliington. — Rogers  v.  Spokane, 
9  Wash.  168,  37  Pac.  300. 

In  Burgess  v.  Denison,  etc.  Co.,  79 
Me.  266,  9  Atl.  726,  the  plaintiff  had 
a  claim  for  labor.  Defendants  con- 
tended that  plaintiff  had  agreed  to 
take  a  deed  in  satisfaction.  It  ap- 
peared that  defendants  obtained  the 
deed  from  the  grantor,  but  had  not 
delivered  it,  expecting  plaintiff  to 
call  for  it.  It  was  held  that  this 
was  insufficient  to  establish  the  de- 
fense of  accord  and  satisfaction ; 
that  nothing  short  of  the  actual  de- 
livery of  the  deed  would  suffice. 
Martin  Alexander  Lumber  Co.  v. 
Johnson  (Ark.),  66  S.  W.  921;  Ar- 
nett  V.  Smith,  (N.  D.),  88  N.  \,  . 
1037- 

13.  Hearn  v.  Kiehl,  38  Pa.  St. 
147,  80  Am.  Dec.  472;  Blackburn  v. 
Ormsby,  41    Pa.   St.  97. 

Attempt  to  Perform. — Francis  v. 
Deming,  59  Conn,  108,  21  Atl.  1006. 
The  defendant  showed  an  agreement 
to  compromise  on  payment  of  cer- 
tain money  and  the  delivery  of  a 
release,  and  that  he  went  to  the 
office  of  the  plaintiff's  attorney  ready 
to  pay  the  money  and  deliver  the 
release,  but  that  the  attorney  was 
sick  at  home,  and  that  afterwards 
and  after  the  present  suit  was 
brought  the  money  had  been  actually 
tendered  to  the  attorney.  It  was 
held  that  the  answer  setting  up  these 
facts  stated  no  defense,  although  the 
proceeding  was  in  equity.  The  court 
held  the  rule  in  equity  to  be  the 
same  in  that  instance  as  at  law. 
Berdew  v.  Tillma.  (Neb.).  88  N.  W. 

Vol.  I 


120 


ACCORD  AND  SATISFACTION. 


of  tlie  terms  of  the  accord,  will  not  suffice.''' 

4.  What  Evidence  Admissible. — A.  Gener.\lly.  —  To  determine 
generally  what  is  admissible  to  sustain  or  defeat  a  plea  of  accord 
and  satisfaction,  recourse  must  be  had  to  the  general  rules  of  rele- 
vancy and  competency.'^ 

I!.  In  Cases  uF  LiguiUAXEo  Demanus.  —  But  certain  facts  are 
so  often  relied  on  as  to  require  mention.  In  most  jurisdictions  mere 
pajment  of  part  of  a  liquidated  demand  can  never  be  shown  to 
prove  an  accord  and  satisfaction,'"  yet  payment  at  an  earlier  time," 


123;  Ross  V.  Heron,  u  U.  C.  Q.  B. 
(.Can.)   467. 

14.  New  York. — Noe  v.  Christie, 
SI  N.  Y.  270;  Day  v.  Roth,  18  N. 
Y.  448;  Bank  v.  DeGrauw,  23  Wend. 
342,  35  Am.   Dec.   569. 

Pennsylvania. — Hosier  v.  Hursh, 
151    Pa.   St.  415,  25  Atl.  52. 

Rhode  Island.  —  Clarke  v.  Haw- 
kins, 5  R.  I.  219. 

South  Dakota. — Carpenter  v.  Chi- 
cago Co.,  7  S.  D.  584,  64  N.  W.  1 120. 

Texas. — Bank  v.  Curtis,  (Tex.), 
36  S.  W.  911. 

Contra. — Bradshaw  v.  Davis,  12 
Tex.    336. 

15.  Illustration The    fact    of    a 

debtor's  insolvency  is  not  evidence 
of  consideration  for  agreement  to 
accept  in  full  payment  of  part  of  a 
debt.  Pearson  v.  Thomason,  15 
Ala.  700,  50  Am.   Dec.   159. 

And  compare  Bryant  v.  Gale,  5 
Vt.  416;  Coit  V.  Houston,  3  Johns. 
Cas.  243. 

16.  United  States.  —  Fire  Ins. 
.Ass's.  V.  Wickham,  141  U.  S.  564, 
12   Sup.   Ct.   84. 

Arkansas. — Reynolds  v.  Reynolds, 
55'  Ark,   369,   18  S.   W.  377- 

Illinois. — Hayes  v.  Massachusetts 
Co.,  125  111.  626,  18  N.  E.  322. 

Indiana. — Miller  v.  Eldridge,  126 
Ind.  461,  27  N.  E.   132. 

Kansas. — St.  Louis  &  Ry.  Co.  v 
Davis,  35  Kan.  464,  11  Pac.  421. 

Michigan.  —  Leeson  v.  Anderson, 
99  Mich.  247,  q8  N.  W.  72,  41  .\m. 
St,   Rep.   597, 

Missouri. — Wetmore  v.  Crouch,  150 
Mo.  671,  51    S.   W.   738. 

Nebraska. — Mcintosh  v.  Johnson, 
51  Neb,  33,  70  N.  W.  522. 

Ne7v  Jersey. — Murphy  v.  Kastner, 
50  N.  J,  Eq,  214.  24  Atl.  564. 

Neit'  York. — Allison  t ,  Abendroth. 
108  N.  Y,  470,  IS  N,  E,  606;  Evers 
7',    Osthcrman,   37    Misc.    163,   74    N. 

Vol,  I 


V.  Supp,  874;  Eames  tk  B.  Co.  v. 
Prosser,  157  N.  Y.  289,  50  N.  E. 
980. 

Pennsylvania. — Com.  v.  Cummins, 
15s  Pa.  St.  30,  2S  Atl.  996. 

Te.ras. — Bowdon  v.  Robinson,  4 
Tex.  Civ.  App.  626,  23  S.   W.  816. 

Vermont. — Bowker  v.  Harris,  30 
Vt,  424. 

/  irginia. — Smith  v.  Chilton,  84  Va. 
840,  0  S.  E.   142. 

The  Rule  Is  Modified  or  Abrogated 
by  Statute  in  Alabama  (itv  Hodges 
V.  Implement  Co.  (Ala.)  26  So.  490)  ; 
California  isee  Dobinson  v.  Mc- 
Donald, 92  Cal.  33,  27  Pac.  1098)  ; 
Georgia,  Maine,  North  Carolina  {see 
Kerr  v.  Sanders,  122  N.  C.  635,  29 
S.  E.  943)  ;  Tennessee  and  Virginia; 
Holmes  v.  McDonnell,  12  U.  C.  Q. 
B.    (Can.)    469. 

17.  Hutton  V.  Stoddart,  83  Ind. 
539;  Boyd  v.  Moats,  75  Iowa  151, 
39  N.  W.  237 ;  Schweider  v.  Lang,  29 
Minn.  254,  13  N.  W.  33;  Miller  v. 
Bldg.  Ass'n,  50  Pa.  St.  32 ;  Kirchoff 
V.  Voss,  67  Tex.  320,  3  S,  W.  S48. 

Prepayment  of  Loss  Under  Policy 
of  Insurance — In  the  case  of  Fire 
Insurance  Association  v.  Wickham, 
141  U.  S.  564,  12  Sup.  Ct.  84,  an 
insurance  company  paid  a  part  of 
the  amount  due  on  a  policy  five 
days  after  the  loss,  which  was  fifty- 
five  days  before  any  money  was  due 
under  the  terms  of  the  policy.  The 
court  admitted  that  payment  might 
be  evidence  of  an  accord  and  satis- 
faction, but  that  the  question  was  a 
proper  one  for  the  jury  to  pass  upon 
after  having  submitted  to  them  all 
the  facts  and  circumstances  of  the 
payment ;  that  the  mere  fact  of  pre- 
payment would  not  conclusively  show 
an  accord  and  satisfaction.  Martin 
Alexander  Lumber  Co.  v.  Johnson 
(Ark.),  66   S.   W.   924. 


ACCORD  AND  SATISFACTION. 


121 


01"  at  a  different  place  than  that  specified  in  the  contract/"  or  by 
transfer  of  property  other  than  money/"  or  by  giving  new  security/" 


18,  Pope  V.  Tunsiall,  2  Ark.  20g; 
Fenwick  v.  Phillips,  3  Mete.  (Ky.) 
^7;  McKenzie  v.  Culbrelli,  66  N.  C. 
534;  Smith  V.  Brown,  12  N.  C.  580. 

In  Jaffray  v.  Davis,  124  N.  Y.  164, 
26  N.  E.  351,  it  is  said  m  argument 
that  payment  of  less  than  the  whole 
debt  made  at  a  different  place  from 
that  stipulated  may  be  shown  to 
prove  accord  and  satisfaction  if  re- 
ceived in  full,  citing  Jones  v.  Bullitt, 
2   Litt.    (Ky.)    49;    Ricketts  v.    Hall, 

2  Bush.   (Ky.)  249;  Smith  v.  Brown, 

3  Hawks  (N.  C.)  580;  Jones  v. 
Perkins,  29  Miss.  139,  64  Am.  Dec. 
136;  Schweider  v.  Lang,  29  Minn. 
254,  13  N.   W.  33,  43  Am.  Rep.  202. 

19.  Gavin  v.  Annan,  2  Cal.  494; 
Savage  v.  Everwan,  70  Pa.  St.  315, 
ID  Am.  Rep.  676;  VVatkinson  v. 
Ingoldsby,  5  Johns.  (N.  Y.)  386; 
Hasted  v.  Dodge  (Iowa),  35'  N.  W. 
462;  Ridlon  V.  Davis,  51  Vt.  457; 
Christie  v.   Craige,  20  Pa.   St.  430. 

Value  or  Character  of  Considera- 
tion Not  Material In  Traphagen  v. 

Vorhees,  44  N.  J.  Eq.  21,  12  Atl.  895, 
the  court  said  if  the  testatrix  gave 
the  receipt  that  was  offered  in  ac- 
ceptance of  accord  and  satisfaction 
under  a  promise  to  the  defendant 
that  the  services  theretofore  rendered 
and  those  which  he  should  there- 
after render  should  be  considered 
as  an  equivalent  for  the  mortgage 
-  debt,  and  on  her  death  operate  to 
discharge  the  debt,  there  could  be 
no  doubt  that  her  promise  had  the 
support  of  a  sufficient  consideration 
to  give  it  legal  efficiency,  that  as  to 
the  adequacy  or  sufficiency  of  the 
■consideration,  the  testatrix  had  a 
right  to  be  her  own  judge ;  that  a 
purely  technical  consideration  of 
very  trifling  value  in  comparison 
with  the  amount  of  the  debt,  would 
be  held  sufficient  where  there  was 
no  undue  influence,  imposition  or 
fraud. 

In  Thurber  v.  Sprague,  17  R.  I. 
634.  24  Atl.  48,  a  father,  as  trustee 
for  his  son,  had  invested  certain 
moneys,  and  the  son  after  coming  of 
age,  demanded  the  moneys,  and  the 
father  said  that  he  had  made  it  up 
to  his  son  many  times  over;  that  if 
the  son  was  not  satisfied  and  wanted 


the  money,  $500,  he  should  take  it 
and  go,  but  that  if  he  remained  with 
the  father,  the  father  did  not  wish 
to  hear  of  it  again.  The  son  made 
no  reply,  but  continued  to  live  with 
his  father  and  received  money  and 
support  until  the  latter's  death.  It 
was  held  that  this  established  an  ac- 
cord and  satisfaction,  the  son  hav- 
ing understood  that  by  continuing  to 
receive  support,  he  waived  his  claim 
to  the  money. 

In  Neal  v.  Handley,  116  111.  418,  6 
N.  E.  45,  56  Am.  Rep.  764,  evidence 
was  given  that  $100  and  a  cow  were 
taken  in  satisfaction  of  a  judgment. 
It  was  apparent  that  $100  and  the 
value  of  the  cow  amounted  to  less 
than  the  judgment.  The  court  held 
that  the  doctrine  that  payment  of  a 
less  sum  cannot  be  pleaded  in  satis- 
faction of  a  larger  sum  was  confined 
to  the  payment  of  money  merely, 
and  quoted  Pinnel's  case,  30  Coke 
238,  as  follows :  "  It  was  resolved 
by  the  whole  court  that  payment  of 
a  lesser  sum  on  the  debt  in  satisfac- 
tion of  a  greater,  cannot  be  any  sat- 
isfaction for  the  whole,  because  it 
appears  to  the  judges  that  by  no  pos- 
sibility a  lesser  sum  can  be  a  satis- 
faction to  the  plaintifif  for  a  greater 
sum,  but  the  gift  of  a  horse,  hawk 
or  robe,  etc.,  in  satisfaction  is  good, 
for  it  shall  be  that  a  horse,  hawk  or 
robe,  etc.,  might  be  more  beneficial 
to  the  plaintifif  than  the  money  in 
respect  of  some  circumstances,  or 
otherwise  the  plaintifif  would  not 
have   accepted   of   it  in   satisfaction." 

20,  Schmidt  v.  Ludwig,  26  Minn. 
85,  I  N.  W.  803.  Compare  Kem- 
mercr's  Appeal.  102  Pa.  558. 

Giving  Security  for  Part  of  the 
Debt — Tm  Jafifray  v.  Davis,  124  N. 
Y.  164,  26  N.  E.  351,  the  court  cites 
I-ePage  v.  AlcCrea,  i  Wend.  164; 
Boyd  V.  Hitchcock,  20  Johns.  76,  11 
Am.  Dec.  247,  on  the  proposition  that 
giving  further  security,  though  for  a 
less  sum  than  the  debt,  and  accept- 
ance of  it  in  full  of  all  demands 
make  a  valid  accord  and  satisfaction, 
and  that  if  a  debtor  gives  his  cred- 
itor a  note  indorsed  by  a  third  party 
for  a  less  sum  than  the  debt,  no 
matter   how   much    less,   but   in    full 

Vol.  I 


122 


ACCORD  AND  SATISFACTION. 


or  even  in  some  cases  new  evidence  of  debt  may  be  shown  to  estab- 
lish accord  and  satisfaction,-'  and  a  compromise  between  an 
insolvent  and  his  creditors  may  be  given  in  evidence  by  him  to  show 
accord  and  satisfaction. -- 


satisfaction  of  the  debt,  and  which  is 
received  as  such,  that  is  a  good  ac- 
cord and  satisfaction,  citing  also 
Varney  v.  Conery,  yy  Me.  527,  i  Atl. 
683;  Stewart  v.  Hanson,  7  U.  C.  C. 
P.  (Can.)  168;  Hanscombe  v.  Mac- 
donald,  4  U.  C.  C.  P.   (Can.)    190. 

Agreement     to     Pay     Delinquent 

Taxes   on   Mortgaged   Premises In 

Day  V.  Gardner,  42  N.  J.  Eq.  199,  7 
Atl.  365,  it  appeared  that  one  Rollins 
had  two  mortgages  against  the  de- 
fendant bearing  7  per  cent,  interest ; 
that  there  were  some  five  years'  back 
taxes  unpaid  on  the  mortgaged 
premises,  and  that  Rollins  made  an 
agreement  with  the  defendant  that 
if  the  latter  would  pay  up  the  ta.xes 
the  mortgaged  debt  would  be  re- 
duced from  $900  to  $500,  and  the 
rate  of  interest  from  7  to  6  per  cent, 
per  annum.  Debtor  performed  her 
part  of  the  agreement.  It  was  held 
that  the  payment  of  the  taxes  remov- 
ing liens  prior  to  the  mortgage  gave 
the  mortgagee  additional  or  better 
security,  and  was  a  substantial  bene- 
fit, and  that  therefore  the  facts  could 
be  given  in  evidence  of  an  accord 
and  satisfaction. 

Agreement    Made    Under    Mistake 

As  to  Party's  Liability In  Allison 

V.  Abendroth,  108  N.  Y.  470, 
ic  N.  E.  606,  defendant  was  at  the 
time  of  the  compromise  believed  to 
be  a  special  partner,  and  not  liable 
to  the  plaintifTs ;  that  under  that  im- 
pression he  gave,  and  the  plaintiffs 
accepted  his  notes  in  satisfaction  of 
a  claim  against  the  partnership.  The 
notes  were  for  2$  per  cent,  of  the 
claim,  and  were  afterwards  paid.  It 
was  held  that  these  facts  established 
an  accord  and  satisfaction.  The  fact 
that  the  settlement  was  made  under 
a  misapprehension  as  to  the  liability 
of  the  defendant  made  no  difference ; 
that  had  the  defendant  been  a  gen- 
eral partner,  the  acceptance  of  the 
notes  under  the  same  agreement 
would  have  been  satisfaction. 

21.  Allison  V.  Abendroth.  10  .  N. 
Y.  470,  15  N.  E.  606;  Mason  v. 
Wickersham,    4    W.    and     S.     (Pa.) 

Vol.  I 


100;  Booth  V.  Smith,  3  Wend.  66. 
Compare  Hooker  v.  Hyde,  61  Wis. 
204,  21  N.  W.  52.  Thomas  v.  Mal- 
lory,  6  U.  C.  Q.  B.  (Can.)  521; 
Clark  V.  Ring,  13  U.  C.  Q.  B.  (Can.) 
185. 

In  JafTray  v.  Davis,  124  N.  Y.  164, 
26  N.  E.  351,  the  facts  were  that  de- 
fendants owed  plaintiffs  about  $7700, 
and  delivered  their  (defendants') 
notes  amounting  to  about  $3400,  se- 
cured by  a  chattel  mortgage,  which 
notes  and  mortgage  were  received 
by  plaintiffs  under  an  agreement  to 
accept  them  in  full  satisfaction  of 
the  indebtedness.  The  notes  were 
paid,  and  these  facts  were  submitted 
as  establishing  an  accord  and  satis- 
faction. The  court  cited  Goddard  v. 
O'Brien,  9  Q.  B.,  Div.  37,  to  the 
effect  that  A.  being  indebted  to  B.  in 
£125,  gave  B.  a  check  (presump- 
tively negotiable)  for  £100,  payable 
on  demand,  which  B.  accepted  in 
satisfaction,  and  it  was  held  by  the 
English  court  that  it  was  a  good  sat- 
isfaction;  Huddleston  B.  approving 
the  opinion  in  Sibree  v.  Tripp,  15 
M.  &  W.  26,  that  a  negotiable  se- 
curity may  operate,  if  so  given  and 
taken,  in  satisfaction  of  a  debt  of  a 
greater  amount.  The  circumstance 
of  negotiability  making  it  a  different _ 
thing,  more  advantageous  than  the 
original  debt,  which  was  not  negotia- 
ble. Loonier  v.  Marker,  11  U.  C.  Q. 
B.    (Can.)    16. 

22.  Pontious  v.  Durflinger,  59 
Ind.  27;  Murray  v.  Snow,  37  Iowa 
410-  Steinman  v.  Magnus.  11  East 
390.  Compare  Allen  v .  Roosevelt, 
14  Wend.  100;  Wheeler  v.  Wheeler, 
IT  Vt.  60. 

In  Paddleford  v.  Thacher,  48  Vt. 
574,  it  was  stated  to  be  the  rule, 
after  a  consideration  of  the  English 
authorities,  that  an  agreement  by  all 
of  one's  creditors  to  forbear  or  dis- 
charge, is  a  sufficient  consideration 
to  support  the  promise  of  each  to 
do  so,  and  especially  after  the  agree- 
ment has  been  fully  executed  by  the 
payment  by  the  debtor  of  the  stipu- 
lated    siun    as    a    discharge    by     the 


ACCORD  AND  SATISFACTION. 


123 


C.  In  Casks  of  UNLKjLiDATiiD  Demands. — Conditional  Offer. 
Where  the  sum  due  is  unliquidated  or  disputed,  and  ihe  debtor 
tenders  a  sum  with  notice  that  it  is  tendered  in  full  payment  and 
satisfaction  of  the  demand,  and  the  creditor  takes  the  proffered 
sum;  these  facts  establish  an  accord  and  satisfaction  even  though 
the  creditor  asserts  and  at  the  receipt  of  the  payment  asserted  that 
he  did  not  accept  the  same  in  full  but  only  on  account.'-^  But  the 
offer  must  be  expressly  made  upon  condition  that  it  be  accepted  in 
full.^*     Any  suggestion  of  further  negotiation  permits  the  creditor 


creditors  of  their  debts.  Brunskiil  v. 
Metcalfe,  2  U.  C.  C.  P.   (Can.)   431. 

Not  Necessary  That  Agreement 
Include  All  the  Creditors — In  Laird 
V.  Campbell,  92  Pa.  470,  an  agree- 
ment was  entered  into  reading,  "  We 
the  undersigned,  creditors  of  Wil- 
liam W.  Laird."  It  was  insisted 
that  this  meant  all  the  creditors, 
and  that  the  agreement  not  having 
been  executed  by  all,  was  not  bind- 
ing upon  any.  The  court  held  that 
an  agreement  for  composition  be- 
tween a  debtor  and  his  creditors  was 
good,  although  all  the  creditors  were 
not  included,  and  that  if  it  was  in- 
tended not  to  be  binding  unless  all 
the  creditors  did  come  in,  the  agree- 
ment should  so  state  in  e.xpress 
terms. 

23.  United  States. —  tire  Ins.  v. 
■  Wickham.  141  U.  S.  564.  12  Sup.  Ct. 
84;   Savage  v.  U.  S.  92  U.  S.  382. 

Connectieut. — Potter  v.  Douglass, 
44   Conn.   541. 

Indiana. — Talbott  v.  English,  156 
Ind.  299,  59  N.  E.  857;  Hutton  v. 
Stodard,  83  Ind.  539. 

loica. — Keck  v.  Ins.  Co.,  89  Iowa 
200,  56  N.  W.  438;  Brick  v.  County 
of  Plymouth,  63  Iowa  462,  19  N.  W. 
304. 

Michigan. — Tanner  v.  Miller,  108 
Mich.  s8,  65  N.  W.  664,  62  Am.  St. 
Rep.   687. 

Minnesota. — Truax  v.  Miller,  48 
Minn.  62,  50  N.  W.  935 ;  Marion  v. 
Heimbach,  62  Minn.  214.  64  N.  W. 
386. 

Nebraska. — Treat  v.  Price,  47  Neb. 
875',  66  N.  W.  834. 

Neiv  York. — King  v.  Dorman,  26 
Misc.  133.  .SS  N.  Y.  SuDp.  876;  Rey- 
nolds V.  Empire  L.  Co.,  66  N.  Y. 
St.  712,  33  N,  Y.  Supp.  Ill;  Hills  v. 
Sommer,  25  N.  Y.  St.  1003,  6  N.  Y. 
Supp.  469;  Logan  V  Davidson  18 
App.  Div.  353.  45  N.   Y.   Supp.  961  ; 


Nassoiy  v.  Tomlinson,  148  N.  Y.  326, 
42  N.  E.  715.  51  Am.  St.  Rep.  695; 
Looby  V.  West  Troy,  24  Hun  78; 
Davenport  v.  Wheeler,  7  Cow.  231; 
tames  V.  B.  Co.  v.  Prosser,  157  N. 
Y.  289,  51  N.  E.  986;  Cleveland  v. 
Toby,  36  Misc.  319,  73  N.  Y.   Supp. 

544- 

Vermont. — Preston  v.  Grant,  34 
Vt.  201 ;  McDaniels  v.  Bank,  29  Vt. 
230,  70  Am.  Dec.  406. 

Contra.  —  Perin  v.  Cathcart 
(Iowa),  89  N.  W.   12. 

Leaving  Thing  Offered  With  Third 

Person    To    Be    Delivered In    the 

case  of  McDaniels  v.  Lapham,  21 
Vt.  222,  the  court  approved  the  case 
of  McGIynn  v.  Billings,  16  Vt.  329, 
and  stated  that  case  as  follows : 
Plaintiff  and  defendant  met  for  the 
purpose  of  making  a  settlement,  and 
having  examined  their  accounts,  they 
disagreed  as  to  the  balance  due  to 
the  plaintiff  from  the  defendant. 
The  defendant  then  drew  an  order 
in  favor  of  the  plaintiff  upon  a  third 
person  for  the  sum  he  admitted  to 
be  due,  and  offered  it  to  the  plaintiff 
as  his  balance  due.  The  plaintiff  re- 
fused to  receive  the  order,  and 
claimed  a  larger  sum  as  being  the 
amount  the  defendant  owed  him. 
The  defendant  then  gave  the  order 
to  one  H,  who  was  present,  and 
directed  H  to  deliver  the  order  to 
plaintiff  when  he  would  receive  it, 
as  the  balance  due  to  him.  Plaintiff 
subsequently  took  the  order  from  H, 
but  at  the  same  time  declared  that 
he  did  not  receive  it  in  full,  and 
brought  suit  to  recover  the  balance. 
The  court  held  that  the  acceptance 
of  the  order  operated  as  a  full  dis- 
charge of  all  claims,  although  he  ex- 
pressly declared  he  did  not  so  re- 
ceive it. 

24.  Payment  Construed  in  Light 
of   Preceding   Negotiations In   the 

Vol.  I 


124 


ACCORD  AND  SATISFACTION. 


case  of  Sauford  v.  Abrams,  24  Fla. 
18,  2  So.  i/i,  there  was  considerable 
correspondence  over  a  disputed  ac- 
count. Finally  planitiff  submitted  a 
proposition,  that  defendant  should 
pay  $2000  and  receipt  certain  bills. 
Defendant  offered  $2000,  and  plaint- 
iff telegraphed,  "  Deposit  $2000  with 
A  and  all  right."  This  money  was 
deposited  and  was  accepted,  but  the 
plaintilf'  claimed  that  he  did  not  un- 
derstand that  it  was  in  full  of  all  de- 
mands. The  court  said  that  receipt 
and  acceptance  of  the  money  was 
only  referable  to  the  object  and  pur- 
pose of  the  negotiation,  viz.,  a  set- 
tlement  in   full. 

Where  Claims  Are  Made  Against 
Municipal  Corporations,  and  allowed 
for  a  less  sum  than  that  demanded, 
the  acceptance  of  the  sum  allowed  is 
evidence  of  an  accord  and  satisfac- 
tion; thus  in  Brick  v.  Co.  of  Ply- 
mouth, 63  Iowa  462,  19  N.  W.  304,  a 
claim  was  made  against  a  county  for 
$907.  The  supervisors  allowed  the 
sum  of  $318,  rejecting  the  balance. 
The  amount  was  paid  to  the  plaintiff 
who  received  it  and  knew  that  the 
balance  had  been  rejected.  It  was 
held  that  he  could  not  maintain  suit 
for  the  balance.  The  payment  of  a 
part  allowed  was  to  be  considered 
satisfaction  for  the  entire  sum,  the 
court  referring  to  and  approving 
Wapello  Co.  v.  Sinnaman,  i  Greene 
413.  See  also  Advertiser  and 
Tribune  Co,  v.  Detroit,  43  Mich. 
116,  5  N.  W.  72;  Perry  v.  Cheboy- 
gan, 55  Mich.  25D,  21  N.  W.  333 ; 
People  V.  Supervisors,  43  N.  Y.  St. 
77,  17  N.  Y.  Supp.  314. 

Plaintiff  Must  Be  Informed  That 
Allowance  Made  Is  in  Full. — If  he 
does  not  know  this  when  he  accepts 
payment  of  smaller  amount  he  may 
still  sue  the  municipalit-  for  the  bal- 
ance. Board  v.  Durnell,  (Colo. 
.\pp.),    66    Pac.    1073. 

Agreement  With  County  Proved 
by  Oral  Testimony. — Where  no  rec- 
ord of  it  appears  on  the  minutes  of 
the  County  Board,  and  plaintiff  ac- 
cepted the  sum  agreed  upon.  Green 
V.  Lancaster  Co.,  61  Neb.  473,  8s  N. 
W.  430. 

Estoppel  to  Deny  Kegularity  of 
Action  of  County — One  who  ac- 
cepts a  sum  paid  by  a  county  in 
compromise  of  a  claim  cannot  be 
permitted  to  prove  that  the  meeting 

Vol.  I 


al  which  the  compromise  was  made 
was  not  regularly  held.  Green  v. 
Lancaster  Co.,  61  Neb.  473,  85  N.  W. 
439. 

This  Rule  As  to  Claims  Against 
Municipalities  Not  Applicable  to 
liquidated  demands.  Pease  v.  Com. 
Council,  126  Mich.  436,  85  N.  W. 
10S2. 

In  Fuller  v.  Kemp,  138  N.  Y.  231, 
33  N.  E.  1034,  plaintiff  sent  an  item- 
ized bill  for  $675.  Defendant  wrote 
acknowledging  receipt,  saying  that 
there  must  be  some  mistake,  asking 
lor  a  corrected  bill.  Plaintiff  sent  an 
itemized  bill  for  the  same  amount. 
Defendant  wrote  inclosing  check  for 
$400,  stating  that  the  same  was  in 
full  satisfaction ;  that  he  trusted  that 
plaintiff  would  view  the  matter  as  he 
did.  Plaintiff  cashed  the  check,  and 
again  sent  his  bill,  showing  a  credit 
of  $400.  Defendant  wrote  calling 
attention  to  the  condition  on  which 
he  had  forwarded  the  check ;  that  he 
did  not  recognize  plaintiff's  right  to 
retain  the  amount,  and  repudiate  the 
condition;  asking  for  receipt  in  full, 
or  return  of  the  money.  To  this  the 
plaintiff  made  no  reply.  The  court 
said  that  had  the  defendant  remained 
silent,  it  might  have  been  presumed 
that  he  assented  to  the  use  which 
plaintiff  had  made  of  the  check,  and 
would  have  become  bound  to  pay  the 
balance. 

It  would  seem,  however,  that  such 
demand  is  only  necessary  where  it' 
appears  that  the  creditor  did  not  un- 
derstand that  the  offer  was  condi- 
tioned on  its  acceptance  in  full. 
Towslee  V.  Healey,  39  Vt.  522;  Pot- 
ter V.  Douglass,  44  Conn.  541  ;  Nas- 
soiy  V.  Tomlinson,  48  N.  Y.  St.  182, 
20  N.  Y.  Supp.  384;  Miller  v. 
Holden,  18  Vt,  337;  Talbott  v.  En- 
glish, 156  Ind.  299,  59  N.  E.  857; 
Curraii  v.  Rummel,  118  Mass.  482; 
Talbott  V.  English,  156  Ind.  299,  59 
N.  E.  857;  Graham  v.  Howell,  SO 
Ga.  203 ;  Gassett  v.  Andover,  21  Vt. 
342;  Brigham  v.  Dana,  29  Vt.  i; 
Fulton  V.  Monona  Co.,  47  Iowa  622; 
Tanner  v.  Merrill.  108  Mich.  s8,  65 
N.  W.  664. 

Knowledge    of    the    Condition    of 

the    Offer   To    Be    Shown It    must 

appear  that  the  creditor  knows  or 
ought  to  have  known  that  the  offer 
was   so  conditioned.     Board  v.   Our- 


ACCORD  AND  SATISFACTION. 


125 


to  credit   the  amount  offered  on  account  and  sue   for  the  balance 
claimed  bv  him.-^ 


nell  (.Colo.  App.;,  66  Pac.  1073; 
Talbott  V.  English,  156  Ind.  299,  59 
N.  E.  857;  Preston  v.  Grant,  34  Vt. 
201 ;  Springfield,  etc.,  Ry.  Co.  v.  Al- 
len, 46  Ark.  217;  Bull  v.  Bull,  43 
Conn.  455;  Hilliard  v.  Noyes,  58  N. 
H.  312." 

In  Donohue  v.  Woodbury,  6 
Cush.  (Mass.)  148,  52  Am.  Dec.  777, 
the  evidence  for  defendant  was  that 
the  attorney  for  the  defendant  made 
a  tender  to  the  attorney  for  the  plaint- 
iflf  of  a  certain  sum  "  as  and  for  the 
claim  of  plaintiff  against  defendant," 
and  that  plaintiff's  attorney  took  the 
money  and  made  no  reply.  The  at- 
torney for  the  plaintiff  said  he  had 
not  heard  the  words  quoted,  nor  any 
equivalent  words.  Chief  Justice 
Shaw  said :  "  It  was  the  duty  of 
the  agent  before  receiving  the  money 
to  know  what  was  said  and  what 
was  the  purpose  expressed,  and  if 
the  words  were  so  spoken  that  with 
ordinary  care  he  might  have  heard 
them,  and  through  carelessness  or 
inattention  he  failed  to  do  so,  the 
acceptance  was  binding  as  an  assent 
to  its  terms." 

In  the  case  of  Gassett  v.  Andover, 
21  Vt.  342,  after  the  suit  had  been 
begun,  the  defendant  tendered  $14  in 
full.  Plaintiff  received  it,  protesting 
that  it  was  not  enough,  but  that  he 
would  take  it  and  give  credit.  It 
did  not  appear  that  the  defendant 
expressed  any  dissent  to  this,  and  it 
was  suggested  that  it  might  there- 
fore be  inferred  that  defendant  as- 
sented to  its  acceptance  in  part  pay- 
ment, and  not  in  full. 

25.  Fuller  v.  Kemp,  16  N.  Y. 
Supp.  158;  this  principle  was  not 
controverted,  but  a  diffei .  nt  in- 
terpretation of  the  correspondence 
was  taken  on  the  appeal  of  this 
case.  See  138  N.  Y.  231,  33  N.  E. 
1034;  Bratt  V.  Scott,  44  N.  Y.  St. 
727,  18  N.  Y.  Supp.  507. 

Illustrations.  —  In  Pottlitzer  v. 
Wesson,  Ind.  App.,  35  N.  E.  1030, 
the  defendant  sent  a  check  by  letter 
saying  that  it  was  in  settlement  for 
a  certain  car  of  goods,  enclosing  also 
an  invoice  showing  account  of  sales 


and  saynig :  "  We  trust  the  same 
will  prove  satisfactory,  and  to  hear 
from  you  again."  The  plaintiffs  at 
once  wrote  that  they  had  placed  the 
amount  of  the  check  to  defendant's 
credit,  and  had  placed  in  the  hands 
of  a  collecting  agency,  their  claim 
for  the  balance.  The  defendant 
never  replied  to  this  letter.  The 
court  held  that  the  letter  and  invoice 
sent  with  the  check  did  not  amount 
to  an  unconditional  offer  to  be  ac- 
cepted in  full,  or  not  at  all,  and 
referred  to  the  case  of  Curran  v. 
Rummell,  118  Mass.  482,  where  a 
check  sent  "  in  settlement  of  your 
account,"  was  regarded  as  not 
amounting  to  an  unconditional  offer, 
so  that  the  creditor  was  not  bound 
to  treat  it  other  than  as  a  part  pay- 
ment by  the  debtor  to  be  applied  in 
reduction  of  the  debt  only,  and  dis- 
tinguished the  case  of  Hutton  v. 
Stoddart,  83  Ind.  539,  where  the  let- 
ter containing  the  check  expressly 
required  that  it  be  returned,  if  not 
accepted  in  full. 

In  Van  Dyke  v.  Wilder,  66  Vt. 
579,  29  Atl,  1016,  there  was  a  dis- 
puted account  between  the  parties, 
and  the  defendants  wrote  enclosing 
a  check  and  saying :  "  We  claim 
this  to  be  in  full  settlement  of  ac- 
count, but  admit  that  you  do  not 
allow  the  claim."  The  plaintiff  re- 
tained the  check,  but  it  was  held  the 
facts  were  not  evidence  of  an  accord 
and  satisfaction.  There  was  no 
declaration  in  the  defendant's  letter 
that  if  the  plaintiff  retained  the  check 
it  must  be  in  full  satisfaction. 

In  Boston  Rubber  Co.  v.  Peerless 
Wringer  Co.,  58  Vt.  551,  5  Atl.  407, 
there  was  a  disputed  account  between 
the  parties,  and  the  defendant  sent 
a  statement  with  a  note  for  the  ad- 
mitted balance,  the  statement  closing 
with  the  following:  "Trusting  you 
will  find  this  correct  and  satisfac- 
tory, we  remain,  etc."  It  was  held 
that  this  did  not  indicate  an  un- 
equivocal requirement  that  the  note 
be  accepted  in  full  or  not  at  all. 
There  was  no  condition  that  if  ac- 
cepted it  should  be  in  satisfaction. 


Vol.  I 


126 


ACCORD  AND  SATISFACTION. 


When  one  having  a  single  cause  of  action  for  unhquidated  dam- 
ages demands  and  receives  a  certain  sum,  there  is  a  presumption 
that  the  demand  and  payment  were  made  in  accord  and  satisfaction 
of  the  entire  cause  of  action."" 

D.  Written  Agreements.  —  If  the  agreement  of  accord  and 
satisfaction  was  in  writing,  the  writing  must  be  produced  or  its 
absence  explained.''  But  when  the  agreement  itself  was  not  in  writ- 
ing, but  was  consummated  by  the  execution  and  delivery  of  a  writ- 
ten obligation,  such  writing  need  not  be  produced  or  accounted 
for  in  proving  the  plea.°* 

E.  Lapse  of  Time.  —  Lapse  of  time  before  commencement  of 
action  is  a  circumstance  corroborating  other  evidence  of  accord  and 
satisfaction.^" 

F.  Discontinuance.  —  A  discontinuance  or  dismissal  of  a  for- 
mer action  for  the  same- cause  of  action  on  payment  of  costs  by 
defendant,  is  prima  facie  evidence  in  the  second  action  of  an  accord 
and  satisfaction.'"' 


Piishcck  V.  Francis  E.  Willard  U. 
T.  H.  Ass'n.,  94  111.  App.  192; 
Dougherty  v.  Herndon  (Tex.),  65 
S.  W.  891 ;  Green  v.  Lancaster  Co., 
61   Neb.  473,  85  N.  W.  439- 

26.  H  inkle  v.  Minneapolis,  etc. 
Ry.  Co.,  31  Minn.  434,  18  N.  W.  275. 
Hinkle  liad  been  injured  by  defend- 
ant's negligence  and  made  a  demand 
for  $91.25,  covering  doctor's  bill  and 
loss  of  time,  and  this  amount  was 
paid.  The  court  said  that  it  was  to 
lie  presumed  that  plaintiflf  knew 
when  he  received  this  money,  that 
he  had  received  the  injury  now  com- 
plained of,  and  that  although  there 
was  no  e.xpress  agreement  that  the 
money  should  he  paid  in  full  satis- 
faction, yet  that  was  the  inference  to 
he  drawn  from  the  facts ;  that  the 
cause  of  action  being  one  and  en- 
tire, no  other  construction  could  be 
put  upon  the  acts  of  the  parties. 
Lane  v.  Kingsmill,  6  U.  C.  Q.  B. 
(Can.)   579. 

27.  American  7'.  Rimpert,  75  111. 
228. 

28.  In  A.  P.  Brantley  Co.  v.  Lee, 
106  Ga.  313,  32  S.  E.  loi,  Lee  testi- 
fied that  defendants  had  executed 
their  notes  and  delivered  them  to 
the  plaintiff  in  satisfaction  of  the 
demands  sued  upon.  It  was  held 
upon  the  authority  of  Fisher  v. 
George  S.  Jones  Co.,  93  Ga.  717,  21 
S.   E.    152,   that    this   parol   evidence 

Vol.  I 


was  competent  without  producing  or 
accounting  for  the  notes.  But  in  the 
same  case  it  was  held  error  to  per- 
mit a  witness  to  say  that  notes  for  a 
certain  amount  —  naming  it  —  were 
given  in  satisfaction  because  this  tes- 
timony went  into  the  contents  of  the 
notes,  but  it  was  suggested  that 
probably  the  error  was  harmless. 
Compare  American  v.  Rimpert,  75 
111.   228. 

29.  Ketchem  v.  Gulick  (N.  J. 
Eq.),  20  Atl.  487;  Abbott  v.  Wilmot, 
22  Vt.  437. 

Lapse  of  Time  Alone  does  not  sus- 
tain the  plea  of  accord  and  satisfac- 
tion. Austin  V.  Moore,  7  Mete. 
(Mass.)  116;  but  sec,  Jenkins  v. 
Hopkins,  9  Pick.  543. 

30.  Dana  v.  Taylor,  150  Mass.  25, 
22  N.  E.  65.  Williams  was  ap- 
pointed assignee  of  Taylor,  and  as 
such  brought  an  action  on  the  same 
cause  of  action  set  out  in  the  present 
case.  In  the  former  action  on  peti- 
tion of  the  plaintiff,  leave  had  been 
granted  by  the  court  to  compromise, 
the  defendant  paying  costs,  and  it 
appeared  that  he  had  paid  the  costs. 
It  was  held  that  if  he  paid  the  costs 
under  the  agreement  that  in  con- 
sideration of  such  payment  the  as- 
signee would  give  up  the  right  to 
claim,  and  not  again  sue  upon  it ; 
that  would  be  sufficient  proof  of  ac- 
cord and  satisfaction.     But  see  Car- 


ACCORD  AND  SATISFACTION. 


127 


G.  RiiCEU'X  ii\  Full.  — A  receipt  in  full  supports  the  plea.^' 

5.  Rebutting  Evidence  Of.  —  Plaintiff  may  rebut  defendant's  evi- 
dence of  an  accord  and  satisfaction  with  evidence  that  the  compro- 
mise was  obtained  by  mistake  or  fraud. '*- 

6.  Variance.  • —  Defendant  will  not  be  permitted  to  prove  an  accord 
and  satisfaction  other  than  that  pleaded.^-' 

7.  Sufficiency  and  Submission  to  Jury.  —  Only  a  preponderance  of 
evidence  is  required  to  sustain  the  plea.^* 

If  the  evidence  is  not  conflicting  and  only  one  inference  can 
reasonably  be  drawn  from  it,  the  question  is  of  law  and  not  for  the 
jury.'°     Otherwise   the  inference  of  fact  is  to  be  drawn  by  the 


ter  V.  Wilson,  2  Dev.  &  B,  (.N-  C.) 
276,  and  Bond  v.  McNider,  3  Ired. 
Law   (N.  C.)   440- 

31.  Grumley  z/.  Webb,  48  Mo.  562 ; 
Serat  v.  Smith,  40  N.  Y.  St.  45,  15 
N.  Y.  S.  330;  Treat  v.  Price,  47 
Neb.  87s,  66  N.  W.  834;  Robinson  v. 
Ry.  Co.,  84  iMich.  658,  48  N.  W.  205 ; 
Vedder  v.  Vedder,  i  Denio  257 ; 
Springfield,  etc.  Ry.  Co.  v.  Allen,  46 
Ark.  217;   U.   S.  V.  Adams,  7  Wall. 

463. 

"The  Receipt  Must  Be  Interpreted 
and  Construed  From  Existing  Facts, 

and  in  the  light  of  surrounding  cir- 
cumstances." Crumley  v.  Webb,  44 
Mo.  444,   100  Am.  Dec.  304. 

And    Is    Open    to    Explanation 

Maze  V.  Miller,  i  Wash.  328,  16 
Fed.  Gas.  No.  9362;  Fire  Ins.  Ass'n. 
V.  Wickham,  141  U.  S.  564,  12  Sup. 
Ct.  84;  see  Tanner  v.  Merrill,  108 
Mich.  58,  62  Am.  St.  Rep.  687,  65 
N.   W.   664;   Bull  V.  Bull,  43   Conn. 

455. 

Refusal  to  Give  Receipt  may  be 
evidence  that  there  was  no  accord 
and  satisfaction.  Rosenfeld  v.  New, 
32  N.  Y.  St.  301,  10  N.  Y.  Supp. 
232;  Sicotte  V.  Barber,  83  Wis.  431, 
53  N.  W.  697.  But  compare  Keck  v. 
Ins.  Co.,  89  Iowa  200,  56  N.  W. 
438;  Nassoiy  v.  Tomlinson,  148  N. 
Y.  326,  42  N.  E.  715,  51  Am.  St. 
Rep.  695 ;  Potter  v.  Douglass,  44 
Conn.   541. 

32.  Bliss  V.  Ry.  Co.,  160  Mass. 
447,  36  N.  E.  65,  39  Am,  St.  Rep. 
504;  O'Donnell  v.  Town  of  Clinton, 
145  Mass.  461,  14  N.  E.  747;  Pierce 
V.  Drake,  15  Johns.  475;  Oliwill  v. 
Verdenhalven,  39  N.  Y.  St.  200,  15 
N.  Y.  Supp.  94;  Leslie  v.  Keepers, 
68  Wis.   123,  31    N.   W.  486,  4   Pac. 


221  ;  Mannakee  v.  McCloshey,  23 
Ky.  Law  515,  63  S.  W.  482;  Haar  v. 
Henley,  18  U.  C.  Q.  B.  (.Can.)  494; 
Rowe  V.  Grand  Trunk  R.  R.  Co.,  16 
U.  C.  C.  P.  (Can.)  500. 

Contra. — Roach  v.  Gilmer,  3  Utah 
389,  4  Pac.  221. 

33.  In  Smith  v.  Elrod,  122  Ala. 
269,  24  So.  994,  the  defendant  pleaded 
an  accord  and  satisfaction  made 
by  a  transfer  of  a  sawmill  and  equip- 
ment, but  the  proof  showed  that  the 
defendant  also  promised  to  deliver 
certain  shingles  and  perform  certain 
other  acts.  It  was  held  that  although 
the  proof  was  sufficient  to  show  an 
accord  and  satisfaction  had  the  same 
been  properly  pleaded,  yet  the  vari- 
ance was  fatal. 

34.  Bruce  v.  Bruce,  4  Dana  53°; 
Cheeves  v.  Danielly,  74  Qd..  712. 

35.  Truax  v.  Miller,  48  Minn.  62, 
50  N.  W.  935 ;  Hinkle  v.  Minneapo- 
lis &  St.  L.  Ry.  Co.,  31  Minn.  434, 
18  N.  W.  275;  Hills  V.  Sommer,  53 
Hun  392,  6  N.  Y.  Supp.  469. 

In  Pennsylvania,  however,  the 
rule  is  broadly  stated  thus : 
"  Whether  a  note  or  bond  was  ac- 
cepted in  satisfaction  of  the  original 
claim  is  matter  for  the  jury,  and  it 
is  error  for  the  court  to  decide  it  as 
matter  of  law."  Jones  v.  Johnston, 
3  Watts  &  S.  276,  38  f\m.  Dec.  760; 
Lees  V.  James,  10  Serg.  &  R.  307; 
Wallace  v.  Fairman,  4  Watts  379; 
Hart  V.  Boiler,  15  Serg.  &  R.  162,  16 
Am.  Dec.  536;  Stone  v.  Miller,  16 
Pa.   St.  450. 

Where  Evidence  Is  AH  Documen- 
tary— In  the  case  of  Sanford  v. 
Abrams,  24  Fla.  181,  2  So.  373,  the 
negotiations  were  all  in  writing,  and 
it  was  held   that   upon   the  evidence, 

Vol.  I 


128 


ACCORD  AND  SATISFACTION. 


jury.' 


11.  ACTIONS  TO  SET  ASIDE. 


In  an  action  to  set  aside  an  accord  and  satisfaction,  the  burden 
is  heavily  on  the  plaintiff  to  establish  the  fraud  or  mistake  alleged  f 
and  generally  he  must  prove  repayment  or  tender  of  anything 
received  by  him  under  the  compromise.^* 


the  court  should  have  determined 
whether  what  passed  between  the 
parties  was  an  accord  and  satisfac- 
tion, and  not  have  submitted  the 
matter   to    the   jury. 

Blackley  v.  McCabe,  i6  Ont.  App. 
(.Can.)   295'. 

36.  Brenner  v.  Herr,  8  Pa.  St. 
lo6;  Frick  v.  Algeier,  87  Ind.  255. 

It  is  not  necessary,  in  order  to 
make  a  question  for  the  jury,  that 
there  be  a  conflict  of  evidence ;  if  the 
facts  are  undisputed,  but  yet  reason- 
able, men  might  diflfcr  in  the  infer- 
ences to  be  drawn  from  them,  the 
question  is  for  the  jury.  Rosenfeld 
V.  New,  32  N.  Y.  St.  301,  10  N.  Y. 
Supp.  232 ;  Hills  V.  Sommer,  25  N. 
Y.  St.  1003,  6  N.  Y.  Supp.  469; 
Mortlock  V.  Williams,  76  Mich.  568, 
43  N.  W.  592;  Perin  v.  Cathcart, 
(Iowa),  89  N.  W.  12;  Port  Darling- 
ton Harbor  Co.  v.  Squair,  18  U.  C. 
Q.  B.  (Can.)  533;  Greenwood  v. 
Foley.  22  U.   C.   C.   P.    (Can.)    352; 

Vol.  I 


Weldon  v.  Vaughan,  5  S.  C.  R. 
(Can.)  35.  Contra. — Haist  v.  Grand 
Trunk  R.  R.  Co.,  22  A.  R.  (Ont.) 
504- 

37.  Currey  v.  Lawler,  29  W.  Va. 
Ill,  II  S.  E.  897;  Helling  v.  United 
Order,  29  Mo.  App.  309;  Ball  v. 
McGeoch,  81  Wis.  160,  51  N.  W. 
443- 

38.  Bensen  v.  Perry,  17  Hun  16; 
Alexander  v.  R.  R.  Co.,  54  Mo.  App. 
66;  Potter  v.  Ins.  Co.,  63  Me.  440; 
Bisbee  v.  Ham,  47  Me.  543 ;  Strod- 
der  V.  Southern  G.  Co.,  94  Ga.  626, 
19  S.  E.  1022. 

Except  Where  Right  to  Sum  Re- 
ceived    Is     Undisputed Leslie     v. 

Keepers,  68  Wis.  123,  31  N.  W.  486; 
Leeson  v.  Anderson,  99  Mich.  247, 
58   N.  W.   72,  41   Am.   St.   Rep.   597. 

Or  Recipient  Supposed  it  Paid  on 
Another  Account Butler  v.  Rich- 
mond T.  D.  R.  Co.,  88  Ga.  S94.  15'  S. 
E.  668. 


ACCOUNTANTS.— See  Expert  Testimony. 


ACCOUNTS,  ACCOUNTING  AND 
ACCOUNTS  STATED. 

By  Edgar  W.  Camp. 

I.  ACTIONS    FOR    ACCOUNTING    UNDER     CODES    OF    PRO- 
CEDURE,  132 

I.  Generally,  132 

II.  ACTIONS  IN  EQUITY  FOR  ACCOUNTING,  132 

1.  Before  Interlocutory  Decree  for  Accounting,  132 

A.  Generally,  132 

a.  Evidence  Coniined  to  Right  to  Such  Decree,  132 

b.  Evidence  Must  Folloiv  the  Bill,  134 

B.  Where   Bill   Alleges    That   no   Accounting   Has   Been 

Had,  135 

a.  Burden  of  Proof,  135 

b.  Evidence  on  Plea  of  an  Accounting,  136 

C.  Where  Bill  Is  to  Open  a  Settled  Account,  and  for  an 

Accounting,  137 

a.  Evidence  Must  Prove  SpeciHc  Allegations  of  Bill, 

137 

b.  Burden  of  Proof,  137 

c.  Sufficiency  of  Evidence,   137 

(i.)   Generally,  137 

(2.)    When   Decree   Will  Be  Refused  Although 
Error  Is  Shown,  138 

d.  Leave  to  Surcharge  and  Falsify,  138 

2.  After  Interlocutory  Decree,  139 

A.  Reference  to  Master,  139 

a.  Necessity  of  Reference,  139 

b.  Regulation  of  Proceedings  Before  Master,  140 

(i.)    Generally,   140 

(2.)  By  Order  of  Reference,  141 

(3.)   By  Rules  of  Court,  141 

9  Vol.  I 


130  ACCOUNTS,  ACCOUNTING 

B.  Subniittiiii^  Stafcinciits  of  Account.  142 

a.  Generally,  142 

b.  Form  of  Statements,  142 

C.  Examination  of  Party  Accounting,  143 

D.  Anszver  As  Evidence,  144 

E.  Burden  of  Proof,  144 

F.  Production  of  J'ouchers  in  Discharge,  145 

a.  Generally.   145 

b.  When  Not  Required,  145 

(i.)    Charge  and  Credit  Simultaneous,  145 
(2.)    Credit  Appearing  in  Book  Offered  by  Oppo- 
site Party,  146 
(2-)    When  Vouchers  Are  Lost,  146 
(4.)   For  Small  Items,  146 

G.  Where  Evidence  Not  Sufficient  to  Enable  Master  to 

State  Account.  146 
H.  On  Leave  to  Surcharge  and  Falsify,  147 

a.  Scope  of  Inquiry,  147 

b.  Burden  of  Proof,  147 

1.  Objections  to  Evidence,  147 
J.  Recommitting  to  Master,  148 
K.  Restatement  Without  Recojinnitincnt,  148 
L.  Matters   Arising   After   Master's    Report    and    Before 
Final.  Hearing.  148 

III.  COMMON  LAW  ACTION  FOR  AN  ACCOUNTING,  149 

1.  Before  Verdict  Quod  Computet,  149 

2.  After  J'crdicf  in  Proceedings  Before  Auditors.  150 

IV.  ACTIONS  ON  ACCOUNT,  151 

1.  Generally,  151 

2.  Book  Debt,  151 

A.  Testimony  of  Parties.  151 

B.  Burden  of  Proof,  152 

C.  Use  of  Account  Books,  152 

D.  Other  Means  of  Proof,  152 

3.  Actions  on  Verified  Account,  153 

A.  Verified  Statement  Must  Folloi<.'  the  Statute,  153 

B.  Effect  As  Evidence  of  Verified  Statement,  153 

C.  Defendant's  Counter- Affidavit,  154 

D.  Otlicr  Means  of  Proof.  155 
Vol.  I 


.    AND  ACCOUNTS  STATED.  131 

4.   Other  Actions  on  Open  Aceount.  153 

A.  Filing  or  Serzing  Statement  of  Account.  155 

B.  Testimony  of  Parties,  156 

C.  Method  of  Proiing  Plaintiff's  C(wc,  157 

a.  By  Aceount  Books,  157 

b;  By  Shozving  an  Account  Stated,  157 

c.  By  Prozing  Admissions,  157 

d.  Otherzvise,  158 

D.  Rccoz'ery  for  Amount  Proz'cd,  158 

E.  Variance,  158 

V.  ACCOUNTS  STATED,  158 

I.  Full  or  Regular  Proof,  158 

A.  Of  Previous  Dealings,  158 

B.  Rendering  or  Subniissioji  of  Account,  160 

a.  Necessary  to  Be  Shozvn,  160 

b.  U'hat  Is  a  Sufficient,  160 

c.  Does  Not  Make  an  Account  Stated.  162 

C.  Assent  of  Parties  to  the  Account,  162 

a.  Necessary  to  Be  Shozvn.  162 

b.  By  Agents,  163 

c.  Express  Assent,  164 

(i.)  Hozv  Shozvn,  164 

(2.)  When  Must  Have  Been  Given,  165 

(3.)    Unqualified  and  of  Precise  Sum,   166 

d.  Implied  Assent,  167 

(  I.)   Bank  Books  and  Pass  Books,  167 
(2.)   Accounts  Rendered  and  Not  Objected   To. 
168 
(A.)    To   What  Accounts  Applicable,   170 
(B.)   No  Implication  in  Absence  of  Previous 

Dealings,   171 
(C.)   Extent  of  Implied  Assent,  172 
(D.)   Rebutting  Implied  Assent,  172 
(E.)   Burden  of  Proof,   173 
(F.)  Reasonable  Time  to  Object,  173 
(G.)  Failure   to    Object   Prima   Facie   Evi- 
dence Only,  174 
(H.)  Explanation  or  Excuse  of  Failure,  175 
(a.)  Payment  and  Demand  As  Evidence 
of  Assent,  177 

e.  Promise  to  Pay.  178 

Vol.  I 


132  ACCOUNTS,  ACCOUNTING    ■ 

2.  Special  Modes  of  Proof,  178 

A.  Promissory  Notes,  178 

B.  Bills  of  Bxchange,  1 79 

C.  Due  Bills,  179 

D.  Sealed  Instruments,  180 

E.  Awards  and  ludgmcnts,  180  '         . 

F.  Admissions  of  Indebtedness,  180 

G.  Verified  Statements,  181 

3.  Rebutting  Evidence  of  Account  Stated,  181 

4.  Burden  of  Proof  to  Establish,  181 

5.  Effect  of  Account  Stated  As  Evidence,  182 

6.  Showing  fraud.  Mistake  or  Illegality  in  Account  Stated,  182 

7.  Variance,  184 

8.  Presumption  As  to  What  Included  in  Account  Stated,  184 

CROSS-REFEKENCES. 

Books  of  Account ; 

Contribution ; 

Equity ;  Executors  and  Administrators  ; 

Factors ; 

Guardian  and  Ward ; 

Partnership  ;  Principal  and  Agent ;  Principal  and  Surety  ; 

Receivers ;  Reference ; 

Trusts  and  Trustees ; 

Waste. 

I.  ACTIONS  FOR  ACCOUNTING  UNDER  CODES  OF  PROCEDURE. 

1.  Generally.  —  The  law  of  evidence  in  actions  for  accounting 
brought  under  codes  of  procedure  is  the  same  that  governs  in 
actions  for  accounting  in  equity.  Cases  from  states  having  codes 
or  practice  acts  will  be  cited  under  the  head  of  "  Actions  in  Equity 
for  Accounting." 

II.  ACTIONS  IN  EQUITY  FOR  ACCOUNTING. 

1.  Before  Interlocutory  Decree  for  Accounting.  —  A.  Generally. 
a.  Evidence  Confined  to  Right  to  Such  Decree.  —  On  the  hearing 
the  evidence  is  confined  to  proving  or  disproving  plaintiff's  right  to 
an  accounting.^ 

1.     Hudson   V.   Trenton,    16   N.   J.  Pr.    (6th    Am.    Ed.)    pp.    856,    857; 

Eq.    475;    Walker    v.    Woodward,    I  Law  v.  Hunter,  i  Riiss.  lOO;  Hornby 

Russ.    107 ;    Graham    v.    Golding,    7  i'.  Hunter,  i  Russ.  89. 

How.  Pr.   (N.  Y.)   260;  Morrison  v.  Whole    Subject    Shown    to    Court. 

Horrocks,  40   Hun   428;   2  Dan.   Ch.  "Each    party    has    a    right    to    bring 

Vol.  I 


AND  ACCOUNTS  STATED. 


133 


The  plaintiff's  right  to  an  accounting  must  be  established  before 
the  court  can  refer  the  case  for  the  purpose  of  taking  the  account. - 
Thus  it  may  be  shown  that  there  are  mutual  demands,^  or  long  or 


before  the  court,  as  fully  as  his  in- 
terests may  require,  the  whole  sub- 
ject upon  which  the  decree  for  an 
account  is  to  be  founded.  The  cir- 
cumstance that  the  court,  in  practice, 
acts  through  the  master,  cannot  alter 
the  case,  and  the  mere  fact  that  the 
evidence  might  be  lost,  is  a  strong 
reason  for  admitting  it."  Tomlin  v. 
Tomlin,   I   Hare  236. 

In  Standish  v.  Babcock,  48  N.  J. 
Eq.  386,  22  Atl.  734,  30  L.  R.  A.  604, 
the  account  consisted  of  but  few 
iten\s,  and  they  had  all  been  fully 
and  satisfactorily  proved  apparently 
without  objection  on  the  hearing; 
with  the  exception  of  a  single  item. 
The  court  held  that  a  reference  was 
therefore  unnecessary ;  that  on  the 
original  hearing  the  only  evidence 
generally  material  or  competent  is 
such  as  goes  to  prove  or  disprove  the 
right  to  an  account;  that  evidence 
respecting  all  items  of  the  account 
is  in  strictness  inadmissible  at  that 
stage,  but  that  under  the  circum- 
stances of  that  case,  the  court  could 
decide  by  the  same  decree  that  com- 
plainant was  entitled  to  an  account 
and  also  the  amount  that  he  was 
entitled    to    recover. 

2.  Beale  v.  Hall,  97  Va.  383,  34 
S.  E.  53 ;  Lee  Co.  Justices  '■. 
Fulkerson,  21  Gratt.  (Va.)  182. 
But  see  Ridenbaugh  v.  Burnes,  14 
Fed.   93. 

Evidence  Must  Show  Probable 
Right.— "To  lay  the  foundation  for 
the  interlocutory  decree  the  facts  as  to 
the  account  must  be  put  in  issue  and 
there  must  be  some  evidence  to  show 
the  facts  probable  and  the  equity 
proper.  A  reference  will  not  be 
made  on  mere  speculation  that  tes- 
timony may  be  adduced  before  the 
master.  It  is  an  established  rule 
that  testiinony  in  chief  be  taken  be- 
fore reference  is  made."  Planters 
Bank  v.  Stockman.  I  Freem.  Ch. 
(Miss.)  502;  McLoskey  v.  Gordon, 
26  ^liss.  260. 

In  Baltimore  etc.  Co.  v.  Williams, 
94  Va.  422,  26  S.  E.  841,  the  answer 


fully  denied  the  allegations  of  the 
bill  relating  to  the  right  to  an  ac- 
counting, and  apparently  there  was 
no  evidence  adduced  on  the  hearing 
establishing  the  right  to  an  account- 
ing. The  court  said  that  the  prayer 
for  an  account  should  not  have  been 
granted ;  that  a  reference  should  not 
be  awarded  to  enable  a  plaintiff  to 
make  out  his  case  nor  until  it  has 
been  ascertained  that  he  has  a  right 
to  demand  it,  and  quoted  as  follows 
froin  Barton's  Ch.  Pr.,  Vol.  2,  p.  630 ; 
"  The  settled  rule  in  respect  to  orders 
of  reference  is  that  before  an  ap- 
plication for  one  shall  be  granted  it 
must  appear  with  reasonable  certainty 
that  an  order  will  be  necessary,  and 
it  will  not  be  made  upon  the  sug- 
gestion that  in  some  contingency  one 
will  be  required;  for  it  will  not  do 
to  put  the  defendant  to  the  trouble 
and  expense  of  rendering  an  account 
until  it  is  ascertained  that  the  plaint- 
iff has  a  right  to  demand  it,  nor  will 
a  reference  be  inade  for  the  purpose 
of  furnishing  evidence  in  support  of 
the  allegations  of  the  bill." 

Error  to  Order  Without  Proof. 
In  Sadler  v.  Whitehurst,  83  Va. 
46,  I  S.  E.  410,  the  bill  was  de- 
murred to.  The  demurrer  was  over- 
ruled and  without  giving  an  oppor- 
tunity to  the  defendant  to  answer 
the  court  ordered  an  accounting  as 
prayed  for  in  the  bill.  The  court  of 
appeals  held  that  the  making  of  this 
order  was  error;  that  a  court  of 
equity  cannot  decree  an  accounting 
for  the  purpose  of  furnishing  evi- 
dence in  support  of  a  bill ;  that  the 
court  had  repeatedly  decided  that  an 
account  should  not  be  allowed  in  any 
case,  unless  shown  to  be  proper  and 
necessary  by  the  proceedings  and 
proofs  in  the  cause. 

3.  Padwick  v.  Hurst,  18  Beav. 
575  ;  Phillips  v.  Phillips,  9  Hare  471 ; 
Avery  v.  Ware,  58  Ala.  475;  Carter 
V.  Bailey,  64  Me.  458,  18  Am.  Rep. 
273;  Garner  v.  Reis,  25  Minn.  475; 
Walker  v.  Cheever,  35  N.  H.  339; 
Porter  v.  Spencer,  2  Johns.  Ch.  169. 

Vol.  I 


134 


ACCOUNTS,  ACCOUNTING 


complicated  accounts/  or  a  tiduciary  relation  between  the  parties.' 
b.  Ei'idcncc  Must  Folloz^<  the  Bill.  —  The  evidence  must  not  only 
make  out  a  case  for  an  accounting,  but  the  case  stated  in  the  bill." 
If  the  bill  is  for  an  account  as  to  particular  matters,  and  plaintiff 
fails  to  make  a  case  for  accounting  as  to  them,  or  some  of  them, 
he  cannot  proceed  under  a  general  allegation  of  voluminous  and 
intricate  accounts  existing  between  the  parties  where  such  allegation 
has  been  inserted  as  a  mere  prete.xt  to  make  a  case  of  equity  juris- 
diction.' 


4.  Crown  Coal  &  Tow  Co.  v. 
Thomas,  177  111.  534,  52  N.  E.  1042; 
Padwick  v.  Hurst,  18  Beav.  575;  3 
Pom.    Eq.    §  1421. 

Whether  Mere  Fact  of  Com- 
plicated Accounts  Enough.  —  But 
see  note  in  Pomeroy  as  to  present 
English  practice,  and  see  Mar- 
vin V.  Brooks,  94  N.  Y.  71,  and 
Uhhnann  v.  Ins.  Co.,  log  N.  Y. 
660,  17  N.  E.  363,  holding  that  the 
mere  fact  of  complicated  accounts  is 
not  sufficient  to  make  a  case  for 
accounting  in  equity.  At  the  utmost 
it  is  discretionary  with  a  court  of 
equity  to  decree  an  accounting  in 
such  a  case.  Railway  Co.  v.  Martin. 
2  Phill.  758;  Phillips  V.  Phillips,  9 
Hare  471  ;  Bliss  v.  Smith.  34  Beav. 
S08. 

It  is  sufficient  if  it  appear  that  the 
trial  of  any  one  of  the  issues  will 
involve  the  examination  of  a  long 
account.  Whitaker  v.  Desfosse,  7 
Bosw.  (N.  Y.)  678,  although  the 
determination  of  some  other  issue 
may  render  it  unnecessary  to  trj' 
the  first  named  issue  at  all. 
Batchelor  v.  Albany  Ins.  Co.,  6  Abb. 
Pr.    (N.    S.)     (N.    Y.)    240. 

5.  Garr  v.  Redman,  6  Cal.  574, 
578;  Davis  V.  Davis,  i  Del.  Ch.  256; 
Coquillard  v.  Suydam,  8  Blackf. 
(Ind.)  24;  Rippe  v.  Stogdell,  61 
Wis.  38,  20  N.  W.  645. 

6.  Crothers  v.  Lee,  29  Ala.  337 ; 
McAndrew  v.  Walsh,  31  N.  J.  Eq. 
331;  Adams  v.  Gaubert,  69  111.  585; 
Weeks  v.  Hoyt,  5  Hun  347 ;  Salter  v. 
Ham,   31    N.    Y.   321. 

Accounting  Limited  by  Pleadings. 
In  Welch  r.  .\rncU  (N.  J.),  20 
.\tl.  48,  the  hill  asked  for  an  account- 
ing for  certain  lumber  sawed  at  the 
plaintiff's  mills.  The  chancellor  or- 
dered an  accounting  for  certain  other 
lumber  as  well.     The  court  of  errors 

Vol.  I 


and  appeals  said  that  this  demand 
was  so  distinct  from  an  account  of 
transactions  mentioned  in  the  bill, 
und  was  to  be  supported  on  grounds 
so  dissimilar,  that  the  complainants 
ought  to  have  presented  it  in  clear 
and  distinct  form ;  that  the  order  on 
that  point  was  not  fairly  within  the 
issue  raised  in  the  pleadings,  and  to 
that  e.xtent  the  order  should  be  mod- 
ified. 

In  .Manning  v.  .Manning,  69  N.  Y. 
St.  744,  35  N.  Y.  Supp.  3^^,  the 
only  cause  of  action  alleged  was  that 
the  plaintiff  had  deposited  with  the 
defendant  money  for  investment  and 
speculation  on  her  account,  and  the 
defendant  had  made  large  profits 
therefrom,  for  which  he  refused  to 
account.  The  evidence  showed  that 
the  plaintiff  had  made  no  such  depos- 
its, but  that  defendant,  the  plaintiff's 
husband,  a  stock-broker,  had  opened 
an  account  in  her  name,  intending  to 
make  a  gift  of  the  income  and  profits 
to  the  plaintiff.  It  was  held  that 
even  if  this  made  it  a  cause  of  ac- 
tion, it  was  not  the  cause  of  action 
set  up  in  the  complaint,  and  was  no 
ground  for  a  decree  for  an  account- 
ing. 

In  Arnold  v.  Angell,  62  N.  Y. 
5'o8,  a  bill  for  a  partnership  ac- 
counting, the  court  found  that  th.' 
partnership  was  not  established:  but 
that  plaintiffs  had  a  joint  interest 
with  the  defendant  in  certain  profits 
and  were  entitled  to  an  accounting 
therefor.  The  court  of  appeals  held 
that  the  order  for  an  accounting  was 
error  because  made  upon  a  matter 
not  within  the  pleadings. 

7.  Darthez  v.  Clemens,  6  Beav. 
165 ;  Consequa  v.  Fanning,  3  Johns. 
Ch.  587 ;  Moore  v.  Swanton  Co.,  60 
Vt.  459,  15  .^tl.  114;  .\rnold  t'.  .•Xn- 
gell,  38  N'  Y.  Super.  27;  Mitchell  v. 


AND  ACCOUNTS  STATED. 


135 


B.  Where  Bill  Alleges  That  No  AccountiiNC  Has  Been  Hah. 
a.  Burden  of  Proof.  ■ —  The  burden  is  on  the  complainant  to  estab- 
lish his  right  to  an  accounting,*  and  of  explaining  delay  in  bringing 
his  suit."  But  if  defendant  pleads  an  accounting,  or  other  affirma- 
tive plea,  he  assumes  the  burden  of  proof.'" 


0"Neale,  4  Nev.  504 ;  Ridenbaugh  v. 
Biirnes,   14   Fed.  93. 

But  Objection  Must  Be  Made. 
But  if  the  evidence  disclcses  a 
case  for  relief  not  inconsistent  with 
the  object  and  scope  of  the  bill,  and 
is  allowed  to  go  in  without  objection, 
although  not  within  the  specific  al- 
legations of  the  bill,  such  evidence 
may  be  given  effect  in  entering  the 
decree.  Moore  v.  Swanton  Co.,  60 
Vt.  459,   15  Atl.   114. 

Expanding  Scope  of  Accounting. 
If  the  bill  make  a  case  for  account 
it  is  not  proper  to  refuse  to  con- 
sider evidence  which  discloses  other 
facts  in  addition  to  those  charged, 
when  the  facts  disclosed  strengthen 
claim  made  and  merely  expand  the 
measure  of  accounting.  Penn  v. 
Fogler,  182  111.  76,  55  N.  E.  192; 
Solomons  v.  Ruppert,  34  App.  Div. 
230,  54  N.  Y.   Supp.  729. 

General  Allegation  Not  Proved. 
And  if  the  plaintiff  prove  the  specific 
facts  alleged  in  his  bill,  he  is  entitled 
to  an  accounting  although  the  bill 
may  contain  a  general  allegation 
such  as  the  existence  of  a  partnership 
not  sustained  by  the  evidence. 
Coward  v.  Clanton,  122  Cal.  451,  55 
Pac.    147. 

On  Bill  Against  Administrator. 
If  on  a  bill  against  an  administra- 
tor or  executor  for  an  accounting, 
settlement  and  examination  of  the 
accounts  of  another  estate  ought  to 
be  made,  an  examination  may  be 
called  for  as  a  part  of  the  general 
case.  Dillard  v.  Ellington.  57  Ga. 
567,  582. 

8.  Graham  Paper  Co.  v.  Pem- 
broke, 124  Cal.  117,  5'6  Pac.  627,  71 
Am.  St.  Rep.  26.  44  L.  R.  A.  632; 
Farrington  v.  Harrison  (N.  J.),  15 
Atl.  8;  Fidelity  Title  &  Trust  Co. 
V.  Weitzel,  152  Pa.  St.  498,  25  Atl. 
569;  Beale  v.  Hall,  97  Va.  383,  34 
S.  E.  53,  which  holds  further  that  a 
reference  should  not  be  ordered  for 
an  account  for  the  purpose  of  estab- 
lishing plaintiff's  right  to  an  ac- 
counting ;   citing  Lee  Co.  Justices  v. 


Fulkerson,  21  Gratt.  (Va.)  182,  and 
Packet  Co.  r.  Williams,  94  Va.  422, 
26  S.  E.  841. 

9.  Sheldon  v.  Sheldon,  133  N.  Y. 
I.  30  N.  E.  730,  was  an  action 
brought  about  1890  for  an  account- 
ing in  a  transaction  that  took  place 
in  1864.  The  court  said  that  the 
claim  was  no  doubt  what  is  known 
to  the  courts  as  a  stale  demand ;  that 
such  demands  were  looked  upon  with 
some  suspicion ;  that  a  claim  sur- 
rounded by  circumstances  such  as 
appeared  ought  to  be  sustained  by 
adequate  and  satisfactory  proof,  but 
that  the  presumption  against  the 
stale  claim  was  generally  one  of  fact 
and  not  of  law.  The  circumstances 
are  evidence  upon  the  question  of 
the  existence  of  the  claim  to  be  con- 
sidered by  the  jury,  or  the  court 
upon  a  trial  of  the  facts,  citing 
Macauley  v.  Palmer,  125  N.  Y.  742, 
2C)N.E.  912.  It  appeared  in  that  case 
that  the  transaction  was  between  a 
husband  and  wife.  The  claim  was 
that  the  husband  had  received  certain 
property  from  the  wife  for  invest- 
ment for  her  benefit,  that  the  hus- 
band died  16  years  after  the  tran- 
saction took  place  without  having 
accounted,  and  without  any  demand 
having  been  made  upon  him  for  an 
account,  and  that  six  years  later 
a  claim  was  filed  against  his  estate 
for  the  amount  demanded  and  was 
rejected. 

10.  Standish  v.  Babcock,  48  N.  J. 
Eq.  386,  22  Atl.  734;  Pratt  v. 
Grimes,  48  111.  376. 

In  the  case  of  Stevens  v.  Ross 
(N.  J.),  13  Atl.  225,  (see  also  same 
case  II  Atl.  114,  and  19  Atl.  622), 
the  defendant  in  his  pleadings  ad- 
mitted the  making  of  the  contract 
under  which  the  plaintiff  asked  for 
an  accounting,  but  claimed  that  the 
contract  had  been  abandoned.  The 
court  held  that  the  burden  of  proof 
was  on  the  defendant  to  prove  by  a 
clear  preponderance  of  testimony  the 
fact  of  abandonment. 

Vol.  I 


136 


ACCOUNTS,  ACCOUNTING 


b.  Evidence  on  Pica  of  An  Accounting.  —  Defendant  may  intro- 
duce evidence  to  show  that  the  parties  have  in  writing  stated  their 
account  and  struck  a  balance." 

Although  a  statement  of  account  contain  the  expression  "  errors 
excepted,"  it  may  still  be  introduced  to  prove  a  settled  account/- 

Where  one  of  two  who  have  mutual  accounts  gives  the  other  a 
note  and  receives  nothing  at  the  time,  it  is  prima  facie  evidence  of 
accounting  and  settlement.''' 

A  receipt  for  the  amount  ascertained  on  an  accounting  to  be  due, 


!!•  Dawson  v.  Dawson,  i  Atk.  I; 
Burk  V.  Brown,  2  Atk.  399;  Sumner 
V.  Thorpe,  2  Atk.   i. 

And  so,  a  fortiori  may  show  a 
settled  account.  Story's  Eq.  Jur. 
§527;  Pratt  V.  Grimes,  48  III.  376; 
VermilHon  v.  Bailey,  27  111.  229. 

A  settlement  of  accounts  is  pre- 
sumed to  embrace  all  prior  tran- 
sactions between  the  parties.  Bull  v. 
Harris,  31  111.  487;  Boiirke  v.  James, 
4  Mich.  336;  Kennedy  v.  Williamson, 
50  N.  C.  284  (s  Jones  L.)  ;  Barkley 
V.   Tarrant  Co.,  53  Te.x.  251. 

Not  Contingent  Liabilities Dow- 
ling  V.   Blackman,   70  Ala.  303. 

Presumably    Claim    Nol    Provided 

For  in  Settlement  Invalid Straub- 

her  V.   Mohler,  80   111.   21. 

In  Freeman  v.  Bolzell,  63  Vvis. 
378,  23  N.  W.  708,  the  action  was  to 
recover  a  balance  of  an  alleged 
indebtedness  and  said  nothing  about 
an  accounting.  The  answer  alleged 
a  full  and  complete  settlement  be- 
tween the  parties.  The  court  said 
that  failure  to  mention  all  the  items 
of  work  or  dealings  between  the 
parties  at  the  time  of  a  settlement 
did  not  prevent  it  from  being  con- 
clusive ;  that  such  omissions  might 
have  induced  omissions ;  that  the 
items  omitted  might  have  been  paid 
for  or  disputed  or  gratuitous,  or 
omitted  for  some  other  special 
reason,  and  that  the  court  below 
properly  refused  to  instruct  that  the 
settlement  was  only  conclusive  as  to 
such  items  only  as  were  included 
therein,  because  a  settlement  of 
mutual  accounts  presumptively  covers 
everything  whether  mentioned  or 
not. 

12.  Cooper  Eq.  PI.  278;  Johnson 
V.  Curtis,  3  Bro.  Ch.  226;  Branger 
V.  Chevalier,  9  Cal.  353;  Story's 
Eq.  Jur.  §526. 

Vol.  I 


In  the  case  of  Standish  v.  Bab- 
cock,  48  N.  J.  Eq.  386,  22  Atl.  734, 
30  L.  R.  A.  604,  one  of  the  defend- 
ants by  answer  set  up  the  facts  of  a 
former  action  and  judgment  in  bar 
of  the  present  suit.  The  court  said 
that  the  evident  purpose  was  to  in- 
terpose the  defense  of  res  judicata, 
and  that  treating  the  answer  as  a 
plea  the  burden  of  proving  the  truth 
of  the  plea  devolved  upon  the  party 
pleading  because  it  was  evidently 
an  affirmative  plea,  citing  i  Dan.  Ch. 
Pr.  718,  and  Swayze  v.  Swayze,  37 
N.  J.  Eq.  180,  and  that  treating  it 
as  a  defense  set  up  by  answer  it 
must  be  sustained  by  proof  for 
although  put  in  under  oath,  it  would 
not  be  evidence  of  new  matter. 

13.  Wright  V.  Wright,  56  N.  Y. 
St.  305,  25  N.  Y.  Supp.  238;  Sher- 
man V.  Mclntyre,  7  Hun  592;  Lake 
V.  Tysen,  6  N.  Y.  461.  And  see 
Randolph  v.  Randolph,  2  Call  (Va.) 
537- 

Notes  Given  as  Collateral — But 
not  where  one  party  was  in  the 
habit  of  giving  the  other  notes, 
not  to  represent  money  due,  but  as 
collateral.  Hill  v.  Durand,  58  Wis. 
160,  IS  N.  W.  390. 

Consideration  Expressed  in  Note. 
In  the  case  of  Sheldon  v.  Sheldon, 
133  N.  Y.  I,  30  N.  E.  730,  it  was 
claimed  that  certain  moneys  had  been 
delivered  to  a  trfistee  for  investment 
in  1864,  and  it  appeared  that  the 
trustee  had  given  a  note  in  1879 
"  for  value  received  in  cash  bor- 
rowed." The  court  said  that  the 
usual  presumption  to  the  effect  that 
the  giving  of  a  promissory  note  is 
prima  fade  evidence  of  an  account- 
ing and  settlement  of  all  demands 
might  not  apply  because  the  con- 
sideration was  expressed  in  the  note 
to   be   money   borrowed. 


AND  ACCOUNTS  STATED. 


13/ 


is  a  bar  to  subsequent  action   for  accounting  involving  the  same 
matter." 

C.  Where;  Bill  Is  to  Open  a  Settled  Account  and  for  an 
Accounting.  —  a.  Evidence  Must  Prove  Specific  Allegations  of 
Bill.  —  A  settled  account  will  not  be  opened  except  on  proof  of 
errors  or  fraud  specifically  alleged  in  the  bill.''* 

b.  Burden  of  Proof.  —  The  burden  of  proof  is  heavily  on  the 
party  seeking  to  open  a  settled  account.'" 

c.  Sufficiency  of  Evidence.  —  (!•)  Generally ij-,  order  that  a  set- 
tled account  may  be  opened,  the  evidence  must  show  the  transaction 
to  be  so  iniquitous  that  it  ought  not  to  be  brought  forward  at  all  to 


14.  Grant  v.  Bell,  87  N.  C.  34; 
Costin  V.  Baxter,  6  Ired.  Eq.  197; 
Harrison  v.  Bradley,  5  Ired.  Eq. 
136. 

15.  Mebane  v.  Mebane,  i  Ired. 
Eq.  403 ;  Story  Eq.  PI.,  §  800. 

Accounts,  regularly  submitted  for 
examination,  but  by  complainant's 
fault  not  e.xamined,  will  not  be 
opened  up  except  for  error  or  fraud 
specifically  charged  and  proved.  Phil- 
ips V.  Belden,  2  Edw.  Ch.  (N.  Y.) 
I. 

Where  a  settled  account  has  been 
signed  or  security  given  thereon,  it 
will  not  be  opened  except  for  fraud 
or  errors  proved  as  charged.  Boti- 
feur  I'.  Weyman,  i  McCord  Eq.  (S. 
C.)    156. 

Discretion     of     the     Court But 

in  Ridenbaugh  "'.  Burnes,  14  Fed. 
83,  the  bill  prayed  for  account- 
ing as  to  interests  and  rents  that 
ought  to  have  been  and  were  not 
included  in  a  certain  settlement,  and 
the  proofs  failed  to  establish  that  de- 
fendant had  not  accounted.  Never- 
theless. Justice  McCrary  said  that  the 
court  might  either  dismiss  the  bill, 
or  refer  the  case,  and  adopted  the 
latter  course,  saying :  "  The  proof 
as  it  now  stands  leaves  the  essential 
facts  relied  upon  by  plaintiff  un- 
proved, but  enoligh  appears  to  make 
it  desirable  that  the  real  facts  be 
made  to  appear,  if  that  is  prac- 
ticable. I  am  the  more  inclined  to 
adopt  this  course,  because  the  de- 
fendant has  not  seen  fit  to  testify 
in  the  case.  It  is  true  that  he  was 
not  bound  to  do  so  until  complainant 
had  made  at  least  a  prima  facie 
showing,  but  it  is  impossible  to  over- 
look the  fact  that  it  would  have 
been  easy  for  him  to  have  made  'his 


defense  perfectly  satisfactory  if 
there  is  no  truth  in  the  complanant's 
allegations,  by  going  upon  the  stand 
and  testifying  to  facts  which  must  be 
within  his  knowledge." 

16.  Marsh  v.  Case,  30  Wis.  531; 
Philips  V.  Belden,  2  Edw.  Ch.  I  ; 
Hoyt  V.  McLaughlin,  52  Wis.  280,  8 
N.  W.  889;  Redman  v.  Green,  38 
N.  C.  54. 

He  must  show  wherein  the  mistake 
consisted,  point  it  out  distinctly  and 
furnish  data  for  its  correction.  Chub- 
buck  V.  Vernam,  42  N.  Y.  432 ;  Tay- 
lor V.  Haylin,  2  Bro.  Ch.  310. 

An  agreement  for  correction  of 
errors  in  a  settlement  does  not  shift 
the  burden.  Langdon  v.  Roane,  6 
Ala;  518,   41    Am.   Dec.  60. 

In  Evans  v.  Evans,  2  Cold.  (Tenn.) 
143,  a  case  involving  transactions  be- 
tween father  and  son  extending  over 
28  years,  tlie  court  said  that  in  the 
absence  of  proof  to  the  contrary,  the 
parties  "  must  be  held  to  have 
squared  their  accounts  as  they  went." 

Statements  Not  Objected  To. 
In  Lockwood  v.  Thorne  11  N.  Y. 
170,  it  appeared  that  an  account  had 
been  rendered,  received  and  no  ob- 
jection made  for  some  time.  The 
court  said  that  the  transaction  being 
thus  an  account  stated,  it  was  con- 
clusive upon  the  parties,  unless  the 
plaintiff  affirmatively  showed  fraud 
or  mistake,  and  quoted  from  Chief 
Justice  Marshall,  in  Chappedelaine  v. 
Dechenaux,  4  Cr.  306,  as  follows : 
"  No  practice  could  be  more  danger- 
ous than  that  of  opening  accounts, 
which  the  parties  themselves  have 
adjusted,  on  suggestions  supported 
by  doubtful  or  only  probable  tes- 
timony." 

Vol.  I 


138 


ACCOUNTS.  ACCOUNTING 


affect  the  party  sought  to  be  bound.''  If  a  fiduciary  relation  exists 
between  the  parties,  the  account  will  be  opened  on  less  proof  than 
is  required  when  no  such  relation  exists.'* 

(2.)    When  Decree  Will  Be  Refused  Although  Error  Is  Shown Eijuita- 

ble  considerations  may  move  a  court  to  decline  to  open  an  account 
in  spite  of  errors  shown.'" 

d.  Leave  to  Surcharge  and  Falsify.  —  The  proof  of  mere  errors 
will  not  require  the  opening  of  an  account  after  the  lapse  of  several 
years  :  in  such  a  case  the  plaintiff  will  only  be  allowed  to  surcharg'e 
and   falsify."" 


17.  White  V.  Walker,  5  Fla.  478; 
Paulling  V.  Creagh,  54  Ala.  646; 
Taylor  v.  Blackmail  (Miss.),  12  So. 
4S8;  Coulin  v.  Carter,  93  111.  536; 
Philips  z:  Belden,  2  Edw.  Ch.  I  ; 
Love  r.  White,  5  Tenn.  (4  Hayw.) 
210;  Chambers  v.  Goldwin,  9  Ves. 
Jr.  254 ;  Drew  v.  Power,  1  Sch.  & 
L.  182;  Brands  v.  Depue  (N.  J.), 
20  Atl.  206. 

An  account  twice  adjudicated  will 
not  be  again  opened  e.xcept  for  fraud 
or  for  mistake  that  could  not  have 
been  guarded  against.  Bruen  v. 
Hone,  2  Barb.  586. 

The  fact  that  certain  items  of  an 
account  otherwise  settled  have  been 
left  for  further  negotiations,  does  not 
affect  the  residue.  Botifeur  v.  Wey- 
man,  i  McCord  Eq.   (S.  C.)    156. 

18.  Love  V.  White.  S  Tenn.  (4 
Hayw.)  210;  Moses  v.  Noble,  86 
Ala.  407,  5  So.  181.  ■'  But  in  such 
case  the  entire  account  must  be  so 
infected  with  fraud  or  undue  in- 
fluence that  it  would  be  inequitable 
to  permit   it  to  stand   even  in   part." 

19.  Love  V.  White,  5  Tenn.  (4 
Hayw.)  210. 

As  where  defendant's  books  have 
been  burned  since  the  former  ac- 
counting and  complainant  fails  to 
produce  his  own  books  and  papers. 
Bruen   v.    Hone.   2   Barb.   586. 

Or  the  plaintiff  is  guilty  of  laches. 
Bruen  v.  Hone,  2  Barb.  586;  Paull- 
ing V.  Creagh,  54  Ala.  646. 

Or  where  complainant  was  aware 
at  the  time  of  settlement  of  the  facts 
on  which  he  bases  his  complaint. 
Quinlan   v.   Keiser,   66   Mo.   603. 

Or  where  a  long  time  has  elapsed 
since  the  settlement.  Randolph  v. 
Randolph,  2  Call.  (Va.)  537  (in  that 
case  more  than  fifty  years);  or 
where  the  error  proved  can  be  cor- 
rected   without    another    accounting. 

Vol.  I 


Murrell  f.  Greenland,  i  Desaus.  Eq. 
332:  or  where  the  errors  are  imma- 
terial. Hamilton  Woolen  Co.  v 
Goodrich.  88  Mass.   (6  Alien)    igi. 

Effect  of  Long  Acquiescence. 
Philips  V.  Belden,  2  Edw.  Ch.  t  : 
"  It  is  a  wise  and  salutary  provision 
of  the  law.  which  permits  time  to 
draw  a  veil  over  the  transactions  of 
men.  and  equity  acting  upon  this 
benign  principle,  gives  great  effect 
to  lapse  of  time,  and  discourages 
claims  not  promptly  made,  especially 
where  there  has  been  no  personal 
disability,  or  other  impediment  in 
the  way  of  ascertaining  them.  Here 
has  been  none,  but  yet  from  the  time 
of  Mrs.  Oglivie's  death,  (when  all 
her  rights  devolved  upon  her  son), 
a  period  of  20  years  or  thereabouts 
has  been  suffered  to  elapse  without 
any  objection  to  any  part  of  the  ac- 
counts, and  without  the  least  in- 
timation or  assertion  of  claim  arising 
upon  them.  If  this  long  acquiescence 
is  not  an  absolute  bar,  it  is  at  least 
a  circumstance  to  require  at  this  day 
much  clearer  proof  for  opening  and 
reinvestigating  the  accounts  than  is 
at  present  furnished."  citing  Hamp- 
son  on  Trustees  99,  Ellison  v.  Moffat, 
I  Johns.  Ch.  46,  and  Ravner  v.  Pear- 
sail,    3    Johns.    Ch.    578. 

20.  Brown  v.  Vandyke.  8  N.  J. 
Exi-  795.  55  Am.  Dec.  250;  Cooper 
Eq.  PI.  278;  Bruen  v.  Hone.  2  Barb. 
586;  Brownell  v.  Brownell.  2  Bro. 
Ch.  62 ;  Twogood  v.  Swanston.  6 
Ves.  485 ;  Cowan  v.  Jones.  27  Ala. 
317;  Cover  v.  Hall.  3  Har.  &  J. 
(Md.)  43;  Panning  v.  Creagh,  54 
Ala.   646. 

To  obtain  leave  to  surcharge  and 
falsify,  complainant  must  show  the 
accounts  to  be  erroneous.  Bullock  v. 
Boyd.  2  Edw.   Ch.  293. 


AND  ACCOUNTS  STATED. 


139 


2.  After  Interlocutory  Decree.  —  A.  REFiCKiixcic  to  Mastku. 
a.  Necessity  of  Reference.  —  Complicated  accounts  should  be 
referred  to  a  master  for  examination.-^  But  a  court  may  state 
the  account  without  such  reference.  This  is  not  often  done  except 
where  the  account  consists  of  few  items  and  they  are  fully  estab- 
lished by  the  evidence  submitted  on  the  hearing. -- 


Error  of  $4000.00  in  account  of 
$64,000  is  ground  for  leave  to  sur- 
charge and  falsify.  Farnam  v. 
Brooks,  9   Pick.    (Mass.)    212. 

In  Moses  v.  Noble,  86  .Ala.  407,  5 
So.  181,  it  appeared  that  a  settle- 
ment had  been  had,  a  note  and  mort- 
gage given  and  judgment  had  been 
obtained  upon  the  note.  For  specific 
errors  mentioned  in  the  bill  and 
proved,  the  court  annulled  the  judg- 
ment and  opened  up  the  settlement, 
but  it  not  appearing  that  fraud  had 
vitiated  the  entire  settlement,  but 
merely  that  there  were  mistakes  made 
in  including  certain  items,  the  plaint- 
iff was  not  allowed  a  restatement 
of  the  entire  account,  but  only  had 
permission  to  surcharge  and  falsify 
as  to  the  matters  alleged  and  proved. 

21.  Story's  Eq.  Jur.  §524;  En- 
nesser  v.  Hudek,  169  111.  494,  48  N. 
E.  673;  Patten  v.  Patten,  75  111.  446; 
Moss  V.  McCall,  75  111.  190;  French 
V.  Gibbs,  105  111.  523;  Dubourg  v. 
U.  S.,  7  Pet.  625 ;  Ransom  v.  Winn, 
18  How.  (U.  S.)  295;  Quayle  v. 
Guild,  83  111.  553 ;  Power  v.  Reeder, 
39  Ky.  (9  Dana)  6;  Walker  v.  Joy- 
ner,  52  Miss.  789;  Moffett  v.  Hanner, 
154  111.  649,  39  N.  E.  474;  Riner  v. 
Touslee,  62  111.  266;  Beale  v.  Beale, 
1 16  111.  292,  5  N.  E.  540. 

As  to  evidence  generally  in  pro- 
ceedings before  masters,  auditors, 
commissioners  or  referees  see  title 
"  References." 

22.  Standish  v.  Babcock,  48  N.  J. 
Eq.  386,  22  Atl.  734;  Darby  v.  Gil- 
ligan,  43  W.  Va.  755,  28  S.  E.  73"- 
See  also  Jewett  v.  Cunard,  13  Fed. 
Cas.  No.  7310;  Wheeler  v.  Billings, 
72  Fed.  301  ;  Hidden  v.  Jordan,  28 
Cal.  301  ;  Emery  v.  Mason,  75  Cal. 
222.  ]6  Pac.  894;  Montanye  v.  Hatch, 
34  111.  394;  Shipp  V.  Jameson,  16 
Ky.  (6  Litt. )  190;  Field  v.  Holland, 
6  Cranch  8. 

Procedure   in   Stating   an   Account 

Without   a   Reference In    Stevens 

V.     Ross,     (N.     J.),     13      Atl.     225, 


where  the  accounting  was  asked 
only  of  profits  arising  out  of  the 
sale  of  a  certain  piece  of  land,  the 
court  said  that  although  the  defend- 
ant must  account  yet  a  reference 
would  not  be  ordered  in  the  first 
instance,  but  that  the  defendant 
would  be  directed  to  deliver  an 
itemized  account  within  a  time  lim- 
ited and  within  a  certain  number  of 
days  after  receiving  the  account  the 
plaintiff  would  be  required  to  notify 
the  defendant  whether  or  not  i'  was 
satisfactory,  and  if  not  satisfactory, 
to  state  the  particulars  in  which  it 
was  claimed  erroneous,  after  which 
either  party  might  apply  to  the  court 
for  directions  as  to  how  the  ex- 
ceptions to  the  account  were  to  be 
tried. 

"  We  do  not  mean  that  the  circuit 
judge  may  not  at  his  option,  with 
entire  propriety,  state  the  accounts 
himself,  instead  of  ordering  a  refer- 
ence to  a  commissioner,  but  when 
he  does  so,  he  will  proceed  as  a  com- 
missioner would  upon  charge  and 
discharge  accounts;  and  when  he 
states  the  account,  the  parties,  by  ex- 
ceptions, should  bring  to  his  atten- 
tion such  of  his  conclusions  as  they 
object  to,  not  only  that  he  may  have 
the  opportunity  to  make  corrections, 
but  also  that  in  case  of  appeal  it  may 
be  understood  by  this  court  exactly 
what  remains  to  be  contested.  Bar- 
nebee  v.  Beckley,  43  Mich.  613,  5 
N.    W.   976. 

In  Illinois  it  is  reversible  error 
for  the  court  to  state  an  account 
instead  of  referring  it  to  the  master. 
In  Moffett  V.  Hanner,  154  111.  649, 
39  N.  E.  474,  the  court  said : 
"  Where  the  rights  of  parties  in  a 
chancery  proceeding  are  involved, 
and  an  accounting  is  to  be  had,  the 
court  should  first  find  and  declare 
the  rights  of  the  parties,  and  the  rule 
to  be  adopted  in  stating  the  account 
by  an  interlocutory  decree,  and  then 
refer  the  cause  to  the  master  10  take 

Vol.  I 


140 


ACCOUNTS,  ACCOUNTING 


b.  Regulation  of  Proceedings  Before  Master.  —  (i-)  Generally. 
The  accounting  is  limited  in  its  scope  by  the  order  of  reference  and 
by  the  pleadings.-^ 


and  state  the  account.  Stating  the 
account  is  the  appropriate  work  of 
the  master,  and  the  usual  and  proper 
practice  in  chancery.  When  such 
statement  is  made  concisely,  excep- 
tions thereto  may  bring  to  the  trial 
court  and  to  an  appellate  tribunal 
the  issue  between  the  parties,  that 
the  same  may  be  comprehended  and 
determined.  The  exceptions  are  the 
pleadings  to  the  items  of  an  account, 
and  must  be  specific  and  not  gen- 
eral, as  they  can  then  be  reviewed 
by  the  appellate  court  or  supreme 
court.  Mosier  v.  Norton,  83  111.  519; 
Quayle  v.  Guild,  83  111.  553;  Moss  v. 
McCall,  75  111.  190;  Patten  v.  Patten, 
75  111.  446;  Steere  v.  Hoagland,  39 
111.  246;  Bressler  v.  McCune,  56  111. 
475;  Riner  v.  Touslee,  62  III.  266; 
Groch  V.  Stenger,  65  III.  481." 

In  the  case  of  Beale  v.  Beale,  116 
111.  292.  5  N.  E.  540,  it  was  held  that 
after  the  court  had  sustained  ex- 
ceptions to  the  master's  report,  the 
matters  involved  in  the  exceptions 
being  complicated  it  was  error  for 
the  court  to  proceed  to  investigate 
the  matters  without  another  refer- 
ence. 

But  in  the  case  of  Whittemore  v. 
'Fisher,  132  111.  243,  24  N.  E.  636,  the 
court  held  that  after  sustaining  ex- 
ceptions to  the  master's  report  in- 
volving only  a  few  items,  it  was  not 
error  for  the  court  to  state  the  ac- 
count without  further  reference. 
The  court  saying:  "We  know  of 
no  rule  of  law  which  made  it  im- 
proper for  the  court  to  take  upon 
itself  the  determination  of  such  ques- 
tions of  value,  and  said  values  being 
found  the  restatement  of  the  account, 
upon  the  basis  of  such  findings 
was  a  very  simple  matter,  which  the 
court  might  well  make  without  the 
further  intervention  of  the  master, 
we  find  nothing  in  the  action  of  the 
court  in  this  respect  which  can  be 
held  to  be  in  any  material  degree 
violative  of  the  general  rule  of  chan- 
cery practice,  which  requires  a  refer- 
ence to  the  master  to  take  and  state 
the  accounts  in  all  cases  involving 
intricate   and   complex   accounts." 

Vol.  I 


Why      Reference      More      Proper. 

In  Barnebee  v.  Beckley,  43  Alich. 
613,  5  N.  W.  976,  it  appeared  that  the 
matter  had  been  referred  to  a  master 
to  state  an  account.  Exceptions  had 
been  taken  to  the  master's  report. 
The  trial  court  had  ruled  upon  the 
exceptions,  and  had  then  proceeded 
itself  to  an  examination  of  the  case 
and  a  statement  of  the  account.  The 
supreme  court  said  that  inasmuch 
as  such  cases  were  open  to  an  ap- 
peal, and  cases  of  accounting  were 
likely  to  involve  personal  feeling  and 
therefore  persistency  in  litigation,  it 
was  a  mistake  for  the  trial  court  to 
yield  to  the  wishes  of  the  parties  and 
undertake  to  settle  a  case  of  account- 
ing otherwise  than  in  the  usual  way; 
that  the  customary  and  regular 
method  gives  a  regular  accounting 
upon  charge  and  discharge  accounts, 
and  a  commissioner's  report  show- 
ing allowance  and  disallowance  and 
exceptions  to  the  report  showing  the 
items  wherein  the  commissioner  is 
supposed  to  have  erred  and  the  ruling 
of  the  court  on  the  exceptions.  An 
appeal  on  such  a  report  is  simple 
and  can  be  disposed  of  without  ex- 
amining the  entire  mass  of  evidence; 
that  an  accounting  on  complicated 
transactions  may  require  the  con- 
stant presence  of  parties,  clerks  and 
servants  for  many  days  and  that  it 
is  only  in  the  commissioner's  office 
that  this  sort  of  investigation  can 
be    gone    through    with. 

23.  Calvert  v.  Carter.  t8  Md.  73; 
Wisner  v.  Wilhelm,  48  'Md.  I ;  Day- 
ton V.  District,  18  Ct.  CI.  13;  Boyle 
V.  Hardy.  28  Mo.  390;  Izard  v. 
Bodine.  9  N.  J.  Eq.  .309;  Petrick  v. 
Ashcroft,  20  N.  J.  Eq.  198;  Conse- 
qua  V.  Fanning,  3  Johns.  Ch.  (N. 
Y.)  587;  Philips  V.  Belden,  2  Edw. 
Ch.    I. 

"  A  court  of  chancery  may,  with 
perfect  propriety,  refer  an  account 
generally,  and,  on  the  return  of  the 
report,  determine  such  questions  as 
may  be  contested  by  the  parties ;  or 
it  may.  in  the  first  instance,  decide 
any  principle  which  the  evidence  in 
the    cause    may    suggest,    or   all    the 


AND  ACCOUNTS  STATED. 


141 


(2.)  By  the  Order  of  Reference.- —  In  the  order  of  reference  the  court 
may  regulate  the  procedure  before  the  master.-* 

(3.)  By  Rules  of  Court In  the  Federal  Court  parties  accounting 

must  bring  in  their  accounts  in  the  form  of  debtor  and  creditor; 
any  of  the  other  parties  not  satisfied  with  such  accounts  may  exam- 
ine the  accounting  party  vi-ra  voce  or  on  interrogatories,  or  by  depo- 
sition, as  the  master  may  direct.-^  This  rule  is  a  modification  of  the 
English  rule  No.  6i,  New  Orders  of  1828.-"  The  practice  in  the 
state  courts  is  similar.^^ 


principles  on  which  the  account  is 
to  be  taken.  The  propriety  of  the 
one  course  or  of  the  other  depends 
on  the  nature  of  the  case.  Where 
items  are  numerous,  the  testimony 
questionable,  the  accounts  compli- 
cated, the  superior  advantage  of  a 
general  reference,  with  a  direction 
to  state  specifically  such  matters  as 
either  party  may  require,  or  the 
auditors  may  deem  necessary,  will 
readily  by  perceived."  Field  v.  Hol- 
land, 6   Cranch    (U.    S.)    8. 

"  Orders  of  reference  should 
specify  the  principles  on  which  the 
accounts  are  to  be  taken  or  the  in- 
quiry proceed,  as  far  as  the  court 
shall  have  decided  thereon ;  and  the 
examinations  before  the  master 
should  be  limited  to  such  matters 
within  the  limits  of  the  order  as  the 
principles  of  the  decree  or  order  may 
render  necessary."  Remsen  v.  Rem- 
sen,  2  Johns.   Ch.    (N.   Y.)   495. 

Where  the  issues  raised  by  the 
pleadings  necessarily  involve  a  gen- 
eral accounting,  the  evidence  need 
not  be  confined  to  the  claims  or 
accounts  set  up  by  either  party  in 
the  pleadings.  Northern  Grain  Co. 
V.  Pierce,  13  S.  D.  265,  83  N.  W. 
256.  And  see  Williamson  v.  Downs, 
34  Miss.  402. 

24.  Calvert  v.  Carter,  18  Md.  73; 
Power  V.  Reeder,  9  Dana  (Ky.)  6; 
Boyle  V.  Hardy,  28  l\Io.  390;  Union 
S.  R.  V.  Mathiesson,  24  Fed.  Cas. 
No.  14,398;  Jenkins  v.  Bank,  97  111. 
568,   581. 

In  certain  cases  the  court,  decree- 
ing an  account,  directs  it  to  be  taken 
with  the  admission  of  certain  docu- 
ments or  testimony  not  having  the 
character  of  legal  evidence.  Dan. 
Ch.  Pr.  1231  ;  Lupton  v.  White,  15 
Ves.  432,   10  Rev.   Rep.  94. 

Merchants  having  agreed  on  rules 


for  adjusting  their  mutual  accounts 
and  providing  for  a  variance  froin 
the  rules  if  justice  required  it,  a 
court  likewise  may  depart  from  the 
rules  in  settling  their  accounts.  Brax- 
ton V.  Willing,  4  Call    (Va.)   288. 

But  it  is  error  to  admit  an  ac- 
count stated  and  an  annexed  afii- 
davit  made  in  a  foreign  country, 
without  knowledge  of  the  party 
sought  to  be  charged  thereby,  long 
before  commencement  of  suit,  and 
without  proof  that  that  party  ever 
acknowledged  the  justice  of  the  ac- 
count, or  promised  payment,  or  that 
it  was  ever  seen  by  him ;  and  where 
the  two  principal  items  therein  are 
balances  of  other  accounts.  Lewis 
V.  Bacon,  3  Hen.  &  M.   (Va.)   89. 

25.  Rules  of  Practice  in  Equity, 
No,  79.  Foote  V.  Silsby,  3  Blatchf. 
567,   9   Fed.    Cas.    No.   4920. 

The  master  may  examine  witnesses 
viva  voce,  the  parties  being  present 
and  not  objecting.  Story  v.  Living- 
ston,   13    Pet.    (U.    S.)    359- 

26.  For  the  practice  under  this 
rule  see  Dan.  Ch.  ist  Ed.,  pp.  877 
et  seq. ;  Smith's  Ch.  Pr..  2nd  Ed., 
Vol.  2,  Ch.  13,  pp.  Ill  et  seq. 

27.  Patterson  v.  Johnson.  113  111. 
559;  Kirkman  v.  Vaulier,  7  Ala.  217; 
Callender  v.   Colegrove,    17   Conn.   I. 

Settling  the  Interrogatories. 
In  Remsen  7'.  Remsen,  2  Johns. 
Ch.  (N.  Y.)  495,  the  court  said  that 
the  books  assumed  the  practice  to  be 
settled  that  the  parties  and  witnesses 
are  to  be  examined  before  the  mas- 
ter upon  written  interrogatories,  but 
that  in  the  case  of  the  examination  of 
a  principal,  interrogatories  are  set- 
tled by  the  master,  in  the  case  of 
witness  by  counsel,  citing  Parkinson 
V.  Ingram,  3  Ves,  603 ;  Stanyford  v. 
Tudor,  Dickens  548;  Huglies  r.  Wil- 
liams.   6    Ves,    459,    and    Purcell    v. 

Vol.  I 


14- 


ACCOUNTS,  ACCOUNTING 


B.  Submitting  Statements  of  Account. — a.  Generally.  —  la 
order  to  reduce  the  inquiry  to  order  the  master  sliould  require 
statements  of  account.-'*  After  the  accounts  and  statements  are 
filed,  evidence  will  be  received  only  as  to  points  in  dispute  as  shown 
by  them.-" 

b.  Form  of  Statements.  —  Such  a  statement  should  exhibit  the 
account  as  the  party  claims  it  to  be  in  connected  and  concise  form.'''" 


Macnamara,  17  Ves.  434,  that  some- 
times the  master  was  directed  to 
settle  the  interrogatories  in  the  case 
of  witness,  citing  Browning  v.  Bar- 
ton, Dickens  508,  but  that  while  that 
was  the  usual  method  of  examination, 
it  was  not  indispensable ;  that  the 
practice  in  New  York  had  been  more 
rela.xed  and  oral  examinations  had 
frequently,  if  not  generally  prevailed; 
that  it  was  a  question  merely  of  con- 
venience. 

28.  Remsen  v.  Remsen,  2  Johns. 
Ch.  (N.  Y.)  495;  Story  v.  Brown, 
4  Paige  (N.  Y.)  112;  Hicks  v.  Chad- 
well,    I    Tenn.    Ch.   251. 

A  party  refusing  to  produce  books 
and  vouchers  before  the  master  is 
bound  by  the  master's  report.  Peers 
V.  Barnett,   12  Gratt.   (Va.)   410. 

In  Story  v.  Brown,  4  Paige  (N. 
Y.)  112,  the  court  said  that  the  mas- 
ter might  require  the  parties  withui 
such  time  as  he  thought  reason- 
able to  bring  in  in  writmg  the  items 
of  charge  claimed  agamst  the  adverse 
party,  so  that  it  might  be  known 
to  what  points  testimony  was  to  be 
directed,  and  so  as  to  preclude  the 
making  of  claims  afterwards  for  any 
other  or  different  items,  unless  some 
excuse  should  be  shown.  That  one 
object  of  the  rule  was  to  prevent  the 
delay  and  expense  of  a  separate  sum- 
mons and  attendance  upon  further 
proceedings  in  the  master's  othce. 
That  the  master  tiught  to  regulate  at 
the  first  hearing  the  manner  of  ex- 
ecuting the  reference  and  the  steps 
to  be  taken  so  far  as  then  practicable. 

29.  Myers  v.  Bennett,  71  Tenn. 
(3  Lea)   184. 

■  Under  the  practice  in  England 
and  in  New  York,  as  long  as  a 
separate  chancery  system  was  kept 
up  in  that  stale,  upon  a  decretal 
order  for  a  regular  partnership  ac- 
couiit,  it  seems  to  have  been  the 
duty  of  each  litigant  to  present  to 
the  clerk  and  master  a  statement  of 


the  account  as  he  claimed  it  ought 
to  be.  With  these  statements  before 
him,  the  clerk  and  master  readily 
ascertained  the  points  of  difference, 
and  settled  with  the  parties  the  items 
upon  which  proof  should  be  taken." 
Hicks  V.  Chadwell,  i  Tenn.  Ch.  251. 

"  After  such  evidence  is  taken  and 
a  draft  of  report  inade  parties  can- 
not dispute  other  items."  Patterson 
V.   Johnson,    113   III.   559. 

One  may  not  prove  credits  beyond 
those  claimed  in  his  pleadings.  Purdy 
V.  Rutter,  3  W.   Va.  262. 

30.  Hicks  V.  Chadwell,  i  Tenn. 
Ch.  251. 

"  Parties  cannot  in  lii-u  of  their 
respective  statements  put  in  their 
general  books  of  account ;  Reed  v. 
Jones,  8  Wis.  421.  These  books 
usually  consist  of  immense  folios 
which  neither  the  clerk  (Turner  v. 
Hughes,  I  Bush.  Eq.  116)  nor  the 
court  can  be  required  to  grope 
through.  Norwood  v.  Norwood,  2 
Bland,  481  in  note ;  Budeke  v.  Rat- 
terman,  2  Tenn.  Ch.  459;  Poor  v. 
Robinson,  13  Bush  290.  It  is  the 
duty  of  the  parties  to  have  them 
examined  by  experts,  to  ascertain 
exactly  what  they  do  show,  and  to 
extract  from  them,  in  the  form  of 
balance  sheets,  exhibits  and  schedules, 
such  general  statements  and  such 
specific  items  and  facts  as  may  be  in 
dispute,  or  tend  to  elucidate  con- 
tested matters  of  charge  or  dis- 
charge." .Myers  v.  Bennett,  3  Lea 
(Tenn.)    184. 

But  it  is  not  ground  of  objection 
that  the  account  submitted  is  in  a 
book  containing  also  other  items. 
Henshaw    v.    Freer,    Bailey    Eq.    (S. 

C.)  311- 

The  books  also  should  be  pro- 
duced. Turner  v.  Hughes,  i  Busb. 
Eq.    (N.  C.)    116. 

The  statement  must  specify  items, 
one  cannot  claim  credits  under  head 
of     "general     expense."       Methodist 


Vol.  I 


AND  ACCOUNTS  STATED. 


143 


C.  Examination  of  Party  Accounting.  —  After  the  party 
accounting  has  filed  his  account,  the  adverse  party  has  the  right  to 
examine  him  fully  touching  it.''  This  examination  may  be  on 
interrogatories  or  viva  voce,  as  the  master  directs.'- 

Formerly  a  partv  could  not  be  examined  in  his  own  behalf  under 
the  form  of  cross-examination  after  his  examination  by  the  adverse 
party.^''' 


Church  V.  Jacques,  3  Johns.  Ch.  (N. 
V.)   77- 

The  master  may  require  parties  to 
e.xhibit  accounts  within  time  fixed, 
and  decline  to  hear  evidence  of  other 
items,  unless  delay  is  excused.  Story 
V.    Brown,  4  Paige    (N.   Y.)    112. 

If  one  ordered  to  account  offers 
to  prove  that  he  cannot  produce  such 
statement  because  the  books  are  in 
complainant's  possession,  the  master 
must  inquire  before  making  absolute 
order  to  produce  the  account.  Mc- 
Cartau  v.  Van  Syckel,  23  N.  Y. 
Super.    (10  Bosw.)   694. 

31.  Jackson  v.  Jackson,  3  N.  J. 
Eq.  96;  Remsen  v.  Remsen.  2  Johns. 
Ch.  (N.  Y.)  495;  Henshaw  v.  Freer, 
Bailey  Eq.    (S.  C.)   311- 

32.  Jackson  v.  Jackson,  3  N.  J. 
Eq.  96. 

■'  The  master  ought,  in  the  first 
instance,  to  ascertain  from  the  par- 
ties or  their  counsel,  by  suitable 
acknowledgments,  what  matters  or 
items  are  agreed  to  or  admitted; 
and  then,  as  a  general  rule,  and  for 
the  sake  of  precision,  the  disputed 
items  claimed  by  either  party  ought 
to  be  reduced  to  writing  by  the  par- 
ties respectively,  by  way  of  charges 
and  discharges,  and  the  requisite 
proofs  ought  then  to  be  taken  on 
written  interrogatories,  prepared  by 
the  parties  and  approved  by  the  mas- 
ter, or  by  viva  voce  examination,  as 
the  parties  shall  deem  most  ex- 
pedient, or  the  master  shall  think 
proper  to  direct  in  the  given  case. 
Tnat  the  testimony  may  be  taken  in 
the  presence  of  the  parties  or  their 
counsel  (e.xcept  when  by  a  special 
order  of  the  court  it  is  to  be  taken 
secretly)  ;  and  it  ought  to  be  reduced 
to  writing  in  cases  where  the  master 
sliall  deem  it  advisable,  by  him  or 
under  his  direction,  as  well  where  a 
party  as  where  a  witness  is  ex- 
amined." Remsen  v.  Remsen,  2 
Johns.  Ch.    (N.  Y.)   495- 


33.  Foote  v.  Silsby,  3  Blatchf 
507,  9  Fed.  Cas.  No.  4920;  Remsen  v. 
Remsen,  2  Johns.  Ch.   (N.  Y.)  495. 

Examination  of  Accountant — "  In 
all  matters  of  account  in  this 
court,  it  is  the  peculiar  right  of  the 
party  who  seeks  the  account,  to  ex- 
amine the  accountant  under  oath  and 
thereby  test  his  conscience  as  to  facts 
and  circumstances  material  to  the 
investigation  of  truth  and  the  ends 
of  justice.  The  mode  of  examin- 
ation differs,  in  different  places.  .  .  . 
In  the  English  chancery  it  is  by 
written  interrogatories,  generally  pre- 
pared and  exhibited  by  the  party 
seeking  the  examination,  but  settled 
by  the  master  and  considered  as  his 
act.  These  interrogatories,  thus  set- 
tled, are  served  on  the  examinant, 
and  he  puts  in  his  answer  in  writing, 
on  advisement  of  counsel.  Full  op- 
portunity is  given  to  consider  of 
the  interrogatories  and  the  answers, 
and  to  give  all  proper  explanation 
coming  within  the  scope  of  the  ques- 
tions propounded.  Under  this  mode 
of  proceeding,  there  can  be  no  cross- 
examination.  Nor  is  it  necessary  or 
proper  for  the  ascertainment  of  truth 
that  there  should  be.  The  party 
charged  has  no  right  to  be  a  witness 
in  his  own  behalf.  When  examined 
by  the  adverse  party,  he  is  entitled 
to  have  the  interrogatories  before 
him,  and  time  to  answer  advisedly 
and  understandingly.  Whatever  is 
in  answer  to  the  question,  or  fairly 
explanatory  of  the  answer,  he  has  a 
right  to  state,  but  nothing  more.  If 
the  answers,  or  any  of  them,  are 
evasive  or  improper,  exceptions  may 
be  taken,  and  the  party  be  ordered 
to  put  in  a  sufficient  answer.  In  this 
way  the  whole  truth  is  elicited.  Such 
is  the  English  practice ;  Colton  v. 
Harvey,  12  Ves.  391  ;  I  Newl.  Prac. 
161  :  Hoffman's  Mast,  in  Chan.  14-21  ; 
I    Hoffman's    Prac.    529,   533. 


Vol.  I 


144 


ACCOUNTS,  ACCOUNTING 


D.  Answer  As  Evidence.  —  When  an  account  is  called  for  by 
the  bill  (oath  not  being  waived),  and  given  in  the  answer,  it  must 
be  regarded  as  responsive  matter,  and  prima  facie  evidence  of  the 
state  of  accounts  between  the  parties.^* 

E.  Burden  of  Proof.  —  When  one  is  ordered  to  account,  the 
burden  is  on  him  to  prove  anj'  credits  that  he  claims.-'^     If  there  is 


"  The  practice  of  oral  examination 
is  universal  in  the  state  of  New 
Jersey,  as  well  in  relation  to  parties 
as  witnesses,  and  I  believe  the  prac- 
tice of  cross-examination  by  counsel 
is  also  universal. 

"  These  examinations,  according  to 
our  mode,  are  conducted,  not  by  the 
master,  but  by  the  counsel  of  the 
party  obtaining  the  reference.  He 
examines,  to  certain  points,  at  his 
own  discretion  and  in  his  own  way, 
having  previously  prepared  his  course 
of  interrogation.  The  answers  are 
given  immediately,  and  without  op- 
portunity for  advisement ;  and  if  the 
counsel  of  the  examinant  had  not 
the  privilege  of  cross-examination, 
the  result  would  be  more  likely  to 
mislead  than  properly  instruct  the 
mind   of  the   master. 

"  When  a  party  is  before  a  master, 
he  cannot  be  cross-examined  gen- 
erally. He  cannot  make  evidence  for 
himself  by  the  introduction  of  facts 
or  matters  not  the  subject  of  inquiry 
on  the  original  examination.  He 
can  only  be  called  on  to  explain,  or 
to  make  such  statements  as  may 
prevent  misunderstanding,  or  rebut 
any  unfair  inference  that  may  arise 
from  the  answer."  Jackson  v.  Jack- 
son,  3   N.   J.   Eq.   96. 

34.  May  v.  Barnard,  20  Ala.  200; 
De  Mott  V.  Benson,  4  Edw.  Ch.  297; 
Powell  V.  Powell,  7  Ala.  582.  See 
Dozier  v.  Edwards,  13  Ivy.  (3  Litt.) 
67,  and  Barksdale  v.  Hall,  13  Rich. 
Eq.  (S.  C. )  180,  where  complainants 
demanded  an  accounting  from  one 
as  administrator  of  one  and  executor 
of  another  estate,  from  which  latter 
office  he  had  been  discharged  and 
his  accounts  settled,  and  he  answered 
claiming  credit  for  over-payments  as 
executor,  the  complainant  cannot,  by 
amending,  deprive  him  of  the  benefit 
of  the  discovery  made ;  nor  is  he 
estopped  from  claiming  such  credits. 
Dillard  Z'.  Ellington,  57  Ga.  567. 

Vol.  I 


Statement  of  payment,  and  an  ac- 
count set  up  by  way  of  set  oflf  in 
the  answer,  is  matter  in  avoidance 
and  therefore  not  evidence.  Bank  v. 
Stockman,  i  Freem.  Ch.  (Miss.) 
502. 

As  to  the  propriety  of  calling  an 
answer  under  oath  evidence,  see 
opinion  of  Justice  Woodbury  in 
Jewett  V.  Cunard,  13  Fed.  Cas.  No. 
7310. 

As  to  the  use  and  effect  of  answers 
and  other  pleadings  as  evidence  for 
and  against  the  pleader  see  the  ar- 
ticles, "Admissions  and  "An- 
swers   IN    Equity." 

35.  Thatcher  v.  Hayes,  54  Mich. 
184,  19  N.  W.  946. 

And  to  Show  the  Disposition  of 
Funds  Proved  to  Have  Come  Into 
His  Hands — Silverthorn  v.  Brands, 
42  N,  J.  Eq.  703,  II  Atl.  328. 

Where  an  Accounting  is  Ordered 
on  a  Bill  and  Cross  Bill,  ccmipkunant 
has  the  burden  of  establishing 
credits  claimed  by  him  and  defend- 
ant of  establishing  credits  claimed 
by  him.  Crawford  v.  Norris  (Ark.), 
12  S.  W.  707. 

Where  an  Allowance,  Clearly  Ex- 
cessive, Is  Asked,  the  party  claiming 
it  must  establish  the  amount  he  is 
entitled  to,  and  the  referee  is  not  to 
guess  at  it.  Spalding  v.  Mason,  161 
Sup.   Ct.   592. 

The  burden  was  on  complainant  to 
show  first,  that  the  particular  sums 
of  money  were  in  fact  paid,  and  this 
burden  was  sustained  by  the  produc- 
tion of  either  the  books  or  cancelled 
checks,  or  in  their  absence  by  proper 
entries  on  the  books  of  the  company, 
or  other  secondary  evidence.  This 
being  done,  the  burden  still  remained 
upon  complainant  to  show  that  the 
payments  were  applicable  to  the  par- 
ticular purposes  mentioned  in  the 
order,  for  complainant  was  only  en- 
titled to  credit  for  such  disliursements 
as  were  applicable  to  those  purposes. 
This   burden   might   be   sustained   in 


AND  ACCOUNTS  STATED. 


145 


a  preponderance  of  evidence  in  favor  of  the  credit,  it  should  be 
allowed  ;  a  higher  degree  of  proof  is  not  required."'' 

The  accounting  party  has  the  burden  of  discharging  himself  from 
any  charge  that  appears  against  him  on  his  own  statement  of 
account,  or  that  may  be  allowed  against  him  on  examination  of 
himself  or  on  other  evidence.'" 

F.  Production  of  Vouchers  in  Discharce.  —  a.  Generally. 
A  party  accounting  must  produce  in  his  discharge  vouchers  for 
payments  claimed  to  have  been  made  by  him."* 

\'ouchers  are  prima  facie  evidence  of  disbursements.-'" 

b.    If'/ien    Not    Required. (!•)    Charge    and    Credit    Simultaneous. 

But  where  moneys  were  paid  over  the  same  day  they  were  received, 
so  that  the  admission  of  receipt  is  immediately  followed  by  the  claim 
of  credit,  the  accounting  party's  affidavit  niav  support  his  dis- 
charge.*" 

some  instances  by  mere  inspection  of 
the  voucners.  The  greater  part  of 
the  expenses  were  for  payments  to 
laborers.  As  to  those  the  burden  was 
sustained  by  showing  generally  that 
the  work  was  done  for  the  specific 
purpose  mentioned  in  the  order. 
There  are  other  items  of  payment 
which  should  not  be  allowed  without 
proof  that  they  were  within  the  scope 
of  the  inquiry.  The  general  oath  of  an 
officer  of  the  company  that  they  were 
made  for  the  purpose  named,  would 
not  generally  be  sufficient,  because 
it  would  be  a  mere  expression  of 
opinion  by  the  witness.  It  must  ap- 
pear by  consideration  of  the  nature 
and  character  of  the  payment  itself, 
that  it  was  made  for  the  purpose  in 
question.  N.  Y.  Bay  Cemetery  Co.  !■. 
Buckmaster  ( N.  J.),  33  Atl.  819. 

36.  Clapp  z\  Emery,  98  III.  523. 
But    the   mere    fact    that   a   suit    is 

pending,  which,  if  successful,  would 
entitle  defendant  to  a  certain  credit 
in  his  account,  is  not  sufficient  evi- 
dence to  justify  the  allowance  of 
such  credit.  Crown  Coal  &  Tow  Co. 
V.  Thomas,  177  111.  534,  52  N.  E. 
1042. 

37.  Smith's  Ch.  Pr..  vol.  2,  p. 
T17:  Dan.  Ch.   Pr.  vol.  2.  p.  R80. 

His  Own  Admission  in  His  Ac- 
count is  Sufficient  Proof  to  establish 
them,  unless  it  otherwise  appears 
that  they  were  not  chargeable  against 
him.  VVilliamson  v.  Downs.  34  Miss. 
402. 

38.  Davenport  i'.  Davenport,  I 
Sim.  512. 

As   An   Executor's   Oath   'Will   Not 


10 


Discharge  Him,  Neither  -Will  That 
of  His  Coexecutor "  The  examina- 
tion of  one  personal  representative 
cannot  discharge  another  personal 
representative  when  by  that  exam- 
ination the  party  examined  would 
discharge  himself  also.'"  Dines  i'. 
Scott,  I  T.  R.  Eng.  Ch.  358. 

The  'Vouchers  Must  Be  Produced 
by  the  Accounting  Party  at  His 
Peril  and  must  be  admitted  in  evi- 
dence subject  to  be  impeached.  Hal- 
stead  z'.  Tyng,  29  N.  J.  Eq.  86. 

39.  Dan.   Ch.   Pr.,   vol.   2,   p.  881. 

"  Vouchers  are  prima  facie  evi- 
dence of  disbursements.  The  rule 
in  respect  to  the  receipt  of  them  on 
an  accounting  has  been  laid  down 
to  be,  that  in  all  matters  of  account 
the  party  who  produces  the  vouchers 
in  support  of  the  account  produces 
them  at  his  peril,  and  the  master  is 
bound  to  admit  them  in  evidence, 
except  the  other  side  can  lay  a  rea- 
sonable ground  to  show  that  the 
voucher  in  question  can  be  impeached, 
of  which  the  master  is  to  judge  and 
then  to  require  evidence  in  regard  to 
it  if  he  thinks  proper.  Hoffman's 
Office  of  Masters  in  Chancery  81 ; 
Bennet's  Pract.  in  the  Master's  Of- 
fice 85.  Of  course,  if  the  master 
doubts  the  payment,  he  may  require 
proof  besides  the  voucher.  The 
voucher  however,  cannot  of  itself  be 
sufficient  proof  of  payment  if  it  does 
not  show  for  what  or  on  what  ic- 
count  the  money  was  paid."  Hal- 
stead  v.  Tyng,  29  N.  J.  Eq.,  86. 

40.  Smith's  Ch.  Pr..  vol.  2,  p. 
117;    Daniell's    Ch.     Pr..    vol.    2.    p. 

Vol.  I 


146 


ACCOUNTS,  ACCOUNTING 


(2.)    Credit    Appearing    in   Book    Offered    by    Opposite    Party Where 

there  is  no  fiduciary  relation  between  the  parties  and  the  evidence 
to  charge  one  of  them  consists  of  entries  in  his  own  books,  he  may 
use  entries  in  the  same  book  in  his  discharge.''^ 

Otherwise  as  to  those  holding  a  relation  of  trust  or  confidence.*^ 

(3.)  When  Vouchers  Are  Lost.  _  And  where  an  account  is  of  long 
standing  the  court  will  sometimes  permit  the  accounting  party  to 
discharge  himself  upon  oath,  of  all  such  matters  as  he  cannot  prove 
by  vouchers  by  reason  of  their  loss.''^ 

(4.)  For  Small  Items.  _  And  as  to  small  sums  the  party's  oath  will 
support  his  discharge.''* 

G.  Where  Evidence  Is  Not  Sufficient  to  En.\ble  Master  to 
State  Account.  —  If  the  master  from  lack  of  evidence  cannot  state 
an  account,  the  court  will  leave  the  parties  in  statu  quo.*^ 


884;  Ridgeway  v.  Darwin,  7  Ves.  404; 
Thompson  v.  Lamb,  7  Ves.  587 ; 
Robinson  v.  Scotney,  19  Ves.  582. 

41.  Robertson  v.  Archer,  5  Rand. 
(Va.)  319;  Dan.  Ch.  Pr.  1228;  Dars- 
ten  V.  Orford  (Earl),  i  Eq.  Cas. 
Abr.  10;  Jones  v.  Jones,  4  Hen.  & 
M.  (Va.)  447;  Wagoner  v.  Gray,  2 
Hen.  &  M.  (Va.)  603;  Freeland  v. 
Cocke,  3  Munf.  352. 

A  plaintiff  putting  in  evidence  an 
account  kept  by  defendant  showing 
an  item  charged  against  plaintiff 
concedes  the  correctness  of  that  item. 
Dolan  V.  Mitchell,  39  App.  Div.  361, 
57  N.  Y.  Supp.  157.  But  see  contra. 
Robertson  v.  Archer,  5  Rand.   (Va.) 

319- 

Complainant  does  not  admit  the 
correctness  of  an  account  by  merely 
pleading  or  stating  that  defendant 
submitted  such  account.  Wilson  v. 
Dowse,    140  III.    18,   29   N.   E.   726. 

42.  Reeve  v.  Whitmore,  11  Jur. 
N.  S.  722;  Carter  v.  Lord  Colrain, 
Rarn.  126;  Bnardman  v.  Jackson,  2 
Ball.  &  B.   382. 

"  .\s  to  executors,  they  are  under 
a  moral  and  equitable  and  indeed  a 
legal  obligation,  from  the  very  nature 
nf  their  undertakings,  to  furnish 
those  to  whom  they  are  accountable 
the  means  of  charging  them  to  the 
full  extent  of  their  liabilities.  White 
7'.  Lady  Lincoln,  8  Ves.  ,363.  For 
those  having  the  right  to  claim  the 
account  have  no  other  perfect  means 
of  getting  this  imformation."  Robert- 
son V.  Archer,  5  Rand.   (Va.")   319. 

43.  Dan.  Ch.  Pr.  12.30;  Peyton  v. 
Green,  i  Ch.  Rep.  146;  Holstcomb  v. 

Vol.  I 


Rivers,    1    Ch.    Cas.    127.      See    also 
Turner  v.   Corney,  5   Beav.   515. 

44.  "  It  is  understood  to  be  the 
settled  course  of  the  court  (Anon. 
I  Vern.  283 ;  Witcherly  v.  Witcherly, 
Id.  470;  Everard  v.  Warren,  2  Ch. 
Cas.  249 ;  Morely  v.  Bonge,  Mos. 
252 ;  Robinson  v.  Cumming,  2  Atk. 
409,  and  2  Fonb.  452,  460,  462.)  that, 
upon  the  defendant's  accounting  be- 
fore the  master,  he  is  to  be  allowed, 
on  his  own  oath,  being  credible  and 
uncontradicted,  sums  not  exceeding 
forty  shillings  each;  but  then  he  must 
mention  to  whom  paid,  for  what, 
and  when,  and  he  must  swear  posi- 
tively to  the  fact,  and  not  as  to  belief 
only,  and  the  whole  of  the  items 
so  established  must  not  exceed  £100, 
and  the  defendant  cannot,  by  way  of 
cliarge,  charge  another  person  in  this 
way.  The  forty  shillings  sterling 
was  the  sum  established  in  the  early 
history  of  the  court,  and  perhaps  $20 
would  not  now  be  deemed  an  un- 
reasonable substitute."  Remsen  v. 
Remsen,  2  Johns.  Ch.  (N.  Y.)  40=;; 
Halsted  v.  Tyng,  29  N.  J.  Eq.  86.  _ 

In  this  country  generally  the  limit 
of  a  single  item  is  twenty  dollars, 
and  in  Tennessee  the  aggregate  of 
such  items  must  not  exceed  five  hun- 
dred dollars.  Goodner  v.  Browning, 
28  Tenn.  783. 

45.  Slater  Myers  &  Co.  v.  Arnett, 
81  Va.  432 ;  Lewis  v.  Bacon,  3  Hen. 
&    M.    (Va.)    89. 

Where  one  partner  so  keeps  the 
books  that  it  is  impossible  to  tell 
the  true  state  of  the  partnership  ac- 
counts,   every    presumption     against 


AND  ACCOUNTS  STATED. 


147 


H.  On  Leave  tu  Surcharge  and  Fai^sii' v. — a.  Scope  of  Inquiry. 
On  leave  to  surcharge  and  falsify,  evidence  is  admissible  only  as  to 
items  specified  in  the  pleadings.*" 

b.  Burden  of  Proof.  —  On  leave  to  surcharge  and  falsify,  the 
onus  probandi  is  on  him  to  whom  leave  is  granted.*" 

I.  Objections  to  En'idence.  —  All  objections  to  admission  of 
evidence  and  sufficiency  of  evidence  should  be  taken  before  the 
master.'" 


him  is  proper.     Dimond  v.  Hender- 
son, 47   Wis.    172,  2   N.   W.   73. 

But  the  presumption  against  a 
wrong  doer  does  not  apply  to  one 
who  failed  through  incompetency 
(known  to  his  partner)  to  keep  cor- 
rect books,  there  being  no  evidence 
of  dishonesty.  Knapp  v.  Edwards, 
57  Wis.   191,  IS  N.  W.   140. 

46.  WilHams  v.  Savage  Mfg.  Co., 
3  Md.  Ch.  418. 

In  England  it  was  held  that  if 
account  was  surcharged  or  falsified 
in  one  item,  the  complainant  might 
go  to  the  master  with  liberty  to  sur- 
charge and  falsify  it  at  large.  U.v 
parte  Townsend,  2  Moll.  242;  Davis 
V.  Spurling,  Tam.  199. 

If  the  items  specified  and  proved 
cast  suspicion  on  entire  account,  the 
liberty  to  surcharge  and  falsify  is 
unrestricted.  Bullock  v.  BoyJ,  i 
Hoflf.   Ch.    (N.   Y.)    294. 

Under  permission  to  surcharge 
only  omissions  can  be  shown ;  under 
leave  to  falsify  only  false  items. 
Philips  V.  Belden,  2  Edw.  Ch.  (N. 
Y.)    I. 

47.  Cowan  v.  Jones,  27  Ala.  317; 
Philips  V.  Belden,  2  Edw.  Ch.  (N. 
Y.)    I. 

Accounts  settled  witliout  opportu- 
nity for  full  scrutiny  will  be  invali- 
dated on  slighter  evidence  than  where 
such  opportunity  existed  and  full 
investigation  was  made.  Lee  v. 
Reed,  34  Ky.  109. 

In  surcharging  and  falsifying  ac- 
counts after  considerable  lapse  of 
time,  clear  evidence  will  be  required 
especially  .where  there  has  been  ac- 
quiescence. Gover  V.  Hall,  3  Har.  & 
J.   (Md.1  43. 

Account  Presumed  Correct. 
"  Where  liberty  is  given  to  sur- 
charge and  falsify,  the  court  takes 
the  account  to  be  a  stated  and  set- 
tled account  and  establishes  it  as 
such.      If   either  party   can   show   an 


omission  for  which  an  entry  of  debit 
or  credit  ought  to  be  made,  such 
party  surcharges,  that  is,  adds  to  the 
account,  and  if  anything  should  be 
inserted  which  is  wrong,  he  is  at 
liberty  to  show  it,  and  this  is  falsifi- 
cation. The  onus  probandi  is  always 
on  the  party  making  the  surcharge 
or  falsification,  and  if  he  fails  to 
prove  it,  the  account  must  stand  as 
correct.  It  is  presumed  to  be  cor- 
rect, however,  having  been  once 
settled  until  the  contrary  appears. 
Here  lies  the  difference  between  this 
and  a  general  account,  for  in  the 
latter  the  party  producing  the  account 
must  show  the  items  to  be  correct." 
Philips  V.  Belden,  2  Edw.  Ch.  (N. 
Y.)    I. 

48.  Reed  v.  Winston,  4  Hen.  & 
M.  (Va.)  450;  Kirkman  v.  Vaulier, 
7  Ala.  217;  Remsen  v.  Remsen,  3 
Johns.   Ch.   (N.  Y.)   495- 

Objection  that  evidence  is  not  rele- 
vant should  be  made  before  the 
master,  and  if  not  so  made  the  evi- 
dence may  be  considered.  Callender 
V.  Colegrove,  17  Conn.  i. 

In  Methodist  Church  v.  Jacques,  3 
Johns.  Ch.  TJ,  it  was  held  that  the 
rule  of  practice  is  founded  on  much 
good  sense  that  no  exceptions  are 
to  be  taken  to  a  report  which  were 
not  made  before  the  master  signed 
the  report,  because  the  master  might 
have  allowed  the  objections,  saving 
unnecessary  expense  and  trouble, 
citing  2  Harr.  Pr.  146;  Wyatt  Pr. 
Reg.  380-381.  and  adding  that  the 
rule  was  not  departed  from,  except 
in  special  cases,  citing  Pennington  v. 
Muncaster,   i   Madd.  Ch.  555- 

In  Retnsen  v.  Remsen,  2  Johns. 
Ch.  (N.  Y.)  495.  the  court  said  that 
after  an  examination  is  concluded, 
the  parties  being  provided  with  a 
copy  of  the  master's  report  ought 
to  have  a  day  assigned  for  settling 
the    report    and    making    objections, 

Vol.  I 


148 


ACCOUNTS,  ACCOUNTING 


J.  Recommitting  to  Master.  —  An  accounting  once  made  by 
the  master  may,  for  cause  shown,  be  recommitted  to  him  to  be 
restated.*"  Recommitment  may  be  denied  on  account  of  laches.'" 
The  master  may  be  directed  to  hear  further  testimony,  or  to  restate 
the  account  without  further  testimony.'"' 

K.  Restatement  Without  Recommitment.  —  The  court  may 
restate  the  account  without  sencHng  it  back  to  the  master. "- 

L.  Matters  Arising  Aeter  Master's  Report  and  Deeore 
Final  Hearing.  —  Evidence  as  to  matters  occurring  after  master's 
report  and  before  final  hearing  is  admissible  on  such  hearing.'''' 


and  when  tlie  report  is  settled  and 
signed,  the  parties  ought  to  be  con- 
fined m  their  exceptions  to  be  taken 
ill  court,  to  such  objections  as  were 
overruled  or  disallowed  by  the  mas- 
ter. 

49.  Dignan  v.  Dignan  (N.  J.  Eq.), 
1/  Atl.  546;  Barnum  v.  Barnum,  42 
Md.  251. 

Unless  shown  to  be  erroneous  the 
master's  report  establishes  the  facts. 
Dillard  v.   Ellington,  57  Ga.  567. 

When  exceptions  to  a  master's 
report  are  sustained  and  the  accounts 
are  complicated,  the  matter  must  be 
again  referred.  Beale  v.  Bcale,  116 
111.  2Q2,  5  N.  E.  540. 

50.  In  the  case  of  Fischer  v. 
Hayes,  16  Fed.  469,  an  account 
was  ordered  to  determine  dam- 
ages from  infringement  of  patent. 
The  defendant  refused  to  pro- 
duce his  books  upon  the  ground 
that  they  would  throw  no  light 
upon  the  question  at  issue. 
That  refusal  took  place  in  August, 
1881.  The  examination  was  not  fin- 
ished until  February,  1882.  Plaintiff 
made  no  efTort  to  compel  the  pro- 
duction of  the  books.  The  court 
refused  to  refer  the  case  back  in 
order  that  the  books  might  be  in- 
troduced   in    evidence. 

Discretion  to   Reopen  Case But 

in  Dignan  v.  Dignan  (N.  J.),  17 
.Alt.  546.  in  an  accounting  between 
father  and  son  for  partnership  tran- 
sactions, the  master  made  his  report 
and  was  about  to  file  it  when  the 
father  applied  to  open  the  case  for 
further  testimony  on  the  ground 
that  he  had  discovered  numerous 
vouchers,  which  would  largely  re 
ducc  the  amount  found  against  him, 
and     excused     their     non-production 


before  the  master  by  saying  that  he 
had  relied  upon  his  bookkeeper  and 
clerk  to  collect  the  necessary  papers 
and  had  supposed  that  all  had  been 
collected  and  presented.  The  court 
held  that  although  the  petitioner  had 
been  guilty  of  laches  in  failing  to 
produce  the  papers  earlier,  yet  the 
court  would  not  be  justified  in.  al- 
lowing even  the  most  extreme  care- 
lessness to  stand  in  the  way  of  sup- 
plying necessary  proof,  especially 
when  that  proof  is  documentary,  un- 
less it  appeared  that  by  admitting 
such  testimony,  injustice  would  be 
done,  and  cited  Mulock  r.  Mulock, 
28  N.  J.  Eq.  is;  Hewes  v.  Hewes, 
4  Sim.  I,  and  Gregoy  v.  Marychurch. 
Bev.  275,  19  L.  J.  Ch.   (N.  S.)  77- 

51.  Barnum  i'.  Barnum,  42  Md. 
251;  III  re  Donnelly,  3  Phila.   18. 

In  the  case  of  Camac  v.  Francis. 
4  Fed.  Cas.  No.  2329,  an  account 
was  referred  back  to  report  such 
further  credits  as  either  party  might 
show  himself  entitled  to,  but  the 
court  refused  to  refer  the  accounts 
generally,  on  the  suggestion  that 
plaintiff  had  since  the  previous  hear- 
ing obtained  documents  and  evi- 
dence in  support  of  his  exceptions 
and  that  he  expected  it  would  be  in 
his  power  to  discover  new  credits  not 
yet    known   to   him. 

52.  This  may  be  done  where  the 
items  are  few  in  number  and  the 
matter  will  not  involve  examination 
of  complicated  accounts.  Whittcninre 
V.  Fisher,  132  111.  243,  24  N.  E.  636; 
Smith  V.  McKernan.  41  111.  .\pp. 
132.  Compare  Beale  v.  Beale,  116 
lil.  292,  5  N.  E.  S40. 

53.  Kendall  v.  N.  E.  C.  Co.,  13 
Conn.   3S3. 


Vol.  I 


AND  ACCOUNTS  STATED. 


149 


III.  COMMON  LAW  ACTION  FOR  AN  ACCOUNTING. 

1.  Before  Verdict  Guod  Computet.  —  The  action  at  law  for  an 
accounting  long  ago  fell  into  disuse  in  England  and  in  most  of  the 
states  of  the  Union.  It  was  necessary  for  the  plaintiff  to  show  a 
privity  between  himself  and  the  defendant  by  express  or  implied 
contract,  or  by  law.°^ 

Before  verdict  quod  computet  the  only  question  for  determina- 
tion is,  shall  there  be  an  accounting ;  evitlence  to  show  that  profits 
have  or  have  not  accrued,  or  that  one  joint  tenant  or  tenant  in 
common,  has  received  more  than  his  share,  is  inadmissible.  The 
adjusting  of  balances  is  left  entirely  with  the  auditor. ^^ 

The  defendant  must  be  shown  to  have  acted  in  the  character 
alleged  in  the  declaration,  i.  e.,  as  bailifT,  receiver  or  otherwise.''''" 

The  evidence  must  strictly  support  the  declaration  as  to  the 
plaintilif's  interest  in  the  money  or  goods. ^' 


54.  Co.  Litt.  gob;  id.  172a;  Bac. 
Abr.  Account.   A:   3   Blk.   Com.    164. 

In  tbe  case  of  Griffith  v.  Willing, 
3  Binn.  (  Pa.)  317,  the  conrt  held 
that  if  the  parties  were  partners, 
the  action  of  account  render  lay  at 
common  law.  but  if  they  were  only 
tenants  in  common  the  action  was 
given   by    a    statute. 

55.  Hawley  v.  Burd,  6  111.  App. 
454.  But  in  England  under  Stat.  4 
.■\nne  Ch.  16  §  27.  one  sued  as  tenant 
in  common  could  prove  thai  he  had 
received  no  more  than  his  just  share 
of  the  profits.  Chitty  PI.  p.  1299. 
See  however  McPherson  v.  McPher- 
son,  II  Ired.  Law  (N.  C.)  391,  53 
Am.  Dec.  416. 

56.  Wheller  r.  Home.  Willes 
208;  Spalding  v.  Dunlap,  i  Root 
(Conn.)  319;  Co.  Lit.  172a.  i  Selw. 
N.  P.  1-3. 

In  the  case  of  Irvine  v.  Hanlin, 
10  Serg.  &  R.  (Pa.)  219,  it  was  said 
that  the  action  of  account  render 
under  the  statute  of  Anne  is  dif- 
ferent from  the  action  at  common 
law,  for  under  the  latter  the  bailiff 
was  answerable  not  only  for  receipts, 
but  for  what  he  might  have  made, 
whereas  under  the  statute  the  tenant 
in  common  answering  as  bailiff,  was 
liable  only  for  what  he  had  actually 
received  above  his  just  share,  and 
because  also  the  auditors  under  the 
statute  could  examine  the  parties  on 
oath,  that  therefore  the  declaration 
ought  to  state  that  the  parties  were 
tenants  in  common  and  that  defend- 


ant Iiad  received  more  than  his  share, 
but  that  if  he  is  charged  as  bailiff 
generally  the  plaintifT  must  prove 
that  the  defendant  was  actually  a 
common    law   bailiff. 

Defendants  Must  Be  Shown  to  Be 
Jointly  Liable.— In  Whelen  v.  Wat- 
mough,  15  Serg.  &  R.  (Pa.)  153.  it 
was  held  that  while  a  partner  might 
have  this  action  against  his  co-part- 
ner, yet  he  could  not  have  it  against 
two  co-partners  of  himself,  because 
each  co-partner  was  bound  to  ac- 
count to  him  severally  for  the  moneys 
received  by  such  co-partner,  and  not 
jointly  for  moneys  received  by  the 
various  co-partners  so  that  where 
one  sued  two  defendants  jointly,  and 
the  evidence  showed  that  plaintifT 
and  defendants  were  co-partners  the 
case  must   be   dismissed. 

57.  Spalding  v.  Dunlap,  i  Root 
(Conn.)  319;  McPherson  v.  Mc- 
Pherson,  11  Ired.  Law  (N.  C.)  391, 
53  .A.m.  Dec.  416. 

"Plaintiff  Must  Show  Receipt  by 
Defendant  of  Moneys  From  the  Per- 
sons Named  in  Declaration. — hi  Jor- 
dan V.  Wilkins,  13  Fed.  Cas.  No. 
7526,  the  defendant  was  charged 
as  receiver  of  certain  sums  for  the 
plaintiff  from  certain  persons  named 
in  the  declaration.  The  evidence 
showed  sums  received,  but  not  from 
any  of  the  persons  named  in  the 
declaration,  and  showed  that  the  sums 
so  received  were  the  money  of  a 
partnership,  of  which  plaintiff  and 
defendant   were   members.     Mr.   Jus- 


Vol.  I 


150 


ACCOUNTS,  ACCOUNTING 


It  is  not  necessary  to  prove  a  demand  for  an  accounting.''" 

If  defendant  pleads  pte)ic  coinputavit,  the  burden  is  upon  him  to 
show  an  actual  accounting  and  balance  struck.^" 

To  sustain  the  plea  of  nothing  in  arrear  defendant  must  show 
by  an  exhibition  of  accounts  that  nothing  is  due  the  plaintitt.''" 

2.  After  Verdict  in  Proceedings  Before  Auditors.  —  By  such  judg- 
ment nothing  is  determined  except  that  the  defendant  ought  to 
account."' 

Before  the  statute  4  Anne  Ch.  16,  auditors  could  not  compel  the 
parties  to  be  examined  under  oath."^ 

Auditors  are  not  bound  by  any  previous  accounting  between  the 
parties. '^^ 

Defendant  cannot  introduce  evidence  to  show  that  he  has 
accounted,  or  that  he  is  not  indebted,  or  any  other  fact  whereby  he 
would  be  excused  from  rendering  an  account. ''"' 


tice  Washington  held  that  if  the 
plaintiff  meant  to  proceed  upon  the 
statute  of  Anne  he  ought  to  have 
stated  his  case  according  to  the  facts, 
citing  James  v.  Brown,  i  Dall.  339, 
where  it  was  held  that  if  the  proof 
showed  the  receipt  from  one  of  the 
persons  named  in  the  declaration, 
it  would  be  sufficient,  and  the  court 
said  that  in  that  case  the  most  liberal 
construction  had  been  given  to  the 
statute  in  consequence  of  the  want 
of  chancery  jurisdiction  in  Pennsyl- 
vania. 

58.  Sturges  v.  Bush,  s  Day 
(Conn.)  452. 

59.  Ba.xter  v.  Hozier,  5  Bing.  288; 
McPherson  v.  McPherson.  II  Ired. 
Law  (N.  C.)  391.  53  Am.  Dec.  416; 
Lee  V.  Adams,  12  111.  in. 

If  the  Agreement  Was  For  Saic  of 
Goods,  and  Return  of  Those  Not 
Sold,  he  must  prove  not  only  an  ac- 
counting for  money  received  but  the 
return  of  goods  unsold.  Read  v. 
Bertrand,  4  Wash.  556,  20  Fed.  Cas. 
No.  11,602.  And  he  must  show  an 
accounting  for  charges  attending 
sales  and  for  losses  if  any  on  sales. 
Baxter   v.    Hozier.    s    Bing.    288. 

Proof  of  Accounting  Before  One 
Person  Supports  Plea  of  Account- 
ing  Before   Two Bull.    N.    P.    127; 

Eac.    .\br,    .'Vcc.    E. 

If  the  Business  Was  Such  as  to 
Call  For  Daily  Accounts,  of  which 
it  is  not  the  custom  to  take  vouchers, 
it  is  presumed  that  the  defendant  ac- 
counted   and    the   burden    is    on   the 

Vol.  I 


plaintiff.      Evans   v.    Birch,   3    Camp. 
10. 

60.  Lee  V.  Abrams,   12  HI.   in. 

"  The  defense  ...  of  nothing 
in  arrear  goes  upon  the  ground  that 
there  is  nothing  now  in  the  defend- 
ant's hands,  which  he  is  liable  to 
account  for.  This  may  be  shown  in 
various  modes, — as,  for  e-xample,  that 
it  has  been  handed  over  to  the  plaint- 
iff, or  to  a  third  person  by  his 
direction,  or  that  it  has  been 
destroyed,  or  has  perished  without 
the  fault  of  the  defendant."  Pickett 
V.  Pearsons,  17  Vt.  470. 

61.  Lee  V.   Abrams,   12   111.   in. 

62.  Co.     Litt.     199     (Harg.     note 

83). 

63.  But  if  the  parties  had  agreed 
on  any  particular  items,  or  if  rests 
had  been  made  in  a  running  account 
and  balances  struck,  but  no  final  ac- 
counting made,  the  auditors  would 
be  concluded  as  to  such  items  and 
by  such  balances  and  as  to  any  un- 
paid balances  carried  into  the  ac- 
count.    Lee  V.  Abrams,  12  111.  in. 

64.  Lee  v.  Abrams  12  111.  in; 
Bac.  Abr.  Accompt.  F;  Leon.  219; 
Taylor  v.   Page,  Cro.  Car.  116. 

But  he  may  prove  payments  made 
on  account  (Lee  v.  Abrams,  12  III. 
in),  or  that  goods  were  jettisoned: 
or  that  he  was  robbed  of  them ;  or 
that  they  were  taken  by  the  public 
enemy.      Bac.    Abr.    Accompt.    G. 

If  in  truth  and  in  fact  plaintiff 
ought  to  account  for  a  sum  received, 
evidence  as  to  the  amount  is  admis- 


AND  ACCOUNTS  STATED. 


151 


The  proofs  before  tlie  auditors  must  be  consistant  with  the  plead- 
ings and  verdict."'' 

Evidence  is  admissible  of  sums  received  by  defendant  after  the 
commencement  of  the  action."^ 

Auditors  could  examine  onh'  parties  and  had  no  power  to  try 
issues."' 

IV.  ACTIONS  ON  ACCOUNT. 

1.  Generally.  —  This  term  has  come  to  be  applied  to  certain  cases 
in  assumpsit.  It  includes  actions  to  recover  for  goods  sold  and 
delivered  from  time  to  time ;  or  for  services  rendered  on  several 
occasions,  or  for  moneys  from  time  to  time  advanced.  The  rules 
of  evidence  in  other  actions  in  assumpsit  apply  here,  and  only  such 
special  rules  as  have  been  adopted  for  this  class  of  cases  will  here 
be  noticed. 

2.  Book  Debt.  —  A.  Testimony  of  Parties.  —  Book  debt  lay  on 
claims,   usually    for  small   sums,   evidenced   by   entries   in   account 


sible,  although  when  received  both 
parties  supposed  that  defendant  was 
entitled  to  it  in  his  own  right  and 
for  his  own  benefit.  Smith  v.  Brush, 
II   Conn.  359, 

65.  Spear  v.  Newell,  22  Fed.  Cas. 
No.  13,224;  Lee  v.  Abrams,  12  111. 
Ill;  Bac.  Abr.  Ace.  F;  Godfrey  v. 
Saunders,  3  Wils.  73. 

In  An  Action  Between  Partners, 
the  parties  were  entitled  to  an  in- 
vestigation of  every  particular  tran- 
saction and  to  have  its  results  em- 
braced in  the  account,  although 
there  were  no  allegations  respecting 
it  in  the  pleadings.  Boyd  v.  Foot, 
5  Bosw.  (N.  Y.)   no. 

Defendants  Not  Concluded  by 
Amounts  or  Dates  Set  Forth  in 
Declaration — In  the  case  of  New- 
bold  V.  Sims,  2  Serg.  &  R.  (Pa.)  317, 
it  appeared  that  defendant  was  called 
on  to  render  an  account  of  his  actions 
as  supercargo  of  a  brig,  and  he  al- 
leged that  the  brig  had  been  seized 
with  its  cargo  for  breach  of  the 
laws  of  the  United  States.  It  ap- 
peared that  there  was  a  remission 
of  the  forfeiture  under  the  law,  and 
a  sale  of  the  cargo,  and  that  defend- 
ant had  made  some  payments  to 
the  plaintiflfs.  The  question  whether 
he  had  fully  accounted  was  submit- 
ted to  the  jury,  and  they  found  for 
the  plaintiff.  The  court  held  that 
verdict  did  not  preclude  the  defend- 
ant from  showing  before  the  auditors 


how  the  cargo  was  taken  out  of  his 
hands,  and  that  he  could  claim  al- 
lowances so  far  as  the  cargo  had 
been  appropriated  by  the  govern- 
ment ;  that  the  accounting  should  be 
taken  according  to  the  truth  of  the 
matter,  and  that  it  was  not  to  be 
inferred  from  the  judgment  entered 
on  the  verdict  that  the  defendant  had 
received  all  the  sums,  and  at  the 
times  mentioned  in  the  declaration ; 
that  he  would  have  to  account  for 
all  that  he  had  received  and  would 
be  allowed  every  item  in  discharge 
that  he  could  make  out  fairly 
chargeable  against  the  plaintiffs. 

66.  Smith  v.  Brush,  11  Conn.  359; 
Robinson   v.    Bland,   2   Burr.    1077. 

In  Newbold  v.  Sims,  2  Serg.  &  R. 
(Pa.)  317,  it  was  held  that  auditors 
are  not  restricted  to  the  days  laid 
in  the  declaration;  that  after  judg- 
ment on  the  verdict  all  articles  of 
account  are  included  and  the  whole 
account  brought  down  to  the  time 
when  the  auditors  make  an  end  of 
the  account ;  that  the  auditors  would 
make  the  proper  charges  and  allow 
the  proper  credits  without  regard 
to    the   verdict. 

If  a  declaration  avers  receipt  of 
moneys  by  defendant  between  cer- 
tain days  plaintiff  cannot  show  such 
receipt  at  an  earlier  date.  Sweigart 
V.  Lowmarter.  14  Serg.  &  R.  (Pa.) 
200. 

67.  Wisner  v.  Wilhelm,  48  Md.  I. 

Vol.  I 


152 


.-ICCO  UNTS,  ACCO  UNTING 


books.     Parties  were  competent  to  testify  in  their  own  behalf.''" 

A  party  might  testify  on  all  the  issues.'"'  His  testimony  was 
usually  given  before  auditors  only,  and  viva  voce.'" 

B.  Burden  of  Proof.  —  The  plaintiff  has  the  burden  of  estab- 
lishing any  items  denied.'' 

C.  Use  of  Account  Books.  —  For  a  full  statement  of  the  law  as 
to  the  use  of  such  books  as  evidence,  see  the  title  "  Books  of  Ac- 
count." 

D.  Other  .Me.\ns  of  Proof.  —  Plaintiff  may  prove  his  claim 
without  producing  the  book.'- 


.    Beecher,    g    Conn. 
Bond,  Tapp.  (Ohio) 


68.  Terrill 
344;  Marshall 
99- 

Parties  were  permitted  to  testify 
on  the  ground  that  they  had  no  other 
means  of  proof.  Irwin  f.  Jordan, 
26   Tenn.    (7   Humph.)    167. 

69.  Stevens  v.  Richards,  2  .\iken 
(Vt.)  81;  Fay  V.  Green,  2  Aiken 
(Vt.)  386;  May  V.  Corlew,  4  Vt, 
12;  Mattocks  V.  Owen,  5  Vt.  42; 
Burton  v.  Ferris.  Brayt.  (Vt.)  78: 
Delaware  v.  Staunton,  8  Vt.  48;  Hilli- 
ker  V.  Loop,  5  Vt.  116,  26  Am.  Dec. 
286;  Bradley  v.  Bassett,  13  Conn. 
560;  Keeler  v.  Mathews,  17  Vt.  125; 
Stanford  v.  Bates,  22  Vt.  546;  Clark 
T.    Marsh,    20    Vt.    338. 

A  wife  joined  as  plaintiff  with  her 
husband  might  testify.  Gay  v. 
Rogers,   18  Vt.   342. 

Quoad  the  book  debt,  they  are 
admissible,  like  other  witnesses,  to 
testify  fully  in  support  or  confutatioii 
of  the  account.  Peck  v.  Abbe,  1 1  Conn. 
207;  Bryan  v.  Jackson,  4  Conn.  288; 
e.  g.  to  prove  admissions.  Stanford 
1:  Bates,  22  Vt.  546:  Clark  v.  Marsh, 
20  Vt.  338;  Reed  v.  Talford,  10  Vt. 
568 ;  Bryan  v.  Jackson.  4  Conn.  288. 

But  not  to  a  new  promise  to  avoid 
statute  of  limitations.  White  v.  Dow. 
23   Vt.   300. 

The  party  testifying  to  sustain  the 
charges  on  his  book  cannot  testify 
as  to  the  value  of  the  articles 
charged,  or  of  the  labor  performed ; 
much  less  as  to  a  specific  contract. 
Cram  v.  Spear,  8  Ohio  (8  Ham.) 
494- 

As  to  interest  there  must  be  other 
proof  than  the  oath  of  plaintiff  of 
defendant's  promise  to  pay  it. 
Pheni.v  v.  Prindle,  Kirby  (Conn.) 
207. 

As   to   the   weight   to   be   given   to 

Vol.  I 


testnuuny  of  a  party  to  the  action, 
see,  Whiting  v.  Corwin,  5  V't.  451. 

■^O.  Read  v.  Barlow,  i  Aiken 
(Vt.)  145;  Delaware  v.  Staunton,  8 
Vt.  48;  Fay  V.  Green,  2  Aiken  (Vt.) 
386;    May  V.    Corlew,  4   Vt.    12. 

But  his  deposition  could  not  be 
used.  Pike  i:  Blake,  8  Vt.  400;  Gil- 
bert   V.    Toby,   21    Vt.    306. 

But  a  deposition  may  of  course  be 
used  as  an  admission  against  the 
maker.     Gilbert  v.  Toby,  21   Vt.  306. 

Party  must  answer  all  material 
questions  or  his  charges  will  be  dis- 
allowed. Alattocks  V.  Owen,  5  Vt. 
42. 

In  Vermont  the  court  heard  no  tes- 
timony :  "  The  court  will  not  go 
into  a  preliminary  inquiry  into  the 
facts,  either  by  court  or  jury,  as  in 
the  action  of  account,  but  only 
decide  the  law  of  the  case  upon  such 
facts  as  may  be  found  and  reported 
by  the  auditor."  Matthews  v. 
Tower.   39   Vt.   433. 

71.  Read  v.  Barlow,  i  Aiken  145, 
and  I  Vt.  97.  Bundy  v.  Kyer.  18 
Vt.  497,  holding  that  plaintiff  must 
show  a  sale  completed  by  delivery. 
Hunter  v.   Kittredge,  41   Vt.  359. 

Items  charged  as  "  goods  "  and 
"  medicine  "  being  partly  for  intoxi- 
cating liquors  sold  in  violation  of 
kiw.  the  burden  was  on  plaintiff  to 
establish  the  validity  of  each  charge. 
Graves  v.   Ranger.   52   Vt.  424. 

But  defendant  assumes  the  burden 
of  establishing  the  truth  of  any  plea 
in  confession  and  avoidance.  Smith 
V.  Woodworth,  43  Vt.  .W-  ( Where 
payment  was  pleaded.) 

See  the  authorities  cited  on  this 
point  in  the  article  on  "  AnMlssiONS." 

72.  Cross  V.  Haskins,  13  Vt.  536; 
Read  v.  Barlow,   I  Aiken    (Vt.)    145. 

It   is   discretionary  with   the   court 


AND  ACCOUNTS  STATED. 


153 


3.  Actions  on  Verified  Account. — A.  X'ekified  Statement  Must 
Follow  the  Statute.  —  In  several  states  the  introduction  in  evi- 
dence in  actions  on  account,  of  a  verified  statement  of  the  account 
is  provided  for  and  regulated  by  statute.  In  order  that  one  may 
use  such  statement  as  evidence  he  must  bring  himself  strictly  within 
the  terms  of  the  act.''' 

If  the  verified  account  be  mislaid,  or  lost,  a  new  account  ma\'  be 
supplied.''' 

The  statute  allowing  a  verified  account  to  be  used  as  evidence  in 
an  action  thereon,  extends  to  a  set  ofif  or  counterclaim  set  up  bv 
defendant  consisting  of  an  account.'"' 

B.  Effect  As  Evidence  of  Verified  Statement.  —  The  veri- 
fied account  put  in  evidence  is  sufficient  to  make  out  plaintiff's  case 
except  so  far  as  its  correctness  is  denied  under  oath.'" 


to  require  the  books  to  be  produced. 
Ward  V.  Baker,  i6  Vt.  287. 

Failure  to  produce  the  books  is 
said  to  be  presumptive  evidence 
against  the  claim.  Leavenworth  t. 
Phelps,  Kirby  (Conn.)  71;  Palmer 
V.    Green,   6   Conn.    14. 

In  Ohio  unless  the  book  was  pro- 
duced, plaintiff  could  not  be  a  wit- 
ness in  his  own  behalf.  Crane  v. 
Spear,   8   Ohio    (8   Ham.)    494. 

73.  Rogers  z'.  Fenwick,  20  Fed. 
Cas.  No.  12,011;  Gainer  z>.  Pollock, 
96  .Ma.  554,  II  So.  539;  Cook  r. 
P.yrnham,  44  Pac.  <  ••'  •  Dewey  v. 
Burton    (Kan.'),  46   Pac.   321. 

Compare  Ale.xander  f.  iMoore,  ill 
Ala.  410,  20  So.  339;  McGowan  v. 
Lamb.  66  Mich.  615,  33  N.  W.  881  ; 
Lunsford  r.  Butler,  102  Ala.  403,  15 
So.  239;  Gordon  7'.  Sibley,  59  Mich. 
2W.  26  X.  W.  48,  ;  Duer  z'.  Endres, 
I  White  &  W.  Civ.  Cas.  Ct.  App. 
(Te.x.)  §323;  Shaudy  v.  Conrales, 
I  White  &  W.  Civ.  Cas.  Ct.  .\pp. 
(Tex.)  §235;  Brin  v.  Wachusetts 
Shirt  Co.   (Tex.),  43  S.  W.  295. 

Where  the  statute  requires  that 
the  affidavit  be  made  by  a  party, 
his  agent  or  attorney,  one  made  by 
the  plaintiff's  assignor  is  not  suffi- 
cient in  absence  of  showing  of 
agency.  Carpenter  f.  Historical  Pub. 
Co.    (Tex.)    24   S.   W.  685. 

Code  §  3780  provides  that  an  ac- 
count on  which  an  action  is  brought, 
coming  ifom  another  state  or  county, 
with  plaintiff's  affidavit  to  the  cor- 
rectness of  the  account,  is  conclusive 
evidence  unless  the  party  charged 
denies    the    account    on    oath.      Held 


that  such  action  must  be  brought  on 
the  proved  account  and  the  declar- 
ation allege  that  the  account  is  from 
another  state  or  county  and  is  veri- 
fied under  the  statute  and  must  make 
profert  of  such  account,  or  plaintiff 
will  not  be  allowed  to  introduce  it 
in  evidence.  Hunter  z'.  .\nderson, 
48  Tenn.  (i  Heisk.)  i;  Wilkhorn  v. 
Gillespie,  53  Tenn.   (6  Heisk.)   329. 

But  if  an  account  not  verified  as 
required  by  statute  is  received  in 
evidence  without  objection,  it  is  suffi- 
cient to  sustain  a  judgment.  Locke 
I'.   Farley,   i    N.   W.  955. 

The  time  for  objection  to  tlie  veri- 
fied account  for  insufficiency  is  when 
it  is  offered  in  evidence.  Elyton  L. 
Co.  V.  Morgan.  7  So.  249;  Gordon  z\ 
bibley,  59  Mich.  250,  26  N.  W.  485. 

74.  Alexander  z'.  Moore,  iii  Ala. 
410.  20  So.  339. 

75.  Heer  Dry  Goods  Co.  v. 
Shaffer,  5!  Ark.  368,  11  S.  \y.  517; 
Cahn  z'.  Salinas,  2  Willson  Civ.  Cas. 
Ct.  App.  §  104 ;  Bonner  z>.  White. 
87  Miss.  653,  29  So.  402. 

76.  Rockmore  v.  Cullen,  94  Ga. 
648,  21  S.  E.  845;  Cahn  V.  Salinas, 
2  Willson  Civ.  Cas.  Ct.  App.  §104; 
Moore  v.  Powers,  16  Tex.  (Ziv.  App. 
436,  41  S.  W.  707 ;  Bonner  v.  White, 
78  Miss.  6=;3,  29  So.  402. 

Plaintiff  Need  Prove  Only  Items 
Controverted. — Shuford  r.  Chinski, 
(Tex.).   26   S.    W.    141. 

"  The  act  (of  1874)  was  intended 
to  give  to  sworn  accounts  the  same 
(>rimo  facie  standing  in  courts  as 
had  been  given  to  instruments 
charged    to    have    been    executed    by 

Vol.  I 


154 


ACCOUNTS,  ACCOUNTING 


But  without  filing  counter-affidavit  defendant  may  show  that  the 
account  was  not  due  when  the  action  was  begun,' '  or  that  the  claim 
is  outlawed/"  or  has  been  paid,"'^  or  a  recoupment  or  counter- 
claim.'"' 

If  no  sworn  denial  is  made,  or  the  verification  is  insufticient,  the 
plaintift'  may  object  at  the  trial  to  the  introduction  of  any  evidence 
against  the  correctness  of  his  account.*" 

C.  Defendant's  Counter-Affidavit.  —  The  sworn  denial  is 
likewise  statutory  and  must  follow  the  act.*- 


the  other  partj-j  to  the  e.Ktent  of 
dispensing  with  further  proof  of  their 
correctness  unless  the  same  or  some 
items  thereof  were  denied  also  under 
oath,  in  the  nature  of  a  plea  of  non 
est  factum.  The  parties  to  join  in  a 
sworn  issue  when  the  account  is 
intended  to  be  contested  in  whole  or 
in  part.  The  rule  would  not  apply 
to  a  separate  and  independent  de- 
fense not  going  to  the  justice  of  the 
account  sued  on."  English  v.  Mil- 
tenberger,  51  Te.x.  296.  Rives  v. 
Habermacher,  i  White  &  W.  Civ. 
Cas.  Ct.  App.  §  747,  apparently  the 
defense  permitted  in  this  case,  with- 
out filing  sworn  denial  of  account, 
was  payment  and  the  same  defense 
was  likewise  permitted  in  Galves- 
ton etc.  V.   McTiegue,  id.  ib.  461. 

Affidavit  to  Account  Under  Rev. 
St.  Sec.  2266,  in  suit  against  part- 
nership, proves  the  partnership  unless 
same  is  denied  under  oath.  Carder 
V.  Wilder,  i  White  &  W.  Civ.  Cas. 
Ct.  App.  §  14.  See  also  Bjorkquest 
V.  Wagar,  83  Mich.  226,  47  N.  W. 
235,  where  affidavit  showed  plaintiff 
was  doing  business  under  name  of 
Bjorkquest  &  Son. 

Nor  in  absence  of  counter  affi- 
davit can  defendant  impeach  plaint- 
iff's affidavit  by  showing  that  plaint- 
iflf  was  not  a  member  of  firm  at  date 
of  delivery  of  the  goods.  Moore  v. 
Powers,  16  Tex.  Civ.  App.  436,  41 
S.  W.  707.  But  see  Trundle  v.  Ed- 
wards, 4  Sneed  CTenn.)  572,  where 
it  was  said  that  the  verified  account 
establishes  the  existence  of  the  debt 
but  not  the  character  in  which  de- 
fendant is  sued,  nor  the  ground  of 
his  liability  and  other  material  al- 
legations. 

77.  Johnston  v.  Johnson,  44  Kan. 
666,  24  Pac.   1098. 

78.  Wagener  v.  Boyce  (Ariz.), 
52    Pac.    1 122. 

Vol.  I 


79.  Moore  v.  Powers,  16  Tex.  Civ. 
App.  436,  41  S.  W.  707;  Galveston 
etc.  V.  McTiegue,  i  White  &  W. 
Civ.    Cas.   Ct.    App.    (Te.x.)    §461. 

The  intimation  in  Loeb  v.  Nunn, 
4  Heisk.  (Tenn.)  449,  is  to  the  con- 
trary. 

80.  Briggs  V.  Montgomery,  3 
Heisk.  (Tenn.)  673;  Galveston  etc. 
V.  Schwartz,  2  Tex.  App.  Civ.  Cas. 
§  758. 

81.  Rockmore  v  Cullen,  94  Ga. 
648,  21  S.  E.  845 ;  Moore  v.  Powers, 
16  Tex.  Civ.  App.  436,  41  S.  W. 
708;  English  V.  Miltenberger,  51 
Tex.   296. 

But  in  Loeb  v.  Nunn,  4  Heisk. 
(Tenn.)  449,  it  is  said:  "'The  pleas 
were  not  sworn  to  nor  was  the  jus- 
tice of  the  account  otherwise  denied 
on  oath.  The  plaintiffs,  however, 
took  issue  upon  the  pleas  of  defend- 
ants and  went  to  trial  without  taking 
any  exception  to  the  failure  of  de- 
fendants to  deny  on  oath  the  justice 
of  the  account  sued  on.  .  .  .  The 
plaintiffs,  by  taking  issue  upon  the 
pleas  tendered,  without  affidavit  by 
the  defendants  denying  the  justice 
of  the  account,  and  by  submitting  the 
cause  to  the  jury  upon  those  issues 
without  objection,  waived  the  bene- 
fit of  the  provisions  of  the  code." 

Although  a  rule  of  court  provides 
that  items  in  plaintiff's  sworn  and 
filed  account  are  admitted  unless 
denied  in  the  affidavit  of  defense, 
parties  may  by  stipulation  waive  the 
rule  and  permit  defendant  to  con- 
trovert items  without  such  affidavit 
of  defense.  O'Connor  v.  .^.m.  I.  U. 
Co..  56  Pa.   St.  234. 

82.  Eberstadt  v.  Jones.  19  Tex. 
Civ.  App.  480,  48  S.  W.  SS8. 

An  answer  denying  the  justness  of 
the  account  verified  and  filed  is  a 
sufficient  denial  under  oath.  Molino 
V.   Blake    (Ariz.),   52   Pac.    ,366. 


AND  ACCOUNTS  STATED. 


155 


In  so  far  as  the  account  is  denied  under  oath,  it  is  deprived  of 
all  force  as  evidence;''^  but  it  may  still  be  used  to  establish  items 
not  so  denied."'' 

D.  Other  Means  of  Proof.  —  Although  the  case  be  brought 
under  the  statute,  the  plaintiff  is  not  required  to  prove  his  case  by  a 
verified  account,  but  may  introduce  such  evidence  as  would  be  com- 
petent in  other  actions  in  assumpsit.*^ 

4.  Other  Actions  on  Open  Account.  —  A.  Filing  or  Serving 
Statement  of  Account.  —  By  statute  or  by  rule  of  court  the 
plaintiff  is  or  may  be  required  to  file  or  serve,  as  part  of  his  com- 
plaint, or  otherwise,  a  statement  of  the  account  sued  on,  under 
penalty  of  exclusion  of  evidence  as  to  items  not  scheduled.*" 

Failure  of  plaintiff  in  this  respect  is.  however,  waived,  unless 
properly  objected  to.  The  mode  of  objection  will  depend  on  the 
particular  statute  or  rule;  it  has  often  been  held  that  evidence  will 
not  be  excluded  unless  the  objection  is  made  and  heard  before  trial." 


In  Bonner  v.  White  (Miss.),  29 
So.  402,  an  affidavit  showing  a  set 
off  was  said  not  to  amount  to  a 
denial   of   plaintiff's   account. 

83.  Jones  v.  McLuskey,  10  Ala. 
27:  Brien  v.  Peterman  40  Tenn. 
(3  Head)  498  Cthe  affidavit  of  one 
of  two  defendants  being  held  suffi- 
cient) ;  Olive  v.  Hester,  63  Tex. 
190  holding  also  that  the  effect  of 
such  denial  is  not  destroyed  by 
plaintiff's  sworn  supplemental  peti- 
tion afterwards  filed  reiterating  his 
former   affidavit. 

Burden  of  Proof  is  then  on  the 
party  claiming  on  the  account. 
Keating  Implement  &  Machine  Co. 
V.  Erie  Citv  Iron  Works  (Tex.  Civ, 
App.).  6.3  S.  W.  546. 

84.  Reinhardt  v.  Carter,  49  Miss. 
.31.=;. 

85.  Sullivan  Timber  Co.  v.  Brus- 
hagel,   III   Ala.   114,  20  So.  498. 

86.  Dunker  v.  Schlotfeldt,  49  III. 
App.  652;  Sullivan  v.  Blythe,  14  S. 
C.  621 ;  Goodrich  v.  James,  i  Wend. 
(N.  Y.)  289;  Barnes  v.  Henshaw,  21 
Wend.  (N.  Y.)  426;  Lovelock  v. 
Cheveley.  i  Holt  552 ;  Pierce  v. 
Craft.  12  Johns.  (N.  Y.)  90 ;  Kellogg 
V.  Paine,  8  How.  Pr.  (N.  Y.)  329; 
Dowdney  v.  Volkening.  37  N.  Y. 
Super.  313 :  Goings  v.  Patten,  i 
Daly  (N.  Y.)  168;  Hart  v.  Spect, 
62  Cal.   187. 

The  first  item  was.  "  1870,  April, 
account  rendered,  $3970."  This  item 
was    held    too    general    and    too    in- 


definite to  admit  of  proof.  Moore  v. 
Gordon,    26    La.    Ann.    167. 

Under  one  item  of  charge,  as  fol- 
lows :  "  To  goods  sold,  materials 
found,  and  work  done," — only  one 
particular  subject  matter  of  charge 
can  be  proved.  Jones  v.  Isley,  83 
Mass.    (i   Allen)    273. 

Explanations  of  the  Items "  It 

was  not  error  to  permit  the  plaint- 
iff to  explain  the  items  in  the 
bill  of  particulars,  or  the  copy  of 
the  account  he  furnished  to  defend- 
ants prior  to  the  trial,  pursuant  to 
section  454  C.  C.  P.  The  book  or 
books  from  which  it  was  taken  were 
brought  into  court,  and  it  is  not 
disputed  that  the  copy  furnished  was 
a  correct  one.  That  is  all  the  plaint- 
iff was  required  to  do.  The  truth  of 
the  items  of  the  account  was  the 
very  point  in  issue,  and  his  testi- 
mony in  explanation  of  the  items 
which  he  carried  into  his  account  by 
mistake  was  properly  received  as 
tending  to  show  the  true  state  of  the 
account.  The  penalty  of  being  pre- 
cluded from  giving  evidence  of  the 
account  provided  for  in  said  sec- 
tion only  applies  where  the  party  of 
whom  a  copy  of  the  account  in  con- 
troversy is  demanded,  in  writing, 
refuses  to  furnish  the  same." 
Graham  v.  Harmon,  84  Cal.  181.  23 
Pac.   1097. 

87.  Semmes  t:  Lee.  3  Cranch  439. 
21  Fed.  Cas.  No.  12,652 ;  Dunker  v. 
Schlotfeldt,    49    111.    App.    652;    Snl- 

Vol.  I 


156 


.-iCCO UNTS.  ACCOUNTING 


Under  some  statutes  requiring  a  schedule  of  items  to  be  furnished 
on  demand,  if  defendant  makes  the  demand  and  plaintiff  wholly 
fails  to  comply,  defendant  may  object  to  introduction  of  evidence  at 
the  trial.*" 

B.  Testimony  of  Parties.  —  Before  parties  were  permitted 
generally  to  testify  in  their  own  behalf,  it  had  been  provided  that 
in  actions  on  account  (usually  in  actions  involving  small  sums,) 
the  plaintiff  might  prove  his  demand  by  his  own  oath,""  and  might 
abandon  part  of  his  claim  so  as  to  bring  himself  within  the  amount 
that  could  be  so  proved.""  And  in  analogy  with  equity  practice 
there  were  provisions  for  examining  parties  in  behalf  of  the  adverse 
party."' 

Tlie  ])laintiff's  oath  was  deprived  of  all  evidentiary  force  if  met 
b\-  the  defendant's  oath."- 


livan  V.  Blythe,  14  S.  C.  622 ;  Good- 
rich V.  James,  i  Weiid.  (N.  V.)  289; 
Barnes  v.  Hensliaw,  21  Wend.  (N. 
Y.)  426:  Pierce  v.  Craft,  12  John. 
90 ;  Lovelock  v.  Chevcley,  i  Holt  552 ; 
Kellogg  I'.  Paine,  8  How.  Pr.  (N. 
Y.)  329;  Gehbard  i'.  Parker,  120  N. 
Y.  33,  23  N.  E.  982 ;  Flanders  v.  Ish. 
2  Or.  320. 

Contra. — Pipes  v.  Norton.  47  Miss. 
61. 

88.  Lonsdale  z'.  Oltnian.  50  Minn. 
52,    52    N.    W.    131. 

And  a  stipnlalion  to  fnrnish  the 
schedule  within  a  certain  period 
obviates  the  necessity  for  a  demand. 
Tuttle  V.  Wilson,  42  Minn.  231.  44 
N.   W.   10. 

Code  Civ.  Proc,  §531.  requiring  a 
copy  of  the  account  to  be  served 
on  the  adverse  party  within  10  days 
after  demand,  failing  which  plaintiff 
to  be  precluded  from  proving  the 
account,  is  apnlicable  only  in  case  of 
total  failure  to  serve  any  copy  of 
the  account,  and  not  where  the  copy 
is  merely  defective.  SchulhofF  ?•. 
Coop.  D.  A..  3  N.  Y.  Civ.  Proc.  412. 

89.  Havden  v.  Boyd,  8  Ala.  323: 
McWilliams  v.  Cosby,  4  Ired.  CN.  C.) 
no;  Colbert  v.  Piercy,  3  Ired.  (N. 
C.)  77:  Grant  v.  Cole,  g  Ala.  366; 
Cram  v.  Spear.  8  Ohio  (8  Ham.) 
494;  Blake  7'.  Freeman,  13  Ga.  215; 
Murfs  V.  Tlarding.  6  Port.  (Ala.) 
121. 

This  form  of  proof  was  permitted 
if  the  claim  though  originally  for 
more  than  the  statutory  limit  had 
lieen  reduced  below  it  liy  credits. 
McWilliams  v.  Cosby,  4  Ired.  (N. 
C.)     no. 

Vol.  I 


PlaintifT's  deposition  might  be 
taken  in  his  own  behalf.  Moore  v. 
Hatfield,  3  Ala.  442. 

The  statute  was  strictly  construed. 
Hayden   r.    Boyd,  8   Ala.   323. 

And  extended  only  to  a  plaintiflf, 
not  to  a  defendant  seeking  to  prove 
an  ofTset.  Bennett  v.  .A.rmstead.  3 
Ala.  507. 

Defendant  could  merely  deny  on 
oath  the  plaintilT's  testimony,  he 
could  not  be  sworn  to  testify  gen- 
erally. Hayden  v.  Boyd,  8  Ala.  323; 
Yarborough    v.    Hood,    13    Ala.    176. 

And  could  deny  only  what  plaintiff 
testified  to  on  examination  in  chief. 
West  r.    Brunn,  35  Ala.   263. 

90.  Grant  v.  Cole,  g  Ala.  366: 
Mnrfs  V.  Harding,  6  Port.  (.Ma.) 
121. 

91.  Stevens  v.  Hall,  6  N.  H.  508; 
Stetson  V.  Godfrey,  20  N.  H.  227; 
Harrison  v.  Dodson.  n  Rich.  (S.  C.) 
48. 

92.  Jones  v.  McLuskey,  10  Ala. 
27;  Hudgins  v.  Nix,  10  Ala.  575; 
Anderson  v.  Collins,  6  Ala.  783; 
West  V.  Brunn,  35'  Ala.  263 ;  Hayden 
r.  Boyd,  8  Ala.  323. 

But  the  denial  cannot  be  "  upon 
information  and  belief." 

Fitzpatrick  r.  Hays,  36  .Ala.  684: 
"  The  statute  evidently  contem- 
plates that  the  denial  of  the  defend- 
ant as  well  as  tlie  statement  of  the 
plaintiff  shall  be  positive— as  of  one 
who  speaks  from  actual  knowledge 
and  not  merely  from  information 
and  belief." 


AND  ACCOUNTS  STATED. 


157 


C.  Method  of  Proving  Plaintiff's  Case. — a.  By  .hcoiiiit 
Books.  —  As  to  the  use  of  account  books  in  evidence,  see  the  title 
"  Books  of  Account."  But  the  plaintitt  need  not  resort  to  his 
account  books."'' 

b.  B\  Sho-cving  an  Account  Stated.  —  He  may  prove  his  case  by 
showing-  an  account  stated."'' 

c.  B\  Fvoving  Admissions.  —  ( )r  b\'  jjrovinf^  a(hnissions  by 
defendant."'"' 

But  the  admission  must  be  shown  to  refer  to  the  account  sued 
on,""  and  must  extend  not  only  to  the  admission  of  an  indebted- 
ness, but  also  of  the  amount  thereof."' 


93.  Moore  v.  Joyce,  23  Miss.  584; 
Godbold  V.  Blair,  27  Ala.  S92 ;  Plum- 
mer  i'.  Struby-Estalirooke  Co.,  23 
Colo.    190,   47    Pac.    294. 

94.  Leiser  v.  McDowell,  74  N.  Y. 
Supp.  1021  ;  Hirschfelder  ;■.  Levy.  69 
Ala.  351  ;  Stowe  v.  Sevvall.  3  Stew. 
&  P.  (Ala.)  67;  Theiis  v.  Jipson,  3 
Tex.  App.  C.  C.  §  189. 

"  To  prove  an  account  sued  on  as 
an  open  account,  it  is  not  indis- 
pensably necessary  to  produce  be- 
fore the  jury  a  written  statement  of 
the  account,  or  to  establish  the 
items  of  the  account.  It  is  quite 
sufficient  if  it  be  shown,  in  a  case 
like  this,  that  the  defendant  bought 
goods  from  the  plaintiff,  whether 
one  or  many  items,  and  admitted  the 
correctness  of  the  charge  made  by 
the  plaintiff  against  him  for  them, 
with  knowledge  of  the  facts ;  or,  in 
other  words,  a  count  as  upon  an 
open  account,  or  upon  an  account 
simply,  may  be  well  supported  by 
proof  of  an  account  stated.  Johnson 
V.  Kelly.  2  Stew.  (Ala.)  490; 
Holmes  v.  Gayle,  i  Ala.  517:  Pryor 
V.  Johnson.  32  Ala.  27."  Sullivan 
Timber  Co.  v.  Rrushagel,  iii  Ala. 
IIJ.  20  So.  498. 

Where  parties  meet  and  go  over 
mutual  accounts,  and  strike  a  bal- 
ance, that  fact  may  be  shown  in  evi- 
dence as  an  admission  in  an  action 
on  account.  Duffy  v.  Hickey,  63 
Wis.  312,  23  N.  W.  707. 

As  to  method  of  proving  an  ac- 
count stated  see  in  this  article  tlie 
section  on  "  Account  Stated." 

95.  Sullivan  Timber  Co.  v.  Brush- 
agel,  III  Ala.  114,  20  So.  498;  Gill 
'c'.  Staylor  (Md.)  39  Atl.  650;  Rice 
V.  Schloss.  90  Ala.  416,  7  So.  802; 
Hirschfelder   v.    Levy.   69   Ala.    351; 


Holmes  v.  Gayle,  I.  Ala.  517:  Mitch- 
ell I'.  Joyce,  69  [owa,  121.  28  N.  W. 
473;  Savage  v.  Aiken,  21  Xeb.  605, 
33  N.  W.  241  ;  Hurley  v.  Roche.  6 
Fla.  746;  Stetson  v.  Godfrey.  20 
N.  H.  227;  Craighead  ;'.  Bank, 
Meigs  (Tenn.)  199;  Chandler  v. 
Meckling.  22  Tex.  36;  Bonnell  v. 
Mawha,  37  N.  J.  Law.  198;  Theus 
V.  Jipson,  3  Wilson  Civ.  Cas.  Ct. 
App.  §190;  Duffy  7'.  Hickey,  63 
Wis.  312,  23  N.  W.  707. 

Proof  of  defendant's  adinission  is 
sufficient  without  proof  of  the  orig- 
inal entries  or  production  of  the  ac- 
count. Johnson  v.  Kelly.  2  Stew. 
(Ala.)  490;  Muse  r.  Burns.  3  Wil- 
son Civ.  Cas.  Ct.  App.  §  yi,  Bonnell 
V.  Mawha,  27  N.  J.  Law.  198. 

But  in  a  case  in  Pennsylvania,  it 
was  held  that  the  failure  of  the  book 
entries  to  contain  sufficient  to  charge 
defendant  is  not  cured  by  admission 
in  affidavit  of  defense.  Farrell  i'. 
Baxter,   11   Wkly.  Notes  Cas.  400. 

L^pon  the  subject  of  express  and 
implied  admissions  to  prove  ac- 
counts see  infra  "Accounts  St.\tfd." 

96.  Chandler  v.  Neckling,  22  Tex. 
36. 

"  Suppose,  upon  a  failure  by  the 
plaintiff  to  prove  any  of  his  items, 
he  should  be  permitted  to  prove  the 
general  admission  of  deceased  that 
he  owed  him  100  dollars,  and  re- 
cover that  sum  when  in  fact  he  owed 
him  nothing,  upon  the  items  upon 
which  the  claim  was  founded,  but 
did  owe  that  sum  for  a  horse ;  would 
the  recovery  be  a  bar  to  a  pro- 
ceeding for  the  value  of  the  horse? 
We  think  it  would  not."  Coats  t'. 
Gregory,   ib  Ind.  345. 

97.  Coats  V.  Gregory,  10  Ind.  345. 

Vol.  I 


158 


ACCOUNTS,  ACCOUNTING 


d.  Othcncisc.  —  The  proof  need  not  be  of  each  item  in  detail; 
the  proof  may  be  general,  going  to  the  correctness  of  the  account 
as  a  whole/*  as,  by  testimony  that  the  account  was  properly  kept 
and  is  correct.®' 

D.  Recovery  for  Amount  Proved.  —  The  plaintiff  will  recover 
the  amount  proved,  though  he  may  not  establish  the  entire  claim. ^'"' 

E.  \'ari.\nce.  —  Variance  between  pleadings  and  proof  as  to  the 
character  of  the  goods  sold  or  services  rendered,'  or  that  the  price 
was  a  fixed  instead  of  the  reasonable  one,"  will  not  be  held  fatal, 
especially  if  the  objection  is  not  seasonably  made.^  But  an  action 
on  account  cannot  be  sustained  by  proof  of  a  claim  for  damages 


arising  out  of  tort.^ 


V.  ACCOUNTS  STATED. 


1.  Full  or  Kegular  Proof  Of.  —  A.  OF  Previous  Dealings.  —  To 


98.  Pryor  v.  Johnson,  32  Ala.  27. 
Certainty  is  not  usually  attainable 

in  actions  on  open  accounts.  If  the 
jury  are  reasonably  satisfied,  from 
the  evidence,  of  the  facts  which  con- 
stitute tlie  alleged  indebtedness,  it  is 
sufficient.     Godbold  t'.   Blair,  27  Ala. 

592- 

It  is  error  to  charge  a  jury  that 
the  account  must  be  proved  "  to 
their  satisfaction."  Smith  z:  Ma- 
ther, Tex.  49  S.  W.  257. 

It  is  error  to  charge  a  jury  that 
they  have  a  right  to  presume  that 
all  the  items  of  an  account  are  correct 
if  the  most  of  them  have  been  posi- 
tively iDroved.  Moore  v.  Joyce,  23 
Miss.  584. 

99.  Ward  r.  Wheeler,  18  Tex. 
249;  INIoore  i'.  Joyce,  23  Miss.  584; 
Baer  v.  Pfaff,  44  Mo.  App.  35. 

But  where  one  witness  swore  the 
account  correct,  but  admitted  he 
knew  nothing  of  the  items  except 
two,  amounting  to  $10.00,  and  an- 
other witness  testified  to  an  item  of 
$1.00,  and  a  third  that  he  had  seen 
.defendant's  family  buy  goods  at 
plaintiff's  store,  a  verdict  for  $75.00 
is  not  justified.  Jesse  v.  Davis,  34 
Mo.  App.  351.  See  So.  H.  B.  &  L. 
Ass'n.  i'.  Butler,  in  Ga.  826,  35  S. 
E.  679. 

100.  Belcher  v.  Grey,  16  Ga.  208; 
Planters  Bank  f.  Farmers  Bank,  8 
Gill  &  J.  (Md.)  449;  Memphis 
Mach.  W.  -■.  Aberdeen,  77  Miss.  420, 
27  So.  608;  Lovell  7'.  .Earle,  127 
Mass.   546. 

1.     Ralston   v.   Kohl,   .p  Ohio    St. 


92;  Gen.  Elec.  Co.  v.  Blacksburg  L. 
&  I.  Co.,  46  S.  C.  75.  24  S-  E.  43- 

2.  Bailey  v.  Casey,  60  Tex.  573. 
"  .According  to  the  plaintiffs'  peti- 
tion the  defendant  '  bound,  obligated 
himself  and  promised  to  pay'  the 
plaintiffs  on  demand  what  the  goods 
were  reasonably  worth.  The  evi- 
dence of  what  that  value  was  is 
shown  by  agreement  between  the 
contracting  parties  at  the  times  of 
the  respective  sales  and  delivery  of 
the  goods,  which  the  defendant 
testified  was  the  several  sums  of 
money  charged  in  the  itemized  ac- 
count sued  on.  .  .  .  Such  a 
transaction  is  it  is  true  a  contract 
for  the  sale  of  goods  at  a  stipulated 
fixed  price,  yet  it  is  not  incompatible 
witn  the  cause  of  action  as  set  forth 
in  the  petition.  .  .  .  The  cause 
of  action  set  forth  being  for  the 
value  of  the  goods,  that  value  may 
be  shown  by  evidence  which  estab- 
lishes the  agreement  of  the  parties 
ascertaining  at  the  time  of  the  sale 
what  that  value  was." 

3.  Gen.  Elec.  Co.  v.  Blacksburg  L. 
&  I.  Co.,  46  S.  C.  75.  24  S.  E.  43- 

But  where  plaintiff  alleged  that  the 
indebtedness  arose  for  supplies,  and 
the  first  item  in  his  account  was : 
"  Account  rendered  $3970,"  as  this 
item  did  not  purport  to  be  for  sup- 
plies, testimony  as  to  it  should  have 
been  rejected.  Moore  v.  Gordon,  26 
La.  Ann.  167. 

4.  Sandeen  v.  Ry.  Co.,  79  Mo. 
278. 


Vol.  I 


AND  ACCOUNTS  STATED. 


159 


prove  an  account  stated  it  must  appear  that  there  were  deahngs 
between  the  parties  before  the  alleged  statement  of  account  ;^  but  the 
specific  items  constituting  the  account  need  not  be  shown." 

The  plaintiff  may,  however,  in  proving  a  settlement,  show  the 
items  included.' 

A  Single  Transaction  may  be  the  basis  of  a  stated  account.* 


5.  Powers  v.  Ins.  Co.,  68  Vt.  390, 
35  Atl.  331 ;  Quincey  v.  White,  63  N. 
Y.  370;  Field  V.  Knapp,  108  N.  Y. 
87,  14  N.  E.  829;  Callahan  v. 
O'Rourke,  17  App.  Div.  277,  45  N. 
Y.  Supp.  764;  Stevens  v.  TiiUer,  4 
Mich.  387;  Toms  v.  Sills,  29  U.  C. 
Q.   B.    (Can.)    497. 

"Authorities  on  this  subject  might 
be  cited  to  any  extent."  Zacarino  v. 
Pallotti,  49  Conn.  36. 

Account  for  Goods  Not  Ordered. 
Plaintiff  sent  goods  to  defendant 
erroneously,  supposing  they  had  been 
ordered  by  him,  and  rendered  sev- 
eral accounts  which  were  retained 
and  no  objection  made.  When  de- 
fendant discovered  the  goods  upon 
his  premises  he  notified  plaintiff  that 
they  had  not  been  ordered  and  were 
at  plaintiff's  disposal.  None  of  the 
material  was  used  by  the  defendant, 
and  he  finally  sent  it  back  to  the 
plaintiff.  No  dealings  had  ever  been 
had  between  the  parties  and  they 
were  strangers.  It  was  held  that  the 
rendering  of  the  accounts  was  not 
sufficient  to  establish  an  account 
stated.  An  account  stated  only  de- 
;ermines  the  amount  of  the  debt 
where  liability  does  exist.  It  cannot 
be  made  the  instrument  to  create 
a  liability  where  none  existed  before. 
Austin  V.  Wilson,  a  N.  Y.  St.  303, 
II   N.  Y.  Supp.  565. 

Sale  and  Account  Simultaneous. 
An  implement  was  sold  and  delivered 
to  defendant,  and  at  the  same  time 
a  statement  of  account  showing  the 
price  of  it.  No  objection  was  made 
to  the  bill  as  rendered.  The  court 
said  that  an  account  stated  must 
relate  to  some  previous  transactions ; 
that  the  relation  of  debtor  and  cred- 
itor must  already  exist  between 
them.  It  is  said  to  be  in  the  nature 
of  a  new  promise.  That  the  ad- 
mitted facts  showed  no  accounting; 
no  agreement  upon  some  previous 
transaction  but  what  was  done  was 
part    of    and    in    fulfillment    of    the 


original  contract,  a  part  of  the  or- 
iginal transaction  itself.  Truman  v. 
Owens,   17  Or.  523,  21   Pac.  665. 

See  also.  Gross  v.  Bricker,  18  U. 
C.   Q.    B.    (Can.)    410. 

The  Dealings  Must  Have  Been 
Such  As  Imposed  a  Legal  Obliga- 
tion. —  Melchoir  v.  McCarty,  31 
Wis.  252,    II    Am.   Rep.  605. 

6.  Alabama. — Ware  v.  Dudley,  16 
Ala.    (N.   S.)    742. 

Delazvare. — Gregory  v.  Bailey,  4 
Harr.  256. 

Florida. — Jacksonville  U.  &  P.  Ry. 
&  N.  Co.  V.  Warriner,  35  Fla.  197, 
16  So.  898. 

Illinois. — American  B.  Co.  v.  Ber- 
ner-Mayer  Co.,  83  111.  App.  446. 

Louisiana. — Oakey  v.  Weil,  7  La. 
Ann.    169. 

Massachusetts.  —  Union  Bank  v. 
Knapp,  3  Pick.  96,  15  Am.  Dec.   182. 

Micliigan.  —  Albrecht  v.  Gies,  i3 
Mich.  389. 

Mississippi. — McCall  v.  Nave,  52 
Miss.  494. 

Neiv  Jersey. — Bonnell  v.  Mawha, 
S7  N.  J.   Law   198. 

Te.ras. — Pridgen   v.    Hill,    12    Tex. 

374. 

Sufficient  to  Prove  Some  Ante- 
cedent Debt  respecting  which  an 
account  was  stated.  Knowles  v. 
Michel,    13   East   249. 

7.  Koegel  v.  Givens,  79  Mo.  77 ; 
compare  Walker  v.  Driver,  7  Ala. 
(N.   S.)   679. 

Proving  the  Transactions  to  Ex- 
plain the  Settlement Cape  G.  &  S. 

L.   R.   Co.   V.    Kimmel,   58   Mo.  83. 

Where  Statement  of  Account  Is 
Denied — In  Mead  v.  White  (Pa.), 
8  Atl.  913,  it  is  held  that  where  a 
defendant  disputes  the  allegation 
that  an  account  has  been  stated,  the 
plaintiff  to  prove  the  settlement  may 
show  the  several  items  which  pre- 
cede the  settlement,  and  were  claimed 
to  have  been  included  in  it. 

8.  Rutledge  v.  Moore,  9  Mo.  537 ; 
Knowles    v.    Michel,     13    East    249; 

Vol.  I 


ir.o 


ACCOUNTS,  ACCOUNTING 


B.  RiiNDURiNG  OK  Submission  of  Account. — a.  Necessary  To 
Be  Sliown.  —  A  submission  or  rendering  of  account  must  be 
shown."     The  statement  rendered  must  show  the  whole  account.^" 

b.  What  Is  a  Sufficient.  —  The  statement  is  usually  but  not  neces- 
sarily in  writing." 

And  it  seems  may  consist  of  nothing  more  than  a  demand  for  a 
certain  sum  as  a  balance  due,  without  showing  aiiv  items. '- 


Highinore  v.  Primrose,  5  M.  &  S. 
65;  State  V.  Hartman  Steel  Co.,  51 
N.  J.  Law  446,  20  Atl.  67;  Neyland 
V.  Neyland,  19  Tex.  423 ;  Cobb  v. 
.'\riiiidell,   26   Wis.   SS3- 

Calculating  Sum  Due  on  Single 
Liquidated  Claim  Does  Not  Make  an 
Account  Stated — McKay  v.  Grinley, 
30   U.   C.   Q.    B.    (Can.)    54. 

9.  Lockwood  I'.  Thorne,  18  N.  Y. 
285;  Clark  V.  Marbourg,  33  Kan.  471, 
6   Pac.   548. 

Uncommunicated  Book  Jintries. 
The  balancing  of  an  account  on  one's 
books  without  e-xaniination  or  assent 
by  the  other  party  to  the  account,  is 
no  evidence  of  an  account  stated. 
Nostrand  v.  Ditmis,  127  N.  Y.  355, 
28  N.  E.  27 ;  Loeb  v.  Keyes,  67  N.  Y. 
St.   205,   33   N.    Y.    Supp.   4QI. 

Parties  Not  Bound  by  Their  Un- 
communicated Book  Entries.  — 
Simpson  v.  Ingham,  2  Barn.  &  C. 
65,  26  Rev.  Rep.  273 ;  Hume  v.  Hol- 
land, 21   ETig.  C.  L.  460. 

Circumstantial  Evidence  of  Ren- 
dition    Sufficient Hatch     v.     Von 

Taubc,  31  .Misc.  468,  64  N.  Y.  Supp. 
393- 

But  proof  merely  that  it  was  tlie 
rule  of  the  house  to  render  bills 
weekly  is  not  sufficient  to  establish 
the  fact  that  bills  were  rendered  to 
defendant.  Davis  v.  Fromme,  28 
.•\pp.    Div.   498,  48  N.   Y.   Supp.   474. 

Proof  of  Mailing  of  a  Statement 
of  Account  is  prima  facie  evidence  of 
rendition  of  account.  New  York 
Cab  Co.  V.  Crow,  22  Misc.  340,  51 
N.   Y.  Supp.  252. 

Accounting  by  Public  Officers. 
hi  Chatham  v.  Niles,  36  Conn.  403, 
an  account  presented  by  selectmen 
at  a  regular  town  meeting  of  matters 
out  of  the  ordinary  routine  of  busi- 
ness, not  filed  with  the  town  records, 
not  properly  itemized,  was  held  not 
.so  rendered  as  to  become  the  basis 
of   an   account   stated. 


10.  Statement  Showing  Only  One 
Side   of   the   Account   Not   Sufficient. 

McCarthy  i'.   Wood,  12  Ky.   Law  84, 
13  S.'  W.  792. 

Defendant  was  president  and  finan- 
cial manager  of  a  corporation.  .Af- 
ter his  retirement  from  office,  a  com- 
mittee was  appointed  to  examine 
the  affairs  of  the  company  and  settle 
with  him.  Defendant  gave  the  com- 
mittee the  items  he  had  paid  out  for 
the  company.  They  were  footed  up, 
but  the  other  side  of  the  account, 
showing  what  he  had  received  from 
the  company  was  not  gone  into.  No 
balance  was  struck,  or  settlement 
agreed  upon.  This  was  held  not 
sufficient  evidence  of  an  account 
stated  to  be  submitted  to  the  jury. 
Pickard  v.  Simson,  24  N.  Y.  St.  841. 
6   N.   Y.    Supp.   93. 

11.  No  Writing  Required. — When 
parties  mutually  reckon  their  ac- 
count and  agree  on  the  balance,  and 
the  books  are  balanced,  it  is  an  ac- 
count stated,  and  to  sustain  an  action 
thereon  no  writing  is  necessary. 
Gibson  z:  Sumner.  6  Vt.  163 ;  Lal- 
lande  i'.  Brown,  121  ."Ma.  513.  25 
So.  997 ;  Pinchon  i'.  Chilcott.  3  Car. 
&  P.  236,  14  Eng.  C.  L.  545 ;  Knowles 
J".  Michel,  13  East  249;  Watkins  v. 
Ford,  69  Mich.  357,  37  N.  W.  300: 
Quinn  v.  While  (Nev.),  62  Pac.  995. 

12.  Knowles    v.    Michel,    13    East 

-'49- 

See  Clark  v.  Marbourg,  33  Kan. 
471,  6  Pac.  548. 

An  account  was  presented  as  fol- 
lows : 

To  .Mdse $99  25 

By   Credit 9  25 


Balance    Due $90  00 

Defendant,  at  time  it  was  pre- 
sented, admitted  it  was  correct. 
Held,  that  this  was  evidence  to  sup- 
port a  judgment  for  an  account 
stated.     May  r.  Kloss,  44  Mo.  300. 


Vol.  I 


AND  ACCOUNTS  STATED. 


Kil 


If  Rendered  by  a  Debtor  it  should  be  shown  to  have  been  rendered 
to  the  person  legaUy  as  distinguished  from  the  one  equitabh'  entitled 
to  receive  the  balance/^ 

Parol  Evidence  Is  Admissible  to  Identify  the  transactions  covered  by 
an  account  stated,  where  tlie  statement  itself  does  not  show  them." 

The  Examination  of  the  Books  of  Account  may  be  proved  as  evi- 
dence of  submission  of  accounts ;'''  or  that  a  statement  of  the  account 
was  delivered,"'  or  mailed  to  the  party  to  be  charged.'" 


If  Itemized,  Should  Show  Amounts 

of  the  Several  Items One  sent  an 

account  with  a  ktter  asking  for  pay- 
ment of  a  balance,  the  latter  part 
of  August,  1895.  The  account  con- 
tained one  item  the  amount  of  which 
was  left  blank.  About  the  same 
time  noticing  this  omission,  a  letter 
was  sent  giving  the  amount  of  the 
omitted  item.  The  debtor  admitted 
having  received  the  statement  of  ac- 
count, but  denied  having  received 
the  supplementary  letter.  It  was 
held  that  the  facts  did  not  make  out 
an  account  stated.  Ault  v.  Interstate 
S.  &  L.  A.,  15  Wash.  627,  47  Pac. 
13- 

The  omission  alone  might  not  in 
that  case  have  been  held  conclusive 
against  the  account ;  there  were  other 
facts    involved. 

13.  If  an  Account  Sales  is  Ren- 
dered to  the  Legal  Owner  of  the 
Goods,  the  consignee  i.s  not  bound  to 
notice  an  equitable  or  contingent 
owner.  Bevan  r.  Cullen,  7  Pa.  St. 
281. 

14.  In  the  case  of  Ferguson  v. 
Davidson,  147  Mo.  664,  49  S.  W. 
859,  a  statement  of  account  was  of- 
fered in  evidence,  but  it  did  not 
appear  from  the  face  of  the  paper 
what  transactions  it  really  covered. 
It  was  undisputed  that  it  covered 
other  transactions  than  those  in- 
volved in  the  suit.  Whether  it 
covered  the  latter  did  not  appear  and 
it  was  held  that  this  could  be  proved 
by  oral  testimony,  and  was  a  ques- 
tion   for    the    jury. 

15.  Gibson  v.  Sumner,  6  Vt.  163 ; 
Rice  V.  Schloss,  90  Ala.  416,  7  So. 
802 ;  Swain  v.  Knapp,  34  Minn.  232, 
25  N.  W.  397;  Kock  V.  Bonitz,  4 
Daly  (N.  Y.)  117;  Llovd  v.  Carrier, 
2  Lans.   (N.  V.)   364. 

Partnership  Accounts. — It  appeared 
that    it    was    one    of    the    stipulations 

11 


of  the  agreement  of  co-partnership 
that  Smith  should  state  the  partner- 
ship accounts  annually  so  that  even 
if  Smith  made  up  the  accounts  in  the 
absence  of  Heartt  it  was  the  lattcr's 
duty  to  look  into  them  within  a 
reasonable  time  and  point  out  the 
errors,  or  be  considered  as  having 
acquiesced  in  the  correctness  of  the 
accounts  as  stated  on  the  books  to 
which  both  parties  had  access. 
Heartt  v.  Corning,  5  Paige  (N.  Y.) 
566. 

Presumption    of     Examination 

In  the  case  of  Brewer  v.  Wright, 
25  Neb.  305,  41  N.  W.  159,  It  ap- 
peared that  a  book  was  kept  at  tlie 
mill  where  the  plaintiff  worked,  in 
which  book  he  entered  up  every 
Saturday  night  his  time  of  service. 
It  appeared  that  the  defendants  were 
at  the  mill  occasionally  and  some- 
times examined  the  book.  The  ac- 
counts ran  for  four  years.  It  was 
presumed  that  the  defendants  must 
have  known  what  the  book  showed, 
the  entries  being  charges  against 
them  in  their  own  book.  It  appeare  1 
that  a  settlement  had  been  made,  but 
the  defense  was  that  the  book  entries 
had  not  been  examined  and  under- 
stood by  the  defendants  at  the  time 
of    the    settlement. 

Balance    Need    Not    Be    Struck 

Ware  v.  Manning,  86  Ala.  238,  5  ^o. 
682. 

But  Must  Be  Ascertainable  by 
Calculation  from  the  accounts  ren- 
dered or  examined.  Treadway  v 
Ryan,   3   Kan.   437. 

16.  -May  z>.  Kloss,  44  Mo.  300; 
McCarthy  v.  "Wood,  12  Ky.  Law  8.|, 
13  S.  W.  792;  Truman  v.  Owens. 
17  Or.  523,  21   Pac.  665. 

17.  Ault  V.  Interstate  S.  &  L.  A.. 
15  Wash.  627,  47  Pac.  13;  Bee  v. 
Tierney.  58  111.  App.  552 ;  Darby  v. 
I.astrapes,   28   I,a.   .\mi.   605. 

Vol.  I 


162 


ACCOUNTS,  ACCOUNTING 


c.  Docs  Not  Make  an  Account  Stated.  —  But  mere  proof  of  ren- 
dering of  an  account  is  not  sufficient  to  establish  an  account  stated.^* 

C.  Assent  of  Parties  tu  the  Account.  —  a.  Necessary  To  Be 
Shown.  —  It  is  necessary  to  prove  the  assent  of  both  parties  to  the 
correctness  of  the  account.^" 


Presumption  of  Receipt  of  Ac- 
count Mailed — If  a  creditor  mails 
an  account  to  his  debtor,  the  law 
presumes  that  it  has  been  received 
and  examined  by  the  debtor.  The 
creditor,  however,  must  show  that 
the  particular  account  was  the  one 
which  he  transmitted,  and  that  it 
was  duly  forwarded  to  the  debtor. 
New  York  Cab  Co.  v.  Crow,  23 
Misc.   340,  51    N.   Y.   Supp.   252 

But  mere  proof  of  mailing  does 
not  prove  an  account  stated.  Row- 
land V.  Donovan,  16  Mo.  .\pp.  554. 

18.  Toland  v.  Sprague,  12  Pet. 
(U.  S.)  300;  Guernsey  v.  Rexford, 
63  N.  Y.  631 ;  Atkinson  v.  Burt,  65 
Ark.  316,  S3  S.  W.  404;  White  v. 
Campbell,  25  Mich.  463 ;  Robertson 
V.  Wright,  17  Gratt.  (Va.)  534;  Ir- 
vine V.  Young.  I   Sim.  &  S.  333. 

19.  ^/(iba»ia.— Christian  &  Craft 
Co.  V.  Hill,  122  Ala.  490,  26  So.  149. 

California. — Terry  v.  Sickles,  13 
Cal.    427. 

Connecticut. — Chatham  v.  Niles.  36 
Conn.  403. 

Kentucky. — Louisville  B.  Co.  v. 
Asher   CKy.),  65  S.  W.   I33- 

Micliigan. — Albretch  v.  dies,  33 
Mich.   389. 

Afissowi. — Cape  G.  &  S.  L.  R.  Co. 
V.  Kimmel.  58  Mo.  83. 

Nc'd'  York. — Lockwood  v.  Thornc, 
18    N.    Y.    285. 

Oregon. — Holmes  Z'.  Page,  IQ  Or. 
232,    23    Pac.    961. 

Pennsylvania.  —  Pierce  v.  Pierce, 
199   Pa."  St.   4,  48   .Ml   689. 

Rhode  Island. — Allen  v.  Woon- 
socket  Co.,   II    R.   I.  288. 

Tennessee. — Bussey  v.  Gant.  10 
Humph.  237. 

Accounts  Assented  to  by  Debtor 
Only — Tlioush  an  account  be  as- 
sented to  by  the  debtor,  it  does  not 
become  an  account  stated,  unless  also 
assented  to  by  the  creditor.  Spcll- 
man  7:  Muehlfeld.  48  .^pp.  Div.  265, 
f)2  N.  Y.  Supp.  74^1. 

Vol.  I 


Contra. — But,  on  the  other  hand, 
it  is  said  that  what  must  be  proved 
is  the  admission  of  correctness  by 
the  party  to  be  charged.  Shea  v. 
Kerr,  i  Del.  198,  4.0  Atl.  241  ;  Mc- 
Call  V.  Nave,  52  Miss.  494;  Volken- 
ing  V.   Dc  Graaf,  81    N.  Y.  268. 

Partnership  Accounts — In  Rehill 
V.  M'Tague,  114  Pa.  St.  82,  7  Atl. 
224,  it  appeared  that  partners  decided 
to  adjust  their  affairs,  and  employed 
three  clerks  to  make  up  a  statement 
of  the  partnership  accounts.  The 
clerks  proceeded  and  made  a  state- 
ment, partly  from  the  partnership 
books  and  partly  from  oral  state- 
ments furnished  by  the  separate  part- 
ners. It  did  not  appear  that  the 
partners  had  all  or  any  of  them  ac- 
cepted the  statements  made  by  the 
clerks,  and  it  was  held  that  the 
statement   was   not   a   stated   account. 

Promise  to  Pay  Not  Always  an 
Assent  to  Correctness  of  Account. 
.•\n  account  was  handed  to  the  party 
to  be  charged,  who  looked  at  it, 
said  it  was  larger  than  he  thought 
it  was,  and  that  a  certain  third 
party  ought  to  have  paid  it.  After 
some  further  conversation  he  said 
that  he  would  see  the  creditor  and 
pay  it ;  that  he  would  have  no 
trouble  about  it.  It  was  held  that 
this  fell  short  of  establishing  an  ac- 
count stated :  that  it  was  essential  to 
an  account  stated  that  there  should 
be  either  an  express  or  implied  ad- 
mission to  the  correctness  of  the 
account  as  a  claim  against  the  party 
to  be  charged.  Stevens  v.  Aycrs,  32 
N.  Y.  St.  15,  10  N.  Y.  Supp.  502. 

Admission  of  Items;  Denial  of 
Indebtedness —  Mere  admission  of 
the  correctness  of  the  items  of  an 
account  does  not  suffice  if  the  party 
to  be  charged  denies  liability ;  the 
assent  to  be  proved  is  an  admission 
of  indebtedness.  Ryan  v.  Gross,  48 
Ala.   370. 

Assent      Under      Compulsion .\ 

lilcdgcc  made  an  invalid  sale  of  part 


AND  ACCOUNTS  STATED. 


163 


All  Facts  and  Circumstances  May  Be  Shown  that  will  aid  in  deciding 
what  occurred,  or  explain  what  occurred  at  the  settlement  of  the 
account.-" 

b.  By  Agent.  —  Assent  by  a  partner  or  other  authorized  agent 
mav  be  shown."' 


of  the  pledge  and  rendered  an  ac- 
count that  was  objected  to;  another 
account  was  rendered  under  threat 
of  sale  of  the  rest  of  the  pledge; 
pledgor  paid  balance  as  shown  by 
the  account ;  the  court  held  in  an 
action  by  the  pledgor  to  recover 
damages  (defendant  pleading  an  ac- 
count stated  and  seUled)  that  it 
appeared  the  plaintiff  did  not  assent; 
that  the  payment  was  made  under 
duress  of  goods.  Stenton  v.  Jerome, 
54  N.   Y.   480. 

20.  jMead  z:  White  (Pa.),  8 
.A.tl.  913;  Goodrich  v.  Coffin,  83  Me. 
324,  22  Atl,  217. 

In  Coffee  v.  Williams,  103  Cal. 
505,  37  Pac.  504,  it  appeared  that 
the  parties  met  to  see  how  they 
stood ;  that  they  disputed  over  cer- 
tain matters ;  defendant  testified  as 
to  this  meeting  that  certain  matters 
were  discussed,  but  as  to  others 
there  was  no  agreement.  The  court 
said  that  it  was  not  confined  to  con- 
sidering the  mere  naked  yes  or  no 
of  the  witnesses,  but  that  the  de- 
fendant had  the  right  to  show,  if  he 
could,  the  inherent  improbability  of 
his  agreement  to  such  an  account, 
and  to  that  end  evidence  was  admis- 
sible of  the  general  nature  of  the 
circumstances  of  the  business  be- 
tween tlie  parties;  the  character  of 
the  objections  made  by  the  defendant 
to  the  items;  that  the  plaintiff  who 
had  conducted  the  business  had  kept 
no  accounts,  and  had  nothing  to 
present  as  a  basis  for  settlement ; 
that  there  was  over  $30,000  of  stock 
sold  by  the  plaintiff,  which  formed 
no  part  of  the  statement  of  account, 
and  that  the  defendant  had  objected 
to  all  these  things.  All  these  mat- 
ters were  properly  to  be  considered 
in  determining  whether  the  defend- 
ant acquiesced  in  an  account  which 
was  radically  different  from  the 
truth  and  from  his  own  contentions. 

21.  Heidenheimer  v.  Ellis,  67  Tex. 
436.  3S.  W.    666;    Southwestern    T& 


T.  Co.  V.  Benson,  63  Ark.  283,  38  S.  W. 
341  ;  Fergusson  v.  Fyffe,  8  CI.  &  F. 
121  ;  Luckie  v.  Forsyth,  3  Jo.  &  Lat. 
388. 

Settlement  by  a  Partner  With  a 
Third  Party  is  Itrima  facie  evidence 
of  the  balance  due  from  the  company 
to  the  plaintiff,  but  not  conclusive. 
The  other  partners  may  show  that 
the  plaintiff  included  a  separate  ac- 
count held  by  him  against  the  part- 
ner settling.  Kirkpatrick  v.  Turn- 
bull,   Add.    (Pa.)    259. 

An  Admission  by  One  Partner 
of  correctness  of  account  is  evidence 
of  account  stated  in  suit  against 
other  members  of  firm,  even  after 
dismissal  for  want  of  service  as  to 
the  partner  making  the  admission. 
Cady  V.  Kyle,  47  Mo.  346;  Martyn  v. 
Arnold,  36  Fla.  446,   18  So,  791. 

But  Not  by  Partner  After  Disso- 
lution of  Partnership.  —  Ross  v. 
Veatman,    2    Swan     (Tenn.)     144. 

May  be  Made  by  Surviving  Part- 
ner. _  Langley  V.  O.xford,  Ambl. 
(Eng.)    798. 

Assent  by  Agent — A  person  em- 
ployed an  attorney  at  law  to  ex- 
amine bank  books  and  straighten  out 
the  account  with  the  bank.  The 
agent,  having  examined  the  account, 
stated  that  it  was  correct.  This  was 
held  to  be  a  sufficient  admission  on 
behalf  of  the  principal  of  the  cor- 
rectness of  the  account.  Burraston 
V.  Bank,  22  Utah  328,  62  Pac.  425. 

By  Bookkeepers — Rice  v.  Schloss, 
90  Ala.  416,  7   So.  802. 

Especially,  if  the  principal  knew 
that  his  bookkeeper  was  in  the 
habit  of  rendering  accounts  to  his 
workmen  from  time  to  time  as  they 
called  for  them.  Wiley  v.  Brigham, 
16  Hun     (N.   Y.)    106. 

Roadmaster  of  Railroad Au- 
thorized to  audit  accounts  of 
laborers.  St.  Louis  I.  M.  &  S.  Ry. 
Co.  V.   Bank,  47  Ark.   541,   i    S.   W. 

70-1  ■ 
Directors    of    Corporatioi.   -  J.Tck- 

Vol.  I 


164 


J  ceo  UN  rS,  A  ceo  UN  TING 


c.  Express  Assent. —  (1.)  How  Shown.  —  This  assent  may  be  by 
an  express  admission ;"  as  where  one  renders  an  account  showing-  a 
balance  against  himself,-^  or  a  written  achnission,--'  as  by  signing  the 
accoimt."^ 


sonville  etc.  Co.  v.  Warriiier,  35  Fla. 
197,    16   So.  898. 

President  and  Secretary  of  Cor- 
poration— Pick  V.  Slimmer,  70  111. 
App.  3s8;  Concord  A.  H.  Co.  v. 
Alaska  etc.  Co.,  78  111.  App.  682. 

Trustees  of  Religious  Corpora- 
tion  Trustees    v.    Caoa:cr,    6    Barb. 

(N.  Y.)   5/6. 

Assent  by  Husband  for  Wife. 
Although  under  the  statute  both 
husband  and  wife  are  liable  for  cer- 
tain supplies  furnished  to  the  family, 
yet  the  wife  is  not  liable  upon  an 
account  stated  where  the  account 
was  rendered  to  the  husband,  and  as- 
sented to  by  him  only.  Holmes  v. 
Page,   19  Or.   232,   23   Pac.  g6i. 

Husband  As  Agent  for  Wife. 
Moody  I'.  Thwing,  46  Minn.  511, 
49   N.   W.   229. 

22.  Sergeant  v.  Ewing,  36  Pa.  St. 
156;  Anderson  v.  Best,  176  Pa.  St. 
498,  35  Atl.  194;  Langdon  v.  Roane, 
6  Ala.  (N.  S.)  518,  41  Am.  Dee.  60; 
Nooc  V.   Garner.   70   .-Ma.   443. 

Admission  Not  Expressing  Amount 
Due — It  may  be  shown  that  in  con- 
versations the  defendant  said  he 
owed  "  the  bill  "  or  "  that  bill ;"  it 
may  be  shown  aliunde  what  was  the 
bill  referred  to,  and  this  evidence 
with  his  admission  may  establish  an 
account  stated.  Goodrich  v.  Coffin, 
83  Me.  324,  22  Atl.  217. 

23.  Toland  v.  Sprague.  12  Pet. 
(U.  S.)  300;  St.  Louis  I.  M.  &  S. 
Ry.  Co.  V.  Bank,  47  Ark.  541,  i  S. 
W.  704;  Foste  V.  Standard  etc.  Co., 
34  Or.  125,  54  Pac.  811;  Spellman 
V.  Muehlfeld,  48  App.  Div.  265,  62 
N.  Y.  Supp.  746. 

In  Absence  of  Mistake  a  Party  Is 
Bound  by  a  statement  of  account 
rendered  by  himself.  Marline  v. 
Huyler.  29  N.  Y.  St.  533,  8  N.  Y. 
Supp.   734. 

Provided  it  Was  Intended  as  a 
Final  Adjustment  and  settlement  of 
the  transactions  to  which  it  relates. 
Glasscock  v.  Roscngrant,  55  .'Xrk.  376, 

18  S.  w.  379. 

Clark   V.    .Marbnurg,   ^^^^    Kan.    471, 
Vol.  I 


6  Pac.  548;  Bussey  v.  Gant,  10 
Humph.  (Tenn.)  237;  Peterson  v. 
W'achuwski,  86   HI.   App.  661. 

But  He  May  Show  the  Account 
Was  Rendered  Under  a  Mistake 
as  to  the  facts.  Polhemus  ^'.  Hei- 
man,   50   Cal.   438. 

Clark  V.  Marbourg,  ^^  Kan.  471, 
6  Pac.  548,  holding  that  an  accomit 
rendered  is  only  ftriina  facie  evidence 
against  the  Tenderer. 

Account  Rendered  Showing  Credit 
for  Previous  Counter  Account  may 
amount  to  a  stated  account  as  to 
such  previous  account.  Bewick  v. 
Butterfield,  60  Mich.  203,  26  N.  W. 
881. 

But  see  contra,  Hughes  v.  Smither, 

23  App.  Div.  590,  49  N.  Y.  Supp. 
115,  afifirmed  163  N.  Y.  553,  57  N.  E. 
1112. 

24.  Spellman  v.  Muehlfeld,  48 
App.  Div.  265,  62  N.  Y.  Supp.  746; 
Moody  V.  Thwing,  46  Minn.  511,  49 
N.  W.  229;  Heidenheimer  v.  Ellis, 
67  Tex.  426,  3  S.  W.  666;  Powell  v. 
Noye.  23  Barb.    (N.   Y. )    184. 

Admissions  Under  Seal  or  in  a 
Contract — Ci7.;i,t;  Hoyt  v.  Wilkin- 
son, 10  Pick.  31  ;  Tassey  v.  Church. 
4  Watts  &  S.  (Pa.)  141,  .39  Am. 
Dec.    65. 

Resolution  Entered  on  Books  of 
Corporation — Goodwin    v.    Ins.    Co., 

24  Conn.  591  ;  Trustees  v.  Cagger, 
6  Barb.   (N.  Y.)  576. 

Receipt  "on  account  and  being  th.- 
balance  per  account  rendered  up  t'> 
this  date."  Dudley  v.  Iron  Cn.,  13 
Ohio  St.   l68. 

25.  Brauger  v.  Chevalier,  9  i^al, 
.353;  Tuggle  v.  Minor,  76  Cal.  96.  18 
Pac.  131  ;  Tennessee  Brewing  Co.  v. 
Hendricks,  77  Miss.  491,  27  So.  526; 
Nichols   1'.    .\lsnp,   6   Conn.   477. 

Signing  Not  Necessary.  —  in  the 
case  of  lleartt  :'.  Corning,  3  Paige 
tN.  Y.)  566,  the  court  said  that  in 
the  case  of  Attorney  General  Z'. 
Brooksbank,  2  Young  &  J.  42,  the 
opinion  was  expressed  that  an  ac- 
count stated  nnist  be  actually  signed 
liy   the  parties  to  enable  a   defendant 


AND  ACCOUNTS  STATED. 


165 


Such  Written  Admission  Then  Becomes  the  Best  Evidence  of  the  ac- 
count stated  ;'-'■  but  proof  of  an  admission  by  word  of  mouth  is  suffi- 
cient.-^ 

(2.)  When  Must  Have  Been  Given.  — Assent,  express  or  implied,  may 
be  shown  whether  given  before  or  after  the  assignment  of  the 
account  to  the  plaintiff.-" 


to  plead  it  in  bar  to  a  suit  for  an 
account,  but  that  apparently  an  ac- 
count not  signed  might  be  a  good 
defense  if  set  up  in  the  answer  and 
proved  at  the  hearing,  but  that  that 
opinion  is  clearly  not  law,  and  is 
directly  opposed  to  that  of  Lord 
Hardwick  in  Willis  v.  Jernegan,  2 
Atk.  252,  where  he  says  expressly 
that  it  is  not  necessary  the  account 
should  be  signed  by  the  parties, 
citing  also  Jessup  z'.  Cook,  i  Halst. 
436,  and  Lanialine  v.  Caze,  2  P.  .•\. 
Brown,  128.  Stebbins  v.  Niles,  j 
Cushm.    (Miss.)   267. 

Rendering  Account  Giving  Credit 
for  a  Balance  shown  uu  previous 
counter  account.  Bewick  v.  Butter- 
field,  60  Mich.  203,  26  N.  \V.  881. 

26.  Walker  -.'.  Driver,  7  .\la. 
(N.   S.)    679. 

If  the  memorandum  of  settlement 
cannot  be  introduced  because  not 
stamped,  the  account  stated  may  be 
established  by  other  evidence.  Sin- 
gleton V.  Barrett,  2  Cromp.  &  J.  368, 
2  Tyr.  409. 

27.  Co/orarfo.— Walker  v.  Steele, 
9    Colo.    388,    12    Pac.    423. 

Illinois. — Tompkins  z\  Gerry.  52 
111.  App.  592;  Concord  .\.  H.  Co.  v. 
Alaska  etc.  Co.,  78  111.  App.  082; 
McCord  V.  Curlee,  59  111.  221. 

Maine. — Goodrich  v.  Coffin,  83  Me. 
324,  22  Atl.  217. 

Massachusetts. — Chace  z\  Traf- 
ford,  116  Mass.  529,  17  .-Xm.  Rep, 
171. 

Minnesota. — Beals  z:  Wagener, 
47  Minn.  489,  50  N.  W.  535. 

Missouri. — Carroll  v.  Paul,  16  Mo. 
226. 

Nrzi.'  Jersey. — Bonnell  z'.  Mawha, 
37    N.   J.   Law    198. 

North  Carolina. — Webb  v.  Cham- 
bers. 3   Ired.   374. 

(/?a/i.  — Burrastnn  Z'.  Bank,  22 
Utah    328,   62    Pac.    425. 


Promise  to  Pay  Equivalent  to 
Assent — Plaintiff  sent  to  defendant 
two  accounts,  one  for  money  and 
one  for  services,  with  a  letter  de- 
manding payment.  Defendant  did 
not  object  nor  reply.  Afterwards, 
meeting  plaintiff,  he  acknowledged 
receipt  of  the  letter,  said  he  had  no 
money,  but  would  pay  it  as  soon  as 
he  could.  This  proof  was  held  suffi- 
cient to  sustain  an  action  upon  an " 
account  stated.  Vernon  v.  Simmons, 
28  N.  Y.  St.  173,  7  N.  Y.  Supp. 
649;  Hatch  V.  Von  Taube,  31  Misc. 
468,  64  N.  Y.  Supp.  393- 

Both  Oral  and  Written  Admis- 
sion— The  oral  admission  may  lie 
proved,  though  made  at  the  same 
time  with  a  written  signed  memor- 
andum of  the  settlement,  such  memo- 
randum being  inadmissible  for  lack 
of  a  stamp.  Singleton  z'.  Barrett.  2 
Cromp.   &  J.   368,  2  Tyr.  409. 

Admission  Made  as  Witness  in 
Another  Action —  Plaintitf  proved 
that  a  copy  of  the  account  showing 
the  balance  sued  for  was  mailed  to 
defendant ;  in  another  action  defend- 
ant being  a  party,  testified  that  he 
had  duly  received  the  account,  that 
it  was  correct ;  and  proved  that  in 
conversations  defendant  had  said  that 
if  he  was  able  to  pay,  he  would. 
This  was  held  sufficient  to  sustain 
judgment  for  the  plaintiff.  McCor- 
mack  V.  Sawyer,  104  Mo.  36,  15  S. 
W.  998. 

Presentation  of  Bills  and  Promise 
to  Pay — In  a  suit  to  recover  a  pav- 
ing ta.x  proof  of  presentation  of  the 
bills  and  of  a  promise  to  pay  made 
by  the  defendant,  will  support  a  ver- 
dict for  the  plaintiff  on  an  account 
stated.  Clemens  v.  Mayor,  16  Md. 
208. 

28.  Powell  -.■.  R.  R.  Co.,  65  Mo. 
658;  Bonnell  v.  Mawha,  37  N-  J- 
Law  198. 

Vol.  I 


166 


ACCOUNTS,  ACCOUNTING 


It  seems  it  may  be  shown  though  made-  ix-forc  the  account  became 
due.-'' 

It  has  been  said  that  it  ma}'  be  shown  tiiough  made  after  the 
comme!icement  of  the  action."" 

(3.)  Unqualified  and  of  Precise  Sum.  —  The  assent  must  be  unquah- 
fied,'"  and  of  a  precise  sum.-'- 

A  Claim  of  an  Offset    usualh'  amounts  to  a  quahtication  of  assent.^'' 

But  Evidence  of  a  Reservation  of  Items  to  be  further  investigated 
does  not  show  that  the  account  was  not  stated  as  to  the  remainder."'' 


29.  Jugla  f.  Trouttet,  uo  N.  V. 
21,  23  N.  E.  1066. 

30.  Lowenthal  v.  Morris,  103  Ala. 
332,  15  So.  672  {Arguendo  in 
opinion   of   Head.) 

Contra    and    the    Better    Rule 

Allen  V.  Cook,  2  D.  P.  C.  546;  Spen- 
■  cer  V.  Parry,  4  N.  &  i\l.  770,  3  Ad. 
&  E.  331. 

An  account  was  rendered  July 
301I1.  August  first  a  summons  was 
issued  and  the  complaint  was  dated 
August  lOth.  But  summons  was  not 
served  until  September  nth,  up  to 
which  time  the  defendant  retained 
the  statement  of  account  without  ob- 
jection. It  was  held  that  the  action 
could  be  sustained  as  upon  an  ac- 
count stated.  Donald  v.  Gardner,  44 
App.   Div.  235,  60  N.   Y.  Supp.  668. 

In  Stowe  z'.  Sewall,  3  Stew.  &  P. 
(Ala.)  67,  which  was  not  an  action 
on  an  account  stated,  a  stated  ac- 
count was  admitted  in  evidence  to 
establish  an  indebtedness,  although 
stated  after  the  action  was  brought. 

31.  Evans  v.  Verity,  R.  &  M.  239 ; 
State  V.  Hartman  Steel  Co.,  51  N.  J. 
Law  446,  20  Atl.  67 ;  Calvert  v. 
Baker,  4  M.  &  W.  417;  Stevens  v. 
Tulier,  4   Mich.  387. 

Promise  Must  Not  Be  Contingent 
or  in  the  Alternative,  as  if  one 
promised  to  replace  a  certain  boat 
or  pay  $150.00.  Rutledgc  v.  Moore. 
9   Mo.   537- 

Assent  to  One  Side  of  Account. 
An  admission  of  the  correctness  of 
the  debit  items  of  an  account  ac- 
companied by  a  demand  for  allow- 
ance of  additional  credits,  is  not 
evidence  of  an  account  stated. 
Coombs  V.  Block,  130  Mo.  668,  32 
S.  W.   II39- 

Compare  Reinhardl  v.  Ilincs,  51 
Miss.  344. 

Vol.  I 


Reservation  of  Right  to  Object  to 
Goods — Where  an  account  is  ren- 
dered and  the  goods  mentioned  in  it 
delivered  and  remain  in  possession 
of  the  party  to  be  charged,  and  pay- 
ments are  made  on  the  account  and 
no  objection  is  made  as  to  the  ac- 
count, these  facts  establish  an  ac- 
count slated,  although  in  making  the 
last  payment  the  party  to  be  charge.l 
wrote;  "There  are  still  a  few 
pounds  due  you,  provided  the  goods 
.still  on  hand,  (.and  1  have  quite  a 
lot  there  still  from  your  shipments,) 
are  up  to  the  contract.  I  shall  wilh- 
ilraw  very  shortly  and  determine  all 
about  it."  The  defendant  assented 
that  the  account  was  correct  and 
the  only  right  he  reserved  was  to 
impeach  it,  if  the  goods  were  not 
up  to  the  contract.  That  right  he 
would  have  had  without  expressly 
reserving  it.  Samson  v.  Freedman, 
102  N.  V.  699,  7  N.  E.  419. 

32.  Teall  z:  Auty,  4  Moore  542. 
2  B.  &  B.  99,  22  Rev.  Rep.  656. 

33.  Ujiited  5/a^cj.  —  Harden  z: 
Gordon,  11  Fed.  Cas.  No.  6047. 

Alabama. — Ware  v.  Manning,  86 
Ala.  238,  5   So.   682. 

Mississippi. — Reinhardt  v.  Hines, 
51    Miss.    344. 

Nezi'  Hampshire. — Filer  v.  Peebles, 
8  N.  H.  226. 

New  Jersey. — State  z'.  Harlman 
Steel  Co.,  51  N.  J.  Law  446,  20  Atl. 
67. 

OrcgoM.— Crawford  v.  Hutchnison. 
38  Or.  578,  65   Pac.  84. 

In  Pierce  v.  Delamater.  3  How. 
Pr.  (N.  Y.)  162,  it  is  held  that  if  one 
admitted  the  correctness  of  an  ac- 
count, but  claimed  some  offset,  with- 
out specifying  its  amount  or  nature, 
the  admission  supports  an  action  on 
account  stated. 

34.  Tuggle  V.   Minor,  76   Cal.   96, 


AND  ACCOUNTS  STATED. 


lf.7 


Nor  Does  a  Provision  for  Correction    of  after  discovered  errors.''^ 

Proof  of  Objection  to  Only  One  or  More  Items  of  an  account  is  not  a 
qualification,  but  tends  to  estal)lish  an  account  stated  as  to  the 
others/''' 

A  Qualified  Assent  Followed  by  Acceptance  of  the  quaHficatiou  or  pro- 
posed mocHfication,  is  sul^cient  proof  of  assent.''' 

A  Reservation  of  Time  for  Payment  does  not  amount  to  a  quahfica- 
tion  of  assent  to  the  account/"* 

d.  Implied  Assent.  — Acceptance  of  an  account  as  correct  may  be 
impHed  from  circumstances/''''' 

(1.)  Bank  Books  and  Pass  Books.  —  Balances  shown  in  depositors' 
bank  books  or  other  pass  books  and  not  objected,  to  are  evidence  of 
accounts  stated  on  the  ground  of  implied  assent.^"     Out  not  if  the 


l8   Pac.    131;    Wiggins   v.    Biirkham, 
10  Wall.   (.U.  S.)    129. 

35.  Although  a  signed  statement 
contained  a  memorandum  that  "  this 
settlement  is  correct  according  to  our 
understanding  at  this  time,  but 
should  anything  occur  we  are  ami- 
cably to  settle  it,''  it  became  never- 
theless a  stated  account.  Marmon 
V.  Waller,  53  Mo.  App.  610. 

36.  England. — Chisman  v.  Court, 
2  Man.  &  G.  317,  2  ScoU  (U.  R.) 
569- 

Alabama. — Joseph  v.  Sonthwark  & 
Co.  (.^.la.),  10  So.  327;  Ware  v. 
Manning,  86  .A.la.  238,  5  So.  682; 
Burnes   v.    Campbell,   71    Ala.   271. 

Georgia. — Field    v.    Reed,    21    Ga. 

314- 

Illinois. — Bee  {'.  Tierney,  58  111. 
App.  552 ;  Congress  C.  Co.  v.  In- 
terior B.  Co.,  86  111.  App.  199.  But 
sec  King  V.   Machesney,  88  111.  App. 

.341- 

Missouri. — Mulford  v.  Caesar,  53 
Mo.    App.    263. 

Af<7w  York. — Power  v.  Root,  3  E. 
D.  Smith  70. 

37.  Neagle  v.  Herbert,  73  111.  App. 

An  account  being  rendered,  the 
debtor  wrote  saying  that  if  the  cred- 
itor would  take  back  certain  of  the 
goods  and  credit  him  with  their 
cost,  he  would  pay  the  balance ;  the 
creditor  wrote  accepting  this  offer 
and  rendered  an  account  on  that 
basis.  This  was  held  sufficient  evi- 
dence of  an  account  stated.  Ayls- 
worth  V.  Gallagher,  22  N.  Y.  St.  26, 
4  N.  Y.   Supp.  853. 

38.  Baird   v.    Crank,   98   Cal.   293, 


2,i  Pac.  63 ;  Tuggle  v.  Minor,  76 
Cal.  96,  18  Pac.  131  ;  Neagle  v.  Her- 
bert, 73  III.  .\pp.  17. 

Account  Rendered  by  a  Garni- 
shee— An  account  was  rendered 
showing  a  balance  due  from  the 
party  rendering  it.  A  memorandum 
was  added  tliat  the  account  was  sub- 
ject to  an  attachment  in  a  certain 
action  by  a  third  party  against  the 
creditor.  It  was  held  that  this 
memorandum  did  not  alter  the  legal 
character  of  the  account  stated,  nor 
qualify  the  implied  promise  that 
nothing  was  left  open  between  the 
parties.  No  right  to  retain  the 
balance  was  claimed.  The  acknowl- 
edgement of  indebtedness  was  ab- 
solute. The  memoranduin  was 
merely  a  notification  that  present 
payment  of  the  creditor  was  pre- 
vented by  the  attachinent.  It  ap- 
peared in  the  case  that  the  attach- 
ment had  been  dissolved  before  the 
commencement  of  the  action.  Halli- 
burton V.  Clapp,  72  N.  Y.  St.  26,  36 
N.    Y.    Supp.    1041. 

39.  Swain  v.  Knapp,  34  Minn. 
2^2,  25  N.  W.  397 ;  Quimi  v.  White, 
(Nev.),  62  Pac.  995;  Stebbins  v. 
Niles,  3  Cushm.  (Miss.)  267;  Mc- 
Call  V.  Nave,  52  Miss.  494;  Ruffner 
V.  Hewitt,  7  W.  Va.  585;  Freeman 
V.  Howell,  4  La.  Ann.  196,  50  .-^m. 
Dec.   561. 

An  Offer  to  Settle  by  Giving  Note 
for  Balance  amounts  to  an  assent. 
El  wood  Mfg.  Co.  V.  Betcher,  72 
Minn.  103,  75  N.  W.  113. 

40.  England.— \V\\\\^  v.  Jernegan, 
2  Atk.  252. 


Vol.  I 


1()S 


ACCO UNTS.  ACCO UNTING 


entries  show  oiil}'  one  side  of  the  account/' 

(2.)  Accounts  Rendered  and  Not  Objected  To.  —  To  show  assent  it 
may  be  proved  that  the  account  having  been  rendered,  the  party 
receiving  it  chd  not,  within  a  reasonable  time,  object  thereto.''- 


United  Slates. — Marye  v.  Strouse, 
5   Fed.  483. 

California. — Terry  v.  Sickles,  13 
Cal.    437. 

Illinois. — Gottfried  B.  Co.  v.  Szar 
Kowski,  79   111.  App.  583. 

Iowa. — Schoonover  v.  Osborne,  loS 
Iowa  453,  79  N.  W.  263. 

Massachusetts.  —  Union  Bank  v. 
Knapp.  3  Pick.  96,  15  Am.  Dec.   182. 

Mississi/tpi. — Coopwood  v.  Bolton, 
26   ^liss.   212. 

Nczi.'  York. — Wiesser  v.  Denison, 
10  N.  Y.  81,  61  Am.  Dec.  731 ;  Hut- 
chinson V.  Bank,  48  Barb.  302; 
Clark  z:  Bank,  11  Daly  ^39- 

L'(a/i.— Burraston  v.  Bank,  22  Utah 
328,  62   Pac.  425. 

West  I'irginia. — Rutifner  v.  Hcwitl, 

7   W.   Va.   585. 

Even  if  the  Depositor  Could  Not 
Read  the  Entries.— Ruch  v.  Fricke, 
28  Pa.  St.  241,  but  it  appeared  that 
he    understood    the    figures. 

Such  Books  Are  Evidence  Ag.iinst 
the  Bank  Also  of  a  stated  account. 
Harley  v.  Bank.  7  Daly  (N.  V.) 
476. 

Forged  Checks  Included  in  Ac- 
count  That    checks    returned    with 

the  pass  book  caiue  into  the  hands 
of  the  same  clerk  wdio  had  forged 
them  and  he  concealed  them  from 
the  customer,  his  employer,  does  not 
alter  the  rule.  August  v.  Bank,  15 
N.  Y.  St.  956,  I  N.  Y.  Supp.  139- 

But  Compare,  Hardy  v.  Bank,  51 
Md.   562,  34  Am.   Rep.   325. 

Prima  Facie  Evidence.  —  In  the 
case  of  McKinster  v.  Hitchcock,  19 
Neb.  100,  26  N.  W.  705,  the  court 
said  as  to  whether  the  mere  ac- 
ceptance of  a  customer's  bank  book, 
written  up  and  returned  to  him  by 
the  bank,  together  with  checks  with- 
out objection,  is  to  be  held  binding 
upon  the  customer  as  an  account 
stated  is  a  question  upon  which  the 
authorities  dififer,  citing,  Morse  on 
Banking  358.  The  belter  rule  is 
that  if  siich  an  account  lie  retained 
for  a  reasonable  time  without  ob- 
jection,  it   will   be  treated  as  an   ac- 

Vol.  I 


count  slated,  and  prima  facie  correct. 
See  also  Hardy  v.  Bank,  51  Md.  562, 
34  .\ni.  Reii.  325. 

Agreement  by  Depositor  to  Make 

His  Objection  Within  Ten  Days. 
Where  depositor  in  receipting  for 
cancelled  checks  signs  an  agreement 
"all  claims  for  reclamation  to  be 
made  within  10  days,"  his  failure 
to  make  objection  renders  the  pass 
book  an  account  stated.  McKeen  t'. 
Bank.  74  Mo.  App.  281. 

Checks  Not  Returned In  the  casj 

of  Shepard  :■.  Bank,  15  Mo.  143,  a 
depositor  in  a  bank  had  been  in  the 
habit  of  drawing  in  various  ways 
for  several  years ;  had  a  bank  book 
showing  debits  and  credits.  The 
book  was  balanced  in  1842  and  in 
1846,  and  had  the  following  memo- 
randum made  by  a  bank  clerk ; 
"  All  checks  from  April  '42  to  Aug- 
ust '46  are  taken  from  the  ledgers 
of  the  bank,  the  original  checks  mis- 
placed, amounts,  dates,  etc.,  are  cor- 
rect." This  memorandum  was  made 
in  August,  1846.  The  depositor  kept 
the  book  without  making  objections 
until  he  brought  suit  three  years 
afterwards. 

It  was  held  that  these  facts  made 
out  a  stated  account. 

41.  Randlcson  [',.v  parte.  2  Dec.  & 
Ch.  534. 

42.  Z,"»g/n»rf.— Willis  v.  Jerncgan. 
2  Atk.  251  ;  Sherman  v.  Sherman, 
2  Vern.   276. 

United  ,S"/a/c.y.— Standard  Oil  Co. 
V.  Van  Etlicr,  107  U.  S.  325.  I  Sup. 
Ct.    178. 

.-I/(i/)(7j)U7.— Christian  &  Craft  Co. 
V.  Hill,  122  Ala.  490.  26  So.   149. 

Arkansas.  —  Lawrence  i'.  Ells- 
worth,  41    Ark.    502. 

Ca/i/orHid.  —  Mayberry  v.  Cook, 
121   Cal.  588,  54  Pac.   95- 

Co/orado.— Freas  v.  Truitt,  2  Colo. 

489. 

F/on'rfa.— Jacksonville  etc.  Co.  ■<: 
Warriner,  35  Fla.  T97,  16  S.  W.  898. 

Illinois.— Hou^e  v.  Beak,  43  111. 
/\pp.    615. 


AND  ACCOUNTS  STATED. 


U>') 


In  support  of  this  rule  a  usage  between  the  parties  of  oJijecting 
to  disputed  items  may  be  shown."'-' 

The  account  rendered  must  have  been  clear  and  unambiguous  ;''■' 
and  must  show  not  only  the  quantities  or  amounts  of  goods  deliv- 
ered or  sold,  but  also  the  amount  of  money  balance. ■*'' 

Partnership  Accounts   are  not  within  the  scope  of  this  rule.-"' 

And  if  the  accoiuit  is  sent  to  and  retained  by  an  agent,  his  author- 
ity must  be  shown. ""^ 

The  rule  of  implied  assent  is  not  so  readil\-  applied  when  invoked 
by  the  person  to  whom  the  account  is  rendered.^" 


Louisiana. — Brodna.\  v.  Steinhanlt, 
48    La.    Ann.    682,    19    So.    572. 

Michigan. — Raub  v.  NLsbett,  118 
Mich.   248,   76    N.    W.    ,;93- 

Minnesota. — Elwood  .\lfg.  Co.  !■. 
Betcher,  72  Minn.  103,  75  N.  W.  iij. 

Mississippi. — Coopwood  v.  Bolton, 
4  Cnslnn.   (26  Miss.)  212. 

Missouri. — Powell  %■.  R.  R.  Co., 
65    Mo.   658. 

Nc7i'  Hamfshirc. — Rich  v.  Eld- 
redge,  42  N.  H.  153. 

Nezv  Jersey. — State  v.  Hartman 
Steel  Co.,  51  N.  J.  Law  446,  20  Atl. 
67. 

:V«i.'  York.  —  Knickerbocker  v. 
Gould,  115  N.  Y.  533,  22  N.  E.  573; 
Spelhnan  v.  Mnehlfeld,  48  App.  Div. 
26s,  62  N.  Y.  Supp.  746 ;  Eamcs  V. 
B.  Co.  V.  Prosser,  157  N,  Y.  289, 
51    N.    E.   986. 

North  Carolina. — Webb  r.  Cham- 
bers, 3  I  red.  374. 

Oregon. — Crawford  v.  Hutchinson, 
38  Or.  578,  65  Pac.  84;  Howell  v. 
Johnson,  38  Or.  571,  64  Pac.  639. 

Pennsylvania. — Verrier  v.  Guillon, 
97  Pa.  St.  63 ;  Pierce  j'.  Pierce,  199 
Pa.   St.   4,  48  Atl.   689. 

Utah. — Burraston  v.  Bank,  22  Utah 
328,  62  Pac.  425. 

]'cymont. — Tharp  v.  Tharp,  15  Vt. 

Virginia. — Goldsmith  v.  Latz,  96 
Va.   680,   32   S.    E.   483. 

West  Virginia.  —  Shrewsbury  v. 
Tufts,  4T   W.  Va.  212,  23  S.  E.  692. 

leading  Case.—  Lockwood  v. 
Thorne,  18  N.  Y.  285,  is  a  leading 
case  in  New  York  on  the  subject  of 
accounts  stated.  It  is  there  said 
that  in  proving  an  account  stated,  it 
is  not  necessary  to  show  an  express 
examination  or  an  express  agree- 
ment. All  may  be  implied  from 
circumstances.     If  one  render  an  ac- 


count and  the  other  examining  it 
makes  no  objection,  an  inference 
might  be  drawn  that  he  was  satisfied 
with  it,  so  if  the  account  be  made 
out  by  one  and  transmitted  to  the 
other  by  mail,  and  the  latter  fail  to 
object  within  a  reasonable  time,  it 
might  be  inferred  that  he  was  satis- 
fied. Such  failure  to  object  would 
be  legitimate  evidence  in  proving  an 
account  stated.  See  same  case  in  12 
Barb.  487. 

In  Admiralty — In  a  personal  ac- 
tion in  admiralty  the  same  principle 
that  acquiescence  is  evidence  of  a 
stated  account  exists.  Martin  v. 
Acker.  i6  Fed.  Cas.   No.  9155. 

Sale  and  Statement  Simultaneous. 
Implication  of  assent  is  not  raised 
where  the  sale  and  delivery  of  goods 
and  rendering  of  statement  of  ac- 
count are  simultaneous.  Truman  v. 
Owen,  17  Or.  523,  21  Pac.  665. 

Mere  Failure  to  Object  Held  In- 
sufficient  In  Allen  :■.  Woonsocket, 

II  R.  I.  288,  it  is  said  that  acquies- 
cence, even  for  a  considerable  time, 
does  not  establish  the  fact  of  an  ac- 
count's being  settled,  unless  there  are 
other  things  in  evidence  to  justify 
the  conclusion.  And  see  Pratt  i'. 
Boody,  55  N.  J.  Eq.  17.S.  .iS  Atl.  1113. 

43.  Union  Bank  v.  Bank,  9  Gill.  & 
J.    (Md.)   439,  31   Am.   Dec.   113. 

44.  Manion  B.  &  W.  Co.  v.  Car- 
reras,  26  Mo.  App.  229. 

45.  Robson  v.  Bohm,  22  jNIinn. 
410. 

46.  Hughes  V.  Smither,  23  App. 
Div.  590,  49  N.  Y.  Supp.  ns.  163 
N.  Y.  553,  57  N.  E.  1 1 12. 

47.  Knapp  v.  Smith.  97  Wis.  in. 

72  N.  W.  349- 

48.  Rule  of  Implied  Assent  In- 
voked by  Debtor. —  In  White  z'. 
Campbell,  23   Mich.  463,  the  party  to 

Vol.  I 


170 


A  ceo  UN  rs,  AC  CO  UN  TING 


This  rule  of  implied  assent  was  lluis  formerly  enforced  only 
between  merchants  /''  and  is  still  most  strictly  enforced  between 
them.=" 

But  it  has  been  extended  to  all  classes  of  business  men,'''  and  to 
others. ^- 

C A.)  To  What  Accounts  Applicable-  —  An  account  rendered  may 
thus  become  evidence  of  an  account  slated,  although  the  first  item 
purports  to  be  a  balance  of  a  former  account  rendered. ''■■ 

It  is  said  that  the  rule  of  implied  assent  from  failure  to  object  has 
no  application  where  the  claim  was  the  subject  of  a  special  contract 
fixing  the  amount  f*  nor  where  the  prices  to  be  paid  were  not  agreed 
upon  and  have  no  market  value  f"  nor  where  the  claim  is  for  mere 
unliquidated  damages  for  breach  of  contract.^'' 


whom  an  account  was  rendered,  be- 
ing afterwards  sued,  in  order  to  es- 
tablish that  the  claim  was  outlawed, 
insisted  that  the  account  had  become 
stated  against  him  by  his  not  object- 
ing thereto ;  but  the  court  held  that 
the  rule  of  implied  assent  had  been 
made  for  the  benefit  of  the  party 
rendering  the  account,  and  that  the 
other  party  cannot  rest  upon  the  fact 
that  he  remained  passive,  but  must 
sliow  some  word  or  act  marking  or 
implying  that  he  assented  to  the  ac- 
count. See  also  to  same  cfTect  Payne 
V.  Walker,  26  Mich.  60. 

49.  Sherman  v.  Sherman,  2  Vern. 
276;  Shepard  v.  Bank,  15  Mo.  143; 
Townes  v.  Birchctt,  12  Leigh  (Va.), 
173- 

50.  As  Between  Merchants.  — 
Failure  to  object  makes  an  account 
rendered  conclusive  in  absence  of 
fraud  or  mistake.  Green  v.  Smith, 
.S2  111.  158;  Mackin  v.  O'Brien,  33 
III.  App.  474;  McCord  V.  Manson,  17 
111.  App.  118;  Miller  v.  Bruns,  41  111. 
293;  Rich  V.  Eldredge,  42  N.  H.  153. 

51.  Rich  V.  Eldredge,  42  N.  H. 
153;  Peona  G.  S.  Co.  v.  Turney,  58 
111.  App.  563;  King  V.  Rhoades  & 
Co.,  68  III.  App.  441 ;  McKecn  v. 
Bank,  74  Mo.  App.  281. 

52.  McCord  v.  Manion,  17  111. 
App.  118;  Sherman  v.  Sherman.  2 
Vern.  276;  Shepard  v.  Bank,  15  Mo. 
143 ;  Brown  v.  Kimmel,  67  Mo.  430 ; 
Fleischner  v.  Kubli,  20  Or.  328,  25 
Pac.  1086;  Bradley  v.  Richardson,  3 
Fed.  Cas.  No.  1786;  Crawford  v. 
Hutchinson,  38  Or.  578,  65  Pac.  84; 
McKeen  v.   Bank,  74   Mo.   App.  281  ; 

Vol.  I 


Townes  V.  Birchett,  12  Leigh   (Va.), 

As  Between  Principal  and  Agent, 

such  rendition  is  prima  facie  evi- 
dence of  assent.  McCord  v.  Man- 
son,  17  III.  App.  118;  Tharp  v. 
Tharp,  15  Vt.  105;  Mansell  v.  Payne, 
18  La.  Ann.  124;  RulTner  v.  Hewitt, 
7  W.  Va.  585 ;  Mertens  v.  Notte- 
liohms,  4  Gratt.   (Va.),  163. 

Mississippi  refuses  to  extend  tlie 
rule  to  other  than  merchants,  but 
says  that  the  rendering  of  an  account 
and  its  retention  between  others  than 
nicrcliants  is  admissible  to  show  an 
implied  admission  and  acquiescence 
in  its  correctness.  What  weight 
should  be  proven  to  it  is  for  tlie 
consideration  of  the  jury  under  all 
the  circumstances  of  the  case.  Aud- 
ing  V.  Levy,  57  Miss.  51,  34  Am.  Rep. 

435- 

53.  Fleischner  v.  Kubli,  20  Or. 
328,  25  Pac.  1086;  Dows  V.  Dm-fee, 
'10  Barb.   (N.  Y.)  213. 

54.  Valley  Lumber  Co.  v.  Smith. 
71  Wis.  304,  Z7  N.  W.  4T2,  S  Am.  St. 
Rep.  216;  Kusterer  B.  Co.  v.  Friar. 
99  Mich.  190,  58  N.  W.  52;  Howell 
V.  Johnson,  38  Or.  571.  64  Pac.  659. 
Compare  Robson  v.  Bohn,  22  Minn. 
410. 

55.  Burlinganie  v.  Shelmire,  35 
N.  Y.  St.  161,  12  N.  Y.  Supp.  655; 
Williams  v.  Glenny,  16  N.  Y.  389; 
Harrison  v.  Avers,  18  Hun  (N.  Y.) 
336. 

56.  Cliarnley  v.  Sibley,  73  Fed. 
980;  Pynchon  v.  Day.  118  III.  9,  7  N. 
K.  65;  Fraley  i\  Bisphani,  to  Pa.  St. 
320,  51   .\m.  Dec.  486. 


AND  ACCOUNTS  STATED. 


171 


(,D.J  No  iMi'LiCATioN  IN  AusKNcic  t)i'  Pkevious  Deauincs.  —  l^ailurc  1(J 
object  does  not  raise  an  implication  of  assent  nnless  the  party  ren- 
dering and  the  party  receiving  the  account  had  had  deahngs  on 
which  the  account  is  based. ^' 

An  Account  Against  a  Deceased  Person  rendered  to  his  legal  repre- 
sentative and  not  objected  to  is  not  evidence  of  a  stated  account.'^" 

LUit  the  account  may  be  stated  between  the  party  to  be  charged 
and  the  creditor's  assignee.'*" 


57.  California.— li3.X.\.  Cycle  M. 
Co.  V.  San  Diego  C.  Co.,  135  Cal. 
335,  67  Pac.  280. 

Florida. — Martyn  v.  .\riiold,  36 
Fla.  446,   18  So.  791. 

Missouri. — Powell  v.  R.  R.  Co.,  65 
Mo.  658. 

Ne'M  York. — Austin  v.  Wilson,  si 
N.  Y.  St.  503,  II  N.  Y.  Supp.  565; 
Kellogg  V.  Rowland,  40  App.  Div. 
416;  57  N.  Y.  Supp.  1064;  Callahan 
V.  O'Rourke,  17  App.  Div.  277,  45'  N. 
Y.  Supp.  764;  Porter  v.  Labach,  2 
Bosw.  (N.  Y.)  188.  See  also  Burst 
V.  Jackson,  10  Barb.   (N.  Y.)  219. 

Pennsylvania. — Spangler  v.  Spring- 
er, 22  Pa.  St.  454- 

Retention  of  Account  and  Partial 
Payment — M,  as  attorney  .for  a 
judgment  creditor,  collected  rents  on 
real  estate  of  the  debtor  in  e.\cess  of 
the  amount  due  upon  the  judgment. 
He  rendered  a  statement  to  C,  the 
debtor,  of  the  excess,  deducting  cer- 
tain commissions.  C  did  not  object 
and  received  a  payment  of  a  part  of 
the  balance  admitted  to  be  due.  But 
on  tender  of  the  residue,  declined  it, 
insisting  that  the  charge  for  com- 
missions was  not  lawful.  The  ren- 
dering and  retention  of  the  account 
was  held  no  evidence  of  an  account 
stated,  because  there  had  been  no 
contract  relation  between  the  parties. 
Mellon  V.  Campbell,  11  Pa.  St.  415. 
Contrary  Ruling —  In  Avery  v. 
Leach,  9  Hun  (N.  Y.)  106,  it  is 
held  that  mere  proof  of  the  rendition 
and  retention  without  objection  of 
an  account,  makes  it  a  stated  ac- 
count, although  defendant  insists 
that  goods  were  sold  to  his  son  and 
for  his  son's  benefit  and  without  au- 
thority  from  defendant. 

58.  In  Lambert  -.■.  Craft,  98  N.  \. 
342,  it  was  held  that  an  account 
against  a  deceased  person  which  had 
been   presented   to   his   executor   and 


retained  without  objection,  might  be 
afterwards  made  the  basis  of  a  peti- 
tion to  the  surrogate  for  allowance 
as  a  valid,  undisputed  claim.  The 
presentation  to  and  acquiescence  of 
the  executor  established  prima  facie 
the  accuracy  of  the  account.  Ogden 
V.  Aster,  4  Rob.  311. 

But  in  Schultz  v.  Morette,  146  N. 
Y.  137,  40  N.  E.  780,  the  court  said : 
"  The  doctrine  of  implied  assent  has 
a  much  more  restricted  application 
when  the  plaintiff  relies  upon  the  si- 
lence of  an  executor  to  whom  the 
claim  has  been  presented.  The  ex- 
ecutor is  not  presumed  to  be  person- 
ally cognizant  of  the  transaction.  It 
would  subject  estates  to  great  danger 
if  the  mere  silence  of  the  executor 
should  be  an  admission  of  a  claim 
presented,  so  as  to  relieve  the  clami- 
ant  from  establishing  it  in  the  ordi- 
nary way,  and  put  upon  the  estate  the 
burden  of  establishing  error.  The 
office  of  executor  or  administrator  is 
exceedingly  necessary  and  useful,  and 
must  often  be  assumed  by  persons 
unskilled  in  law,  and  to  infer  from 
mere  silence  on  the  part  of  such  an 
officer  an  agreement  that  the  claim 
is  just,  would  often  contradict  the 
real  intention  and  tend  to  subject  es- 
tates to  payment  of  unfounded 
claims. 

In  Ogden  v.  Aster,  4  Rob.  311 
(332)  it  was  held  that  an  account 
rendered  by  a  surviving  partner  to 
the  administrators  of  the  deceased 
partner's  estate  would  become  an  ac- 
count stated  by  mere  failure  to  ob- 
ject- and  this,  although,  of  the  ad- 
ministrators, one  was  a  female  not 
familiar  with  accounts  and  the  other 
a  relative  of  the  surviving  partner. 

59.     Powell  V.  R.  R.  Co..  65   Mo. 

658:  Ronnell  v.  Mawha,  37  N.  J.  Law 

iq8.  ^     ,, 

The  account  had  been   sent  to   M, 

Vol.  I 


172 


ACCOUNTS.  ACCOUNTING 


An  Account  Not  Due  Presented  and  not  objected  to  ina}'  be  evidence 
to  snstain  an  action  on  an  account  stated  after  the  account  becomes 
payable."" 

The  fact  that  the  account  rendered  is  expHcitly  stated  to  be  sub- 
ject to  correction  does  not  aher  the  effect  of  failure  to  object  within 
a  reasonable  time."' 

(,C.)  Extent  of  Implied  Assent.  — The  assent  implied  is  merely  as- 
sent to  the  correctness  of  the  account,  not  to  the  character  or  capac- 
ity in  which  the  party  is  charged. "- 

(U.;  Rebutting  Implied  Assent.  —  It  may  be  that  an  objection  not 
communicated  to  the  party  rendering  the  account  may  be  proved  to 
negative  the  implied  assent.''^ 

A  declaration  to  the  creditor  of  intention  to  keep  him  out  of  the 
hill  as  long  as  possible  is  inconsistent  with  the  idea  of  assent  to 
the  bill."-' 

The  rule  of  implied  assent  does  not  apply,  unless  the  party  to  be 
charged  is  upon  the  face  of  the  account  rendered,  a  party  thereto, 
or  is  otherwise  clearly  informed  that  the  balance  is  claimed  and 
demanded  as  against  him."'' 


assignee,  and  not  to  the  person  who 
haiJ  made  the  shipment  of  goods,  he 
liaving  failed  and  made  an  assign- 
ment to  M.  It  was  held  that  the 
acconnt  was  properly  rendered  to  M, 
the  assignee,  he  being  the  only  party 
having  a  right  to  demand  it,  and  the 
only  person  having  anthority  to  set- 
tle the  account  and  receive  the  bal- 
ance, if  any  dne.  There  is  no  rule 
that  the  account  can  be  stated  only 
between  the  original  parties.  Thomp- 
son i:  Fisher,  13  Pa.  St.  310. 

60.  Jugla  V.  Trouttet,  120  N.  Y. 
21,  2i  N.  E.   1066. 

61.  Branger  z\  Chevalier,  g  Cal. 
353;  Story's  Eq.  Jur.  §526;  Young 
V.   Hill,  67   N.   Y.    162,  23   Am.   Rep. 

99- 

E.  and  0.  E — An  account  rendered 
having  at  the  bottom  the  usual  ini- 
tials, E.  and  O.  E.,  nevertheless  be- 
cotnes  a  stated  account  unless  ob- 
jected to  within  a  reasonable  time. 
Fleischncr  v.  Kubli,  20  Or.  328,  25 
Pac.   1086. 

But  see  Ingrahain  v.  Lukens,  30  S. 
C.  616,  Q  S.  E.  348;  Harden  v.  Gor- 
don, Ti  P'ed.  Cas.  No.  6047;  Kent  i'. 
Highleyman.  28  Mo.  App.  614. 

62.  The  suit  was  against  the  de- 
fendant survivor  of  a  co-partner.  It 
was  held  that  an  account  rendered 
could  not  be  used  for  the  double 
purpose   of   proving   the    partnership 

Vol.  I 


as  well  as  the  amount  of  the  claim. 
If  an  account  is  presented  to  one 
charging  him  as  liable  with  some 
other  person  as  his  partner,  he  may 
deny  that  relationship,  when  sued 
upon  the  account,  and  the  retention 
of  the  account  without  objection  is 
not  an  acquiescence  in  the  joint  lia- 
bility alleged  in  the  account.  There 
must  therefore  be  proof  outside  of 
the  mere  statement  of  the  account  to 
show  the  defendant  liable  as  partner. 
Kemp  v.  Peck.  35  N.  Y.  St.  780,  13 
N.   Y,   Supp.   112. 

63.  Robertson  z'.  Wright,  17 
Gratt.  (Va.)  534.  In  that  case  the 
party  receiving  the  account  retained 
it  and  merely  indorsed  thereon 
memoranda  of  objections. 

64.  Blanc  v.   Forgay,   5   La.   .\nn. 

695- 

An  acceptor  of  a  bill  on  demand 
for  payment  saw  the  acceptance  had 
been  altered  by  changing  place  of 
payment,  and  stated  that  he  should 
take  such  steps  as  the  law  would 
authorize;  that  he  had  been  prepared 
to  pay,  and  the  holder  could  have  had 
the  money  by  calling  at  his  house; 
.this  was  held  not  the  acknowledg- 
ment of  a  subsisting  debt.  Calvert  v. 
Baker,  4  M.  &  W.  41/.  i  H.  &  H. 
404. 

65.  Davis  v.  Bank.  19  Wash.  65, 
52  Pac.  526. 


.IND  ACCOUNTS  STATED. 


173 


(E.)  Bleden  01-  Pkooi--.  • — After  it  is  shown  that  a  statement  of 
account  was  rendered,  the  burden  is  on  the  one  denying  the  exist- 
ence of  a  stated  account  to  prove  that  objection  was  "made  within  a 
reasonable  time."" 

(F.)  Reasonable  Time  to  Object.  —  What    is    a    reasonable    time 
within  which  to  object  depends  on  the  circumstances  of  the  case,"' 


Illustration.— B  and  M  were  co- 
partners. They  took  into  the  part- 
nership H.  Afterwards,  plaintiff, 
who  had  had  an  account  against  B  & 
M,  remitted  to  H  a  statement  pur- 
porting to  be  against  B  &  iM.  The 
account  was  sent  without  any  state- 
ment expressing  why  it  was  sent,  and 
without  demand  for  payment.  The 
name  of  H  appeared  only  once,  and 
that  in  an  item  as  follows :  "  To 
balance  due  on  settlement  charged  to 
B,  M  &  H."  There  was  nothing  in 
the  account  to  show  wliat  was  in- 
volved in  that  settlement,  nor  why 
it  was  charged  to  B,  JM  &  H.  The 
court  said  that  where  the  account 
stated  is  not  the  result  of  an  ex- 
pressed assent  or  agreement  to  its 
correctness,  the  party  to  be  charged 
must  in  terms  be  a  party  to  the  ac- 
count, or  the  grounds  upon  which 
it  is  sought  to  hold  him  as  a  debtor 
should  be  clearly  made  known  to 
him,  and  a  demand  for  payment 
should  be  made.  Benites  v.  Bicknell, 
(Utah),  ^  Pac.  20(), 

An  Account  Rendered  by  a  Trus- 
tee to  the  Trustor,  though  examined 
by  the  beneficiary,  does  not  become 
by  acquiescence  an  account  stated  as 
to  the  latter.  Andrews  v.  Hobson, 
23  .\\a.  2ig. 

Item  in  Account  Not  on  Its  Face 
a  Proper  Charge — hi  Porter  v.  Lo- 
bach,  2  Bosw.  (N.  Y.)  188,  an  ac- 
count had  been  rendered  to  a  part- 
nership showing  as  one  item  a  loan 
to  T  (not  a  member  of  the  firm  but 
connected  with  it.)  It  was  hell 
tliat  the  account  did  not  become 
slated  as  to  that  'item  by  mere  failure 
to  object. 

66.  Ruffncr  v.  Hewitt,  7  W.  Va. 
585;  Towiies  V.  Birchett,  12  Leigh 
(Va.)   173. 

Contra. — Robertson  v.  Wright,  17 
Gratt.  (Va.)  534,  which  holds  that  it 
cannot  be  presumed  that  no  objection 
was    made,    nierelv    because    none     is 


proved.  Even  if  such  presumption 
could  be  made,  it  would  not  be  com- 
petent to  found  on  it  the  further 
presumption  that  Robertson  admitted 
the  correctness  of  the  account,  for 
that  would  be  to  base  a  presumption 
on  a  presumption,  contrary  to  the 
rules  of  evidence. 

67.  United  States.—  Ta.Xcoit  v. 
Chew,  27  Fed.  273 ;  Allen  West  Com. 
Co.  V.  Patillo,  90  Fed.  628. 

Louisiana. — Freeman   v.    Howell,  4 

La.    Ann.    ig6,     50     Am.    Dec.    561  ; 

Darby  v.  Lastrapes,  28  La.  Ann.  605. 

Missouri. — Brown    v.    Kimmel,    67 

Mo.  430. 

Oregon. — Howell  v.  Johnson,  38 
Or.  571,  64  Pac.  659. 

Pennsylvania. — Porter  v.  Patter- 
son, IS  Pa.  St.  229;  Bevan  t'.  Cullen, 
7   Pa.' St.   281. 

Matters  to  Be  Considered.  —  What 
is  a  reasonable  time  within  which 
one  must  object  or  be  bound  depends 
on  the  relation  of  the  parties  and 
the  usual  course  of  business  be- 
tween them.  The  presumption  of  ac- 
quiescence from  silence  depends  in 
large  measure  on  the  circumstances — 
whether  the  party  is  a  man  of  busi- 
ness and  education,  the  nature  of  his 
business,  the  local  situation  of  the 
parties,  customary  dealings  with  each 
other  and  other  circumstances.  Mar- 
tyn  f.  Arnold,  36  Fla.  446.  18  So. 
791  ;  White  c'.  Hampton,  10  Iowa  2,.8. 
Whether  or  Not  the  Parties  Hid 
Equal  Means  of  Knowledge  as  to 
prices  charged.  Stern  v.  Ladew.  47 
App.  Div.  331,  62  N.  Y.  Supp.  207. 

Between  Merchants  at  Home. 
An  account  which  has  been  prescnteil 
and  no  objection  made  thereto  after 
lapse  of  sufficient  posts,  is  treated 
under  ordinary  circumstances  as  be- 
ing by  acquiescence  an  account 
stated.     Powell   v.    Ry.    Co.,   65   Mo. 

Instances Delay   of   four  months 

unreasonable.     Standard    Oil    Co.    -'. 

Vol.  I 


174 


ACCOUNTS,  ACCOUNTING 


and  so  the  evidence  should  show  when  the  account  was  rendered."'* 
What  is  a  reasonable  time  for  objection,  is  held  to  be  a  question 

for  the  court,  and  not  for  the  jury."" 

(G.)  Failure  to  Object  Prima  Facie  Evidence  Onlv.  —  1'he  failure  to 

object  is  only  prima  facie  evidence.'" 


Van  Etten,  107  U.  S.  325,  i  Sup.  Ct. 
178. 

Delay  of  si.x  months  unreasonable. 
Fleischner  v.  Kubli,  20  Or.  328,  25 
Pac.   1086. 

Delay  of  two  years  unreasonable. 
Longbell  L.  Co.  v.  Stump,  86  Fed. 
574. 

Delay  of  ten  years  unreasonable. 
Baker  v.  Biddle.  2  Fed.  Cas.  No.  764. 

Objection  within  twelve  days  is 
made  within  reasonable  time.  Wig- 
gin  V.  Burkham.  10  Wall.  (U.  S. ) 
129. 

Two  months.  Dows  r.  Durfee,  10 
Barb.   (N.  Y.)   213. 

Delay  of  two  weeks,  where  parties 
live  in  same  city,  tends  to  show  as- 
sent. Mulford  V.  Caesar,  53  Mo. 
App.  263. 

Delay  of  three  months  unreasona- 
ble. Hendy  v.  March,  75  Cal.  566, 
17  Pac.  702. 

Tax  Collector's  Account  of  transac- 
tions running  through  nine  years  and 
involving  between  six  and  seven 
hundred  thousand  dollars  does  not 
become  stated  by  retention  for  thirty- 
five  days.    Lott  v.  County,  yq  .-Ma.  63. 

The  rule  of  acquiescence  by  failure 
to  object  applies  with  more  force  be- 
tween merchants  in  the  same  county, 
and  yet  more  between  merchants  re- 
siding in  the  .same  town  and  in  the 
daily  habit  of  intercomnuuiication. 
Between  such  a  shorter  period  woull 
give  rise  to  the  presumption.  Townes 
I'.   Birchett,  12  Leigh   (Va.)    I73- 

68.  Hall  V.  Morrison,  3  Bosw.  (N. 
Y.)  520. 

69.  United  States.  —  Toland  v. 
Sprague,  12  Pet.  300;  Talcott  v. 
Chew,  27  Fed.  273;  Long-Bell  L.  Co. 
V.  Stump,  86  Fed.  574 ;  Standard  Oil 
Co.  V.  Van  Ettier,  107  U.  S.  3^5; 
Edwards  x:  Hoffinghoff,  38  Fed.  635: 
Charlotte  Oil  &  Fertilizer  Co.  v. 
Hartog,   85   Fed.    150. 

floritla. — Martyn  i'.  .Xrnold,  ,36 
Fla.  446,  18  So,  7gi. 

Missouri.— VowvU  v.  K.  K.  Co..  65 
Mo.  658;  Brown  v.   Kinnncl,  67   Mo. 

Vol.  I 


4.?0;   McKeen  v.  Bank,  74  Mo.  .\pp. 
281. 

New  York.  —  Knickerbocker  v. 
Could,  115  N.  Y.  533,  22  N.  E.  573; 
Lockwood  V.  Thorne,  11  N.  Y.  170; 
Hutchinson  v.  Bank,  48  Barb.  302. 

Oregon. — Crawford  v.  Hutchinson, 
38  Or.  578.  65  Pac.  84 ;  Fleischner  v. 
Kubli.  20  Or.  328,  25  Pac.  1086. 

Mixed  Question  of  Law  and  Fact. 
In  the  case  of  Wiggins  v.  Burk- 
ham, ID  Wall.  (U.  S.)  129,  it  is  said 
that  the  proposition  that  what  is  rea- 
sonable time  in  such  cases  is  a  ques- 
tion for  the  jury  cannot  be  sustained. 
That  where  the  facts  are  clear  it  is 
always  a  question  for  the  court ; 
that  where  the  proofs  are  conflicting 
the  question  is  a  mixed  one  of  law 
and  fact,  and  the  court  should  in- 
struct as  to  the  law  on  the  several 
hypotheses  insisted  on  by  the  parties. 
To  the  same  effect,  Howell  v.  John- 
son, 38  Or.  571,  64  Pac.  659. 

Contrary  Doctrine —  What  was  a 
reasonable  time  was  a  fact  for  the 
jury.  The  rule  that  the  consignor 
iias  a  reasonable  time  of  which  the 
jury  must  judge  within  which  to  ob- 
ject, has  been  so  repeatedly  ruled 
that  it  is  no  longer  an  open  question 
(citing  3  Wash.  151;  12  Johns.  300; 
3  Cow.  381;  I  Johns.  Cas.  lib;  15 
Wend.  431;  17  Mass.  109;  I  Baldwin 
536;  13  Pa.  310;  7  Pa-  281  ;  4  Mason 
296;  8  Eel.  S4-)  Porter  v.  Patterson, 
15  Pa.  St.  229.  See  also  Hollenbeck 
V.  Ristine,  loj  Iowa  448,  75  N.  W. 
^■;5,  67  Am.  St.  Rep.  .^06;  Peter  v. 
Thickstun,  51  Mich.  589.  I7  N.  W. 
68;  Moran  v.  Gordon.  ?,?,  111.  .•\pp. 
46;  Austin  V.  Rickcr,  61   N.  H.  07. 

70.  H;ig/(7iirf.— Chisman  v.  Court, 
2  Man.  &  G.  307. 

United  .SVii/cs.— Freeland  v.  Heron, 
7  Cranch  147 ;  Toland  v.  Sprague.  12 
Pet.  ,300;  llopkirk  v.  Page,  12  Fed. 
Cas.  No.  6607;  Edwards  v.  Hoffing- 
hoff, ,v8  Fed.  635. 

Alabama.— VI.Ke  v.  Schloss,  90  Ala, 
416,  7  So.  802. 


AND  ACCOUNTS  STATED. 


175 


(.H.)  Exi'LANATioN  OR  ExcusE  OF  FAILURE.  — Aiul  iiiav  be  explained 
so  as  to  reliut  the  implied  assent,''  as  by  absence  of  the  one  to  whom 


Illinois. — Moral!  v.  Gordon,  3J  111. 
App.  46. 

loiiv.  —  White  V.  Hampton,  10 
Iowa  238;  Hollen1)eck  v.  Ristine,  105 
Iowa  448,  75  N.  W.  355.  67  Am.  St. 
Rep.  306. 

Missouri. — Sliepard  i'.  Bank,  15 
Mo.  143. 

New  i'tir/^.— Lambert  v.  Craft,  98 
N.  Y.  342;  Gucrnsev  v.  Rexford,  63 
N.  Y.  631;  Yonng  ii.  Hill,  67  N.  Y. 
162,  23  Am.  Rep.  99;  Sharkey  v. 
Mansfield,  90  N.  Y.  227,  43  Am.  Rep. 
161 ;   Champion   1:   Joslyn,  44   N.   Y. 

Pi-iiiisvlvauia. — Vantnes  v.  Richey, 
8  Watts  &  S.  87 :  Verrier  v.  Guillen. 
97  Pa.  St.  63 ;  Sergeant  v.  Ewing,  30 
Pa.  St.  75,  and  36  Pa.  St.  156;  Coe 
V.  Hutton,  I'  Serg.  &  R.  398;  Pierce 
V.  Pierce.  199  Pa.  St.  4,  48  All.  689. 

Question     for     Jury Althongh 

many  cases  hold  that  by  the  mere 
failure  to  object,  an  account  ren- 
dered becomes  unimpeachable,  a 
sound  rule  is  that  such  fact  is  admis- 
sible as  an  acknowledgment.  The 
weight  of  such  proof  being  a  question 
of  fact  for  the  iurv.  Hendrix  r. 
Kirkpatrick,    (Nel).),  67   N.   W.  759. 

Divergent  Rulings —  In  Brown  v. 
Kimmel,  67  Mo.  430,  it  is  said  that 
there  are  cases  in  which  the  pre- 
sumed acquiescence  has  been  consid- 
ered very  slight  evidence  of  the  cor- 
rectness of  the  account,  citiug  Kil- 
1am  V.  Preston,  4  Watts  &  S.  (Pa.) 
14;   Spangler  v.  Springer,  22  Pa.  St. 

454.  ,  .  , 

In  others  the  courts  have  consid- 
ered it  conclusive,  except  where 
fraud  or  mistake  is  clearly  shown, 
citing  Lockwood  ?•.  Thorne,  11  N.  Y. 
170.  The  cases  have  been  decided 
on  the  peculiar  circumstances  of 
each,  and  in  no  case  has  the  implied 
admission  been  declared  an  estoppel, 
but  only  a  prima  facie  case,  throwing 
the  burden  on  the  adverse  party ; 
citing  Philips  •:•.  Bcklen.  2  Edw.  Ch. 
i;  Hutchinson  r.  Bank,  48  Barb.  (N. 
Y.)  302. 

Only  Slight  Evidence — In  the  case 
of  Killam  v.  Preston.  4  Watts  &  S. 
(Pa.)    14,   it   was  held  that  the   ren- 


dering of  an  account  stated,  and  its 
retention  without  objection  is  some 
evidence  of  the  admission  of  its  cor- 
rectness by  the  party  to  whom  it  is 
sent,  but  at  most  very  slight.  And 
it  was  said  in  that  case  that  an  ac- 
count rendered  by  one  partner  to  his 
co-partner  of  their  partnership  tran- 
sactions, and  the  retention  without 
objection  by  the  co-partner,  would 
not  of  itself  have  furnished  sufficient 
legal  presumption  that  the  accounts 
had  been  settled  between  the  parties. 
(citing  Lord  Clancarty  v.  Latouche, 
1  Ball  &  Beatt.  428,  and  Irvine  v. 
Young,  I  Simons  &  Stu.  333.)  And 
see  Pratt  v.  Boody,  ?5  N.  J.  Eq.  i/S', 
45   .\tl.   1 1 13. 

Mere  Acquiescence  Not  Sufficient. 

Acquiescence  eveti  for  a  considera- 
ble time  does  not  establish  the  fact 
of  an  account's  being  settled,  unless 
there  are  other  things  in  evidence  to 
justify  that  conclusion.  Allen  v. 
Woonsocket  Co..  11  R.  1.  288. 

Strength  of  Inference  of  Correct- 
ness depends  on  circumstances  of  the 
particular  case.  Hirschfelder  v. 
Lew.  69  Ala.  3SI. 

71.  Ault  V.  Interstate  S.  &  L.  A. 
15  Wash.  627,  47  Pac.  13;  Guernsey 
V.  Rexford,  6^  N.  Y.  631. 

Circumstances  To  Be  Considered. 
The  respondent  was  on  the  Pa- 
cific Coast,  the  parties  with  whom  he 
dealt  in  Europe.  He  shipped  them 
salmon,  agreeing  to  be  chargeable 
with  all  blown  tins  resulting  from 
improper  packing.  The  respondent 
saw  nothing  of  the  goods  after  shin- 
ping,  and  relied  entirely  upon  the 
statements  of  his  consignees,  reposed 
confidence  in  them,  and  when  they 
advised  him  that  the  salmon  had 
proved  bad  in  consequence  of  bad 
packing,  he  naturally  acquiesced. 
He  knew  nothing  of  the  extent  to 
which  the  cargo  had  suflfered  from 
rough  weather.  It  was  held  that  he 
was  not  bound,  it  appearing  that  the 
damage  to  the  goods  did  not  result 
from  improper  packing;  Kinney  v. 
Heatlcy,  13  Or.  35,  7  P^c.  359. 

Where  Account  Does  Not  Purport 
To  Be  Exact. — A  cnnlr.ict   c.illcd  for 

Vol.  I 


176 


ACCOUXrS,  ACCOUNTING 


it  was  sent ;'-  or  where  the  one  receiving  the  account  asked  for 
further  information,  to  which  he  was  entitled,  and  it  was  not  fur- 
nished;"''  or  where  the  person  receiving  the  account  expected  shortly 
to  meet  the  other,  but  was  delayed  by  some  mischance  ;'*  or  by  proof 
of  a  course  of  dealings  between  the  ]jarties,  or  an  understanding 
that  no  such  default  should  be  insisted  upon."^ 

But  mere  press  of  business  is  said  not  to  be  an  excuse.'" 

If  the  relation  between  the  parties  is  such  that  the  one  receiving 
the  account  could  not  safely  object,  no  inference  of  assent  arises 
from  his  failure  to  do  so.'^ 

It  may  be  shown  that  subse<|uently  a  different  statement  of  tlie 
account  was  made  and  assented  to." 

Failure  to  object  raises  no  implication  of  assent  where  the  party 
to  be  charged  had  already  denied  all  liability  ;'"  or  where  the  parties 


a  division  of  profits  over  freightage. 
Statements  were  rendered  showing 
halances  based  on  estimated  freight 
charge.  By  letter,  the  party  account- 
ing said  he  claimed  only  the  actual 
cost.  The  estimate  e.xceeded  the 
cost.  Failure  to  object  by  one  not 
knowing  this,  did  not  render  the  ac- 
count a  stated  one.  Champion  v. 
Recknagel,  6  App.  Div.  151,  39  N.  Y. 
Supp.   814. 

72.  Lockwood  V.  Thorne,  18  N. 
Y.  285 ;  Ault  V.  Interstate  S.  &  L.  A., 
15  Wash.  627,  47  Pac.  iji. 

Absence    of    Partner    in    Special 

Charge  of  Matter  Involved A  bill 

was  presented  to  A  against  A  &  B. 
A  having  no  knowledge  of  the  mat- 
ter, asked  to  have  it  stand  over  until 
he  could  consult  his  partner,  but  re- 
tained the  account  without  objection. 
Held,  that  no  account  was  stated. 
Miller  v.  Bank,  6  Cushm.  (Miss.)  81. 

73.  Ault  V.  Interstate  S.  &  L.  A., 
IS  Wash.  627,  47  Pac.  13;  Carpenter 
V.  Nickerson,  7  Daly   (N.  Y.)  424. 

74.  Lockwood  v.  Thorne,  18  N.  Y. 

28.V 

Or  Called  Repeatedly  Without 
Finding  Him — Carpenter  :■,  Nicker- 
son,  7   Daly    (N.   Y.)    424. 

75.  Lockwood  v.  Thorne,  18  N. 
Y.  285. 

76.  An  account  was  rendered  on 
September  20th,  1881  ;  the  receipt 
was  acknowledged  and  defendants 
promised  to  look  over  the  statements 
and  give  their  views  on  the  matter. 
On  October  .jrd.  plaintiff  drew  for 
(lie  bal.-incc.  and  wrote  that  he  had 
received    nn    further    word.     On    the 


14th  of  October  he  again  complained 
that  he  had  received  no  statement  of 
errors  in  the  account.  October  20th 
plaintiff  telegraphed  defendants  tcf 
send  statements  of  any  objections 
they  had.  Communication  by  mail 
could  have  been  had  in  two  days. 
The  court  said  that  it  would  not  do 
for  a  commission  merchant  to  say 
that  his  business  prevents  him  from 
looking  over  an  account  contracted 
in  the  course  of  that  business.  Tal- 
cott  V.  Chew,  27  Fed.  273. 

77.  In  Wittkowski  v.  Harris,  6^ 
Fed.  712,  it  appeared  that  the  pre- 
vious dealings  between  a  merchant 
and  his  factor  had  not  been  harmo- 
nious or  satisfactory;  that  the  factor 
rendered  an  account  which  was  not 
objected  to.  It  was  held  that  the 
ordinary  rule  requiring  the  principal 
to  dissent  within  a  reasonable  time 
did  not  apply  where  the  relations  be- 
tween the  parties  had  been  such  as 
staled,  and  where  it  appeared  that 
the  factor  had  control  of  the  prop- 
erty of  the  principal  and  the  latter 
had  no  menus  of  adequate  relief  as 
to  wrongful  acts  of  his  unfaithful 
and  dishonest  agent  in  a  foreign 
market;  that  the  question  of  implied 
acquiescence  is  to  be  considered  liy 
the  jury  under  all  the  circumstances 
attending  the  previous  dealings  be- 
tween the  parties  tending  to  show 
their  feelings  and  relations  with  each 
other. 

78.  Dingley  v.  McDonald,  124 
Cal.  90,  56  Pac.  790. 

79.  Hngfer  v.  Roemcr.  71  Wis.  11, 


Vol.  I 


AND  ACCOUNTS  STATED. 


177 


had  before  the  rendering  of  the  aeeount  (hsagreed  as  to  the  balance 
due."" 

Where  an  account  is  rendered  and  approved,  faihire  to  object  to 
a  second  and  a  different  accoimt,  purporting  to  cover  the  same 
matters,  will  not  make  the  latter  a  stated  account.'*' 

(a.)  Payment  and  Demand  As  Evidence  of  Assent.  ■ — Payments  made 
on  an  account  rendered  indicate  assent. "- 

That  a  sum  tendered  as  the  balance  due  on  an  account  rendered 
was  accepted,  is  evidence  to  show  such  account  to  have  been  stated. ■'*■' 


36  N.  W.  618.  See  also  Ryan  v. 
Gross,  48  Ala.  370. 

In  such  a  case  the  accovmt  will  not 
become  stated  against  him  even  if  it 
turns  out  that  he  was  mistaken  in 
supposing  that  he  was  not   liable. 

The  court  said,  when  for  some  in- 
dependent reason  a  person  disclaims 
all  liability,  he  is  not  bound  to  exam- 
ine the  items  of  an  account  rendered. 
or  be  taken  to  have  assented  to  them 
if  he  does  not  object.  In  such  a 
case  he  puts  himself  upon  higher 
ground.  He  says  in  effect  I  have 
nothing  to  do  with  this  account,  and 
I  deny  all  liability  for  anything.  If 
he  fails  in  maintaining  the  position 
he  has  assumed,  it  cannot  be  said 
that  he  admitted  the  correctness  of 
all  the  items  for  the  simple  reason 
that  his  silence  as  to  them  is  not  in- 
consistent with  his  subsequent  denial. 
Quincey  v.  White,  63  N.  Y.  307. 

Refusal  to  Pay  When  Account  Is 
Presented — Peoria  G.  S.  Co.-  :■.  Tur- 
ney,  58  111.  App.  563 ;  Cobb  v.  Arun- 
dell,  26  Wis.  553 ;  Harris  v.  Wood- 
ward.  40   Mich.   408. 

80.  Pierce  v.  Pierce,  199  Pa.  St. 
4,  48  Atl.  689;  Hall  V.  Morrison,  3 
Bosw.  (N.  Y.)  520;  Howell  v.  John- 
son, 38  Or.  371.  64  Pac.  659. 

The  court  charged  that  the  rule  of 
acquiescence  did  not  apply  if  when 
the  account  was  sent,  the  parties  had 
already  come  to  a  disagreement,  be- 
cause then  assent  from  silence  could 
not  reasonably  be  inferred ;  that  if 
the  account  was  furnished  after  it 
was  perfectly  understood  by  both 
that  defendant  did  not  intend  to  pay 
the  money,  the  mere  sending  of  the 
account  would  amount  to  nothing. 
Edwards  v.  Hoffinghoff,  38  Fed.  635. 

81.  Cartwright  7'.  Greene,  47 
Barb.   (N.  Y.)  g. 

82.  Samson  t'.   Freedman.   102   N. 


Y.  669,  7  N.  E.  419;  Hatch  %•.  Von 
Taube,  31  Misc.  468,  64  N.  Y,  Supp. 
393 ;  Charlotte  O.  &  F.  Co.  v.  Hartog, 
85  Fed.  150;  Woodward  v.  Suydam, 
I  r   Ohio  361. 

Statement  Must  Be  Unambigu- 
ous  Althougli  one  makes  a  pay- 
ment on  a  bill,  the  balance  is  not 
an  account  stated  unless  the  bill 
clearly  indicates  the  nature  and 
amount  of  the  demand.  Manion  B. 
&  W^  Co.  V.  Carreras,  26  Mo.  App. 
229. 

83.  Am.  Nat.  Bank  v.  Bushey,  45 
Mich.  135,  7  N.  W.  725;  McCormack 
V.   City    (Mo.),  65   S.   W.    1038. 

Receiving  Remittance  Without 
Objection — If  one  acknowledges  the 
receipt  of  the  account,  communicates 
with  regard  to  the  mode  of  remitting 
the  balance  and  receives  the  remit- 
tance without  any  objection,  it  is 
an  assent  to  the  account.  Bevan  i\ 
Cullen.  7  Pa.  St.  281. 

Cashing  Check  Sent  With  Ac- 
count— An  account  was  rendered 
accompanied  with  a  check  for  the 
balance  shown.  The  account  was 
received  without  objection  and  the 
check  cashed.  It  was  held  that  this 
sufficiently  established  an  account 
stated,  and  in  fact  estopped  the 
plaintiff  from  claiming  a  larger 
balance.  Schuyler  v.  Ross,  37  N. 
Y.  St.  805,  13  N.  Y.  Supp.  944. 

Receipting  "  on  Account."  —  .Ac- 
counts were  submitted  semi-annually 
and  no  objection  was  made  prior  to 
1867.  but  to  the  accounts  rendered 
in  1867  and  1868,  objection  was 
made.  Before  that,  a  receipt  in  full 
had  always  been  given.  Thereafter, 
the  receipt  was  given  on  account. 
The  court  said  the  form  of  a  receipt 
may  be  vital  upon  the  question  of  a 
stated  account.  The  essence  of  the 
principle  is  that  one  party  has  ren- 
voi. I 


178 


A  ceo  UN  TS.  J  ceo  UN  TING 


Paxmcnt  demanded  Ijy  a  eredilnr  in  accordance  wilh  an  account 
rendered  by  the  debtor  estalilishes  tlie  account  as  a  stated  one.** 

e.  Promise  to  Pay.  —  It  is  not  necessary  to  show  an  express 
promise  to  pay  the  balance  agreed  u])on  or  assented  to  as  correct."'' 

Indeed,  unless  a  new  consideration  is  shown,  there  is  a  conclusive 
presumption  of  a  promise  of  immediate  payment.*"' 

Hut  if  in  the  very  act  of  stating  an  account  the  debtor  signs  and 
the  creditor  accepts  a  memorandum  that  the  balance  is  payable  from 
a  certain  fund,  the  creilitor  must  slmw  that  he  can  not  satisfv  his 
claim  therefrom."' 

2.  Special  Modes  of  Proof.  —  .\.    Pkomissouv  Xotks.  —  There  are 


dered  another  an  account,  whicli  he 
considers  full  and  final  as  to  all 
transactions,  included  in  it  to  date, 
and  the  other  party  acquiesces.  Thi; 
use  of  tlie  words  "  on  account  "  in  it- 
self in  receipting  under  such  circum- 
stances shows  that  the  party  signing 
the  receipt  does  not  consider  the  ac- 
count to  wliich  it  refers  a  finality. 
'Fickett  z\  Cohu,  16  N.  Y.  St.  709,  i 
N.  Y.  Supp.  436. 

84.  Lockwood  v.  Thorne,  24  Barh. 
(N.  Y.)  391.  Saine  case  i  Kern. 
170,  18  N.  Y.  28s;  Toland  v.  Sprague, 
12   Pet.    (N.   Y.)    300. 

85.  .McKinster  v.  Hitchcock  19 
Neh.  TOO,  26  N.  W.  705;  Claire  v. 
Claire,  10  Neh.  54,  4  N.  W.  411; 
Knowles  i'.  Michel.  13  East  249; 
Hutchinson  v.  Bank,  48  Barh.  ( N. 
Y.)  302;  Cohh  V.  Arundell,  26  Wis. 
553:  Weed  V.  Dyer,  53  .A.rk,  155,  13 
S.  W.  592 ;  Watkins  v.  Ford,  69  Mich. 
357,  ,37  N.  W.  300;  State  v.  Hart- 
man  Steel  Co.,  51  N.  J.  I,a\v  44(1.  20 
Atl.  67. 

Conflict  in  Early  Pennsylvania 
Cases — In  Killam  v.  Preston,  4 
Watts  &  S.  14,  it  is  said  that  to  main- 
tain an  action  on  an  account  stated, 
an  express  promise  to  pay  must  he 
shown.  Sec  also  Foster  v.  Allanson, 
2  T,  R.  479 ;  Fremont  v.  Coupland, 
2  Bing.  170,  9  Eng.  C.  I,.  367  and  to 
the  contrary,  Rackstraw  t.  Iniher, 
Holt  368. 

But  a  contrary  doctrine,  to  the 
effect  that  tlie  acknowledgment 
that  a  certain  sum  is  due  raises  an 
implied  promise  to  pay  and  the 
anin\nit  is  recovera))le  under  the 
count  for  account  slated,  is  expressly 
announced  in  Tasscy  z'.  Church,  4 
Walts    &•    S.    141,    39    .\m.    Dec.    65, 

Vol.  I 


citing   I   Chittv   ri.   lyi  ;   2   Mod.  44; 
2  T.  R.  480. 

86.     Koebel  t:   Civens,  79   Mo.   77. 

Express  Promise  to  Pay  Later 
Disregarded.  —  The  plaintitT  sent 
goods  to  defendant,  rendering  state- 
ments with  items  and  furnished 
statements  at  the  end  of  each  month. 
After  the  last  delivery  and  the  last 
payment  made  on  account  plaintiff 
rendered  a  statement  of  balance  due 
to  which  balance  the  defendant  made 
no  objection,  but  repeatedly  promised 
to  pay  it,  and  defendant  did  not 
question  the  correctness  of  the  item- 
ized bill,  or  of  the  monthly  accounts. 
The  defendant  urged  that  his  pro:iiis> 
to  pay  was  when  he  got  money  from 
the  railway,  but  it  was  held  that  the 
promise  to  pay  is  implied  and  that  a 
consideration  past  and  e.xecnted  sup- 
ports no  other  promise  than  such 
as  would  be  implied.  Roscorla  z'. 
Thomas,  3  Q.  B.  234.  So  that  any 
promise  diflfering  from  the  implied 
promise,  as  to  pay  on  a  particular 
day,  would  be  of  no  effect  unless 
made  upon  a  new  consideration. 
Hopkins  z:  Logan,  5  M.  &  W.  241  ; 
Broom  Com.  326 ;  Robbins  z'.  Dow- 
ney, 45  N.  Y.  St.  279,  18  \.  Y.  Supp. 
100. 

Account  May  Be  Stated  Although 

Debtor    Refuse   to   Pay Where    the 

correctness  of  an  account  is  agreed 
to,  but  debtor  refuses  to  pay  unless 
creditor  will  release  certain  claims 
growing  out  of  wholly  independent 
transactions,  the  account  neverthe- 
less, is  a  stated  one.  White  v.  Whit- 
ing. 8  Daly  (N.  Y.)  23. 

87.     Montgomerie     v.      Ivors,      17 
Johns.   (N.  Y.)  38. 


.■/A7)  ACCOUNTS  sr.irnD. 


179 


certain    special    nietliods    for   proving   an    account    stated.     Thus   a 
promissory  note  in  an  action  between  maker  and  payee."" 

B.  L)iLi.s  OF  Excii.vNc-,1*..  —  A  Ijill  of  exchange."" 

C.  Di'H  llii.i.s  —  <  )r  a  due  bill  is  e\'idence  to  estalilish  an  account 
stated."" 


88.     England. — Story   v.    Atkins,   2 
Strange  719;  Higlimore  ;■.  Primrose, 
5   .M.  &  Scrg.  6s;   Frver  v.  Roc,   12 
C.    B.   437. 

Canada. — McQueen  j'.  ^IcQneon,  g 
U.  C.  Q.  B.  536. 

Alabama. — Oden  f.  Bonner,  93 
Ala.  393.  9  So.  409. 

Iowa. — Rcnisey  i'.   Duke,   i    Morris 

385.. 

Mississi/^l^i. —  McCorniick  v.  .\h- 
neave,  73   Miss,  86,   19  So.    igS. 

New  Jersey. — Seabury  v.  Bolles, 
51  N.  J.  Law   103,  16  Atl.  54. 

Nezc  Me.vico. — Orr  f.  Hopkins,  3 
N.  M.  45,  I  Pac.  181. 

Neic  York. — Treadwell  v.  .\brams. 
15  How.  Pr.  219;  Wright  z'.  Wright, 
56  N.  Y.  St.  305,  26  N.  Y.  Supp. 
238. 

Pennsyhania. — FairchiKl  z'.  Denni- 
son,  4  Watts  258. 

Note  Payable  to  "  Self  "  and  En- 
dorsed by  Maker  supports  action. 
Wood  V.  Young,  14  U.  C.  C.  P. 
(Can.)    250. 

A  Note  Made  to  an  Agent, 
known  to  he  such  by  the  maker,  is 
evidence  of  an  account  stated  in  an 
action  by  the  principal.  Rliodes  z\ 
Crawford,    i    V.    C.    Q.    B.    (Can.) 

257. 

Non-negotiable     Note Reed     v. 

Reed,  II  U.  C.  Q.  B.  (Can,)  26; 
Rhodes  z'.  Crawford,  I  L'.  C.  v^;-  B. 
(Can.)   257. 

Note  Must  be  Over  Due  at  com- 
mencement of  action.  Hill  i'.  l.ott. 
13  U.  C.  Q.  B.   (Can.)   465. 

Interest  Recoverable  According 
to  Note-— Young  z:  Fluke,  15  L'.  C. 
C.   P.   (Can.)   360. 

Must  Be  a  Note  Payable  in  Money 
and  unconditionally:  a  note  given  to 
be  paid  off  by  giving  other  security 
will  not  support  a  count  on  an  ac- 
count stated.  Newborn  v.  Lawrence. 
■;  U.  C.  Q.  B.  (Can.)  3^9:  Tvke  r. 
Cosford.   14  U.   C.   C.   P.    (Can.)   64. 

In  Suit  by  Legal  Representative 
of  Payee  against  payor,  such  note  is 


evidence  of  an  account  stated.  May- 
bury  z'.  Berkery,  102  Mich.  126,  60 
N.   W.  699. 

Notes  (jiven  As  Collateral  Secur- 
ity— Where  the  evidence  shows  that 
the  course  of  business  between  the 
parties  was  for  one  to  give  the  other 
notes  not  representing  sums  due, 
but  intended  to  show  as  collateral 
security  for  any  indebtedness  tliat 
might  be  due,  such  notes  are  not  evi- 
dence of  a  settlement  or  an  account 
stated.  Hill  z:  Durand,  58  Wis.  160, 
15    N.   W.   390. 

Note  for  Interest  Due  on  Another 
Note,  the  amount  of  which  is  stated, 
is  evidence  to  support  an  action  on 
account  stated  for  the  amount  of 
the  principal  note.  Perry  i'.  Slade, 
8  Q.  B.  115,  15  L.  J.  Q.  B.  10,  10 
Jur.  31. 

But  Not  if  the  Action  Is  Between 

Indorsee     and     Indorser Bird     v. 

Legge,  7  D.  P.  C.  814;  5  M.  &  VV. 
418;  Jardine  v.  Payne,  i  Barn.  & 
A.  663,  9  L.  J.   (O.  S.)   K.  B.   129. 

Note  Not  Properly  Stamped  Will 
Not  Support  Account  Stated Mc- 
Kay z\  Grinley,  30  U.  C.  Q.  B. 
(Can.)    54. 

89.  Orr  v.  Hopkins,  3  N.  M.  45, 
I  Pac.  181  ;  Anthony  z'.  Savage,  3 
Utah  277,  3   Pac.  546. 

Orders  on  a  Merchant,  drawn  by 
an  employer  in  favor  of  laborers  and 
to  be  paid  out  of  the  laborers'  wages. 
Bull  v.  Brockway,  48  Mich.  S23,  12 
N.  W.  685. 

Only  Between  Parties  to  Bill. 
Stephens  z:  Berry,  15  U.  C.  C.  P. 
(Can.)    543. 

90.  England. — Graves  Z'.  Cook,  2 
Jur.  (U.  S.)  475;  Lemere  Z'.  Elliott. 
6  H.  &  N.  656,  30  L.  J.  Ex.  350; 
Payne  Z'.  Jenkins,  4  Car.  &  P.  .^24, 
U  Rev.  Rep.  8og ;  Douglas  z:  Holme, 
4  P.  &  D.  68s.  12  Ad.  &  E.  641 ;  Buck 
z:  Hurst,  L.  R.  I  C.  P.  297,  12  Jur. 
(U.  S.)  704;  Highmore  z:  Prim- 
rose. 5  M.  &  S.  65. 

.'tlahawa. — Carlisle     v.     Davis,     9 

Vol.  I 


180 


A  ceo  UN  rs.  J  ( 'CO  UN  TING 


D.  SiiALiiu  Ixs'iKUMENTS. —  liiit  ail  iiislriiiiR'iit  uiidcr  seal  can- 
not be  used  as  evidence  for  plaintiff  suing  upon  an  account  stated.'" 

E.  Awards  and  Judgments.  —  An  award  made  under  a  parol 
submission  may  be  evidence  to  sustain  a  count  upon  an  account 
stated."- 

An  award  void  as  such,  is  sometimes  evidence  of  an  account 
stated. '■'■■ 

But  not  a  judgment.''* 

F.  Admissions  oi'  Inukuticdness. — If  a  fixed  sum  is  admitted 
to  be  due,  for  which  an  action  would  lie,  that  will  be  evidence  of  an 
account  stated.''^ 

It  has  been  held  thai  one's  mere  oral  statement  that  he  owes  a 


Ala.  (N.  T.)  85S;  .Mills  7:  Geron,  22 
Ala.   669. 

Iowa. — Frost  v.  Clark,  82  Iowa 
298,  48  U.  W.  82. 

PeiDisyk'ania. — Barry  v.  White,  59 
Pa.  172. 

Tyke  V.  Cosford,  14  U.  C.  C.  P. 
(Can.)    64. 

"  Good  to  Mr.  Palmer  for  $850  on 
demand."  Palmer  v.  McLennan,  22 
U.  C.  C.   P.    (Can.)   258. 

91.  iMiddleditch  v.  Ellis,  2  Ex. 
523;  Yonng  V.  Hill,  67  N.  Y.  162,  23 
Am.  Rep.  99;  Baker  r.  Heard,  S  Ex. 
959,  2  L.  J.  Ex.  444. 

Compare  State  ?■.  Jennings,  10 
Ark.  428. 

But  see  Chapman  v.  Lee,  47  Ala. 
143,  where  a  contract  for  the  sale 
of  land  sealed  by  one  of  the  parties, 
apparently  not  by  the  other,  and  a 
deed  of  conveyance  executed  in  pur- 
suance thereof,  were  admitted  in 
evidence  of  the  amount  of  the  ac- 
count stated ;  but  the  point  mentioned 
in  the  text  was  not  considered.  And 
see  also  contrary  to  the  text  Hoyt  v. 
Wilkinson,    10    Pick.    (.Mass.)    31. 

92.  Gooding  v.  Hingston,  20  Mich. 
439;  Bates  V.  Curtis,  21  Pick,  (Ma^s. ) 
247. 

An  Award  Followed  by  the  Ad- 
mission of  the  Balance  Due  is  evi- 
dence of  an  account  stated.  Busch- 
nian  v.   Morling,  30   Md.  384. 

93.  Montgomcrie  v.  Ivcrs,  17 
Johns.  38.  But  see  Ruthven  v. 
Ruthven,  18  U.  C.  Q.  B.   (Can.)    12. 

94.  Gooding  7'.  Hingston,  20  Mich. 
439.  (In  that  case  the  plaintiff 
sought  to  introduce  the  record  of  a 
foreign  judgment  to  sustain  his  ac- 
tion  on   account   stated.) 

Vol.  I 


In  Hall  V.  Odber,  11  East  118,  10 
Rev.  Rep.  443.  it  is  held  that  a 
foreign  judgment  in  favor  of  the 
plaintiff  confirms  his  evidence  of  an 
account  stated  for  an  admitted 
balance;  the  judgment  being  for  the 
same  amount. 

95.  England.  —  Porter  v.  Cooper, 
1  C.  M.  &  R.  387 ;  Finney  v.  Tootel, 
5  C.  B.  504,  17  L.  J.  C.  P.  158. 

Alabama. — Ware  v.  Dudley,  16 
Ala.  (U.  S.)  742;  Ryan  v.  Gross,  48 
Ala.   370. 

C(»i»C(-(i<-i(/.— Mitchell  V.  .\llen,  38 
Conn.    188. 

Delaware. — Parkin  v.  Bennington, 
I  Harr.  209;  Gregory  v.  Bailey,  4 
Harr.   256. 

Illinois. — American  B.  Co.  v.  Ber- 
rier-Mayer  Co.,  83  111.  .^pp.  446. 

A'ciC  Jersey. — Bonnell  f.  Mowha, 
37  N.  J.  Law  198. 

New  l^or/^— Montgomerie  v.  Ives, 
17   Johns.   38. 

An  Indorsement  on  a  Contract, 
as  follows :  "  Reckoned  and  settled 
up  to  this  date  and  found  due  B  on 
this  contract  $92.71  "  is  evidence  of 
an  account  stated  being  signed  by 
the  debtor.  Martin  r.  Beckwith,  4 
Wis.  219. 

An  Admission  Made  in  a  Pleading 
in  Another  Action —  .\mcrican  B. 
Co.  V.  P.erncr-Maycr  Co.,  83  111.  App. 
446, 

Where  No  Antecedent  Debt  Ex- 
isted  If  the  paper  on  its  face  shows 

that  the  promise  to  pay  was  not  based 
011  an  indebtedness  existing  from 
promisor  to  promisee,  the  paper  is 
not  evidence  of  an  account  stated. 
Toms  V.  Sills.  29  U.  C.  Q.  B.  (Can.) 
497- 


AND  ACCOUNTS  STATED. 


181 


certain  sum  to  another  is  evidence  to  sustain  an  action  on  an  account 
stated."" 

G.  VEKiFiiii)  StATiiMiiNTS.  —  Itemized,  verified  statement  admis- 
sible by  statute  to  prove  the  account  in  actions  thereon,  is  not  admis- 
sible in  actions  on  account  stated."' 

3.  Rebutting  Evidence  of  Account  Stated.  —  If  the  defendant 
denies  the  existence  of  a  stated  account,  he  may  show  any  facts 
indicating  that  no  account  was  stated  f  or  may  show  that  it  ceased 
to  exist  as  a  stated  account,  as  by  merger  in  a  judgment  f"  or  that 
the  debt  is  evidenced  by  an  instrument  under  seal  ;^  or  that  it  orgini- 
nated  in  illegal  transactions. - 

Whether  or  not  an  account  has  been  stated,  is  a  question  for  the 
jury,  unless  the  evidence  is  not  in  conflict  and  will  support  but  one 
inference.'' 

4.  Burden   of  Proof   to   Establish.  —  The   burden   of  proving  an 


96.  Ware  z:  Manning,  80  Ala.  238, 
5   So.   682. 

Admission  by  Partner S,  J  &  S 

were  partners.  C  while  in  their 
employ  died.  Two  years  after,  S 
said  the  firm  owed  C  at  the  tiine  of 
his  death  $1100.00.  This  was  held 
to  be  evidence  of  an  acconnt  stated 
hetwecn  C.  himself  and  the  firm. 
Cnnningham  v.  Snhlett.  4  AIo.  224. 

Admission    to    Third    Party A 

statement  by  the  party  to  be  charged 
made  in  conversation  w'ith  B  that 
he  was  indebted  in  a  certain  sum  to 
"  A "  is  not  evidence  of  an  account 
stated  in  an  action  by  "  A."  unless 
"  B"  was  "  A's  "  agent.  Thurmond 
V.  Sanders.  21  Ark.  255 :  i  Chitty's 
PI.  359;  Hoffar  V.  Dement,  5  Gill. 
(MdV)  132,  46  Am.  Dec.  628; 
Rreckon  v.  Smith,  I  Ad.  &  E.  489: 
Curtis  V.  Falindall.  3  U.  C.  O.  B. 
fCan.)  323;  Green  v.  Burtch,  i  U.  C. 
C.  P.  (Can.)  313. 

Admission  Must  Be  to  Party  or 
Agent — McMurtey  v.  Munro,  14  U. 
C.  Q.  B.  (Can.)  166:  Breckton  v. 
Smith,  I  Ad.  &  E.  488;  Bates  v. 
Townley.  2  Ex.  152. 

Accounting  Proved  by  Admission 
to  Third  Party — An  admission  to  a 
third  party  that  an  accounting  has 
been  made  and  that  a  certain  sum  is 
due  thereon  may  support  an  action 
oil  account.  Rloomlev  t'.  Gruiton.  i 
r.  C.  C.  P.  fCan.")  30q;  Green  z: 
Bnrtch.  I  U.  C.  C.  P.  (Can.)   113. 

97.  Comer  f.  Way,  T07  Ala.  300. 
TO    So.    066,    54    .\m.    St.    Rep.    93. 


Examine    McCamant    v.    Batsell,    59 
Tex.    363. 

98.  Hawley  v.  Harran.  79  Wis. 
379,  48  N.  W.  676;  McCall  V.  Nave, 
S2   Miss.   494. 

Payments  Prior  to  Alleged  State- 
ment— Defendant  may  show  pay- 
ments previous  to  the  date  of  the 
stating  of  the  account.  The  existence 
of  the  account  stated  having  been 
put  in  issue,  because  such  nayments 
go  to  disprove  the  allegations  that 
there  was  an  account  stated.  Kamin- 
sky  V.  Mendelson.  25  Misc.  500,  54 
N.    Y.    Supp.    loio. 

May  Show  That  the  Attempted 
Settlement  Was  Made  on  Sunday. 
Melchon  v.  McCarty,  31  Wis.  252, 
II   Am.  Rep.  605. 

May  Show  That   it  Was  Induced 

by     Fraud Upton     v.     Ecdluw,     4 

Daly    (N.    Y.)    216. 

99.  Trailed  v.  Dwyer,  61  N.  Y. 
Supp.  iioo. 

1.  Middleditch  v.  Ellis,  2  Ex.  523: 
Baker  v.  Ellis.  5  Ex.  939.  20  I,.  J. 
Ex.  444. 

2.  Wakefield  v.  Farnum,  170  Mass. 
J22.  49  N.  E.  640;  Melchoir  v.  Mc- 
Carty. 31  Wis.  252,  II  AiTi.  Ren. 
fo;;  Rose  V.  Savory,  2  Bing.  (N.  C^ 
ij^'.  t  Hodges  269. 

Debtor  may  prove  that  items  of 
usurious  interest  are  included.  Keane 
7'    P>rand('n.    12   T.n.    .\nn.   20. 

3.  P.nrritt  ?•  Villenei've.  02  Mich. 
.->S2.  ^2  N.  W.  614;  Rosenfield  v. 
Fortier.  9J  Mich.  20.  =;^  N.  W.  ow: 
Dobbs  V.   Campbell    TK-'- V   6^   Pac. 

Vol,  I 


182 


A  ceo  UN  '1  'S,  A  ceo  UN  TING 


account  stated  is  on  him  who  i)leads  it,  whether  as  cause  of  action 
or  as  defense.'' 

5.  Effect  of  Account  Stated  As  Evidence.  —  Except  where  the  law 
of  estoppel  applies,  an  accmnit  stated  is  [>nnia  facie  and  not  conclu- 
sive evidence  uf  the  enrrectness  of  the  halance  shown.'' 

6,  Showing  Fraud,  Mistake  or  Illegality  in  Account  Stated.  —  The 
burden  of  proof  is  upon  one  who  attacks  an  account  stated  on  the 
ground  that  any  items  contained  therein  are  tainted  by  illegality." 

The  burden  is  heavily  on  one  who  would  attack  an  account  stated, 
on  the  ground  of  frauil  or  mistake." 


.289;     Davis     V.     Ticriian,     2     How. 
(Miss.)    786. 

4.  Clark  v.  Marbourg,  33  Kan. 
471,  6  Pac.  548;  McClellan  v.  Crof- 
ton,  6  Me.  307. 

If  the  defendant  set  up  an  account 
staled  as  a  defense  of  an  action  upon 
the  original  account,  he  assumes  the 
burden  of  proving  an  account  stated. 
Allen  V.  VVoonsocket  Co.,  11  R.  I. 
288. 

5.  .\n  account  stated  is  prima 
facie  evidence  of  the  correctness  of 
the  balance  and  not  conclusive,  un- 
less in  arriving  at  the  balance  there 
has  been  some  concession  as  to  dis- 
puted items,  so  that  the  balance  is  a 
compromise ;  or  something  has  been 
done  in  reliance  on  the  accounting 
which  would  put  the  party  claiming 
the  benefit  of  it  in  a  worse  position 
— so  as  to  bring  the  case  within  the 
principles  of  an  estoppel  in  pais.  A 
stated  account  not  affected  by  such 
considerations  may  be  impeached  for 
mistaUe  or   error   in   law   or   in   fact. 

United  States. — Burrill  v.  Cross- 
man,  91    Fed.  543. 

Cinineetieut. — Goodwin  v.  Ins.  Co., 
24  Conn.  591. 

Illinois. — Murray  v.  Carlin,  67  111. 
286;  Pick  v.  Slimmer,  70  111.  App. 
358:  Eddie  V.  Eddie,  61  111.  134; 
Follansbee  v.  Parker,  70  111.   11. 

Kentueky. — Louisville  B.  Co.  v. 
.■\sher,  65  S.  W.   i.U- 

Michigan. — White  i:  Campbell,  25 
Mich.  463. 

Minnesota. — Wharton  v.  .A.nderson, 
28  Minn.  301,  g  N.  W.  860. 

New  Jersey. — Vandervecr  i'.  Stale- 
sir,  39  N.  J.   Law  593- 

Nc<v  Vorh. — Sedgwick  7'.  Macy,  24 
App.  Div.  I,  49  N.  y.  Supp.  154; 
Bergen  z>.  llitchings,  22  .'Xpp.  Div. 
395,  48  N.  Y,   Supp.  96;   Young  v. 

Vol,  I 


Hill,  67  N.  Y.  172,  23  .\m.  Rep.  99; 
Hutchinson  v.  Bank,  48  Barb.  302; 
Sharkey  v.  Mansfield,  90  N.  Y.  2j/, 
43  Am.  Rep.  161. 

Pennsylvania. — /;(  re  Hovey  (.Pa), 
48  Atl.  '311. 

West  I  irginia. — Ruffner  v.  Hewill, 
7    W.    Va.    585. 

Especially   When   Stated  Between 

Attorney     and     Client Cruby     v. 

Smith,    13   ill.   App.   43. 

It  May  Be  Shown  Certain  Items 
Were  Not  Considered. —  Burrill  v. 
Cro^^nlaIl,  yi    Fed.   543. 

Statement  of  Accounts  by  Board 
of  Public  Works — Kinney  v.  Peo- 
ple,  3    Scam.    (  111.)    357. 

Conclusive  IJntil  Leave  Given  to 
Surcharge,  Falsify  or  Open  It. 
Union  Bank  v.  Knapp,  3  Pick. 
(Mass.)   96,  15  Am.  Dec.   182. 

Account  Stated  Is  Something 
More  Than  Prima  Facie  Evidence. 
McKay  i:  Overton,  65  Tex.  82. 

6.  Goodrich  v.  Coffin,  83  Me. 
324,  22  .'Vtl.  217. 

7.  f.nsland. — Chambers  v.  Gold- 
win,  9  Ves.  Jr.  254. 

United  States. — Freeland  v.  Heron. 
7  Cranch  147 ;  Chappedelaine  Z'. 
Dechenaux,  4  Cranch  3CK) ;  Charlotte 
O,  &  F.  Co.  r.   Harlog,  85  ted.   150. 

.■Itaba]}ia. — Ware  v.  Manning,  86 
Ala.  238,  S  So.  682;  Walker  v. 
Driver,  7  Ala.  (U.  S.)  679;  Langdon 
V.  Roane,  6  Ala.  (U.  S.)  518,  41  Am. 
Dec.  60. 

Arkansas.  —  Moscowitz  !■.  Lcnip 
(Ark.).   12  S.   W.  781. 

California. — Polhenius 
50   Cal.    438:    B  ranger   j 
9  Cal.   353. 

Florida. — Marlyn 
Fla.   446,    18   So,   701. 

Illinois. — I'uH    7'.    Harris 
487. 


'.    Hciman, 
:'.    Chevalier, 

Ani..l.I.     3f) 

31     111. 


.IND  ACCOUNTS  STATED. 


183 


Admissions  by  the  assignor  of  the  account  made  after  the  assign- 
ment are  not  competent  to  show  errors  in  the  account,*  and  unless 
one  can  show  fraud  or  mistake,  he  cannot  go  into  tlie  justness  of 
the  items  of  a  stated  account.'' 


Kansas.  —  Dobbs  v.  Campbell 
(Kan.)  63  Pac.  289. 

Missouri. — Shepard  v.  Bank,  15 
Mo.  143 ;  McCorniick  v.  Interstate 
etc.  Co.,  154  Mo.   191,  5S  S.  W.  252. 

Nebraska. — Keimedv  v.  Goodman, 
14  Neb.  58s,   16  N.  W.  834- 

Nczc  Jersey. — Brown  v.  Van  Dyke, 
8  N.  J.  Eq.  795,  5S  Am.  Dec.  250. 

A^cic  York. — Lockwood  v.  Thorne, 
II  N.  Y.  170;  Stenton  v.  Jerome, 
54  N.  Y.  480 ;  Valentine  v.  Valentine, 
2   Barb.   Cb.   430. 

Nortli  Dakota.  —  Montgomery  v. 
Fritz,  7  N.  D.  348,  75  N.  W.  266. 

Oregon. — Hoyt  v.  Clarkson,  23 
Or.  51,  31  Pac.  198;  Fisk  v.  Basche, 
31   Or.   178.  49   Pac.  981. 

Peiinsyk'aiiia.  —  Sbillingford  i'. 
Good,  95  Pa.  25. 

I'irginia. — Camp  i'.  Wilson,  97  Va. 
265.  33   S.   E.  591. 

U'asliiiigtoii.  —  Baxter  v.  Locket 
(Wash.)  6  Pac.  429. 

West  I'irginia.  —  Shrewsbury  v. 
Tufts,  41  W.  Va.  212,  23  S.  E.  692. 

IViseoiisin.  —  Marsh  i'.  Case,  30 
Wis.  531. 

Whether  Established  by  Implied 
or  Express  Assent  the  liurden  of 
showing  incorrectness  is  thrown 
upon  the  party  charged.  ^IcKinster 
V.  Hitchcock,  ig  Neb.  100,  26  N.  W. 
705. 

Clearest  and  Most  Positive  Proof 
of  fraud  or  mistake  required.  Case 
V.  Fish,  58  Wis.  56,  15  N.  W.  808; 
Hovt  r.  McLaughlin,  52  Wis.  280, 
8  N.  W.  88g;  Klauber  v.  Wright,  S2 
Wis.  303,  8  N.  W.  893. 

Clearest  Evidence  of  Mistake 
required  to  open  an  account  stated  in 
absence  of  a  showing  of  fraud. 
Stern  v.  Ladew,  47  App.  Div.  331, 
62  N.  Y.  Supp.  267;  Allen-West  Com. 
Co.  V.   Patilo,  90  Fed.  628. 

Where  the  Balance  Has  Been 
Paid  stronger  evidence  is  required  to 
overcome  the  settlement  than  where 
the  balance  has  sini])ly  been  agreed 
upon.  Nolte  7'.  Leary,  14  Mo.  App. 
598 ;    Branger    ?'.    Chevalier,    9    Cal. 


3n3 ;    Chambers    v.    Goldwin,   9    Ves. 

Jr.    254. 
Person  Receiving  Account  Aware 

of  Fraud — Fraud  or  mistake  may  be 
proved,  although  the  person  to  whom 
the  account  was  rendered  was  aware 
of  such  fraud  or  mistake  when  the 
account  was  rendered  and  did  not 
object  thereto.  Baxter  i'.  Lockett 
(Wash.),  6  Pac.  429. 

But  not  where  there  was  an 
express  assent  to  the  account. 
Marmon  v.  Waller,  53  Mo.  App.  610; 
Quinlan  v.  Keiser,  66  Mo.  (X)3 ;  Can- 
non z'.   Sanford.  20  Mo.   App.   590. 

Guardian's   Accounts In    Moore 

v.  Felkel,  7  Fla.  44,  it  is  held  (p. 
69)  that  the  accounts  of  an  executor 
who  is  also  guardian  cannot  be 
deemed  stated  as  to  the  minor,  but 
that  the  onus  must  remain  upon  the 
e.vecutor  where  the  attempt  is  made 
to  falsify,  but  on  the  complainant 
as  to  items  of  surcharge. 

LIpon  the  issue  whether  or  not  a 
mistake  occurred  in  stating  an  ac- 
count, the  accounts  of  the  parties 
used  in  stating  the  account  are  rele- 
vant as  part  of  the  res  gestae.  Madi- 
gan  V.   DeGrafif,   17   Minn.   52. 

8.  State  V.  Jennings.  10  Ark.  428. 

9.  United  States.  —  Perkins  v. 
Hart    II    Wheat.   237. 

.Alabama. — Rembert  v.  Brown,  17 
.Ma.  667;  Hunt  v.  Stockton  L.  Co., 
113  Ala.  387,  21   So.  454. 

.-irkansas. — Roberts  i:  Totten,  13 
.\rk.  609 ;  Moscowitz  v.  Lemp 
(Ark.),  12  S.  W.  781:  Weed  -.-. 
Dyer,  53  Ark.  155,  13  S.  W.  592: 
I^anier  v.  Union  etc.  Co.,  64  Ark. 
39.   40   S.   W.   466. 

Conneetieut. — Chatham  r.  Niles,  36 
Conn.  403 ;  Nichols  i'.  Alsop,  6  Conn. 

477- 

Florida.— La.  Trobe  v.  Hay  ward,  13 
Fla.  190. 

Illinois. — Gottfried  B.  Co.  v.  Szar- 
kowski.  79  111.  App.  583. 

^^assaellnsetts. — Farnam  v.  Brooks, 
0  Pick.   212. 

Minnesota. — Warner  v.  Myrick.  16 
Minn.  91. 

Vol.  I 


184 


ACCOUNTS,  ACCOUNTING 


liut,  an  account,  tliuuyh  stated,  may  remain  open  to  correction 
in  accordance  with  some  express  agreement  of  the  parties.'" 

7.  Variance.  —  Plaintiff  must  show  a  fixed  and  certain  sum  to 
he  chie,  though  he  need  not  prove  the  precise  sum  laid  in  the  com- 
plaint." 

A  plaintiff  may  give  in  evidence  a  stated  account  for  a  sum  larger 
than  that  for  which  judgment  is  demanded,  and  show  or  adiuit 
paxnients.  reducing  the  balance  to  the  sum  demanded. '- 

8.  Presumption  As  to  What  Included  in  Account  Stated.  —  An 
account  stated  will  be  presumed  in  absence  of  evidence  to  the 
contrarv  to  include  all  items  then  due  from  one  to  the  other.'' 


Missouri. — Kroneiibcrgcr  v.  Biaz, 
56   Mo.    121. 

Ncbnislca.  —  McKinstcr  v.  Hitch- 
cock,  19  Neb.  100,  20  N.  VV.  705. 

Nrw  York. — Morton  v.  Rogers,  14 
Wend.  576;  Hutcliinson  v.  Bank,  48 
Barb.  302. 

Pennsylvania.  —  Miller  v.  Probst. 
Add.  344;  Kirkpalrick  v.  Turnbull, 
.\dd.   259. 

Soxttli  Carolina. — Gem  Chemical  Co. 
V.  Youngblood,  58  S.  C.  56.  36  S.  E. 

437- 

Soutli  Dakota.— W-dXc  v.  Hale,  14 
S.  D.  644.  86  N.  W.  650. 

Tennessee. — Bankhead  v.  .-Mloway, 
6  Cold.  s6. 

Utah.  —  Lawler  v.  Jennings.  18 
Utah  35,  55  Pac.  60. 

I'irginia. — Neff  v.  Woodnig.  83 
Va.  4.3^,  2   S.  E.  731- 

Wisconsin. — Martins  v.  Beckwitb. 
4  Wis.  219:  Hawley  v.  Harran,  -g 
Wis.  379.  48  N.  W.  676. 

Going  Into  the  Account.  —  The 
defendant  cannot  show  the  char- 
acter of  work  or  labor  done  for 
the  pnrpose  of  proving  that  it  was 
valneless;  that  would  be  to  go  be- 
hind the  settlement  and  open  up  the 
whole  merits  of  the  antecedent   tran- 


saction.     Koegel    V.    Givens,    79    Mo. 

^10.  Tronp  I'.  Haight,  Hopk.  Ch. 
{ N.  Y.)  239;  Camp  v.  Wilson,  97 
Va.  265,  33  S.  E.  591;  \,aldron  v. 
Evans.  I  Dak.   11,  46  X.  W.  607. 

But  the  Burden  Is  Still  on  Him 
Who  Seeks  to  Correct  It. —  .McKay  v. 
Overton.  65   Tex.   82. 

11.  Ware  v.  Manning,  86  .Ma. 
238,  5  So.  682. 

12.  Thompson  v.  Smith.  82  Iowa 
598.  48  N.  W.  988.  See  I.oventbnl 
I'.   Morris,   103  Ala.  332,   15   So.  672. 

13.  Taylor  v.  Thwing,  21  Misc. 
76,  46  N.  Y.  Supp.  892:  Johnson  v. 
Johnson,    4    Call     (Va.)    38. 

But  it  may  be  shown  that  certain 
matters  were  by  agreement  omitted. 
Waldron  v.  Evans,  i  Dak.  II.  46  N. 
W.  607;  ]\Iills  V.  Geron,  22  .Ala.  669; 
Rvan  V.  Rand,  26  N.  H.  12. 

The  Burden  of  Proof  is  on  the 
defendant  to  show  that  his  account 
then  due  was  not  taken  into  con- 
sideration in  the  settlement.  Keller 
V.  Keller.  18  Neb.  .?66,  23  N.  W. 
364:  Ryan  v.  Rand,  26  N.  H.  12.     . 

Items  Not  Due  not  presmncd  to  be 
included.  Beebe  v.  Smith  (111.),  62 
N.  E.  856. 


Vol.  I 


ACCRETION.— See  Boundaries. 


ACCUSED.— See  Competency;  Credibility;  Character. 


ACKNOWLEDGMENTS. 

Bv  Lewis  R.  Works. 


I.  DEFINITION,  iS6 
II.  HOW  EVIDENCED,   186 

III.  THE  CERTIFICATE,   187 

1.  .Is  Evidence,  187 

A.  Gcncrallv,  187 

B.  Of  Authority  of  Officer,  188 

C.  Of  Sipiatuie  of  Officer,  188 

D.  Of  Execution,  188 

E.  Of  Capacitv  to  Execute,  i8ij 

F.  Of  Delivery,  189 

2.  Aider  Of.  190 

A.  By  Presumption,  190 

a.  Authority  of  Officer,  190 

b.  Venue.  191 

c.  Seal,  191 

d.  Date,  192 

e.  Defective  Statements  and  Omissions,  192 
r>.  By  Evidence.  193 

a.  Authority  of  Officer.  193 

b.  Venue,  194 

c.  Seaf.  194 

d.  Da/f,  195 

e.  Defective  Statements  and  Omissions.  196 

3.  hnfeachment  Of.  197 

A.  Burden  of  Proof.  197 

15.  /='or  /^ro;»/.  Dnre.<;s.  Etc.,  198 

C.  Competency  and  Sufficiency  of  Evidence,  200 

a.  Nezalivim:  Recitals  of  Certificate.  200 

b.  Of  0/f/rn-  Makiui;  Certitlcate.  202 

c.  0/  il/ffAvr  o/"  il/a/;;  In.ttrumenf,  203 

d.  Disputin^i;  Authority  of  Officer.  203 

Vol.  I 


186 


ACKNOIVLEDGMBNTS. 


c.  Uisputiiii^  Statement  of  /'I'/d/c.  203 
f.  Disputing    Statcinciils    of    I'uct    in    Ccvtili- 
catc,  204 

IV.  BY  MAKRIED  WOMEN,  204 

1.  Aider  of  Certitieate.  204 

A.  By  Presumption,  204 

B.  By  Evidence,  205 

2.  Impeaehment  of  Certificate.  2of) 

A.   Testimony  of  Husband  and  Wife  Alone,  20G 


CROSS-REFERENCES. 

See  tlie  titles  of  the  various  instruments  of  which  acl<no\vle(lg- 
nients  are  taken,  as  "Dkkds,"  "  Mortgages,"  etc. 

I.   DEFINITION. 

An  acknowledgment  is  the  act  of  a  party  in  appearing  hefore  a 
competent  officer  and  declaring  that  an  instrument  he  has  executed 
is  his  act  and  deed.^ 

II.  HOW  EVIDENCED. 

Cannot  Be  Shown  by  Parol.  —  Accoriling  to  common  practice  and 
under  statutory  enactments  which  obtain  everywhere,  an  acknowl- 
eilgmcnt  is  projierly  evidenced  by  the  certificate  of  the  officer  taking 
it,  known  as  a  certificate  of  acknowledgment  or  as  a  certificate  of 
probate,  and  under  ordinary  circumstances  it  cannot  be  shown  by 
parol. - 

Exception Ancient  Instrument. —  It  has  been  held,  however,  that 

after  the  lapse  of  a  great  length  of  time  and  the  disappearance  of 
an  instrument,  the  fact  that  its  signer  acknowledged  its  execution, 
and  that  a  certificate  was  attached,  may  be  shown  b\'  evidence 
aliunde.''' 


1.  Anderson's  Die.  Law. 

2.  Bellas  v.  M'Carly,  10  Watts 
(Pa.)  1,3;  Patterson  t'.  Stewart,  10 
Watts  (Pa.)  472;  Rollins  r'.  Mcnager, 
22  W.  Va.  461  ;  Stayner  v.  .'^pplegate, 
8  U.  C.  C,   P.    (Can.)   4^1. 

Must  Be  Written "  the  defend- 
ant proposed  to  prove  title  to  the 
premises  demanded,  to  he  in  one 
Seth  Stoddard,  and  to  this  end  of- 
fered in  evidence  a  deed,  which  had 
never  been  acknowledged  in  writing, 
with  accompanying  testimony,  that  a 
parol  acknowledgment  was  actually 
made.  This  evidence  was  rejected ; 
and   most   correctly.      It    is    provided 

Vol.  I 


by  statnte  that  no  deed  shall  be  ac- 
counted complete  in  law.  to  convey 
real  estate,  but  such  as  is  written, 
witnessed,  acknowledged,  and  rec- 
orded. Tit.  142,  c.  1.  s.  7.  The 
acknowledgment,  to  be  recorded,  must 
necessarily  be  in  writing;  and  such 
is  the  invariable  practice.  To  the 
record  all  men  recur,  for  the  purpose 
of  ascertaining  the  title  of  lands ; 
and  to  satisfy  the  enquiry,  a  writ- 
ten acknowledgment  is  indispensably 
neccs.sary."  Pendleton  t'.  Button,  3 
Cnnu,  406. 

3.     Tiffany  v.  McCund)er.  13  U.  C. 
Q,  B.   (Can.)   159. 


A  CKN  OWLEDGMBN  TS. 
III.  THE  CERTIFICATE. 


187 


1.  As  Evidence. — A.  GiiNiiuALLV.  —  A  certificate  of  acknowl- 
cdiiiiieiit  is  prima  facie  evidence  of  the  material  facts  tlierein  stated."* 

When  Conclusive.  —  And  is  conclusive  of  such  facts  except  in  cases 
of  fraud,  duress,  mistake,  im[)Osition,  or  the  like.^ 


Proof  by  Parol — "  The  secondary 
evidence  of  the  contents  and  of  the 
execution  and  acknowledgment  of  the 
trust  deed  shows  witli  sufficient  cer- 
tainty that  petitioner  joined  with  her 
then  hushand  in  its  execution,  and 
acknowledged  the  same  substantially 
in  compliance  witli  the  statute  then 
in  force.  .  .  .  Conceding,  as  it  is 
thought  must  be  done  under  the  evi- 
dence, that  the  trust  deed  had  at- 
tached to  it  a  certificate  of  acknowl- 
edgment by  an  officer  authorized  by 
law  to  take  acknowledgments  of  such 
instruments,  that  fact  of  itself,  after 
the  lapse  of  28  years,  ought  to  over- 
come the  denial  of  demandant  that 
.she  never  released  her  dower  by  the 
deed  to  Greenebanm  or  otherwise. 
.  .  .  The  name  of  the  officer  who 
took  the  acknowledgment  is  un- 
known, so  that  his  testimony  cannot 
be  had.  It  is  not  known  whether  he 
is  living  or  not.  But  there  is  satis- 
factory proof  there  was  a  certificate 
of  acknowledgement  by  a  proper  offi- 
cer attached  to  the  trust  deed,  and 
that  ought  to  be  regarded  as  evidence 
of  as  high  a  grade  as  that  of  de- 
mandant, who  alone  offers  her  tes- 
timony, after  very  many  years,  and 
after  all  the  original  deeds  and  every 
record  of  them  had  been  destroyed 
by  fire,  to  impeach  the  deed  under 
which  the  title  passed  from  her  then 
hu.sband."  Rerdel  v.  Egan,  125  111. 
298,   17  N.   E.  709- 

4.  United  States.  —  Willink  v. 
Miles,  30  Fed.  Cas.  No.  17,7®;  Un- 
ion V.  Nat.  Life  Ins.  Co.,  104  Fed. 
584;  Van  Ness  v.  Bank  of  U.  S.,  13 
Pet.   17. 

.-!/n;j((»in.— Barnett  v.  Proskauer  & 
Co..  62  Ala.  486. 

California.  —  Baldwin  i'.  Boru- 
heinier,  48  Cal.  4,^.^ ;  Fogarty  v.  Fin- 
lay,  10  Cal.  2.^9,  70  .\m.  Dec.  714. 

lllijwis. — Blackman  v.  Hawks,  89 
ill.  512;  O'Donnell  v.  Kelliher,  62 
Til.  .'\pp.  614;  Ramsay's  F.state  v. 
People.  07   111.   APp.   -JS.V 


Kculnrlx-v. — Woodhead  v.  Foulds,  7 
Bush  2JJ.  ' 

.Marvland. — Davis  v.  Hamblin,  51 
Md.  sl'S- 

.]! iiincsola. — Dodge  t'.  Hollinshead, 
6  .Minn.  25,  80  Am.  Dec.  433. 

Nurtli  Carolina. — Williams  v.  Kerr, 
113  N.  C.  306,  18  S.  E.  501;  Nim- 
rocks  V.  Mclutyre,  120  N.  C.  325,  26 
S.   E.  922. 

Recitals  Prima  Facie  Evidence. 
"  It  has  always  been  held  that  the 
certificate  of  an  officer  authorized  by 
law  to  take  acknowledgments  to  a 
deed,  mortgage  or  other  instrument, 
is  frinia  facie  evidence  of  such  ac- 
knowledgment by  the  makers  of  such 
instruments,  and  it  is  to  be  regarded 
as  having  great  and  controlling 
weight  until  it  is  overcome  by  clear, 
convincing  and  satisfactory  proof. 
.  .  .  In  taking  acknowledgments 
of  deeds,  mortgages  and  other  in- 
struments, an  officer  acts  under  the 
sanction  of  his  official  oath,  and  his 
certificate  of  official  acts,  required  by 
law  to  be  made,  ought  to  be  regarded 
as  of  as  high  a  grade  of  evidence 
as  testimony  given  under  oath.  The 
officer  acting  in  this  case  has  since 
died,  .'\lthough  depri\Td  of  the  tes- 
timony of  the  officer  on  the  witness 
stand,  there  remains  the  presumption 
that  will  always  be  indulged  as  to 
the  certainty  of  an  officer's  acts  done 
in  the  capacity  in  which  he  is  serving. 
.\fter  his  death  his  certificates  of 
official  acts  must  be  heard  to  speak 
for  him,  otherwise  there  would  be  no 
security  for  titles  acquired  under  in- 
struments required  by  law  to  be  ac- 
knowledged before  such  officers." 
Warrick  v.   Hull,   102  III.   280. 

5.  Arkansas. — Meyer  v.  Go^s;tt,  3S 
Ark.  377. 

California. — De.\rnaz  v.  Escandon. 
50  Cal.  486. 

.U/.vj-ii-.fi/'/'/.— Johnston  i'.  Wallace, 
53  Miss.  331,  24  Am.  Rep.  699. 

Ohio. — Baldwin  t'.  Suowilen.  n 
Ohio    St.    203. 

Pennsylvania.  —  Carr     t'.     H.     C. 

Vol.  I 


188 


ACKNOWLEDGMENTS. 


C  Of  Authority  of  Officer.  —  The  certificate  is  [riiiia  facie 
evidence  of  the  authority  of  the  officer  making  it." 

C.  Of  Signature  of  Officer.  —  And  of  the  authenticity  of  his 
signature  as  well.'' 

D.  Of  Execution.  —  The  certificate  is  prima  facie  evidence  of 
the  execution  of  the  instrument  to  which  it  is  attached,*  hut  the 


Frickc  Coke  Co.,  170  Pa.  St.  62,  32 
Atl.  656;  Williams  v.  Baker,  71  Pa. 
St.  476;  Heeter  v.  Glasgow,  79  Pa. 
St.  79,  21   Am.  Rep,  46. 

Texas.  —  Atkinson  v.  Reed  (Te.x. 
Civ.  App.),  49  S.  W.  260;  Wiley  v. 
Prince.  21   Tex.  637. 

]Vcst  J'irsiiiia. — Pickens  z'.  Knise- 
ley.  36  \\\  y-d.  794-  n   S.  E.  :^2. 

Conclusive  in  Absence  of  Fraud. 
■■  The  rule  is  settled  by  our  decisions, 
and  generally  by  the  weight  of  aii- 
.  thority,  that  where  a  mortgage,  or 
other  conveyance,  is  duly  acknowl- 
edged before  a  proper  oflficer,  and 
the  requisite  certificate  of  acknowl- 
edgment is  affixed  in  the  form 
prescribed  by  statute,  this  circum- 
stance constitutes  such  cogent  proof 
of  a  free  agency  and  absence  of 
restraint,  as  to  be  oerfectly  conclusive, 
unless  rebutted  by  clear  proof  of 
fraud  or  imposition  practiced  on  the 
grantor,  in  which  the  officer  or  the 
mortgagee  participated."  Downing 
7'.  Pdair.  75'  Ala.  216;  Atkinson  v. 
Reed  (Tex'.  Civ.  App.),  49  S.  W. 
260;  Cover  V.  Manaway,  im  Pa.  St. 
3^8.  8  .\tl.  393,  2  .\m.  it.  Ren.  '^'^2; 
Williamson  v.  Carskadden.  \6  Ohio 
St.  ofir:  Hartley  v.  Trosh,  6  Tex.  208. 

"  The  certificate  of  the  officer  to 
the  separate  acknowledgment  of  a 
wife  to  a  deed  of  convevance  is  con- 
clusive of  the  facts  therein  stated, 
except  in  cases  of  fraud,  mistake  or 
imnositinn."  Summers  I'.  Sheern 
CTex.  Civ.  Aoo.'),  37  S.  W.  206; 
Holland  v.  Webster  (F\a^,  29  So. 
62y,:  FTenkc  v.  Stacy  (Tex.  Civ. 
.\pp.),  6t  S.  W.  !;oq-  Orser  T'.  Ver- 
non. 14  U.  C.  C.  P.  (Can.-)  =;7t: 
^fonk  V.  Farlinger,  17  U-  C.  C.  P. 
(Can.)  41- 

6.  Keichline  7'.  Keichline.  qj  Pa. 
St.  7=; :  Thompson  v.  Morgan.  6  Minn. 
?02:  Willink  v.  Miles,  i  Pet,  429,  .30 
Fed,  Cas.  No,  17,7(18 :  Tinwricht  7'. 
Nelson.  TO.i;  .Ma,  '09,  17  So.  OT ;  Hard 
i"!»  71.  Curtis,  .iq  Til.  2^T.  Thurman  7'. 
Ca-neron.  21  Wend  (N.  Y.)  87, 
Officer's  Authority.  —  In  Pilaud  7', 

Vol.  I 


Taylor.  113  N.  C,  i,  18  S,  E.  70,  it  is 
said:  "Proof  of  official  character  of 
the  officer  taking  an  acknowled.gment 
is  not  necessary  to  give  it  validity, 
in  the  absence  of  any  statute  requir- 
ing such  proof,  if  the  certificate  pur- 
ports to  have  been  made  by  an  offi- 
cer authorized  by  law  to  take  ac- 
knowledgments, and  is  in  due  form ; 
but  the  certificate  itself  is  prima  facie 
evidence  of  that  fact."  Willink  v. 
Miles.  I  Pet.  C.  C.  429.  .1°  Fed.  Cas. 
No.  17,768;  Grandin  v.  Emmons,  10 
N.  D.  223,  86  N.  W.  723. 

7.  Keichline  7'.  Keichline,  54  Pa. 
St,  75 ;  Granniss  t.  Irvin,  39  Ga. 
22. 

Officer's  Signature — "  The  certifi- 
cates of  acknowledgment  were,  we 
think,  properly  received  in  evidence. 
The  objections  to  them,  if  all  al- 
lowed, would  destroy  almost  entirely 
the  utility  of  the  statutes,  which 
declare  a  probate  or  certificate  of 
acknowledgment  indorsed  by  certain 
officers  upon  a  deed,  to  be  frit"" 
facie  evidence  of  its  execution.  If 
their  official  character,  their  sig- 
natures, and  that  they  acted  within 
their  territorial  Jurisdiction  must  he 
shown  by  extrinsic  evidence,  the 
parly  may  as  well,  and  in  general 
nerhaps  with  more  convenience  to 
himself,  nrocure  the  common  law 
proof.  The  practice  is  to  take  a 
certificate  which  appears  on  its  face 
to  be  in  conformity  with  the  statutes, 
as  proof  of  its  own  genuinene-ss.  It 
need  only  be  produced,"  Thurman 
7',  Cameron,  24  Wend,  (N,  Y.")  87. 

8.  Tnnison  v.  Chamblin,  88  111. 
^78:  .Mbanv  Co.  Sav.  Rank  v.  Mc- 
Carly,  ,=;4  N.  Y.  St.  577,  24  N.  Y. 
Sunn.  991;  .^ndrews  v.  Reed  (Kan."). 
.iS  Pac,  20:  Shelden  7'.  Freeman,  tt6 
■^T^ch,  646.  74  N.  W,  T004;  North- 
western I.o.nn  &  Ranking  Co,  v. 
Tonasen,  IT  S,  D.  ,^66.  79  N,  W.  840: 
Peonle  7',  Snvder,  41  N.  Y,  .W7'. 
P.orland  7'  Walrath.  i^  Iowa  i.so; 
P.n rrv  7'.   Hoffman,  6  Md.  78. 

Evidence  of  Execution "  The  cer- 


A  CKN  Oil' LED  GMBNTS. 


IS') 


fact  that  it  shows  the  instrument  to  have  been  acknowledged  subse- 
quent to  its  date  does  not  overcome  the  presumption  that  it  was 
executed  on  that  date." 

E.  Of  Capacity  to  Execute.  —  The  certificate  is  not  evidence 
of  the  capacity  of  the  party  whose  acknowledgment  is  taken  to 
execute  the  main  instrument.'" 

F.  Of  Delivery.  —  The  certificate  is  competent  evidence  upon 
the  question  as  to  whether  there  has  been  a  delivery  of  the  instru- 
ment it  accompanies,"  and  it  shows,  prima  facie,  that  the  deliver)- 
occurred  prior  to  the  date  of  the  acknowledgment.'-     It  has  been 


lificate  of  the  officer  who  took  her 
acknowledgment  is  appended  to  the 
deed,  and  is  in  due  form.  This, 
though  not  conclusive,  is  very  strong 
evidence  of  the  fact  of  execution." 
Van  Onnan  v.  McGregor,  2i  Iowa 
300;  Ramsay's  Estate  v.  People.  97 
111.   App.    283. 

9.  Date       of       Execution "  The 

trust  deed  hears  date  on  the  13th 
day  of  October,  1856,  and  the  notes 
are  by  it  described  as  bearing  even 
date  therewith ;  and  in  the  absence 
of  proof  showing  that  it  was  exe- 
cuted on  a  different  day,  the  date 
specified  will  be  presumed  to  be  the 
true  date  of  its  execution.  It  is  true 
that  it  was  not  acknowledged  until 
the  30th  of  that  month,  but  that  does 
not  prove  that  it  had  not  been  ex- 
ecuted before  that  time."  Darst  t'. 
Bates,   51   111.   439. 

10.  Want  of  Capacity.—"  In  Wil- 
liams V.  Baker,  71  Pa.  St.  476,  the 
court  considered  this  question,  under 
a  statute  requiring  a  separate  ac- 
knowledgment by  married  women  of 
conveyances  of  their  separate  prop- 
erty, and  requiring  also  a  certificate 
very  similar  in  form  to  that  con- 
tained in  §  2508  of  the  Code  of  1886. 
The  wife  sought  to  avoid  her  con- 
veyance, certified  in  due  form,  by 
parol  evidence,  on  the  ground  of  her 
incapacity,  because  of  infancy,  to 
execute  the  same.  The  certificate  of 
the  officer  was  relied  on  as  conclu- 
sive of  the  validity  of  her  deed 
against  an  attack  of  that  kind.  The 
court  said  that  the  form  of  the  cer- 
tificate did  not  make  it  the  duty  of 
the  magistrate  to  ascertain  and  cer- 
tify in  relation  to  anything,  except 
whether  the  woman  executed  volun- 
tarily, of  her  own  free  will  and  ac- 
cord,   without    compulsion    from   her 


husband,  and  that,  inasmuch  as  the 
certificate  is  conclusive  only  of  such 
facts  as  the  officer  was  required  to 
certify,  she  was  not  concluded  by  his 
certificate  from  showing  she  was  a 
minor  when  she  signed.  We  must 
give  a  similar  construction  to  our 
statute."  Thompson  v.  New  Eng- 
land Security  Co.   (Ala.),  18  So.  315. 

11.  Stewart  v.  Redditt,  3  Md.  67 : 
Ford   t'.   Gregory.  10  B.   Mon.    ( Ky. ) 

i/S- 
Evidence     of    Delivery "  Counsel 

contend,  however,  that  it  is  well  set- 
tled in  this  State,  by  the  cases  of 
McConnell  v.  Brown,  Litt.  Sel. 
Cases,  468,  and  Ford  v.  Gregory,  10 
B.  M.,  180,  that  the  acknowledg- 
ment of  a  deed  is  prima  facie  evi- 
dence of  previous  delivery.  In  the 
first  of  these  cases,  the  court  ex- 
pressly says  that  an  acknowledg- 
ment is  merely  evidence  of  the  de- 
livery, but  it  is  not  a  delivery.  .  .  . 
"  The  acknowledgment  is  a  fact 
which  may  be  proven  ;o  show  de- 
livery, but,  standing  alone,  it  does 
not  establish  a  presumption  of  de- 
livery, and,  for  many  good  reasons, 
it  ought  not  to  do  so.  It  only  re- 
quires the  act  of  the  grantor  to 
make  the  acknowledgement,  and  it 
would  be  dangerous  poh'cy  to  allow 
such  weight  to  an  act  of  his  own  as 
to  make  it  prima  facie  evidence  of 
the  important  fact  of  delivery,  which 
requires  the  concurrence  of  the 
grantee."  Alexander  v.  de  Kermel, 
81    Ky.   345. 

12.  Ford  V.  Gregory,  10  B.  Mon. 
(Ky. ;  175;  Scobey  v.  Walker,  114 
Ind'.  254,   15  N.  E.  674. 

Delivery  Antedates  Acknowledg- 
ment.—  "It  is  further  said,  in 
Scobey  v.  Walker  (Ind.  Sup.),  15  N. 
E.  674;   Sweetser  v.   Lowell,   t,t,   Me. 

Vol.  I 


I'M) 


ACKNOU'LEDGMliNTS. 


held  that  though  the  certificate  shows  a  deed  to  have  been  acknowl- 
edged subsequent  to  its  date,  the  presumption  that  it  was  delivered 
on  the  day  of  its  date  is  not  overcome.^-' 

2.  Aider  Of. — A.  By  PRi^suMrtiON. — a.  Authority  of  OfUccr. 
If  a  certificate  of  acknowledgment  is  in  due  form,  it  will  generally 
be  presumed  that  the  ofiicer  luaking  it  had  authority  to  take  the 
acknowledgment." 

Authority  to  Act  Within  Certain  Limits. —  It  will  be  presumed  that 
an  officer  taking  an  acknowledgment  acted  within  the  territorial 
limits  in  which  lie  was  empowered  to  act.''' 


446;  Jayne  v.  Gregg,  42  111.  413;  and 
Ford  r.  Gregory,  10  B.  Mon.  175, 
also  cited  liy  appellant's  counsel,  that 
the  acknowledgment  is  prima  facie 
evidence  of  delivery  oil  the  day  of 
the  date  of  the  deed, — at  least,  on 
some  date  prior  to  the  date  of  ac- 
knowledgmeni.  The  rule  is  well 
established  that,  where  a  document 
purporting  to  be  a  duly  acknowledged 
deed,  with  regular  evidence  of  its 
execution  upon  its  face,  is  found  in 
the  hands  of  the  grantee,  or  if  such 
deed  is  found  upon  the  proper 
records,  a  presumption  arises  that  it 
was  delivered  at  the  time  it  bears 
date,  or  at  some  time  prior  to  the 
dale  of  its  acknowledgment."  Smith 
V.  Scarbrough,  61  Ark.  104,  32  S.  W. 
382. 

13.  Deininger  v.  AlcConnell.  41 
111.  227;  Hardin  v.  Crate,  78  111.  53.^. 

Date  of  Delivery "The  delivery 

of  a  deed  is  always  presumed  to  have 
been  made  on  the  day  of  its  date, 
and  its  subsequent  acknowledgment 
does  not  change  this  presumption." 
Ford  t'.  Gregory.   10  P..    .Mun.    ( Ky. ) 

I7S- 

14.  In  Absence  of  Another  Offi- 
cer  Where  one  officer  has  au- 
thority to  take  acknowledgments  in 
the  absence  of  another.  Init  fails  to 
show  in  a  given  certificate  that  the 
other  was  absent,  it  will  be  presumed 
that  the  acknowledgment  was  prop- 
erly taken.  McKissick  v.  CnUiuhoun, 
18 'Tex.    148. 

Officer     Using     'Wrong     Title If 

.■ill  individual  holds  two  nflices,  under 
only  one  of  which  he  is  empowered 
to  take  acknowlcilgments,  and  in 
acting,  appends  the  title  of  the  wrong 
office  to  his  name  at  the  end  of  the 
certificate,  he  will  be  presumo<I  to 
have    acted    as     the     proper    officer. 

Vol.  I 


Owen  V.  Baker,  loi  Mo.  407,  14  S. 
W.    175.   20   Am,    St.   Rep.   618. 

Exceptions  Where  ±'aper  Ac- 
knowledged in  Another  State  or 
Country.  —  hi  Hayes  v.  Banks  (Ala.), 
.?!  So.  464,  "  the  mortgage  was  ac- 
knowledged in  the  state  of  Miss- 
issippi, before  one  C.  E.  Gay,  who 
styles  himself  as  'chancery  clerk' 
and  "  ex  officio  notary  public'     .     .     . 

■'  A  'chancery  clerk '  of  another 
state  is  not  designated  in  our  statute 
as  one  of  the  officers  authorized  to 
take  acknowdedgments  of  deeds;  and 
in  the  absence  of  an  olhcial  seal  as 
notary  public,  or  other  evidence  of 
notarial  powers,  the  mere  fact  that  he 
styles  himself  '  ex  officio  notary  pub- 
lic '  does  not  aid  the  matter," 

In  McCammon  v.  Beaupre,  25  U. 
C.  Q.  B.  (Can.)  419,  under  a  statute 
admitting  a  deed  of  a  married  woman 
after  execution  "before  a  Court  of 
Record  of  a  foreign  country,"  an 
averment  that  a  certificate  was  ex- 
ecuted before  a  judge  of  a  district 
court  of  Minnesota,  without  averring 
that  that  was  a  court  of  record,  was 
held  bad ;  though  it  could  lie  cured 
by  evidence  that  it  was  such  a  court. 

15.  Failure  to  Specify  County. 
If  the  officer  fails  to  specify  a  county 
in  the  certificate,  it  will  be  presumed 
that  he  was  qualified  to  act  in  some 
jurisdiction  in  the  state  and  acted  in 
the  proper  jurisdiction.  Carpenter  v. 
Dexter,  8  Wall.  (U.  S.)  Si.r,  Fulir- 
nian  v.  London,  13  Serg.  &  R.  (Pa.) 
386,  i.s'  Am.  Dec.  608;  Ross  &  Co.'s 
and  Elsbrec's  Ajipeals,  106  Pa.  St. 
82.  In  the  latter  case  the  court 
said :  "  It  is  further  urged  that  the 
execution  of  the  mortgage  is  worth- 
less as  notice,  in  that  it  does  not  ap- 
pear, in  the  certificate  of  acknowl- 
edgment,   that    the    officer    taking    it 


ACKNOWLUDGMENTS. 


I'n 


b.  I'cnuc.  —  If  a  certilicale  is  defective  in  its  showing  as  to  venue, 
presumptions  will  usually  be  indulged  to  cure  the  defect."' 

c.  Seal.  —  Under  certain  circumstances  a  seal  may  be  presumed 
to  have  been  attached  to  a  certificate  of  the  acknowledgment  of  an 
instrument.'' 


was  a  justice  of  the  peace  for  the 
cotinty  of  Bradford.  'Hie  person 
thus  certifying,  however,  subscribes 
himself  as  a  justice  of  the  peace, 
and,  as  was  said  in  Fuhrnian  v.  Lou- 
don, 13  S.  &  R.  386,  it  cannot  lie 
supposed  that  lie  would  have  received 
the  acknowledgment  of  a  deed  or 
mortgage  for  or  on  lands  in  Penn- 
sylvania, unless  he  had  been  a  jus- 
tice of  the  peace  for  some  county  in 
the  state:  see  also  Angier  i\  Scliief- 
felin,  22  P.  F.  S.  106."  Smith  v. 
Sherman    (Iowa),  85   N.  W.   747. 

Jurisdiction       Presumed       Where 

Place  of  Taking  Stated Where  the 

certificate  shows  that  an  acknowledg- 
ment was  taken  within  a  certain  ter- 
ritory, it  will  be  presumed  that  the 
officer  acted  in  that  territory  and 
that  it  was  within  his  jurisdiction. 
Douglass  V.  Bishop.  45  Kan.  200,  25 
Pae.  628,  10  L.  R.  A.  857;  Thurnian 
V.   Caineron,   24  Wend.    (N.   Y. )    87. 

"The  objection  that  the  certificate 
of  acknowledgment  does  not  show 
for  what  county  the  officer  taking 
the  acknowledgment  had  authority  to 
act,  nor  to  what  county  he  was  an 
ofticer,  is  not  tenable,  because  it  is 
shown  by  tile  certificate  that  it  was 
made  in  Tarrant  county,  Tex.,  and 
it  will  be  presumed  that  the  officer 
acted  in  that  county,  and  that  he 
acted  within  his  jurisdiction."  Cham- 
berlain V.  Pvbas,  81  Te.x.  511,  17  S. 
W.  50. 

Certificate  Not  Stating  'Where  Ac- 
knowledgment Taken.  —  Where  an 
officer  is  authorized  to  take  ac- 
knowledgments at  a  certain  place  and 
his  certificate  does  not  sliow  where 
a  given  acknowledgment  was  taken, 
it  will  be  presumed  that  tlie  act  was 
performed  within  his  territorial  juris- 
diction. Rackleff  v.  Norton,  19  Me. 
274 ;  People  V.  Snyder,  41  N.  Y.  397. 

"  The  acknowledgment  was  taken 
before  a  justice  of  the  peace  in  Dela- 
ware county,  and  is  in  all  things  in 
due  form  except  that  the  certificate 
does  not  state  that  he  took  it  in 
the  town  for  which  he  was  officially 
acting,    the    law    giving    justices    of 


the  peace,  power  to  take  acknowl- 
edgments in  the  towns  in  which  they 
resided.  But  we  think  the  objection 
is  not  tenable.  Where  a  conveyance 
is  acknowledged  before  an  officer 
authorized  to  take  such  acknowledg- 
ments within  the  limits  of  his  juris- 
diction, it  will  be  presumed  that  such 
acknowdedgment  was  actually  taken 
within  such  limits."  Bradley  v. 
West,  60  Mo.  33.  But  see  In  re. 
Hereshall,  109  Fed.  861. 

16.  Failure  to  State  Place  of 
Appearance.  — If  a  certificate  shows 
a  venue  in  the  caption  but  does  not 
recite  that  the  party  appeared  before 
the  officer  in  any  particular  place,  it 
will  be  presumed  that  the  acknowl- 
edgment was  taken  in  the  venue 
named  in  the  caption.  Rogers  v. 
Pell,  154  N.  Y.  518.  49  N.  E.  75; 
Sidwell   V.    Birney,   69    Mo.    144. 

Place  of  Appearance  Presumed. 
"  It  is  said  that  the  certificate  of  the 
privy  e.xamination  and  acknowledg- 
ment of  Mrs.  Creigh  is  faulty  because 
it  certifies  that  she  appeared  before 
the  justice  without  saying  that  she 
appeared  in  a  particular  county.  .  . 
The  certificate  has  the  caption, 
'  State  of  West  Virginia,  Greenbrier 
county,  to-wit.'  It  will  be  presumed 
that  the  act  occurred  in  that  county, 
and  that  the  officer  did  not  do  an 
illegal  act  by  taking  an  acknowledg- 
ment out  of  his  county."  Ben- 
simer  v.  Fell,  35  W.  Va.  15,  12  S.  E. 
1078,  29  Am.  St.  Rep.  774;  Robinson 
V.  Byers,  13  Grant's  Ch.  (Can.)  388; 
Simpson'  v.  Hartman,  27  U.  C.  Q.  B. 
(Can.)   460. 

Failure  to  Show  'Venue.  —  Where 
the  certificate  does  not  show  a  venue 
it  will  be  presumed  that  the  acknowd- 
edgment was  taken  in  a  county  where 
the  main  instrument  was  executed. 
.Doe  ;■.   Peeples.   i   Kelly   (Ga.)   3. 

17.  Record  Not  Indicating  Use 
of  Seal.  —  Tn  the  case  of  a  recorded 
certificate  of  acknowledgment  where 
the  record  does  not  indicate  that  a 
seal  was  used,  but  the  recorded  cer- 
tificate  recites;    "I   have  affixed   luy 

Vol.  I 


l'»2 


A  CKNO  IVLBDG'MEN  VS. 


d.  D(.itc\  —  Failure  to  Show  Date. —  \\  licit'  a  certificate  is  undated 
it  will  be  presumed  that  the  acknowlctlgnieiit  was  taken  on  the  day 
of  the  date  of  the  instrument  to  which  it  is  attached,'*  and  where 
the  certificate  is  not  clear  as  to  date,  it  will  be  presumed,  in  order 
to  give  it  effect,  that  the  acknowledgment  was  taken  after  the 
exectitioii  of  the  instrument  it  accompanies.'" 

e.  Defective    Statements    and    Omissions.  —  No  Presumption  From 


seal  of  office,"  it  will  be  presumed 
that  a  seal  was  affixed  to  the  original 
certificate.  Coffey  v.  Hendricks,  bo 
Tex.  676,  2  S.  W.  47.  in  the  case 
cited  it  was  said :  "  There  was  an 
agreement  in  writing  between  counsel 
that  the  record  of  deeds  might  be 
read  in  evidence,  in  lieu  of  certified 
copies,  and  the  statements  of  facts 
show  that  the  deed  in  question  was 
read  from  the  record,  and  gives  a 
copy  both  of  the  instrument  and  the 
certificate  of  acknowledgment.  The 
attesting  clause  of  the  latter  reads : 
'  In  testimony  whereof,  I  have  here- 
unto set  my  hand,  as  clerk,  and 
affixed  thereto  the  impress  of  my 
seal  of  office,'  etc.  It  is  held,  in 
Ballard  v.  Perry,  28  Tex.  347,  that 
where  a  certified  copy  of  a  deed  is 
offered  in  evidence,  and  the  notary, 
in  his  certificate,  declares  that  he  has 
affixed  his  seal  thereto,  that  it  is 
to  be  presumed  that  liis  seal  was 
properly  attached,  although  its  place 
is  not  indicated  by  the  characters 
ordinarily  used  for  that  purpose." 
Certified  Copy  Not  Indicating  Use 

of  Seal Where  a  certified  copy  of 

a  certificate  of  acknowledgment  does 
not  show  the  scroll  usually  employed 
to  indicate  the  presence  of  a  seal  on 
the  original  instrument  the  fact  that 
it  was  tliere  may  lie  presumed.  In 
the  case  of  Ballard  t'.  Perry.  28  Tex. 
347,  the  court  said  :  "  This  deed  was 
also  objected  to  for  want  of  a  seal 
to  the  notary's  certificate  of  probate. 
The  objection,  if  estaldished,  should 
have  been  sustained.  The  instrument 
offered  in  evidence  was  not  the  deed 
itself,  but  a  certified  copy  of  it,  from 
the  records  of  the  office  of  the  county 
clerk.  The  fad  cannot,  therefure.  _ 
be  determined  by  an  inspection  of 
the  paper  presented  to  the  court. 
But,  as  the  certificate  of  the  notary 
declares  that  be  has  affixed  his  offi- 
cial seal  to  it,  and  the  clerk  should 
not  have  recorded  the  deed  unless 
this  were  the  case,  we  lliink  it  may  be 

Vol.  I 


presumed  that  the  seal  was  properly 
attached,  although  in  the  copy  irom 
the  record  its  place  is  not  indicated 
by  a  scroll  and  the  initial  letters 
{L.  S.),  as  is  customary  in  copies  of 
sealed  instruments.  the  clerk  who 
recorded  this  deed  may  not  have 
supposed   this   necessary   or   proper." 

18.  Rackleff  v.  Norton,  19  Me. 
274;  Doe  V.  Peeples,  i  Kelly  (t.a.) 
3- 

19.  Certificate  Antedating  Main 
Instrument —  I  f.  through  a  clearly 
apparent  clerical  error,  a  certificate 
is  dated  before  the  instrument  to 
which  it  is  attached,  the  acknowledg- 
ment will  be  presumed  to  have  been 
taken  after  the  execution  of  the  in- 
strument. Fisher  v.  Butcher  19 
Ohio  406,  S3  Am.  Dec.  436.  In  that 
case  the  court  said :  "  It  is  only 
necessary  that  the  acknowledgment 
should  be  taken  after  the  deed  is 
executed.  It  is  not  important  that 
it  should  be  taken  at  any  .specified 
tiiue.  If  it  were  made  at  any  time 
1)etween  the  making  of  the  deed  and 
the  bringing  of  the  suit,  it  would  be 
good.  It  appears  from  the  certificate 
that  the  deed  was  made  at  the  time ; 
it  refers  to  it  as  the  above  convey- 
ance, and  certifies  to  an  acknowledg- 
ment of  the  signing  and  sealing 
thereof.  The  paper  itself  sufficiently 
shows  an  acknowledgment  of  the 
deed  after  its  execution,  and  that 
the  contradiction  of  dates  arises  from 
a  clerical  mistake.  An  examination 
of  the  certificate  will  show  how  the 
mistake  occurred.  It  is  a  printed 
form,  with  a  blank  after  the  word 
'  forty,'  for  the  insertion  of  the 
units.  This  blank  was  omitted  to  be 
filled,  and  makes  the  date  read, 
'  eighteen-hundred   and   forty.' 

"  It  being,  then,  a  mere  clerical 
mistake,  which  the  instrument  itself 
sufficiently  corrects,  the  court  were 
right  in  admitting  the  deed  in  evi.- 
dence." 


ACKNOWLEDGMENTS. 


193 


lapse  of  Time.  — Lapse  of  time  creates  no  presumption  in  aid  of  a 
certificate  in  which  a  material  statement  is  omitted.-" 

Notary's  Acquaintance  With  Grantor.  —  Where  a  statute  does  not 
require  the  notary  to  state  in  his  certificate  that  the  grantor  is 
known  to  him,  but  requires  statement  of  proofs  of  his  identity  if 
not  known,  and  proofs  are  not  given  in  the  certificate,  it  will  be 
presumed  that  the  notary  knew  the  grantor.-' 

B.  By  En'IDEnce.  —  a.  Authority  of  Officer. —  Official  Character 
Omitted  from  Certificate.  — Where  the  officer  taking  the  acknowledg- 
ment does  not  state  his  official  character  in  the  certificate,  the  omis- 
sion may  be  corrected  by  proof,--  but  the  contrary  has  been  asserted 
in  some  cases.-'' 


20.  Material  Statement  Omitted. 
"  It  is  urged  that,  after  this  lapse  of 
time,  it  ought  to  be  presumed  that 
Cochran  acknowledged  the  deed. 
The  question  here  is  as  to  the  legality 
of  the  record.  That  depends  upon 
compliance  with  the  law  under  whicli 
it  was  made.  The  law  could  onlj- 
be  complied  with  by  the  statement 
in  the  certificate  of  authentication 
of  those  facts  required  to  be  stated. 
It  is  a  matter  required  to  exist  in 
writing.  There  is  no  room  for  pre- 
sumption on  such  a  question." 
Heintz  v.  O'Donnell,  17  Tex.  Civ. 
App.  21,  42  S.  W.  797. 

Contra. — Monk  v.  Farlina.cr.  17  U. 
C.  C.  P.  (Can.)  41. 

21.  Presumption  That  Notary 
Knew  Grantor.  —  "  Upon  the  trial  in 
the  court  below,  intervenors  offered 
in  evidence,  as  a  recorded  instrument, 
the  deed  from  Munger  to  McGown, 
the  certificate  of  acknowledgment  to 
which  did  not  recite  that  the  grantor 
was  known  to  the  officer,  to  which 
appellant  objected.  This  acknowledg- 
ment was  taken  in  1874,  and  it  has 
been  decided  that  the  law  in  force 
at  that  time  did  not  require  the  offi- 
cer to  certify  that  the  grantor  was 
known  to  him,  but  only  required 
him.  in  case  the  grantor  was  not 
known,  to  attach  certain  proofs  of 
his  identity.  These  proofs  not  being 
attached  to  the  certificate  of  ac- 
knowledgment, we  think  it  should  be 
presumed  that  the  grantor  was  known 
to  the  officer,  and  the  acknowledg- 
ment, therefore,  be  held  sufficient." 
Driscoll  V.  Morris,  2  Tex.  Civ.  App. 
60.S,  21   S.  W.  629. 

22.  Russ  V.  Wingate,  30  Miss. 
440;  Bennet  v.  Paine,  7  Watts  (Pa.) 

13 


334;  Byer  v.  Etnyre,  2  Gill  (Md.) 
150,  41  Am.  Dec.  410;  Silcock  v. 
Baker    (Tex.   Civ.   App.),   61    S.   W. 

939- 

Proof  of  Official  Character. 
"  We  perceive  nothing  in  the  Mary- 
land Acts  of  Assembly  which  re- 
quires justices  of  the  peace  or  other 
officers  to  describe  in  their  certifi- 
cates their  official  characters.  It  is 
no  doubt  usual  and  proper  to  do 
so,  because  the  statement  in  the  cer- 
tificate is  prima  facie  evidence  of 
the  fact,  where  the  instrument  has 
been  received  and  recorded  by  the 
proper  authority.  But  such  a  state- 
ment is  not  made  necessary  by  the 
Maryland  statutes.  And  whenever 
it  is  established  by  proof  that  the  ac- 
knowledgment was  made  before  per- 
sons authorized  to  take  it,  it  must  be 
presumed  to  have  been  taken  by 
them  in  their  official  capacity ;  and 
when  their  oflicial  characters  are 
sufficiently  shown  by  parol  evidence, 
or  by  the  admissions  of  the  parties, 
we  see  no  reason  for  requiring  more 
where  the  Acts  of  the  Legislature 
have  not  prescribed  it."  Van  Ness 
V.  Bank  of  U.  S.,   13  Pet.   17. 

23.  Cannot  Be  Shown  By  Proof. 
Shults  V.  Moore,  I  McLean  520,  32 
Fed.  Cas.  No.  12,824.  The  opinion 
was  delivered  by  Justice  McLean, 
who,  after  referring  to  Van  Ness 
V.  Bank  of  U.  S.,  13  Pet.  17,  quoted 
from  in  the  note  last  above  set  forth 
said :  "  I  did  not  accord  with  the 
above  decision,  though  I  expressed 
in  the  reports  no  dissent.  It  ap- 
peared to  nie  that  the  acknowledg- 
ment upon  its  face  must  contain  all 
the  requisites  to  its  validity,  to  have 
the  effect  of  notice  under  the  regis- 

Vol.  I 


194 


A  CKNO  WLEDGMENTS. 


Jurisdictional  Limits. — As  a  general  rule,  evidence  aliunde  is  admis- 
sible to  show  that  the  certifying  officer  had  authority  to  act  in  the 
place  where  the  acknowledgment  was  taken,  and  that  he  acted 
within  his  jurisdiction,-^  and  if  the  certificate  incorrectly  states  the 
place  where  the  acknowledgment  was  taken,  evidence  is  admissible 
to  show  that  fact  and  to  show  where  it  was  really  taken. -^ 

b.  Venue.  —  Where  the  certificate  is  defective  in  its  showing  of  a 
venue,  the  error  may  be  cured  by  evidence  aliunde.-'^ 

c.  SeaL — Absence  Of.  —  If  no  seal  is  affixed  to  the  certificate  it 
cannot  be  validated  by  parol  evidence.'-' 


tration  laws.  .  .  .  The  acknowl- 
edgment must  be  made  before  a  jus- 
tice of  the  peace,  and  the  evidence 
of  this  must  be  on  the  deed,  or  con- 
nected with  it.  And  if  this  acknowl- 
edgment be  defective  in  not  showing 
that  the  person  who  took  the  acknowl- 
edgment had  a  right  to  take  it,  the 
act  does  not  appear  to  be  official,  and 
is  not  a  compliance  with  the  statute." 

Authority  of  Foreign  Official. 
In  Cameron  r.  Beaupre,  25  L.  C. 
Q.  B.  (Can.)  419,  it  was  said  that 
the  fact  that  a  certain  court  in  Min- 
nesota was  a  court  of  record  might 
be  proved  to  sustain  an  acknowledg- 
ment required  to  be  made  before  a 
judge  of  a  court  of  record. 

24.  Place  of  Jurisdiction  Omit- 
ted     From      Caption Where      the 

name  of  the  county  is  omitted  in 
the  caption  of  the  certificate,  parol 
evidence  is  admissible  to  show  that 
the  certifying  officer  is  an  officer  of 
the  county  where  the  acknowledg- 
ment was   taken. 

"The  first  objection  taken  to  the 
acknowledgment  is,  that  a  venue  is 
Afanting,  the  county  being  omitted 
in   the  caption  thereof. 

"  This  objection  was  obviated,  if 
a  valid  one,  by  proof  that  the  justice 
of  the  peace  who  took  the  acknowl- 
edgment was  a  justice  of  the  peace 
of  Schuyler  county  at  the  time,  and 
that  he  took  it  as  such  justice." 
Graham  v.  Anderson,  42  111.  514,  92 
Am.   Dec.  8g. 

Conflict  of  Statement  as  to  Juris- 
diction.—If  the  officer  taking  the 
acknowledgment  signs  himself  as  an 
officer  of  a  certain  jurisdiction  and 
the  caption  of  the  certificate  names 
a  place  without  that  jurisdiction, 
parol  evidence  is  admissible  to  show 
that  the  acknowledgment  was  actually 
taken    in    the    jurisdiction    given    by 

Vol.  I 


the  officer.  Rogers  v.  Pell,  154  N. 
Y.  518,  49  N.  E.  75-  . 

25.  Angier  v.  Schieffelin,  72  Pa. 
St.    106,   13  Am.   Rep.  659. 

26.  Defective      Caption Where 

the  place  of  the  taking  of  the  ac- 
knowledgment is  uncertain  from  a 
defective  caption  to  the  certificate, 
the  venue  may  be  shown  by  reference 
to  a  certificate  accompanying  the  cer- 
tificate of  acknowledgment  and  given 
to  show  tlie  authority  of  the  notary. 
Hardmg  v.  Curtis,  45  111.  252. 

Venue  May  Be  Shown  By  Refer- 
ence  to   Seal "  It   is   insisted  that, 

as  the  certificate  does  not  show  in 
what  part  of  the  world  the  acknowl- 
edgment was  taken,  it  fails  to  show 
that  it  was  good  originally,  or  that 
it  was  subsequently  rendered  so  by 
the  validating  act  of  the  legislature. 
At  the  time  of  the  acknowledgment 
in  question  every  notary  public 
within  the  state  was  required  to 
'  provide  a  seal  of  office  whereon 
shall  be  engraved  in  the  center  a 
star   of    five    points,    and    the    words 

'  Notary  Public,  County  of  , 

Texas,'  around  the  margin,  and  he 
shall  authenticate  all  his  official  acts 
therewith.'  This  seal,  if  attached, 
would  properly  be  looked  to  by  the 
officer  who  made  the  record  to  aid 
the  certificate  of  acknowledgment, 
and  as  the  record  was  made  it  must 
be  presumed,  especially  after  so  great 
a  lapse  of  time,  that  the  seal  used 
showed  that  the  certificate  was  made 
by  an  officer  of  the  proper  county 
in  this  state."  Stephens  v.  Motl,  81 
Tex.  US,  16  S.  W.  7,^1. 

27.  Parol  Evidence  Does  Not 
Cure  Absence  of  Seal "  The  depo- 
sition of  the  witness  Hartzell  was 
adinissible  as  evidence  of  the  exe- 
cution of  the  deed  from  Thomas 
King  to  John  C.  King,  by  the  former. 


ACKNOWLEDGMENTS. 


195 


Exception.  —  JJut  the  fact  that  a  seal  was  affixed  and  the  style  of 
it  may  be  shown  by  parol  where  the  impression  of  the  seal  has  been 
obliterated.-* 

d.  Date.  —  Parol  Evidence  to  Show. —  I'arol  evidence  is  admissible 
to  show  that  an  acknowledgment  was  taken  on  a  date  different  from 
that  expressed  in  the  certificate. -"■" 


but  not  for  the  purpose  of  validating 
the  notary's  certificate,  which  was 
shown  to  ht  defective  for  want  of  his 
official  seal.  Had  the  deposition  been 
admitted  for  such  a  purpose,  it  would 
have  been  error,  for  the  reasons  as- 
signed by  the  defendant.  The  witness 
Hartzell,  who  was  a  notary  pubhc 
for  Navarro  county,  and  who  took 
the  acknowledgment  of  Thomas  King 
in  the  deed  of  conveyance  to  J.  C. 
King,  but  from  some  cause  failed 
to  affix  his  seal  of  office,  was  a  com- 
petent witness  to  prove  tliese  facts 
as  showing  his  title  from  Thomas 
King,  but  not  to  fix  notice  on  the 
defendant."  King  v.  Russell,  40  Tex. 
124. 
28.     Parol  Evidence  to  Show  Seal 

to    Ancient    Instrument The    law 

required  "  that  every  notary  public 
shall  provide  a  seal  of  office,  whereon 
shall  be  engraved,  in  the  center,  a 
star    of   five    points,    and    the    words 

'  Notary  Public,  County  of , 

Texas,'  and  shall  authenticate  all  his 
official  acts  therewith."  Attached  to 
the  certificate  in  question,  where  a 
seal  is  usually  found,  was  a  circle 
or  ring  defined  by  a  reddish  dis- 
coloration of  the  paper.  About  the 
center,  as  also  along  the  rim,  of 
this  circle,  small  particles  of  red 
sealing  wax  adhere.  There  was, 
however,  no  impression  thereon  of  a 
star  or  letters  of  any  character.  A 
witness  testified  that  while  a  boy  he 
lived  with  Young,  the  notary  public 
who  used,  as  a  notary  public,  a  seal 
which  he  himself  made  of  metal,  with 
a  star  in  the  center  and  letters 
around  the  edge,  which  letters  wit- 
ness did  not  know  ;  that  Young  used 
the  seal  by  putting  melted  wax  on 
the  paper,  and  pressing  the  seal 
upon  it.  As  to  the  wife,  this  deed 
was  admissible  as  an  ancient  in- 
strument, provided  it  was  fortified 
by  her  privy  acknowledgment,  prop- 
erly authenticated.  The  use  of  a 
seal  such  as  was  prescribed  by  law 
was    necessary    to    such    authentica- 


tion. If,  however,  such  seal  was  in 
fact  used,  and  the  impression  had 
been  obliterated  by  time,  its  absence 
would  not  impair  or  affect  the  title 
transmitted  by  the  deed.  Whether 
or  not  the  notary  public  used  a  seal 
provided  with  a  star  of  five  points, 
and  the  letters  prescribed  by  the 
statute,  was  a  question  of  fact  which 
the  court  was  correct  in  submitting 
to  the  determination  of  the  jury." 
Stooksberry  v.  Swan  (Tex.  Civ. 
App.),  21    S.  W.   694. 

29.  Certificate  Incorrectly  Dated. 
"  Parol  evidence  is  admissible  to 
prove  that  a  certificate  of  acknowl- 
edgment was  executed  on  a  date 
other  than  that  appearing  on  the 
face  of  it,  without  contravening  the 
rule  'that  parol  contemporaneous 
evidence  is  inadmissible  to  contra- 
dict or  vary  the  terms  of  a  written 
instrument.'  The  factum  of  the  ac- 
knowledgment is  not  questioned, 
and  the  rejected  proof  was  to  show 
the  true  date,  of  which  the  date  it 
bore  was  only  prima  facie  evidence. 
Hall  V.  Cazenove,  4  East  477 ;  Jayne 
V.  Hughes,  10  Exch.  430;  Randfield 
V.  Randfield,  6  Jur.  (N.  S.)  901; 
Raffell  V.  Reffell,  12  Jur.  (N.  S.) 
910;  Gately  v.  Irvine.  51  Cal.  172; 
Shaunnessey  v.  Lewis,  130  Mass. 
355 ;    I    Greenl.    Ev.    §  284,    note    D ; 

5  Am.  &  Eng.  Enc.  Law  79;  7  Am. 

6  Eng.  Enc.  Law  91.  See  also 
fisher  V.  Butcher,  53  Am.  Uec.  430; 
Meech  v.  Fowler.  14  Ark.  29 ;  Holt  v. 
Moore,  37  Ark.  148;  Smith  v.  Scar- 
borough. 61  Ark.  104,  32  S.  W.  382." 
Merrill  v.  Sypert,  65  Ark.  51,  44  S. 
W.   462. 

"  By  the  law  in  force  when 
this  deed  was  made,  it  was  the 
duty  of  the  clerk  to  indorse  upon 
the  deed  the  acknowledgment  under 
seal  of  the  court,  and  to  make  an 
entry  upon  the  minutes  showing  and 
giving  a  description  of  the  lands 
sold,  the  purchase  money,  and  the 
names  of  the  parties  to  the  suit.  He 
did  make  the   entry;   and   while  this 

Vol.  I 


1% 


ACKNOWLEDGMENTS. 


e.  Defective  Statements  and  Omissions.  — Contradicting  Statements 
of  Certificate. —  Where  a  certificate  states  the  facts,  they  cannot  be 
shmvn  to  have  been  different  liy  the  introthiction  of  evidence  aliunde 
in  aid  of  tlie  certificate/'" 

Omitting  Name  of  Acknowledger. —  If  the  certificate  omits  the  name 
of  the  party  \vhose  acknowledgment  is  taken,  the  blank  cannot  be 
filled  by  parol. ^' 

Acquaintance  With  Grantor.  —  Where  the  certificate  fails  to  show 
that  the  officer  was  acquainted  with  the  party  making  the  acknowl- 
edgment, resort  may  be  had  to  evidence  aliunde  to  show  that  he 
was  so  acquainted. "- 


entry  does  not,  under  our  rulings, 
supply  the  place  of  a  certificate  on 
the  deed,  still  it  shows  regularity  in 
the  proceedings.  The  certificate  was 
indorsed  on  the  deed.  The  deed  was 
made  50  years  ago ;  and  the  defend- 
ants, and  those  under  whom  they 
claim,  have  been  in  possession  of  the 
property  for  at  least  40  years.  The 
certified  copy  offered  in  evidence  was 
made  some  10  years  before  the  com- 
mencement of  this  suit,  June  20th, 
1863.  and  that  indicates  that  the 
record  shows  a  seal,  and  there  is  no 
intimation  that  it  is  not  a  correct 
copy  of  the  record.  Under  these 
circumstances  we  hold  that  the  court 
should  have  presumed  that  the  clerk 
did  attach  the  seal  to  the  certificate, 
as  he  says  in  it  he  did;  and  this,  too, 
though  the  seal  us'ed  by  the  clerk 
was  a  metallic  one,  and  though  a 
couple  of  experts  gave  it  as  their 
opinion  that  the  seal  was  not  at- 
tached. The  impression  though  made 
by  a  metallic  seal,  was  liable  to 
become  obliterated  from  the  long 
lapse  of  time  and  use  of  the  docu- 
ment. If  a  case  can  be  conceived 
where  a  presumption  of  this  character 
should  be  made  in  order  to  uphold 
rathe'  than  strike  down  acts  of  public 
officers,  this  is  one.  Tlierc  is  cer- 
tainly a  general  disposition  on  the 
part  of  the  court  to  uphold  such 
official  acts;  and  here  the  circum- 
stance.'' are  strong  in  favor  of  the 
fact  that  the  seal  was  attached." 
Hammond  v.  Gordon,  93  Mo.  223,  6 
S    W.  93. 

30.  Rarnett  v.  Shackleford,  6  J.  J. 
Marsh.   (Ky.)   532,  22  .^m.  Dec.   100. 

Aiding   by   Contradiction "The 

certificate  of  acknowledgment  cannot 
be  helped  by  proving  that  the  facts 
WPit    different,   as   they    actually   oc- 

Vol.  I 


curred,  from  the  statement  of  them 
in  the  certificate."  Chauvin  v.  Wag- 
ner, 18  i\fo.  531. 

31.  Filling  Blank  By  Parol. 
Hayden  v.  Wescott,  11  Conn.  129. 
The  certificate  passed  upon  in  the 
case  cited  was  in  the  following  form : 
"  State  of  Vermont,  Windsor  county, 
ss.       Woodstock,     May     25th,     1831. 

Personally   appeared   and 

acknowledged  this  instrument,  by  him 
sealed  and  subscribed  to  be  his  free 
act  and  deed.  Eli  Dunham,  Justice 
of   the   Peace."     The   court  said : 

"  The  statute  requires  that  all  deeds 
of  land  shall  be  acknowledged ;  and 
the  only  question  is,  how  the  ac- 
knowledgment shall  be  evidenced ;  be- 
.  cause  it  is  obvious,  that  if  parol  evi- 
dence may  be  introduced,  to  aid  a 
defective  certificate,  on  the  same  prin- 
ciple it  may  be  introduced  to  supply 
one.  The  acknowledgment  may  rest 
in  parol,  and  the  certificate  of  the 
magistrate  may  be  entirely  dispensed 
with.  The  claim  now  made,  inevi- 
tably leads  to  this  conclusion.  It 
can  only  be  necessary  to  observe, 
that  such  a  claim  is  opposed  to  the 
uniform  course  of  practice,  to  the 
spirit  and  meaning  of  the  statute, 
and  to  the  authority  of  adjudged 
cases." 

32.  Evidence      to      Show      Officer 

Knew  Grantor "lucre  wa^  :it  the 

trial  oral  evidence  by  the  master  to 
supply  any  apparent  defect  in  the 
identificati.on.  He  testified  that  he 
knew  Mr.  Rogers.  He  did  not  tes- 
tify that  he  knew  him  to  be  the 
president  of  the  corporation,  but  that 
fact  sufficiently  appears  in  the  certi- 
ficate. There  was  evidence  that  the 
corporation  by  resolution  had  au- 
thorized the  president,  Mr.  Rogers, 
to  execute  a  general  assiffumcnt   for 


.  i  C  'KN  0 1 1  -  LED  G  MEN  TS. 


197 


Reference  to  Main  Instrument.  —  If  there  is  a  defect  in  the  certifi- 
cate the  instrument  which  it  accompanies  ma\-  be  referred  to  for  its 
correction. ^^ 

Entries  by  Recorder.  —  A  defective  certificate  cannot  be  aided  by 
reference  to  the  entries  made  by  the  officer  recording  the  instrument 
to  whicli  it  is  attached. ■•* 

3.  Impeachment  Of.  —  A.  Burdkx  uf  I'uuoi".  —  The  burden  of 
proof  is  on  him  who  assails  the  verity  of  a  certificate  of  acknovvl- 
edirment.-""'  and  it   is  not  shifted  bv  the  mere   fact  that  the  nutarx 


the  henetit  of  creditors,  to  a  person 
to  be  named  by  him ;  and  the  signa- 
ture to  the  assignment  reads  :  '  Asa 
L.  Rogers,  President  of  the  Rogers 
Manufacturing  Company.'  The  in- 
strument is  that  of  the  corporation, 
and  its  corporate  seal  is  afifi.xed.  If 
it  were  necessary  so  to  do,  resort 
could  be  had  to  the  second  certificate 
of  acknowledgment  by  Rogers,  bear- 
ing the  date  of  the  previous  one. 
where  the  master  certifies  that 
Rogers  was  personally  known  to  him 
to  be  the  individual  who  executed 
the  assignment."  Rogers  v.  Pell,  47 
.\pp.   Div.  240,  62  N.  Y.  Supp.  92. 

33.  Canada. — Jackson  v.  Roliert- 
son.  4  U.  C.  C.   P.  272. 

United  States. — Carpenter  v.  Dex- 
ter. 8  Wall.   513. 

Florida. — Summer  s:'.  Mitchell.  29 
Fla.  179,  10  So.  562,  30  Am.  St.  Rep. 
106.  14  L.  R.  A.  815. 

Georgia. — Doe  v.  Peeples,  i  Kelly 
3 ;   Granniss  v.   Irvin,  39  Ga.  22. 

Maine. — RacklefF  v.  Norton,  19 
Me.  274. 

Minnesota. — Wells  v.  .'\tkinson,  24 
Minn.   161. 

Missouri. — Owen  v.  Baker,  tor  Mo. 
407,  14  S.  \\'.  17^.  20  .\m.  St.  Rep. 
618. 

Oliio. — Fisher  j'.  Butcher.  19  Ohio 
406.  53  Am.  Dec.  436. 

Pennsvlvania.  —  IvUfFborough  v. 
Parker,  "12  Serg.  &  R.  48. 

re.yas.—CuH  C.  &  S.  F.  Ry.  Cn. 
f.  Carter.  ^  Tex.  Civ.  App.  67^,  24 
S.  W.   1083. 

i'ermont. — Brooks  v.  Chaplin,  3 
\'t.  281.  23  \m.  Dec.  209. 

Main  Instrument  May  Cure  De- 
fects— "  This  certificate,  under  the 
hand  and  seal  of  the  notary,  is  as 
follows:  'State  of  Minnesota,  Hen- 
nepin County,  ss.  I.  Robert  Chris- 
tensen.  a  notary  public  in  and  for 
said    county,    do    hereby   certify    that 


this  mortgage  was  duly  acknowledg- 
ed before  me  by  the  above  named 
J.  H.  Hennepin,  the  mortgagor  therein 
named,  and  entered  by  me  this 
twenty-sixth  day  of  June,   1885.' 

"  J.  H.  Huntington  is  named  as 
mortgagor  in  the  body  of  the  in- 
strument, which  purports  to  be  ex- 
ecuted by  him,  his  signature  imme- 
diately preceding  the  certificate.  It 
is  the  policy  of  the  law  to  uphold 
certificates  of  this  character,  and  for 
that  purpose  resort  will  be  had,  if 
necessary,  to  the  whole  instrument 
to  which  they  are  attached.  .  .  . 
No  particular  form  of  certificate  be- 
ing required,  it  is  sufficient  if  the 
fair  import  of  it  is  that  the  mort- 
gagor appeared  in  person  before  the 
officer,  and  acknowledged  that  the 
instrument  was  his  act  and  deed. 
Sanford  v.  Bulkley,  30  Conn.  347. 
These  facts  clearly  appear  from  the 
language  of  this  certificate  when 
read  in  connection  with  the  mort- 
gage itself.  It  is  perfectly  evident 
that  the  word  '  Hennepin '  is  a  mere 
clerical  error."  Brunswick-Balke- 
Collcnder  Co.  v.  Brackett.  37  Minn. 
58.  3i  N.  W.  214. 

34.  Gulf  C.  &  S.  F.  Ry.  Co.  v. 
Carter.  ^  Tex.  Civ.  App.  675,  24  S. 
W.  1083. 

35.  United  States.  —  Pierce  v. 
Feagans.  39  Fed.  587 :  Linton  v.  Nat. 
Life  Ins.  Co.,  104  Fed.  584. 

.-Uabama. — Barnett  r.  Proskauer. 
62   Ala.   486. 

Arkansas.— 'Meyer  v.  Gossett,  38 
•■^rk.   377. 

Ca/iyo;-«m.  — People  z'.  Cogswell 
(Cal.).  45'  Pac.  270. 

A/fln'/o)irf.  — Ramsburg  v.  Camp- 
bell. 55  Md.  227. 

Michigan. — Hourtienne  v.  Schnoor. 
:i3  Mich.  274 :  Johnson  v.  Van  Velsor, 
43   Mich.  208.  5   N.  W.  265. 

Vol.  I 


198 


A  CKN  O  J I  'LBDGMEN  TS. 


taking  the  acknowledgment  was  the  attorne_v  for  the  party  profiting 
by  it  and  defending  the  verity  of  the  certificate. '" 

B.  FoK  Fraud,  Duress,  Etc.  —  The  certificate  may  be  impeached 
by  evidence  that  the  acknowledgment  it  shows  was  procured 
through  fraud,  duress,  imposition  or  the  like;-''  but  in  such  cases 
there  must  be  a  clear  and  satisfactory  preponderance  of  the  evidence 
to  overcome  the  recitals  of  the  certificate."* 


Missouri. — Ray  v.  Crouch,  lo  AIo. 
App.  321. 

7\\Yas. — Atkinson  v.  Reed  (Tex. 
Civ.    App.),   49   S.    W.   260. 

Burden  of  Proof. —  "The  burden 
on  the  plaintiff  required  her  to  meet 
and  overcome  the  evidence  afforded 
by  the  certificate  of  the  notary,  sup- 
ported by  the  attestation  of  the  wit- 
nesses, that  she  appeared  before  him 
as  an  officer,  and  acknowledged  the 
deed.  It  stands  to  reason  that,  in 
the  absence  of  anything  to  impeach 
the  integrity  of  the  officer  and  the 
witnesses,  no  slight  importance 
should  be  attached  to  such  evidence ; 
because  it  is  the  evidence  of  an  act 
done  in  pursuance  of  law,  and  which 
can  be  attested  and  proved  in  no 
other  way.  In  other  words,  it  is 
the  evidence  required  by  law  of  the 
execution  and  acknowledgment  of  a 
deed.  To  say  that  the  taking  of  an 
acknowledgment  is  a  ministerial,  and 
not  a  judicial  act,  is  simply  to  say 
that  it  may  be  attacked  collaterally; 
it  does  not  impair  its  value  as  a 
certihcate  made  by  one  acting  under 
authority  of  law,  not  only  in  the 
matter  of  taking  the  acknowledg- 
ment, but  also  in  certifying  the  same." 
Ford  I'.  Osborne  (Ohio),  12  N.  E. 
526. 

36.  Burden  Not  Shifted,  When. 
"  It  is  assigned  as  error  that  the 
court  gave  undue  prominence  in  his 
charge  to  the  testimony  of  Newton 
H.  Barnard  in  stating  to  the  jury 
that  the  certificate  of  acknowledg- 
ment of  the  mortgage  from  Arnold 
to  Dougherty  was  not  to  be  lightly 
overturned  by  interested  witnesses. 
Arnold  denied  that  he  ever  acknowl- 
edged the  mortgage,  and  there  was 
some  other  testimony,  and  some 
things  about  the  acknowledgment  it- 
self, that  tended  to  corroborate  his 
denial.  Barnard  and  other  witnesses 
testified  that  he  did  acknowledge  it. 
Barnard  was  the  notary  who  signed 
the     certificate     of    acknowledgment. 

Vol.  I 


The  rule  undoubtedly  is  that  the 
burden  of  proof  rests  upon  the  per- 
son denying  the  acknowledgment  to 
show  the  falsity  of  the  certificate, 
which  carries  with  it  the  usual 
presumption  that  the  officer  making 
it  has  certified  the  truth,  and  has  not 
been  guilty  of  wrongful  or  criminal 
actions.  See  Hourtienne  v.  Schnoor, 
33  Alich.  274 ;  Johnson  v.  Van  Velsor. 
4J  Mich.  219,  5  N.  W.  265,  and 
cases  there  cited. 

"  It  is  not  claimed  that  Mr.  Barnard 
was  a  party  to  any  fraud  in  this 
respect,  as  we  understand  from  the 
record,  briefs,  and  oral  arguments 
in  this  case;  but  it  is  contended  that 
he  was  the  attorney  of  the  plaintiffs 
then  as  he  is  now,  and  also  a  witness 
in  their  behalf,  and  that  this  in- 
struction gave  too  much  weight  to 
liis  testimony,  which  was  given  in 
favor  of  the  truth  of  the  certificati 
as  he  made  it.  This  in  our  opinion, 
would  not  alter  the  presumption  in 
favor  of  the  certificate."  Dikeman  v. 
Arnold,  78  Mich.  455.  44  X.  \V. 
407. 

37.  Illinois. — Lowell  v.  Wren,  80 
111.  238;  Blackman  v.  Hawks.  89  111. 
512:  Fitzgerald  v.  Fitzgerald,  100 
III.  38s. 

Marylaiui. — Cent.  Bank  z:  Cope- 
land,  18  Md.  305,  81  Am.  Dec.  597 ; 
Davis  v.  Hamblin,  51  Md.  525. 

New  York. — Marden  v.  Dorthv,  12 
Apo.  Div.  188.  42  N.  Y.  Supp.  827. 

Pi'iiiisylvania. — Louden  r.  Blythe, 
16  Pa.   St.  532.  55  Am.  Dec.  527. 

Tennessee.  —  Kennedy  v.  Securitv 
Bldg.  &  Loan  Ass'n.  (Tenn.).  57  S'. 
W.   388. 

Te.vas.  —  Chester  v.  Breitling 
(Tex.),  32  S.  W.  527. 

38.  Alabama. — Downing  v.  Blair, 
75  Ala.  2x6. 

Illinois. — O'Donnell  r.  Kclliher.  62 
III.  App.  641. 

Nebraska. — Phillips  v.  Bishop,  35 
Neb.  487,  S3  N.  W.  375;  Counci'l 
Bluflfs  Sav.   Bank  7:   Smith,  59  Neh. 


A  CKN  OiriED  GMEN  TS. 


199 


Grantee  Must  Have  Had  Notice  of  Fraud,  etc.  —  And  the  grantee  or 
mortgagee,  or  his  successor  in  interest,  must  have  participated  in, 
or  had  notice  of,  the  fraud,  mistake  or  imposition.''' 


90,  80  N.  W.  270;  Barker  v.  Avery, 
36  Neb.  599,  54  N.  \V.  989;  Pereau  v. 
Frederick,    17    Neb.    117,    22    N.    W . 

Pciiiisyhaiiia. — Cover  v.  Manaway, 
115  Pa.  St.  338,  8  Atl.  393,  2  Am. 
St.  Rep.  552. 

SoHlli  Dakota.  —  Northwestern 
Loan  &  Banking  Co.  v.  Jonasen,  1 1 
S.  D.  566,  79  N.  VV.  840. 

Tennessee. — Kennedy  v.  Security 
Bldg.  &  Loan  Ass'n.  (Tenn.),  57  S. 
W.  388;  Thompson  -'.  So.  Bldg.  & 
Loan  Ass'n.    (Tenn.),  S7  S.  \V.  704. 

Preponderance  of  Evidence "The 

evidence  to  impeach  a  certificate  of 
acknowledgment  of  a  competent  offi- 
cer to  a  deed  of  conveyance  must  be 
so  full  and  satisfactory  as  to  con- 
vince the  mind  that  the  certificate 
is  false  or  forged.  A  mere  suspicion, 
or  even  preponderance  of  evidence 
less  than  sufficient  to  establish  a 
moral  certainty  to  that  effect,  is  in- 
sufficient." Griffin  v.  Grimn,  125'  111. 
430,    I-    X.    E.    782. 

Acknowledgments       by       Married 

■Women This  rule  generally  applies 

in  cases  of  acknowledgments  by  mar- 
ried women. 

United  States. — Young  t'.  Duvall, 
109  U.  S.  573;  Ins.  Co.  V  Nelson, 
103   U.   S.   544- 

Illinois. — Myers  v.  Parks.  95  111. 
408;  Blackman  v.  Hawks,  89  111.  512; 
Massey  v.  Huntington,  118  111.  80, 
7  N.  E.  269. 

Missouri.  —  Springfield  Eng.  & 
Thresher  Co.  v.  Donovan,  147  Mo. 
622,  49   S.   'W.   500. 

Tennessee. — Thompson  v.  So.  Bldg. 
&    Loan    Ass'n.    (Tenn. ),    37    S.    W. 

JTest  I'lrginm. — Rollins  n.  Mena- 
ger,  22  W.  Va.  461. 

IVisconsin. — Smith  f.  Allis,  52  Wis. 
337.  9  N.  W.  155. 

39.  Benedict  z:  Jones  (N.  C"),  40 
S.  E.  221. 

■When  Grantee  Need  Not  Be 
Charged  'With  Notice  of  the  Fraud. 
The  grantee  need  not  be  charged 
with  notice  of  the  fraud  or  im- 
position where  the  grantor  did  not 
actually  appear  before  the  officer,  for 
he  then  had  no  iurisdiction  to  make 


the  certificate  and  it  is  a  mere  fabri- 
cation through  which  the  grantor 
should  not  be  the  loser ;  Grider  v. 
Am.  Freehold  Land  Mortgage  Co., 
99  Ala.  281,  12  So.  775,  42  Am.  St. 
Kep.  58;  ;\ieyer  v.  Gossett,  38  Ark. 
377;  Michener  v.  Cavender  38  Pa. 
St.  334,  80  Am.  Dec.  486. 

Ottlcer  Acting  Without  Jurisdic- 
tion  "If   it   is   true,  as  alleged  by 

the  defendants  joining  in  the  answer, 
that  they  never  appeared  before  the 
officer  or  acknowledged  the  execution 
of  such  mortgage,  the  certificate  of 
acknowledgment  is,  as  to  them, 
fraudulent ;  and  in  av,iiling  them- 
selves of  that  defense,  it  is  not 
necessary  to  show  that  the  mortgagee 
had  notice  of  such  fraud."  William- 
son V.  Carskadden,  36  Ohio   St.  664. 

Acknowledgment  Under  Coercion. 
It  has  even  been  held  that  notice 
need  not  have  been  brought  home 
to  the  grantee  in  a  case  where  there 
was  an  actual  appearance  before  the 
officer  but  where  the  acknowledgment 
was  procured  through  coercion — on 
the  part  of  one  other  than  the 
grantee. 

"  Whatever  other  or  further  con- 
struction it  may  be  necessary  in  a 
proper  case  to  put  upon  the  statute, 
it  is  clear  that  the  object  was  to 
secure  to  the  wife  freedom  of  action, 
especially  from  the  influence  of  her 
husband,  in  executing  deeds  of  real 
property.  We  are  clear  that  in  this 
case  his  presence  under  the  cir- 
cumstances was  not  permitted  by  the 
statute.  It  was  a  coercive  presence. 
The  spirit  and  meaning  and  inten- 
tion of  the  law  were  violated,  and 
the  mortgage  and  acknowledgment, 
as  far  as  she  was  concerned,  were 
properly  held  insufficient  to  pass  her 
estate.  On  the  point  that  the  mort- 
gagee, Gurdon  H.  Edgerton,  was 
entirely  ignorant  and  innocent  in  this 
matter,  we  think  on  grounds  before 
stated  that  this  was  not  important. 
And  further,  he  had  no  right  to  be 
ignorant  of  the  manner  in  which  the 
mortgage  was  executed  and  acknowl- 
edged. It  ran  to  him.  He  was  not 
obliged  to  take  it  or  advance  money 
on  it.     If  he  saw  fit  to  do  so  without 

Vol.  I 


200 


ACKNOWLEDGMENTS. 


C.  Cu.MPETENCv  AND  SUFFICIENCY  OF  EVIDENCE.  —  a.  Negativ- 
ing Rccilals  of  Certificate.  —  Except  in  case  of  fraud,  duress,  impo- 
sition or  the  like,  a  certificate  cannot  be  impeached  bv  evidence 
niereh-  negativing  its  -recitals.^" 


making  prudent  inqniry,  it  was  his 
own  misfortnne."  btigcrton  !■.  Jones. 
10   Minn.  427. 

Notice  of  Fraud. —  Ill  Shrader  :,.. 
Decker,  9  Barr  (Pa.)  14,  it  was 
held  that  the  acknowledgment  of  a 
deed,  bj-  husband  and  wife,  for  the 
wife's  land,  niaj'  be  shown  to  have 
been  obtained  by  fraud  and  duress 
of  the  wife,  and  thus  avoided  as 
to  volunteers,  or  purchasers  with 
notice,  alitcr  as  to  bona  fide  pur- 
chasers 'a'ithout  notice. 

In  Louden  v.  Blythe,  16  Pa.  St.  532, 
and  27  Pa.  St.  22,  it  was  held  that  the 
certificate  of  the  magistrate  is  con- 
clusive in  favor  of  one  who  acceptec 
it  in  good  faith,  and  paid  his  money, 
without  knowing  or  having  reason 
to  suspect  it  to  be  untrue.  But,  that 
if  the  certificate  be  false  in  fact,  and 
the  mortgagee  knew  it,  or  knew  of 
circumstances  which  would  put  an 
honest  and  prudent  man  upon  in- 
quiry, then  it  may  be  contradicted  by 
parol  evidence.  In  the  case  last 
cited,  the  mortgage  was  set  aside, 
not  simply  l)ecausc  the  magistrate 
taking  the  acknowledgment  knew 
that  the  wife's  acknowledgment  was 
induced  by  undue  influence,  on  the 
part  of  the  husband,  but  because  the 
mortgagee  was  also  present,  and 
knew  enough  to  put  him  upon  in- 
quiry. 

In  Hartley  '■.  Frost,  6  Te.x.  208,  it 
is  said  that  w^here  the  certificate  of 
the  privy  examination  of  a  married 
woman  is  in  due  form,  in  order  to 
impeach  its  veracity,  it  is  not  suffi- 
cient to  allege  that  there  was  no 
privy  examination,  that  the  contents 
w^ere  not  made  known  to  her,  etc. 
The  certificate  is  conclusive  in  the 
absence  of  an  allegation  of  fraud  or 
imposition — as,  for  instance,  that 
there  was  a  fraudulent  combination 
lietwcen  the  notary  and  the  parties 
interested. 

"  We  doubt  whether  a  case  can  bo 
found  where  the  certificate  of  the 
magistrate  has  been  allowed  to  be 
impeached,  on  the  ground  of  fraud, 
wilbont   evidence  charging  the  gran- 


lee  with  notice  of  the  xraud,  or  the 
otticer  taking  it  with  complicity 
therem."  Baldwin  i/. .  Snowden,  11 
Ohio  St.  203 ;  Benedict  v.  Jones 
(N.   C),  40  S.  E.  221. 

Acknowledgments  By  Married 
■Women This  rule  generally  ap- 
plies in  cases  of  acknowledgments 
by   married   women. 

Alabama. — Jinwright  v.  Nelson,  105 
.\\a.   399,    17    So.   91. 

Arkansas.  —  Meyer  v.  Gossett,  38 
Ark.    377. 

California.  —  Banning  v.  Banning, 
80  Cal.  271,  22  Pac.  210,  13  Am.  St. 
Rep.  156 ;  De  Arnaz  v.  Escandon,  59 
Cal.  486. 

Kentucky. — Tichenor  v.  Yankey,  89 
Ky.  508,   12  S.  W.  947. 

Oregon. — Moore  v.  Fuller,  6  Or, 
272,  25  Am.  Rep.  524. 

Pennsylvania. — Louden  v.  Blythe, 
i6_Pa.  St.  532,  55  Am.  Dec.  527. 

Tennessee.  —  Ronner  v.  Welcker, 
99  Tenn.  623,  42  S.  W.  439. 

Texas.  —  Kocourek  i'.  Marak,  54 
Tex.  201,  38  .^.m.  Rep.  623;  .Atkinson 
V.  Reed  (Tex.  Civ.  App.),  49  S.  W. 
260 ;  Pool  V.  Chase,  46  Tex.  207 ; 
Wiley  z:   Prince,  21  Tex.   141. 

IVest  Virginia. — Rollins  v.  Mena- 
ger,  22  W.  Va.  461 ;  Pickens  v.  Knise- 
ley,  36  W.  Va.  794,  11   S.  E.  932. 

40.  Married  Women's  Acknowl- 
edgments.—  The  same  rule  generally 
holds  in  cases  of  acknowledgments 
by   married   women. 

Alabama.  —  Jinwright  v.  Nelson, 
105  Ala.  399,  17  So.  91  ;  Read  v. 
Rowan,  107  Ala.  366,  18  So.  211. 

Arkansas. — Meyer  v.  Gossett,  38 
Ark.  377- 

California. — Banning  v.  Banning. 
80  Cal.  271,  22  Pac.  210  13  Am.  St. 
Rep.   156. 

Illinois. — Strauch  v.  Hathaway,  loi 
111.   II,  40  Am.  Rep.   193. 

Kentucky.  —  Cox  v.  Gill,  83  Ky. 
669;  Tichenor  v.  Yankey,  89  Ky.  508, 
12   S.  W.  947. 

Xfississippi.-^Johnston   v.    Wallace, 
53  Miss.  331,  24  .^m.  Rep.  699. 
IVebra.':ka.  —  Coiuicil     Bluflfs     Sav. 


Vol.  I 


ACKNOWLEDGMENTS. 


201 


Bank  V.  Smith,  59  Neb.  90,  80  N.  \V. 
270. 

Pennsylvania. — Heeter  v.  Glasgow, 
79  Pa.  St.  79,  21  Am.  Rep.  46; 
Louden  v.  Blythe,  16  Pa^  St.  532,  55 
Am.  Dec.  527 ;  Citizens'  Sav.  &  Loan 
Ass'n.  V.  Heiser,  150  Pa.  St.  514,  24 
Atl.  733;  Jamison  v.  Jamison.  3 
Whart.  451,  31  Am.  Dec.  536. 

Tcn)icsset\  —  Kennedy  v.  Security 
Bldg.  &  Sav.  Ass'n.  (Tenn. ),  v  S. 
W.  388. 

IFest  I'irginia. — Rollins  v.  Mena- 
ger,  22  W.  Va.  461  ;  Pickens  v.  Knise- 
ley,  36  \Y.  Va.  794,   11   S.  E.  93^. 

Actual  Appearance  Before  Officer. 
■■  The  mortgages  of  the  American 
Freehold  Land  Mortgage  Company 
and  the  Loan  Company  of  Alabama, 
involved  in  this  case,  each  embrac- 
ing, along  with  other  land,  the  home- 
stead of  the  mortgagors,  were  con- 
fessedly signed  by  Thornton  and  his 
wife,  in  the  presence  of  Manghen, 
the  notary  public,  who  brought  them 
to  the  residence  of  the  mortgagors 
for  the  purpose  of  having  them  prop- 
erly executed.  On  these  facts — the 
presence  of  the  officer  for  the  purpose 
stated,  the  presence  of  the  in- 
struments themselves,  the  presence 
of  the  grantors  for  said  purposes, 
and  the  signing  of  the  papers  then 
and  there  by  them — the  notary's  cer- 
tificates of  the  acknowledgment  of 
the  husband  and  the  separate  ac- 
knowledgment of  the  wife  are  not 
open  to  impeachment  by  parol  evi- 
dence, no  fraud  or  duress  having 
been  shown.  Alortgage  Co.  v.  James 
(Ala.),  16  So.  887;  Jinwright  v.  Nel- 
son (Ala.),  17  So.  91;  Orider  v. 
Mortgage  Co..  99  .-Ma.  281,  12  So. 
775;"  American  Freehold  Mortgage 
Co.  V.  Thornton,  108  .\la.  258,  19  So. 
529,   55   Am.    St.    Rep.   26. 

Fraud    Must    Be    Shown Where 

the  certificate  of  the  privy  examina- 
tion of  a  married  woman  is  in  the 
form  required  by  the  statute,  it  is  not 
sufficient,  in  order  to  impeach  it.  to 
allege  that  there  "was  no  private  ex- 
amination, that  she  did  not  acknowl- 
edge the  deed,  that  she  did  not 
release  her  homestead  right.  There 
must  be  some  allegation  of  fraud  or 
imposition  practiced  toward  her, 
some  fraudulent  combination  between 
the  parties  interested  and  the  officer 
taking  the  acknowledgment.     Ridge- 


ley  V.  Howard  et  al.,  3  Harris  & 
McHenry,  321 ;  Jamison  v.  Jamison, 
3  Whart.  (Penn.)  557;  Hartley  et 
al.  V.  Frost  and  Wife,  6  Texas  208. 

The  certificate  of  the  officer  as 
to  the  acknowledgment  must  be 
judged  of  solely  by  what  appears  on 
the  face  of  the  certificate,  and  if  that 
is  in  substantial  compliance  with  the 
statute,  it  ought  not  to  be  impeached 
except  for  fraud  and  imposition. 
Graham  v.  Anderson,  42  111.  514,  92 
Am.   Dec.  89. 

Am.  Freehold  Land  Mortgage  Co. 
V.  James,  105  Ala.  347,  16  So.  887; 
Kennedv  i'-  Security  Building  & 
Sav.  Ass'n.  (Tenn.),  57  S.  W.  388; 
Miller  v.    Alarx,   55   Ala.   322. 

When   Certificate    Conclusive "It 

must  be  regarded  as  settled  by  the 
great  weight  of  authority  that  when 
the  grantor  or  mortgagor  appears 
before  the  officer,  and  makes  an  ac- 
knowledgment of  the  execution  of 
the  instrument,  which  is  duly  certified 
by  the  officer  to  have  been  made  in 
conformity  to  law,  the  certificate  is 
conclusive  of  the  truth  of  all  the 
facts  therein  certified,  and  which  the 
officer  was  by  law  authorized  to  cer- 
tify, until  successfully  assailed  for 
duress  or  fraud  in  which  the  grantee 
or  mortgagee  participated,  or  of 
which  he  had  notice  at  the  time  of 
parting  with  the  consideration.  The 
taking  and  certifying  of  the  ac- 
knowledgment are  held  in  many  of 
the  cases  to  be  of  a  judicial  nature; 
and  when  the  officer  has  jurisdiction, 
so  to  speak,  by  having  the  party  ac- 
knowledging, and  the  instrument  to 
be  acknowledged,  before  him.  and 
enters  upon  and  exercises  this  juris- 
diction, the  parties  will  not  be  al- 
lowed to  impeach  the  truth  of  the 
facts  which  he  is  required  by  law 
to  certify,  and  does  certify,  in  the 
absence  of  fraud  or  duress,  as  above 
stated."  Grider  v.  American  Free- 
hold Land  Mort.  Co..  99  Ala.  281, 
12  So.  7-q,  42  .\m.  St.  Rep.  58;  Mc- 
Cardia  ?■.  Billings  (N.  D.),  87  N. 
W.    1008. 

Married  Women's  Acknowledg- 
ments. —  Excct>tions.  —  The  doctrine 
has  become  established  in  some  juris- 
dictions that  a  certificate  of  acknowl- 
edgment by  a  married  woman  may 
be     impeached    by    parol     without    a 

Vol.  I 


202 


A  CKNO  WLEDGMEN  TS. 


Exception  Where  No  Actual  Appearance  Before  Officer.  —  Where  there 
is  no  actual  appearance  before  the  certifying  officer  he  has  no 
jurisdiction  to  make  the  certificate,  and  its  recitals  may  be  negatived 
without  proof  of  fraud. ^' 

b.  Of  Oificcr  Making  Certificate.  —  The  testimony  of  the  officer 
who  makes  a  certificate  of  acknovvdedgment  is  not  admissible  to 
impeach  it/-  although  the  contrary  has  been  maintained  in  some 


showing  of  fraud.  Hughes  z'.  Cole- 
man, 10  Bush  (Ky.)  246;  Woodhead 
z:  Foulds,  7  Busli  (.Ky.)  222;  Dodge 
zj.  Hollinshead,  6  .Minn.  25,  80  .\m. 
Dec.  433 ;  .\nnan  v.  Folsoni,  6  Minn. 
500;   Steffen  v.   Bauer,  70  Alo.  399. 

Impeachment   By   Parol "So    far 

as  Mrs.  Kem  is  concerned,  her  tes- 
timony was  clear  that  her  husband 
was  present  during  her  examination 
by  the  notary,  and  that  the  notary 
gave  no  explanation  or  information 
to  her  of  the  contents  of  the  deed 
she  signed.  The  notary,  however, 
testified  precisely  to  the  contrary, 
that  she  was  examined  separate  and 
apart  from  her  husband,  and  that 
he  explained  to  her  the  purport  of 
the  deed.  There  is  no  possibility  of 
reconciling  these  conflicting  state- 
ments, and  it  was  a  simple  question 
of  credibility  with  the  jury,  and  the 
verdict  of  the  jury  cannot  be  dis- 
turbed here  on  this  point."  Wannell 
z'.  Kem,  57  Mo.  478. 

"  While  the  great  weight  of  au- 
thority is  to  the  contrary,  except  in 
cases  of  forgery,  it  has  been  held 
in  this  state,  through  a  long  line  of 
decisions,  that  a  married  woman  may 
by  parol  evidence  contradict  the  cer- 
tificate of  an  officer  to  an  acknowl- 
edgment to  a  deed  conveying  her 
real  estate.  Wannell  r.  Kem,  57 
Mo.  480;  Sharpe  v.  McPike,  62  Mo. 
300 ;  Steffen  Z'.  Bauer,  70  Mo.  399 ; 
Clark  z:  Edwards'  Adin'r,  75  Mo. 
87;  Webb  V.  Webb,  87  Mo.  541; 
Mays  V.  Pryce.  95  Mo.  604,  8  S.  W. 
731 ;  Pierce  v.  Goerger,  103  Mo.  540, 
15  S.  W.  848;  Comings  zi.  Leedy, 
TI4  Mo.  454,  2T  S.  W.  804."  Spring- 
field Engine  &  Thresher  Co.  v. 
Donovan,  147  Mo.  622.  49  S.  W. 
SCO ;  Belo  i'.  Mayes,  79  Mo.  67 ;  Drew 
V.   Arnold,  85  Mo.   128. 

41.  Johnston  z:  Wallace,  53  Miss. 
331,  24  .'\m.  Rep.  699;  C.rider  z\  Free- 
hold Land  Mortgage  Co.,  99  Ala. 
281,  12  So.  775,  42  Am.  St.  Rep.  58; 

Vol.  I 


Kennedy  v.  Security  Building  iic  Sav. 
.\ss'n.  (Tenn.),  57  S.  W.  388;  Wil- 
liamson Z'.  Carskadden,  36  Ohij  St. 
064;  Smith  V.  Ward,  2  Root  (Conn.; 
302;  Donahue  Z'.  Mills,  41  Ark.  421. 
Notary  Acting  Without  Jurisdic- 
tion  •■  The   paper   was   not   signed 

in  the  presence  of  the  notary.  It  was 
never  in  the  presence  of  the  grantor 
and  the  notary  after  it  was  signed, 
nor  in  the  possession  of  the  notary 
after  it  was  signed.  When  the  no- 
tary had  it  and  executed  his  cer- 
tificate of  acknowledgment,  there 
was  nothing  to  acknowledge, — there 
was  no  signature ;  nor  was  there 
any  signature  at  any  time  while  it 
was  in  his  possession.  Treating  his 
powers  and  acts  as  judicial,  they 
were  lacking  in  one  essential  of 
jurisdiction, — there  was  no  signature 
of  any  kind,  genuine  or  otherwise, 
before  him.  He  had  to  do  officially 
only  with  signatures.  His  powers 
were  not  called  into  exercise  until 
there  was  a  subscription  to  be  acted 
upon.  There  being  no  signature, 
t.iere  was  nothing  for  him  to  certify 
an  acknowledgment  of.  The  grantor 
was  not  before  him.  Nathan,  re- 
fusing to  sign,  was  not  a  grantor. 
He  had  a  paper  writing  in  the  form 
of  a  deed  before  him,  but  he  had 
neither  a  signature  to  be  acknowl- 
edged, nor  a  signatory  to  acknowl- 
edge his  execution  of  the  paper.  He 
was  without  jurisdiction  to  act  m 
the  premises,  and  his  action,  like  that 
of  other  judicial  officers  and  of 
courts  proceeding  without  having 
acquired  jurisdiction,  is  void,  may  be 
shown  to  be  so  by  parol,  and  has 
been  shown  to  be  so  in  this  case." 
Cheney  z:  Nathan,  1 10  Ala.  254,  20 
So.  99.  SS  Am.   St.  Rep    26. 

42.  Shapleigh  v.  Hill,  21  Colo. 
419,  41  Pac.  1 108;  Central  Bank  z: 
Copeland,  18  Md.  305.  81  Am.  Dec. 
597;  Hockman  z:  McClanahan.  87 
Va.  3.S.  1-'  S.  E.  230. 


ACKNO  WLEDGMENTS. 


203 


jurisdictions.^" 

c.  Of  Maker  of  Main  Iiistnaiicnt.  — The  testimony  of  the  grantor 
or  mortgagor  alone  is  not  suiiflcient  to  overcome  the  recitals  of  the 
certificate.'*'' 

d.  Disf'iitiiig  Authority  of  UfHccr. — \\  here  one  takes  an  acknowl- 
edgment as  justice  of  the  peace,  a  certificate  of  the  county  clerk 
that  such  party  was  not  a  justice  of  the  peace  at  the  date  of  the 
certificate  of  acknowledgment  is  competent  evidence  for  the  purpose 
of  impeaching.*'' 

e.  Disfyuting  Statciiicnt  of  rciiiic.  —  If  a  certificate  shows  that 
the  acknowledgment  was  taken  in  a  certain  count)-,  parol  evidence 
is  admissible  to  show  that  it  was  taken  elsewhere,  in  impeachment 


Officer's    Testimony    Incompetent. 

"  His  official  acts  are  done  and  cer- 
tified under  oath,  and  it  would  be 
mischievous  in  the  extreme,  to  per- 
mit such  a  person  to  appear  as  a 
witness  and  falsify  his  own  solemn 
act.  Such  a  course  would  expose 
weak  or  dishonest  men  to  the  most 
dangerous  temptations,  and  render 
the  tenure  of  property  unsafe  and 
precarious,  by  subjecting  the  evi- 
dences of  titles  under  which  it  is 
held  to  the  frail  and  uncertain  mem- 
ory or  to  the  corruption,  of  officers 
who  have  in  due  form  certified  the 
regularity  of  their  acts.  Upon  the 
same  principle  which  renders  a 
sheriff  incompetent  as  a  witness  to 
impeach  his  return,  the  deposition  of 
the  commissioner  who  took  and  cer- 
tified the  acknowledgment  in  this 
case,  was  inadmissible  to  contradict 
and  falsify  his  certificate.  Planters' 
Bank  v.  Walker,  t,  S.  &  M.  409;  3 
Phill.  Evid.  (Cow.  &  Hill),  1090  2d 
Edit."  Stone  v.  iVIontgomery,  3s 
Miss.  83. 
43.     Garth  v.  Fort,  15  Lea  (Tenn.) 

683. 

Officer's      Testimony      Competent. 

"  The  officer  who  certified  to  her 
acknowledgment  testified  that  she 
did  not  in  fact  appear  before  him  or 
acknowledge  the  execution  of  it ; 
and  the  controlling  question  in  the 
case  is  whether  he  was  competent  as 
a  witness  to  impeach  his  official  cer- 
tificate. We  think  the  rule  declared 
by  the  authorities  generally,  as  ap- 
plicable to  the  situation  here,  makes 
iiim  competent,  leaving  the  question 
of  the  weight  of  his  testimony  to 
the  judgment  of  the  trier.  The  cer- 
tificate   is    the    act    of    a    ministerial 


officer  and  not  conclusive  like  a 
judicial  record,  and  does  not  estop 
him  as  between  tliese  parties.  The 
Illinois  cases  examined  are  Lowell 
V.  Wren,  80  III.  238;  McDowell  v. 
Stewart.  63  Id.  538;  Sisters  of 
Loretto  V.  Catholic  Bishop,  86  Id. 
174;  Berdel  i'.  Egan.  125  Id.  302." 
McCurley  v.  Pitner.  65  111.  App.  17. 

44.  O'Donnell  z:  Kelliher,  62  111. 
App.  641  :  Lickmon  v.  Harding,  65 
111.  505;  Kerr  v.  Russell,  69  111.  666, 
18  Am.  Rep,  634 ;  Post  i:  First  Nat. 
Bank,  138  111.  559.  28  N.  E.  978; 
Fisher  z:  Stiefel.  62  111.  App.  580; 
Smith  7'.  Allis,  52  Wis.  337,  9  N.  W. 
155;  Gray  v.  Law  (Idaho),  $7  Pac. 
435 ;  Kennedy  ''.  Security  Building 
&  Sav.  Ass'n.  (Tenn.),  57  S.  W. 
388. 

Testimony  of  Grantor.  —  "The 
officer  acts  under  the  weight  of  his 
official  oath,  and  is  disinterested,  and 
his  certificate  is  entitled  to  great 
and  controlling  weight  until  over- 
come by  clear  and  satisfactory  proof. 
The  evidence  of  the  grantor  will 
not  overcome  it."  Blackman  v. 
Hawks.  89  111.  512;  McCardia  r.  Bil- 
Hngs   (N.  D.),  87  N.  W.   1008. 

45.  That  He  'Was  Not  Officer. 
•■  We  think  it  was  competent  to  show 
by  the  certificate  of  the  county  clerk, 
the  state  of  the  county  records,  for 
the  purpose  of  proving  that  Fisk, 
before  whom  the  acknowledgment  of 
the  deed  was  taken,  was  not,  at  the 
time  of  the  acknowledgment  pvir- 
ported  to  have  been  taken,  a  justice 
of  the  peace.  It  seeins  to  us  as  com- 
petent to  make  it  appear  by  the  cer- 
tificate of  the  county  clerk  that  his 
records  show^  that  there  was  no  such 

Vol.  I 


2(14 


ACKNOWLEDGMENTS. 


of  the  certificate  ;^''  but  this  has  been  said  not  to  be  so  except  in  case 
of  fraud. ''^ 

f.  Disputing  Sfatciiicnts  of  Fact  in  Certificate.  —  Where  the  cer- 
tificate sets  forth  what  was  done  at  the  taking  of  the  acknowledg- 
ment, it  cannot  be  impeached  by  parol  evidence  showing  that  some- 
thing different  transpired. "'■^ 

IV,  BY  MAREIED  WOMEN.^' 

1.  Aider  of  Certificate,  —  A.  By  Presumption. — That  Officer  Did 
His  Duty. —  It  has  been  held,  under  certain  peculiar  statutes,  that 
where  a  certificate  of  acknowdedgment  of  a  married  woman  does 
not  show  all  the  facts,  it  will  be  presumed  that  the  officer  did  his 
(hit\-  and  the  certificate  will  stand. °" 


justice  in  the  county  at  the  time,  as 
that  a  particular  person  was  at  a 
particular  time  a  justice  of  the 
peace.  Such  certificate  would  not 
establish,  conclusively,  that  Fisk  was 
not  a  justice,  but  it  was  competent 
evidence,  as  tending  to  show  that 
fact."     Ross  7'.  Hole.  27  111.   104. 

4G.  Acknowledgment  Out  of  Offi- 
cer's Jurisdiction.  —  "If  a  iustico 
of  the  peace  for  one  county  goes  out 
of  his  own  into  another  county  and 
takes  the  acknowledgment  of  a  mar- 
ried woman  to  a  deed  purporting  to 
convey  her  homestead,  the  convey- 
ance would  be  void  as  to  the  home- 
stead. It  is  competent  to  show  this 
fact  liy  parol,  though  it  may  appear 
to  the  contrary  on  the  face  of  the 
acknowledgment."  New  England 
Mortgage  Securitv  Co.  v.  Payne,  107 
Ala.    578.    18    So.'  164. 

47.  Fraud  Must  Be  Shown. — 'it 
is  not  alleged  that  any  fraud  was 
practiced  bj'  the  parties.  The  land 
conveyed  is  in  Barren  county.  The 
acknowledgment  of  the  deed  is 
proper  by  both  husband  and  wife, 
and  before  the  clerk  of  Barren 
county,  and  this  fact  admitted  by 
both  the  grantors.  They  say,  how- 
ever, that  they  were  in  Metcalfe 
county  when  the  deed  was  acknowd- 
cdged,  and  that  the  writing  was  not 
explained  to  the  wife,  and  she  never 
consented  that  the  deed  might  be 
recorded,  and,  therefore,  the  indorse- 
ment was  a  mistake.     .     .     . 

"  When  the  parties  admit  the  ex- 
ecution of  the  deed  and  the  ac- 
knowledgment before  the  clerk  of 
the    county   where   the    land    lies,   or 

Vol.  I 


before  the  clerk  where  they  reside, 
and  the  clerk's  certificate  is  in  ac- 
cordance with  law,  they  will  not  be 
permitted  to  show,  under  the  alle- 
gation of  a  mistake,  that  the  certifi- 
cate was  not  in  the  form  of  or  as 
required  by  law,  or  that  the  clerk 
was  out  of  the  county  when  he  took 
the  acknowledgment."  Cox  v.  Gill. 
8,^   Ky.  669. 

48.  Disputing  Facts  Recited. 
■'  Where  it  appears  by  the  certificate 
on  the  deed  made  in  the  usual  form, 
that  the  party  on  a  particular  day 
came  before  two  justices  of  the  peace 
of  the  county,  and  acknowledged 
the  instrument  of  writing  to  be  his 
act  and  deed,  parol  evidence  is  not 
admissible  to  prove  that  the  said 
justices  separately  took  the  said  ac- 
knowledgment at  different  times  or 
places  within  the  said  county." 
Ridgeley  r.  Howard,  3  Har.  &  McH. 
(Md.)    321. 

49.  Most  of  the  rules  of  evidence 
bearing  upon  acknowledgments  of 
married  women  are  the  same  as  those 
bearing  upon  ordinary  acknowledg- 
ments and  they  have  been  treated  in 
the  general  part  of  the  article  above. 
The  cases  treated  under  this  head 
are  those  only  which  are  peculiar 
to  certificates  of  acknowledgment  by 
married  women. 

50.  Ruffncr  z:   Mcl.cnan,   16  Ohio 

'  Presumption  That   Officer  Did  His 

Duty.  —  "  The  deed  was  executed  by 
three  men  and  their  wives,  and  the 
justice  who  took  the  acknowledg- 
ment  certifies  that   they  all  appeared 


ACKNOWLEDGMENTS. 


205 


B.  Bv  E\luiiNClC.  —  Defective  Statements  and  Omissions. —  Where  a 
certificate  of  acknowledgment  by  a  married  woman  omits  to  state 
all  the  facts  required  by  the  statute,  parol  evidence  is  not  admissible 
to  show  what  actually  occtirred  when  the  acknowledgment  was 
taken."' 

Knowledge  of  Contents  of  Instrument. —  Where  a  married  winnan 
did  not  acknowledge  that  she  was  "  made  acquainted  with  the  con- 
tents "  of  an  instrument,  it  cannot  be  shown  in  aid  of  the  certificate 
that  she  did,  in  fact,  know  the  contents  of  the  instrument  at  the 
time  of  its  execution. ^- 


before  him  and  acknowledged  the 
execution  of  the  deed,  etc.  and  that 
the  femes  covert,  naming  them, 
'  being  separate  and  apart  from,  ac- 
knowledged that  they  executed  the 
same  freely,  and  without  fear  or 
compulsion  from  their  husbands.' 
The  certificate  does  not  state  that 
they  were  separate  and  apart  from 
their  husbands,  nor  that  the  contents 
of  the  deed  were  first  made  known 
to  them.  But  all  this  was  unnecessary. 
The  deed  was  executed  under  the 
statute  of  1838,  which  is  the  same 
as  that  of  1824.  In  Stevens  v.  Doe, 
6  Blackf.  465,  it  was  held,  under  the 
latter  statute  that  it  would  be  pre- 
sumed, the  contrary  not  appearing, 
that  the  officer  did  his  duty  as  to  the 
separate  examination  of  the  wife, 
and  making  her  acquainted  with  the 
contents  of  the  deed,  and  that  those 
facts  need  not  be  certified.  The  ac- 
knowledgment in  question  is  un- 
doubtedly good  under  the  decision 
above  mentioned."  Fleming  v.  Pot- 
ter,  14  Ind.  486. 

51.  United  States.  —  Elliott  t: 
Piersol,    I    Pet.   328. 

Alabama.  —  Cox  i'.  Holcomb,  87 
Ala.  589,  6  So.  309,  13  Am.  St.  Rep. 

79- 

Iowa.  —  O'Ferrall  i'.  Simplot,  4 
Iowa  381 ;  O'Ferrall  i'.  Simplot,  4 
Greene  162. 

Kentucky. — Blackburn  v.  Penning- 
ton, 8  B.  Mon.  217 ;  Barnett  v. 
Shackleford,  6  J.  J.  Marsh,  532,  22 
.\m.  Dec.  100. 

.Mississil't^i. — Willis  v.  Gattman,  53 
Miss.    721. 

Nexi.'  York. — Elwood  f.  Klock,  13 
Barb.  50. 

Peiiiisylvaitia. — Barnet  z'.  Barnet,  15 
Serg.  &  R.  72.  16  Am.  Dec.  516; 
Watson  ;'.  Bailey,  i  Binn.  470,  2  Am. 


Dec.  462 :  Jourdan  v.  Jourdan,  g 
Serg.  &  R.  258,   11   Am.  Dec.  724. 

Te.vas.  —  Looney  ;■.  Adam'ion.  48 
Tex.  619. 

Amending  Certificate  by  Parol. 
"  The  statute  has  required  that  all 
that  is  essential  to  an  acknowledg- 
ment shall  appear  in  the  certificate, 
to  bar  the  wife's  dower,  and  such  is 
the  construction  given  to  the  home- 
stead act.  This  acknowledgment 
cannot  rest  partly  in  writing  and 
partly  in  parol ;  it  must  all  be  in 
writing.  It  is  so  required  to  protect 
the  wife  in  her  rights.  The  statute 
has  declared  that  in  this  mode,  and 
this  alone,  can  the  wife  bar  her 
rights.  Our  statute  has  adopted  this 
as  a  more  convenient  mode  than  that 
provided  by  the  common  law,  which 
required  that  the  acknowledgment 
should  be  made  in  open  court  by 
fine  or  recovery,  and  it  always  became 
a  matter  of  record.  And  the  certifi- 
cate of  acknowledgment  has  taken 
its  place,  and  like  it.  is  required 
to  be  reduced  to  writing,  and  certified 
under  the  hand  of  the  officer.  We 
know  of  no  case,  in  practice  or 
reported,  which  has  held  that  a  de- 
fective certificate  of  acknowledgment 
may  be  aided  by  parol."  Ennor  v. 
Thompson.  46  111.   214. 

52.  Parol  Evidence  to  Show 
Knowledge  of  Contents.  —  The  re- 
maining question  is,  whether  a  court 
of  equity  will  aid  the  defective  ex- 
ecution so  as  to  bar  her  claim,  upon 
its  being  shown  dehors  the  deed  that 
she  was  acquainted  with  its  contents, 
anil  acknowledged  the  instrument 
with  intent  to  pass  her  dower. 

"  A  married  woman  has  no  legal 
existence  or  power  to  transfer  her 
interest  in  real  estate,  except  through 
the  statutory  channel.     The  mode  of 

Vol.  I 


206 


ACKNOWLEDGMENTS. 


2.  Impeachment  of  Certificate.  —  A.  Testimony  of  Husband 
AND  Wife  Alone.  —  A  certificate  of  acknowledgment  cannot  be 
impeached  by  the  testimony  of  husband  and  wife  alone, '^■^  although 
the  contrary  has  been  held.''^ 


execiUing  tlic  conveyance  confers 
upon  her  the  power  to  convey.  Where 
the  power  e.xists  independent  of  its 
mode  of  execution,  and  has  been 
defectively  executed,  it  is  not  a  case 
of  want  of  power,  but  of  defective 
execution,  which  a  court  of  equity 
will  aid.  But  where  the  power  and 
mode  of  e.xecution  are  inseparable, 
the  power  resulting  from  the  mode, 
and  that  mode  has  not  been  pursued, 
it  is  not  a  case  of  defective  execution, 
but  a  want  of  power,  which  a  court 
of  equity  can  not  aid.  Hence,  when 
a  married  woman  attempts  to  con- 
vey, and  lacks  power  from  not  pur- 
suing the  prescribed  mode,  courts  of 
equity  will  not  relieve,  because  to 
amend  the  mode  is  to  create  the 
power."  Silliman  v.  Cummins,  13 
Ohio   116. 

53.  Shell  V.  Holston  Nat.  Build- 
ing &  Loan  Ass'n.  (Tenn.),  52  S.  W. 
gog;  Thompson  v.  Southern  Build- 
ing and  Loan  Ass'n.  (Tenn.),  37 
S.  W.   704. 

Vol.  I 


Insufficiency     of     Testimony. 

"  When  the  testimony  proving  the 
fraud  or  deceit,  in  the  case  before  us, 
proceeds  from  husband  and  wife 
only,  their  credibility  is  affected  by 
their  interest.  ...  In  the  absence 
of  a  fact  in  corroboration  of  the 
evidence  of  husband  and  wife,  the 
official  certificate  ought  not  to  be 
overturned.  Miller  7'.  Mar.x,  55  Ala. 
322.  The  evidence  which  renders  it 
nugatory  and  void,  converting  the 
conveyance  into  mere  waste  paper, 
should  not  be  beclouded  with  circum- 
stances of  suspicion,  or  if  it  is,  ough' 
to  be  corroborated.  Especially  i^ 
this  true  when  the  evidence  in  im- 
peachment proceeds  only  from  the 
husband  and  wife,  refers  only  to 
occurrences  between  them  in  the 
privacy  of  domestic  life,  is  easily 
fabricated  and  almost  impossible  of 
contradiction."  Smith  i>.  McGuire. 
67  Ala.  34. 

54.     Wannell  v.  Kem,  e7  Mo.  478. 


ACQUIESCENCE.— See  Admissions. 


ACQUITTAL.— See  Records;  Judgment. 


ACT  OF  GOD.— See  Carriers. 

ACT     OF    INSOLVENCY.— See    Bankruptcy; 
Insolvency. 


ACT    OF     LEGISLATURE.— See    Judicial    Notice; 

Laws. 


ACT  OF  STATE.— See  Judicial  Notice  ;  Public  Policy. 


ACTUARY. — See  Expert  Testimony  ;   Insurance. 


ADDRESS.— See  Domicile. 


ADEMPTION.— See  Wills. 

Vol.  I 


ADJOINING  LAND  OWNERS. 

By  K.  K.  Wood. 

I.  DEFINITIONS,  209 

1.  Lateral  and  Siibjacc-nt  Support,  209 

2.  Party  Wall,  209 

II.  EVIDENCE  IN  ACTION  BETWEEN,  209 

1.  Competency  in  General,  209 

A.  Of  Negligence,  209 

a.  Damages  As  Res  Ipsa  Loquitur,  209 

b.  In  Lateral  Support,  210 

(i.)    Character  of  Soil,  210 
(2.)  Notice,  210 

(A.)   Exemfiting  from  Extraor- 
dinary Care,  210 

(B.)   Failure  to  Give,  211 
[T,.)Protecting  Improvements,  212 
(4.)    License  to  Enter,  212 
(5.)    Of  Intent,  212 

c.  In  Party  Wall,  212 

B.  Of  Notice,  212 

a.  In  Excavating,  2\2 

(i.)  Actual  Kno-cclcdge,  212 
(2.)  Judicial  Notice,  213 

C.  Custom  and  Usage,  213 

a.  /;/  Excavating,  213 

1).  /))  Party  Wall,  213 
\).  Expert  Opinion,  214 
E.  Inspection  of  Premises.  214 

a.  Actual,  214 

b.  By  PhotograpJi,  215 

2.  Defenses.  215 

.A..  Contributory  Negligence,  215 

a.  /;;  Lateral  Support.  215 

Ix   //(    Parfv    /Fo//,    P!ain)iff's    Knoicledge    of 
Damage,  216 
n.  Altering  Burden  of  Easements.  216 

a.  Weight  of  Improvement.  216 

b.  Defect  in  Improirments,  216 

(i.)   In  Lateral  Support.  216 
(2.)  Condemned  Building,  217 

Vol.  I 


ADJOINING  LAND  OWNERS.  209 

C.    Estoppel.    21 J 

a.  /)/  Lateral  Support,  217 

(I.)    Consent,  217 

(2.)   Agreement  to  Protect,  217 

b.  /))  Party  IValt,  217 
1,.  Presumptions,  218 

A.  0/  Notice,  218 

B.  of  Contribution  to  Party  Wall,  218 

I.  DEFINITIONS. 

W  hen  applied  to  land,  the  word  "  adjoining  "  means  lying  next 
to,  contiguons,  in  actual  contact  with,  touching,  as  distinguished 
from  lying  near,  or  "  adjacent."' 

1.  Lateral  and  Subjacent  Support.  —  The  right  of  lateral  support 
of  land  is  the  right  to  have  the  corpus  of  the  soil  itself,  either  in 
its  natural  condition  or  as  burdened  with  improvements,  supported 
by  the  adjoining  land ;  and  the  right  of  subjacent  support  is  a  like 
right  in  respect  of  the  land  lying  beneath. - 

2.  Party  Wall.  —  By  a  party  wall,  we  must  understand  a  wall 
between  the  estates  of  adjoining  owners,  which  is  used  for  the  com- 
mon benefit  of  both,  chiefly  in  supporting  the  timbers  used  in  con- 
struction of  contiguous  houses  on  such  estates.-^ 

II.  EVIDENCE  IN  ACTIONS  BETWEEN. 

1.  Competency  of  Evidence  in  General.  —  A.  Of  Negligence. 
a.  Damages  As  Res  Ipsa  Loquitur.  —  Where  the  gravamen  of  the 
action  is  negligence,  or  want  of  skill  in  a  lawful  use  of  the  premises, 
evidence  of  ensuing  damages  to  the  adjoining  land  does  not  ipso 
facto  establish  such  negligence.* 

1.  Walton  z'.  St.  Louis  Ry.  Co.  Am.  St.  Rep.  60,  5  L.  R.  A.  298,  see 
67  Mo.  56;  Holmes  v.  Carley,  31  Weston  v.  Arnold,  L.  R.  8  Ch.  App. 
N.  Y.  289;  in  re  Ward,  52  N.  Y.  1084;  Glover  v.  Mersman,  4  Mo. 
395;  Akers  v.  United  R.  R.  Co.,  48  App.  90;  Brown  r.  Werner,  40  Md. 
N.  J.  Law   no;   McCulIough  z:  .Ab-  15. 

secon  Co.,  48  N.  J.  Eq.  170,  21  Atl.  "Partition  Wall"  Distinguished. 
481.  In  construing  an  act  regulating  the 
Primary  Meaning  Defined — '■  The  height  of  division  fences  and  parti- 
primary  meaning  of  the  word  '  ad-  tion  walls,  as  applying  to  fences  or 
joining '  is  to  lie  next  to.  to  be  in  walls  built  upon  the  line  and  resting 
contact  with,  excluding  the  idea  of  partly  on  land  of  the  adjoining  pro- 
any  intervening  space."  Yard  z:  prietor,  the  court  say :  " '  Partition 
Ocean  Beach  Ass'n.,  49  N.  J.  Eq.  306,  wall '  is  not  a  phrase  which  in  legal 
24  Atl.  729.  technology   is     used    to    designate   a 

2.  Doctrine     Not     Applicable     to  wall   used  by  adjoining  owners  as  a 
Hydraulic     Mining     Claims. —  Hen-  party  wall."     Western  Co.  v.   Knick- 
dricks  v.   Spring  Valley  Co.,  58  Cal.  erbocker,  103  Cal.  in.  37  Pac.  192. 
190,  41  Am.  Rep.  257.  4.     Rationale  of  Rule —  Spohn  v. 

3.  Per  Curiam  in  Graves  v.  Dives.  174  Pa.  St.  474,  34  Atl.  192. 
Smith,    87    Ala.    450,   6    So.    308,    13  In   Schultz   v.   Byers,  53  N.   J.   Law 

14  Vol.  I 


210 


ADJOINING  LAND  OWNERS. 


b.  Latcval  Support. —  (1.)  Character  of  Soil.  — In  an  action  involv- 
ing the  question  of  liability  for  removal  of  lateral  support,  evidence 
of  the  character  of  the  soil  is  admissible,''  as  where  it  tends  to 
show  whether  the  adjoining  soil  was  of  such  a  character  as  to  sus- 
tain its  own  weight  by  natural  character,"  or  that  landslides  had 
occurred  at  or  near  the  spot,^ 

(2.)  Notice.  —  (A.)  Exempting  From  Extraordinary  Care. — Evidence 
of  notice  to  the  owner  of  adjoining  premises  by  one  making  an  exca- 
vation on  his  own  soil,  is  admissible  to  exonerate  such  excavator 
from  liability  for  injury  to  improvements  on  the  former's  land  which 
might  have  been  avoided  by  the  exercise  of  extraordinary  precau- 
tion,* but  is  not  competent  to  absolve  the  excavator  from  the  use 


442,  22  All.  514,  26  Am.  St.  Rep.  435, 
the  court  says :  "  There  was  no 
proof  or  offer  lo  prove  at  the  trial, 
that  the  defendant  was  negligent  in 
digging  his  cellar  whereby  the 
plaintiff's  house  was  caused  to  settle, 
and  the  wails  lo  crack,  beyond  the 
mere  fact  that  this  was  the  result. 
This  result  alone  was  not  sufficient, 
for  it  may  have  been  caused  by  de- 
fects in  the  plaintiff's  house." 

In  Ward  v.  Anderson,  3  Mo.  App. 
275,  the  court  say :  "  The  giving 
way  of  the  building  and  the  cracks 
under  it  may  have  been  caused  by  its 
own  weakness,  or  by  the  condition 
of  the  land  under  it,  and  not  by  ex- 
cavation. It  does  not  appear  from 
the  evidence  that  the  building  sunk 
or  became  cracked  immediately  upon 
the  excavation's  being  made;  and  if  il 
did,  mere  sychronism,  or  concur- 
rence in  respect  to  time,  does  not  es- 
tablish or  tend  lo  establish  the  rela- 
tion of  cause  and  effect." 

Res    Ipsa     loquitur A    contrary 

rule  has  been  maintained,  luider  the 
maxim   res  ifs^  loquitur. 

Percolating     Filthy     Water Ball 

V.  Nye.  99  Mass.  582,  97  .'\m.  Dec.  .s6. 

Excavating — Bernhcimer  v.  Kil- 
patrick.  ^3  Hun  316,  6  N.  Y.  Supp. 
858. 

5.  City  of  Covington  r'.  Gevlor. 
93  Ky.  275.  19  S.  W.  741  :  Delaney 
V.  Bowman.  82  Mo.  App.  252; 
Shrieve  '■.  Stokes,  8  B.  Mon.  (Ky.1 
453.  48  .'\m.   Dec.  401. 

■Upon  Question  of  Defective  Wall. 
In  Spohn  V.  Dives.  174  Pa.  St.  474. 
.34  Atl.  192,  the  following  instruction 
in  the  court  of  common  pleas,  upon 
the  question  of  negligence  in  exca- 
vating   resulting    in    injury    to    1)uild- 

Vol.  I 


ings  on  the  adjoining  premises,  was 
approved  on  appeal :  "  There  has 
been  considerable  testimony  as  to 
the  materials  this  wall  was  con- 
structed of,  and  the  nature  of  the 
soil  upon  which  it  was  placed,  as  to 
Its  being  new  earth,  wet,  soft,  or 
dry,  or  sufficient  to  sustain  an  or- 
dinary wall.  All  these  matters  you 
will  take  into  consideration,  and 
you  will  determine  from  them 
whether  the  fall  or  sagging  of  the 
plaintiff's  wall,  whereby  the  injuries 
to  their  property  were  caused,  was 
the  fault  of  an  original  defect  in  the 
construction  of  the  plaintiff's  wall. 
If  so,  of  course,  they  cannot  re- 
cover." 

6.  Walters  v.  Hamilton,  75  Mo. 
App.  237. 

7.  Louisville  &  N.  R.  Co.  v.  Bon- 
h^yo.  94  Ky.  67,  21   S.  W.  526. 

8.  Notice  Absolves  from  Extra- 
ordinary Precaution.  —  California. 
Sullivan  z'.  Zeiner,  98  Cal.  346,  33 
Pac.  209,  20  L.  R.  A.  730;  Aston 
7'.  Nolan,  63  Cal.  269 ;  Nippert  v. 
Warneke,  128  Cal.  coi,  61   Pac.  96. 

Indiana. — Bohrer  v.  Dienhart  Co., 
19  Ind.  .^pp.  489.  49  N.  E.  296: 
Block  V.  Haseltine,  3  Ind.  App.  491, 
29  N.  E.  937. 

Kansas. — Winn  v.  Abeles,  35  Kan. 
85,  10  Pac.  443,  57  Am.  Rep.  138. 

Kentucky. — Shrieve  v.  Stokes,  8  B. 
Mon.  453  48,  Am.  Dec.  401  ;  O'Neil 
II.  Harkins,  8  Bush  650;  Lapp  v. 
Guttenkunst  (Ky.),  44  S.  W.  964; 
City  of  Covington  v.  Geylor,  03  Ky. 
275,  19  S.  W.  741 ;  Clemens  v.  Speed. 
93  Ky.  284,  19  S.  W.  660.  19  L.  R.  .^ 
240. 

Maryland. — Shafer  t.  Wilson,  44 
Md.  268:  Bonaparte  v.  Wiseman.  80 


ADJOINING  LAND  OWNERS. 


211 


of  ordinary  care  and  prudence  in  prosecuting-  such  work,'' 

(B.)  Failure  to  Give. —  F.vidence  of  failure  to  give  notice  of  exca- 
vation may  be  competent  to  establish  negligence  on  the  part  of  the 
excavator,'"  it  being  a  question  of  fact  to  be  determined  bv  all  the 
circumstances  of  the  case." 


Md.  12,  42  Atl.  918,  44  L.  R.  A.  482. 

Missouri. — Obert  v.  Dunn,  140  Mo. 
476,  41   S.  W.  901. 

A'ric  York. — Lasala  v.  Holbrook, 
4   Paige    169,   25   Am.   Dec.   524. 

Pciinsyh'ania. — Spohn  v.  Dives,  174 
Pa.   St.  474,  34  Atl.   192. 

Soutli  Dakota.  —  Novotny  v.  Dan- 
forth.  9  S.  D.  301.  68  N.  W.  749. 

I'cnnont. — Beard  v.  Murphy  37  Vt. 
99,  86  Am.  Dec.  693. 

Rule  Stated.  —  In  Clemens  v. 
Speed.  93  Ky.  284,  19  S.  VV.  660,  19 
L.  R.  A.  240,  the  chief  justice  says: 
"  A  man  improves  his  property  know- 
ing there  must  be  changes  in  the 
improvement  adjoining  it,  and  it 
would  be  a  harsh  and  unjust  rule 
if  he  could  improve  as  he  chooses, 
and  tie  his  neighbor  down  from  do- 
ing so.  however  careful  he  may  act. 
If  the  latter  proposes  to  remove  his 
building,  and  injury  is  likely  to 
result  therefrom  to  the  building  of 
his  neighbor,  he  must  notify  him  of 
his  intention,  that  he  may  look  to  his 
own  protection ;  and  in  making  the 
removal  or  erecting  a  new  building 
he  must  use  reasonable  care  and 
precaution  to  protect  that  neighbor ; 
but  if  all  this  is  done  and  yet 
injury  results,  it  is  damuum  absque 
injuria." 

9.     Notice     Does     Not     Exonerate 

From    Ordinary    Care England. — 

Massey  v.  Goyder,  4  Car.  &  P.  161, 
19  Eng.   C.   L.  456. 

California. — Aston  v.  Nolan,  63 
Cal.   269. 

Georgia. — Bass  v.  West,  no  Ga. 
698.   36   S.   E.  244. 

Indiana.  —  Block  v.  Haseltine.  3 
Ind.  .\pp.  491,  29  N.  E.  937. 

.Missouri. — Eads  v.  Gains,  58  Mo. 
App.  586 ;  Obert  r.  Dunn,  140  Mo. 
476,  41  S.  W.  901  ;  Delaney  v.  Bow- 
man, 82   Mo.   App.   252. 

South  Dakota. — Ulrick  v.  Dakota 
Co.,  2  S.  D.  285,  49  N.  W.  1054,  and 
3  S.   D.  44,  51   N.  W.   1023. 

J'irginia. — Tunstall  v.  Christian,  80 
Va.   I,  56  Am.  Rep.  581. 


Statutory  Notice  Does  Not  Exempt 

From  Common  Law  Duty lu  Aston 

V.  Nolan,  63  Cal.  269,  the  court  say : 
"  It  is  apparent  that  by  giving  the 
notice  a  person  excavating  cannot 
relieve  himself  of  any  portion  of  his 
prudent  care  with  which  he  must 
have  conducted  the  work  in  the  ab- 
sence of  the  statutory  provisions  re- 
quiring notice.  His  excavation  must 
be  such  as  would  not  have  caused 
the  soil  of  the  adjacent  lot  to  tumble 
in  had  it  remained  in  its  natural 
state — not  built  upon,  but  if  he  gives 
the  notice,  and  so  conducts  the  work 
as  that  the  soil,  without  the  weight 
of  the  edifice,  would  not  have  fallen, 
his    whole    duty    is    performed." 

10.  Want  of  Notice  Evidence  of 
Negligence.— Beard  v.  Murphy,  37 
Vt.  99,  86  Am.  Dec.  693  ;  Bonaparte 
V.  Wiseman,  89  Md.  12,  42  Atl.  918, 
44  L.  R.  A.  482;  Krish  v.  Ford, 
(Ky.),  43   S.  W.  237. 

Statement  of  Rule In  Schultz  v. 

Byers,  53  N.  J.  Law  442,  22  Atl.  514, 
13  L.  R.  A.  569,  the  court  say: 
"  There  was  error  in  rejecting  the 
evidence  which  was  offered  to  show 
that  the  defendant  gave  no  notice  to 
the  plaintiff  of  his  intention  to  ex- 
cavate the  land  adjoining  the  house 
of  the  plaintiff's." 

11.  Bonaparte  v.  Wiseman,  89 
Md.  T2,  42  Atl.  91S,  44  L.  R.  .\. 
482. 

Knowledge  May  Have  Been  Other- 
wise Acquired — In  }, lamer  v.  Lus- 
sem,  65  111.  484.  it  was  held  erroneous 
to  instruct  the  jury  that  an  excavator's 
liability  depended  on  his  having 
given  reasonable  notice,  "  because," 
as  the  court  say :  "  It  excludes  the 
idea  that  plaintiff  might  have  had 
full  knowledge  of  the  intended  ex- 
cavation from  other  sources." 

A    Circumstance    of   the    Case In 

Montgomery  t.  Trustees,  70  Ga.  38, 
the  chief  justice  approved  the  follow- 
ing charge,  given  after  declining  to 
charge  that  failure  to  give  notice  en- 
titled    plaintiff     to     recover     without 

Vol.  I 


212 


ADJOINING  LAND  OWNERS. 


(3.)  Protecting  Improvements.  —  Where  clue  notice  has  been  given 
of  a  proposed  excavation,  evidence  is  not  admissible  to  charge  the 
excavator  with  negligence,  which  shows  his  neglect  or  refusal  to 
protect  the  building  or  other  improvement  on  the  adjoining  prem- 
ises by  shoring,  underpinning,  or  in  similar  manner. '- 

(4.)  License  to  Enter.  —  Statutory  provision  may  make  evidence  of 
neglect  to  furnish  support  competent  as  estabhshing  negligence  in 
case  it  is  shown  that  license  was  given  the  excavator  to  enter  on 
the  adjoining  premises  sufficiently  to  provide  for  such  support,''' 
and  evidence  of  the  authorization  of  acts  necessary  for  the  excava- 
tor to  ]5erform  his  duty  is  sufficient  to  establish  such  license.'* 

(5.)  Of  Intent.  —  Where  malicious  motive  is  alleged  on  the  jjart 
of  one  making  an  excavation,  evidence  of  the  purpose  for  w  Inch  he 
prosecuted  the  work  is  admissible. ''^ 

c.  /;)  Party  Wall.  —  In  an  action  touching  the  use  of  a  party  wall 
owned  by  both  adjoining  proprietors,  it  is  held  that  evidence  is 
incompetent  as  establishing  negligence  which  shows  that  the  act 
complained  of  was  a  mere  omission,  as  neglect  to  remove  wall 
damaged  by  fire."' 

B.  Of  Notice.  —  a.  In  Excavating. —  (1.)  Actual  Knowledge. 
In  actions  involving  the  question  of  due  notice  in  respect  of  exca- 
vations on  adjoining  premises,  evidence  is  competent  to  exonerate 


more :  "  If  they  failed  to  give  notice, 
that  is  one  circumstance  from  vvhicli 
you  must  determine  whether  neg- 
ligence is  imputable  to  them  or  not." 

12.  No  Duty  to  Protect  Improve- 
ments After  Notice — Block  v.  Hasel- 
tinc,  3  Ind.  .App.  491,  29  N.  E.  937; 
Larson  v.  Metropolitan  Ry.  Co.,  no 
Mo.  234,  19  S.  W.  416,  33  Am.  Rep. 
439,  16  L.  R.  A.  i3i ;  Obert  v.  Dunn, 
140  Mo.  476,  41  S.  W.  901  ;  Walters 
V.  Hamilton,  75  Mo,  .App.  237 ;  Pey- 
ton V.  Mayor,  9  Barn.  &  C.  725,  17 
Eng.  C.  L.  324 ;  Massey  v.  Goyder, 
4  Car.  &  P.  161,  19  Eng.  C.  L.  456; 
Lapp  V.  Guttenkunst  (Ky. ),  44  S. 
\V.  964;  City  of  Covington  v.  Gey- 
lor,  93  Ky.  275,  19  S.  W.  741 ;  Bona- 
parte ZK  Wiseman,  89  Md.  12,  42  Atl 
918.  44  L.  R.  A.  482. 

Evidence  of  Due  Notice  Will  Sup- 
port a  Recovery  for  the  Cost  of 
Such  Protection — Fads  v.  Gains.  58 
Mo.  App.  586;  Walters  v.  Hamilton. 
75    Mo.    App.    237. 

13.  Sherwood  f.  Seaman,  2  Bosw. 
(N.    Y.)    127. 

14.  Sun  Ass'n.  v.  Tribune  Ass'n. 
44  N.  Y.  Super.  136;  Walters  v. 
Hamilton,   75   Mo.   App.   237. 

In   the   case  of   Kctchum   v.    New- 


man, 116  N.  Y.  422  22  N.  E.  1052, 
defendants  excavated,  shoring  up  the 
adjacent  building,  the  license  to  enter 
for  such  purpose  being  revoked,  be- 
fore a  wall  had  been  erected,  and  it 
was  held  that  suffering  such  shoring 
up  was  evidence  competent  to  imply 
a  license  for  further  entry  for  pur- 
poses of  building  a  new  wall. 

Tender  of  License —  It  has  been 
held  that  evidence  need  not  be  given 
of  a  tender  of  such  license,  until 
request  for  the  license  is  shown. 
Cohen  7'.  Simmons,  16  Hun  634,  21 
N.  Y.  Supp.  ,385 ;  Dorrity  v.  Rapp. 
72  N.  Y.  307. 

15.  Winn  v.  .^beles,  35  Kan.  85. 
ID  Pac.  443-  57  Am.  Rep.  138.  See 
City  of  Quincey  j'.  Jones,  76  111.  231, 
20  Am.  Rep.  243. 

Other  TTse  Immaterial — In  show- 
ing that  an  excavation  was  made  for 
a  useful  purpose,  evidence  of  a  use 
to  which  the  land  coidd  have  been 
adapted  before  excavating  was  held 
immaterial.  Conboy  v.  Dickinson,  gj 
Cal.  600,  28  Pac.  809. 

16.  Mickel  v.  York,  66  111.  App. 
464;  Ainsworth  v.  Lakin  (Mass.),  62 
N.   E.   746. 


Vol.  I 


ADJOINING  LAND  OWNERS. 


213 


the  excavator  from  negligence  in  failing  to  give  formal  written  or 
verbal  notice,  which  tends  to  show  that  the  adjoining  owner  had 
actual  knowledge  of  such  proposed  excavation,'"  and  such  evidence 
has  been  received  as  equivalent  to  the  notice  required  by  statute.^* 

(2.)  Judicial  Notice.  —  Judicial  notice  will  be  taken  of  the  fact  that 
digging  beneath  a  foundation  wall  will  cause  it  to  crack  unless 
properly  underpinned. ''■" 

C.  Custom  and  Us.\ge.  —  a.  /;;  U.vcaz'atiiig.  —  In  determining 
the  question  of  negligence  in  excavating,  evidence  is  admissible  to 
show  the  methods  usually  employed  by  builders  in  such  cases.-" 

1).  /)(  Partv  Wall.  —  In  an  action  for  negligent  construction  of 
a  party  wall,  evidence  of  experts  was  held  admissible  to  show  if 
the  insertion  of  flues  was  customary  in  erection  of  such  walls,  as 
tending  to  establish  the  fact  that  the  wall  was  not  negligently 
weakened  therebv,-'  and  like  evidence  is  admissible  in  respect  of  the 


17.  Knowledge  Obviates  Formal 
Notice — Schultz  v.  Byers,  53  N.  J. 
Law  442,  22  Atl.  514,  13  L.  K.  A. 
569- 

Removal  of  Adjoining  House. 
In  iV-yton  v.  The  Mayor,  9  Barn  tk 
C.  725,  17  Eng.  C.  L.  324,  in  a  suit 
by  the  reversioner  against  the  owner 
of  an  adjoining  house  for  removing 
the  huter  without  shoring  up  the 
plaintiff's,  Lord  Tentcrden,  chief  jus- 
lice  of  the  King's  Bench,  said ;  "  It 
did  not  appear  that  the  defendants 
gave  any  previous  notice  of  the  in- 
tention of  pulhng  down  tlieir  house, 
or  of  the  time  of  doing  so,  but  the 
defective  state  of  both  houses  was 
known  to  the  parties.  .  .  The  op- 
eration of  taking  down  the  defend- 
ant's house  was  carried  on  by  day, 
and  the  operation  must  have  been 
seen  and  known  by  the  tenant  and 
occupier   of   the   plaintiff's    house." 

■What  Amounts  to  Knowledge. 
\\  hero  preliminary  work  was  done, 
and  discontinued  for  two  montlis 
before  the  excavating  was  extended 
to  wliere  it  iniured  the  adjacent 
house,  this  was  held  Insufficient  to 
warrant  the  presumntion  that  sucli 
adjacent  owner  had  knowledge  of  the 
character  and  extent  of  the  work. 
Bonaparte  z<.  Wiseman,  89  ^Id.  12. 
42  Atl.  gi8,  44  L.  R.  A.  482. 

Object  of  Notice — The  object  of 
the  notice  is,  that  the  party  may 
have  the  knowledge  of  what  is  going 
on.  of  the  fact  that  the  wall  is  being 
pulled  down.     Tlie  plaintiff  had  that 


knowledge,  and  that  is  notice.     Mont- 
gomery V.  Trustees,  70  Ga.  38. 

18.  Actual  Knowledge  Equivalent 
to  Statutory  Notice.  —  Ulrick  v. 
Dakota  Co.,  3  S.  D.  44,  51  N.  W. 
1023 ;  Novotny  v.  Danforth,  9  S.  D. 
301,  68  N.  W.  749. 

19.  Obert  v.  Dunn,  140  Mo.  476, 
41   S.  W.  901. 

20.  Identity  of  Conditions. 
Block  V.  Haseltine,  3  Ind.  App.  491, 
29  N.  E.  937- 

In  Shrieve  v.  Stokes,  8  B.  Men. 
(  Ky.)  453,  48  Am.  Dec.  401,  the  chief 
justice,  in  holding  that  it  was  ad- 
missible to  prove  what  was  usually 
done  by  builders,  said:  "The  evi- 
dence should  have  been  confined  to 
what  was  usual  in  cases  exactly 
similar  to  the  one  on  trial,  and  to  the 
manner  in  which  cellars  are  usually 
dug  out  in   such  cases." 

Negligence  in  Omitting  to  Em- 
ploy Method  Must  Be  Alleged. 
In  Obert  -■.  Dunn,  140  Mo.  476,  41 
S.  W.  got.  it  was  held  that  evidence 
was  properly  refused  which  sought 
to  show  that  it  was  usual  to  e.x- 
cavate  and  wall  up  in  sections,  where 
no  such  charge  of  negligence  was  in 
the   pleadings. 

21.  Gorham  v.  Gross,  125'  Mass. 
2:^,2,  28  Am.  Rep.  234. 

In  this  case  the  contract  for  con- 
struction provided  that  details  not 
specified  should  be  "  decided  by  the 
custom  in  regard  to  party  walls  in 
the  said  city  of  W,"  and  an  exception 
to   the   testimony   of   an    expert   was 

Vol.  I 


214 


ADJOINING  LAND  OITNERS. 


use  of  such  wall  by  the  insertion  of  joists. -- 

D.  ExPEKT  Opinion.  —  la  determining  the  question  of  reasona- 
ble care  and  skill  in  respect  of  the  protection  of  property  from 
injury  by  work  on  adjoining  premises,  evidence  is  competent  to 
show  whether  the  work  was  executed  in  accordance  with  the 
advice  of  one  experienced  in  such  matters,-"  though  such  opinion 
is  not  in  itself  conclusive  evidence  of  due  care  and  skill. -^ 

E.  Inspection  of  Premises. — a.  Actual.  —  In  general,  inspec- 
tion of  the  premises  is  not  competent  of  itself  as  evidence,  but  as  a 
means  of  enabling  the  jury  to  understand  and  apply  the  evidence 
adduced  in  court,-'  but  such  inspection  is  competent  as  direct  evi- 


overruled,  un  the  ground  that  "  not 
a  technical  custom,  but  the  usual 
practice  "   was    intended. 

22.  McMinn  i'.  Karter,  ii6  Ala. 
390,  22  So.  517.  The  court  say;  "We 
do  not  know  judicially  that  the  let- 
ting in  of  sleepers,  joists,  and  rafters 
in  the  way  proposed  by  the  respond- 
ent would  at  all  weaken  or  injure 
this  wall." 

23.  Expert  Opinion  in  Exca- 
vating.— Hammond  f.  Schiff,  100  N. 
C.  161,  6  S.  E.  753;  Larson  v.  Met- 
ropolitan Ry.  Co.,  no  Mo.  234,  19 
S.  W.  416,  33  Am.  St.  Rep.  439,  16 
L.  R.  A.  330;  Shrieve  v.  Stokes,  8 
B.  Mon.  (Ky.)  453.  48  Am.  Dec.  401  ; 
Block  V.  Haseltine,  3  Ind.  App.  491, 
29  N.  E.  937- 

Expert  Opinion  in  Alteration  of 
Wall — Levy  v.  Fenner,  48  La.  .\nn. 
1389,  20  So.  895. 

Application  of  Rule In   Winn  v. 

Abeles,  35  Kan.  85,  10  Pac.  443,  57 
Am.  Rep.  138,  an  action  by  a  lessee 
against  his  lessor  for  mjury  to  tene- 
ment by  excavation  on  adjoining 
land  by  third  person,  lessor  testified 
that  he  had  acted  under  advice  of  a 
skilled  architect  in  protecting  the 
building,  and  the  court  say :  "  In 
determining  what  action  he  should 
take  to  protect  the  building  it  was 
proper  for  Abeles  to  consult  a  prac- 
tical and  skillful  man  who  had  had 
e.xpcricnce  in  such  matters,  and  to 
re.ijard  his  advice  in  the  means  em- 
ployed to  accomplish  his  purpose. 
The  testimony  complained  of  was 
therefore  competent  to  prove  that  he 
acted  with  reasonable  caution,  and 
with  good  faith  in  the  steps  taken 
by   him." 

24.  Expert  Opinion  Not  Con- 
clusive— Charlcss  v.  Rankin,  22  Mo. 

Vol.  I 


5j6,  6b  Am.  Dec.  O42  the  court  say : 
"  1  he  question  is,  as  to  the  fact  of 
negHgence,  whether  the  work  was 
done  in  a  careless  and  improvident 
manner,  so  as  to  occasion  greater 
risk  to  the  plaintiff  than  in  the  rea- 
sonable course  of  doing  the  work 
he  would  have  incurred,  and  not 
whether,  in  the  opinion  of  the  super- 
nuendent,  no  matter  how  skillful  he 
may  have  been,  everything  was  done 
that  he  deemed  necessary.  His 
opinion  may  be  proper  evidence  to 
be  considered  by  the  jury,  but  it 
does  not  conclude  the  matter,  con- 
stituting of  itself  a  bar  to  the  plaint- 
iff's   recovery." 

Setting  a  Fire — Evidence  of  one 
skilled  in  clearing  land  by  fire  has 
been  held  incompetait  nn  the  question 
of  negligence.  Higgins  v.  Dewey, 
107  ;Mass.  494,  9  Am.  Rep.  63 ;  Fer- 
guson v.  Hubbell,  97  N.  Y.  507,  49 
Am.  Rep.  544 ;  Eraser  ■:■.  Tupper.  29 
Vt.  409. 

25.  See  Horan  v.  Byrnes,  70  \. 
H.   531,  49  Atl.   569. 

In  Lateral  Support,  Damage  Done 
By  Removal  Of. —  In  Schultz  r. 
Bower,  57  Minn.  493,  59  N.  W.  631, 
47  Am.  St.  Rep.  630.  in  an  action  for 
damages  for  wrongful  removal  of 
lateral  support,  the  jury,  having  been 
sent  to  view  the  premises,  the  court 
say:  "In  the  charge  the  jury  were 
told  that  they  had  been  permitted 
to  look  the  premises  over,  so  that 
they  might  have  another  standard  by 
which  to  gauge  the  evidence  they 
had  heard  in  court ;  that  it  mi.ght 
perhaps  help  them  in  determining 
whether  the  witnesses  for  the  plain- 
tiff or  the  witnesses  for  the  defend- 
ant had  more  nearly  told  the  truth 
in    regard    to    the    damages    to    the 


ADJOINING  LAND  OWNERS. 


215 


dence  of  whether  premises  are  diminished  in  vahie  for  rental  pur- 
poses by  the  erection  of  a  fence  malevolently  on  adjoining  land.-'' 

b.  By  ['lioto graph.  —  In  an  action  for  damages  caused  by  the  use 
of  a  part}'  wall,  photographs  of  the  premises  are  admissible,  their 
accuracy  to  be  estimated  from  the  testimony  of  the  witnesses.-' 

2.  Defenses.  —  A.  Contiubutory  Negligence.  —  a.  /;;  Lateral 
Support.  —  In  an  action  for  injury  to  improvements  caused  by 
removing  the  lateral  support  of  the  adjoining  premises,  evidence  of 
the  omission  by  the  plaintiff  to  use  reasonable  care  and  prudence 
may  establish  contributory  negligence,  considered  with  reference 
to  the  circumstances  of  the  case,-"  and  evidence  of  the  excavator's 
promise  to  take  such  precautions  has  been  held  competent  to  dis- 
prove such  contributory  negligence.'-" 


premises;  .  .  .  Our  opinion  is 
that,  taking  the  charge  as  a  whole, 
its  fair  import  is  that  the  jury  might 
use  what  they  saw  or  supposed  they 
had  learned  on  the  view  as  evidence 
in  the  case,  at  least  for  some  pur- 
poses.    .     .     .     This  was  error." 

26.  Smith  v.  Morse,  148  Mass. 
407,  19  N.  E.  393- 

27.  Dorsey  v.  Habersack,  84  Md. 
117.  ,?5  Atl.  96. 

In  this  case,  the  court  say: 
"  There  is  sufficient  evidence  of  the 
experience,  etc.,  of  the  photographer 
to  justify  the  court  in  admitting 
them ;  and,  as  both  sides  had  photo- 
graphs in  evidence,  the  jury  could 
judge  of  their  accuracy  from  the 
testimony   of  the   witnesses." 

28.  Wahers  v.  Piiel,  i  U.  &  M. 
362,  22  Eng.  C.  L.  544-  See  May- 
hew  V.  Burns,  103  Ind.  328,  2  N.  E. 
793;  Shrieve  v.  Stokes,  8  B.  Mon. 
(Ky.)   453,  48  Am.   Dec.  401. 

Contributory  Negligence  Held 
Not  Admissible. —  Gildersleeve  v. 
Hammond,  log  Mich.  431,  67  N.  W. 
519,  33  L.  R.  A.  46,  the  court  say: 
"  The  defendants  knowingly,  inten- 
tionally and  wilfully  removed  the 
natural  support  of  the  plaintiff's 
building  by  the  removal  of  her  own 
soil.  The  building  fell  while  the 
work  was  going  on.  They  knew  the 
consequences  that  must  inevitably 
follow  their  wrongful  acts.  One  may 
not  deliberately  undermine  my  build- 
ing, and  then  avoid  the  consequences 
by  saying  to  me,  '  You  might  have 
protected  it.'  "  Stevenson  v.  Wallace, 
27   Gratt.    (Va.)    77. 

29.  Promise    to    Protect Louis- 


ville &  N.  k.  Co.  V.  Bonhayo.  94  Ky. 
67,  Ji   S.  W.  526. 

No  'Variance,  as  Showing  Liability 

Tlpon   Contract In   Gildersleeve   v. 

Hammond,  109  Mich.  431,  67  N.  W. 
519.  33  L.  R.  A.  46,  the  court  say: 
"  It  is,  however,  insisted  by  the  de- 
fendants that  the  plaintiff  was  guilty 
of  contriljutory  negligence,  in  not 
shoring  up  and  protecting  her  own 
property  when  she  saw  the  imminent 
danger.  Under  the  evidence,  the  de- 
fendants informed  her  that  they 
would  protect  her  building,  and  this 
would  relieve  her  from  any  further 
responsibility.  This  evidence  was  ob- 
jected to  upon  the  ground  that  it 
tended  to  prove  a  different  cause  of 
action  froin  that  set  up  in  the  dec- 
laration; namely,  a  liability  arising 
from  contract.  This  clearly  cannot 
be  so.  It  was  not  introduced  or  used 
for  that  purpose.  It  was  competent 
evidence  to  relieve  the  plaintiff'  from 
the  charge  of  contributory  negli- 
gence." 

Notice  of  Change  in  Mode  of 
Proceeding  Must  Be  Shown In  Lar- 
son V.  Metropolitan  Ry.  Co.,  no  Mo. 
234,  19  S.  'W.  416,  33'  Am.  St.  Rep. 
439,  16  L.  R.  A.  330,  the  court  say : 
"  If  defendant  notified  plaintiff  that 
a  certain  mode  of  proceeding  was  to 
be  pursued,  and  this  led  him  to  act 
upon  that  hypothesis,  and  refrain 
from  taking  steps  which  would  other- 
wise have  been  necessary  and  prudent 
to  insure  the  safety  of  his  property, 
the  risk  of  injury  to  the  plaintiff  in 
the  premises  imposed  on  defendant 
the  duty  towards  him  of  conform- 
ing to  the  plan  of  work  of  which  it 

Vol.  I 


216 


ADJOINING  LAND  O  If  NEKS. 


b.  In  Party  Wall,  Flaintilf's  Knowledge  of  Damage.  —  In  an 
action  for  injuries  caused  by  the  negligent  use  of  a  party  wall, 
evidence  that  plaintiff  was  aware  of  the  damage  being  caused,  and 
could  have  prevented,  but  omitted  to  do  so,  is  admissible  in  bar  of 
recovery  for  such  damages.'"' 

B.  Altekinc.  Bukuicn  op  EaskmExt.  —  a.  W'eiglit  of  Diiprovc- 
nieiit.  —  The  right  of  lateral  and  subjacent  support  being  incident 
to  the  soil  alone,  evidence  is  competent  in  bar  of  an  action  for  the 
removal  of  the  same  where  no  negligence  is  shown,  which  shows 
that  the  lateral  or  direct  pressure  of  the  soil  was  increased  bv  the 
presence  of  a  building  or  other  improvement  thereon.^' 

b.  Defect  i)i  Improvements. — (1.)  In  Lateral  Support. — Evidence 
has  been  held  admissible  to  exonerate  from  injury  to  improvements 
through  the  removal  of  lateral  support  which  reveals  that  such 
improvement  fell  because  of  its  inherent  insufficiency  of  construc- 
tion,''- but  other  decisions  have  held  such  evidence  competent  only 


had  advised  him,  or  to  reasonably 
notify  him  of  a  change  in  that  plan 
in  season  to  admit  of  his  adopting 
protective  measures  of  his  own. 

30.  Hartford  Co.  v.  Calkins.  i8(i 
111.  104.  57  N.  E.  86.^ 

31.  Increasing  Pressure  in  Lat- 
eral Support.  _  England.  —Partridge 
V.  Scott.  3  M.  &  W.  220,  4g  Rev.  Rep. 
5/8 :  Wyatt  v.  Harrison,  3  Barn.  & 
.'\.  871,  37  Rev.  Rep.  566. 

niinois. — Mamer  i'.  I^ussem,  6s  III 
484. 

Kentucky.  —  Lapp  v.  Gnttenkunst 
CKy.),  44  S.  W.  964:  Krish  v.  Ford 
(Ky.).  43  S.  W.  237. 

Michigan.  —  Gildersleeve  v.  Ham- 
mond. 109  Mich.  431,  67  N.  W.  .519, 
i^  L.  R.  A.  46 ;  Hemsworth  v.  Gush- 
ing, 115  jMich.  92,  72  N.  W.  1 108. 

Missouri. — Obert  v.  Dunn,  140  Mo. 
476.  41  vS.  W.  901  ;  Bushy  v.  Holthaus, 
46   Mo.   161. 

Vermont. — Beard  v.  Murphy.  37 
Vt.  99,  86  Am.  Dec.  693. 

Wisconsin. — Laycock  v.  Parker,  103 
Wis.  161,  79  N.  W.  327. 

Intervening  Land — Evidence  that 
an  excavation  injuring  plaintiff's 
house  was  made  on  land  of  defend- 
ant not  immediately  adjoining  was 
held  incompetent  to  relieve  the  latter 
from  liability,  it  being  shown  that 
he  owned  the  intervening  ground,  the 
distance  of  the  house  from  the  line  of 
excavation  being  a  fad   for  the  jury's 

Vol,  I 


consideration.  See  also,  VVitherow  v. 
Tannerhill,  194  Pa.  St.  21,  44  Atl. 
1088 ;  Austin  v.  Hudson  River  R. 
Co..   25    N.   Y.   334. 

And  the  fact  that  an  alley  of  two 
or  three  feet  in  width  lies  between 
will  not  preclude  a  showing  that  the 
intervening  earth  was  such  as  to 
render  it  highly  probable  it  would 
give  away.  Shrieve  v.  Stokes,  8  B. 
Mon.   (Ky.)  453,  48  Am.  Dec.  401. 

Increasing  Pressure  in  Subjacent 
Support.— Wilms  v.  Jess,  94  III.  464, 
34  Am.  Rep.  242 ;  Marvin  v.  Brewster 
Co.,  55  N.  Y.  538,  14  Am.  Rep.  322; 
Pringle  v.  Vesta  Co.,  172  Pa.  St. 
438,  3:^  Atl.  690.  But  see  Jones  v. 
Wagner.  66  Pa.  St.  429,  =;  Am.  Rep. 
385. 

Erections  Which  Have  Been  Held 
Insufficient  as  Evidence  of  Such 
Result.— O'Ncil  V.  Harkins,  8  Bush 
(Ky.)  650;  Farrand  v.  Alarshall,  ig 
Barb.  (N.  Y.)  380;  Gilmore  v.  Dris- 
coll,  122  Mass.  199,  23  Am.  Rep.  312; 
White  1'.  Teho.  43  .\pp.  Div.  418.  60 
N.  Y.  Supp.  231. 

Improvement  Made  by  Third  Per- 
son— In  Foley  v.  Wyeth,  2  Allen 
(Mass.)  131,  79  Am.  Dec.  771,  it 
was  held  that  evidence  of  the  erection 
of  the  improvement  by  a  third  person 
was   inadmissible   as   a    defense. 

32.  Defect  in  Improvement  Ex- 
cuses Injury — Spohn  v.  Dives.  174 
Pa.  St.  474.  ,M  .\{\.  192;  Shafer  v. 
Wilson.  44   Md,   268. 


ADJOINING  LAND  OirNERS. 


217 


in  determining'  the  degree  of  negligence  and  in  mitigation  of  dam- 
ages.^'' 

(2.)  Condemned  Building.  —  In  an  action  for  injury  to  an  adjoining 
building  through  the  negligent  use  of  a  party  wall,  evidence  is  not 
admissible  to  show  that  the  building  had  been  condemned  by  jxib- 
lic  authority,  where  no  notice  thereof  had  been  given  the  owner. •'"' 

C.  Estoppel. —  a.  In  Lateral  Support. —  (1.)  Consent.  — Evidence 
of  the  consent  of  an  adjoining  land  owner  to  the  removal  of  lateral 
support,  will  bar  a  recovery  for  injury  occasioned  thereby. ^^ 

(2.)  Agreement  to  Protect.  —  An  excavator  is  estopped  to  deny  lia- 
bility for  damages  caused  by  his  failure  in  the  performance  of  an 
express  agreement  to  protect  the  improvements  on  adjoining  prem- 
ises.-*° 

b.  In  Party  Wall.  —  Permissive  use  of  a  wall  as  a  parly  wall  will 
estop  the  adjoining  owner  from  objecting  thereto.'*' 


33.  Stevenson  v.  Wallace,  27 
Gralt.    (,Va.)    77. 

In  Uodd  V.  Holme,  i  Ad.  &  E.  493, 
28  Eng.  C.  L.  240,  the  court  say : 
"  The  bad  condition  of  the  house 
would  only  affect  the  amount  of  dam- 
ages. If  it  was  true  that  the  premises 
could  have  stood  only  si.x  months, 
the  plaintiff  still  had  a  cause  of 
action  against  those  who  accelerated 
its  fall ;  the  state  of  the  house  might 
render  more  care  necessary  on  the 
part  of  the  defendant  not  to  hasten 
its   dissolution." 

34.  Bouquois  v.  Monteleone,  -47 
La.   .^nn.  814,   17  So.  305'. 

35.  City  of  Covington  v.  Geyler. 
93  Ky.  275,  19  S.  W.  741. 

Attempt  to  Guard  Against  Injury. 
In  Dowling  v.  Henning.^,  20  Md.  179, 
83  Am.  Dec.  545,  it  was  held  that  an 
attempt  to  guard  against  the  injury 
threatened  by  such  removal  is  in- 
competent as  evidence  of  such  as- 
sent. 

36.  Walters  z'.  Hamilton,  75  Mo. 
App.  237. 

Application    of   Rule In   Delaney 

z'.  Bowman,  82  Mo.  .\pp.  252,  the 
court  say:  "In  making  the  proposed 
improvement  the  defendant  volun- 
tarily promised  to  protect  the  rear 
portion  of  the  east  wall  of  plaintiff's 
building.  The  plaintiff  had  the  right 
to  rely  on  this  promise,  although 
voluntarily  luade.  .  .  .  It  is  sug- 
gested that,  as  the  plaintiff  knew 
the  width  of  the  alley,  and  as  he  wa? 
as  capable  of  judging  of  its  suffi- 
ciency to  protect  his  wall  as  the  de- 


fendant, he  could  not  complain  that 
the  means  adopted  by  the  defendant 
for  his  protection  were  ineffectual. 
It  is  true  that  the  agent  of  the  plain- 
tiff had  knowledge  of  the  width  of 
the  wall,  but  it  was  not  established 
that  he  knew  the  character  of  the  soil 
as  disclosed  by  the  excavation,  nor 
was  he  advised  of  the  means  adopted 
by  defendant  to  prevent  tlie  accident. 
I-'nder  the  promise  of  defendant  he 
had  the  right  to  assume  that  defend- 
ant would  adopt  all  reasonable  means 
to  prevent  the  sides  of  the  exca- 
vation  from  caving." 

37.  Use  of  Wall  Encroaching  on 
Adjoining  Land.  —  Zeininger  v. 
Schnitzler,  48  Kan.  63,  28  Pac.  1007 ; 
Bank  z:  Thomas   fCal).  41   Pac.  462. 

Use    of   Wall    Erected    Wholly   on 

One     Side     of     Line Wilford     v. 

Gerard  (Ky.),  56  S.  W.  416. 

In  this  case,  it  was  held  that  per- 
missive use  of  a  wall,  with  an  under- 
standing that  the  resnective  rights 
of  the  parties  should  be  adjusted  in 
the  future,  estopped  the  builder  from 
demanding  that  the  house  be  removed 
which  was  erected  pursuant  to  such 
use. 

Opening    Windows    in    Wall In 

Dunscnmli  z'.  Randolph  (Tenn.).  64 
S.  W.  21,  the  only  objection  made 
to  the  opening  of  windows  in  a  wall 
was  a  notice  that  the  adjoining  owner 
would  hold  the  co-tenant  liable  for 
any  damages  caused  by  falling  bricks, 
and  this  was  held  evidence  to  estop 
the   adjoining  owner   from   objecting 

Vol.  I 


218 


ADJOINING  LAND  OITNERS. 


3.  Presumption.  —  A.  ( iF  Notick.  —  In  absence  of  allegation  and 
evidence  of  a  want  of  notice,  in  an  action  tor  the  removal  of  lateral 
support,  it  will  be  presumed  that  such  notice  was  properly  given.-"* 

B.  Of  Contribution  to  Party  W'.xlu.  —  In  the  absence  of  statu- 
tory provision  or  agreement  to  the  contrary,  evidence  of  the  use  by 
an  adjoining  owner  of  a  wall  erected  partly  upon  his  land  is  not  in 
general  held  admissible  to  establish  an  implied  promise  to  contribute 
to  the  cost  of  such  wall  ;■''"  but  the  facts  and  circumstances  of  the 
case  may  be  such  as  to  estal)lish  the  presumption.'"' 


to  such  windows  lunil  she  desired 
to  use  the  wall. 

38.  Block  V.  Haseltiue,  3  Ind.  .\pp 
491,  29  N.  E.  937- 

In  this  case,  the  chief  justice  says; 
"  As  the  complaint  is  silent  upon 
the  subject  of  notice,  it  must  be 
presumed  that  notice  was  properly 
given." 

39.  No  Implied  Promise  of  Con- 
tribution  Alabama.  —  Bisquay   ?'. 

Jeunelot,  10  Wa.  245,  44  .•\m.  Dec. 
483 ;  Autoniarchi  v.  Russell,  63  Ala. 
356.  35  Am.  Rep.  40;  Preiss  v.  Par- 
ker, 67  Ala.  SCO. 

Florida. — Orman    v.    Day,     s    i'la. 

38.V 

///;»(iiV.— ^NlcCord  -.■.  Tlt-rrick.  18 
111.    App.   423. 

Vol.  I 


Massachusetts. — Wilkins  v.  Jewett. 
139  Mass.  29,  29  N.  E.  214. 

Missouri. — Abrahams  v.  Krautler, 
24  Mo.  69,  66  Am.  Dec.  698. 

West  Virginia. — List  v.  Hornbrook. 
2  W.   Va.   340. 

40.  When  Promise  of  Contribu- 
tion Is  Implied Day  v.  Caton,  119 

Mass.  513,  20  Am.  Rep.  34";  Huck  v. 
Flentye,  80  111.  258;  Campbell  v. 
Messier,  4  Johns.  Ch.  t,xx.  8  Am. 
Dec.  570;  Keith  v.  Ridge,  146  Mo. 
90,  47  S.  W.  904;  Sanders  v.  ;\Iartin, 
2  Lea  (Tenn.)  213,  31  Am.  Rep.  598; 
Wilford  V.  Gerard  (Ky.),  56  S.  W. 
416;  Rindge  v.  Baker,  57  N.  Y.  20g^ 
15  Am.  Rep.  475. 


ADJUDICATION— See  Judgment. 


ADJUSTMENT  OF    LOSS.-See  Insurance. 


ADMINISTRATORS.— See   Executors   and    Adminis- 
trators. 


ADMIRALTY. 

By  H.  L.  (4ear. 


I.  GENERAL  PRINCIPLES  AND  RULES,  22-; 

I.  In  Cases  Generally,  227 

A.  Admiralty  Proceedings  Distinguished,  227 

a.  Trial  by  Jury  Not  a  Test,  227 

b.  Court  Judge  of  Law  and  Fact,  22/ 

c.  Proceedings  Modeled  Upon  Civil  Laiv,  227 

(i.)  Process  Acts  of  Congress,  228 

d.  Causes  Governed  by  Maritime  Law,  228 

(i.)  Effect  of  Local  Lazv,  228 
(2.)   Latv  of  Nations,  228 
(  3. )    Usages  of  the  Sea,  229 
(4.)   Judicial  Question,  229 

B.  General  Rules  of  Evidence,  229 

a.  State  Rules  Inapplicable,  229 

b.  Common  Law  Rules,  229 

c.  Laxity  of  Rules  in  Admiralty.  230 
(1.  Rules  of  Equity,  230 

e.  Inspection  of  Books  and  Papers.  231 

f.  Proof  of  I'oreigu  La7^'s.  23: 

Vol.  I 


221)  ADMIRALTY. 

2.  In  Prize  Causes,  231 

A.  General  Rules,  231 

a.  Rules  of  Lazv,  231 

b.  Oral  Testimony  Not  Allowed,  232 

B.  Proofs  Upon  Hearing,  232 

a.  Papers  of  Captured  Vessel,  232 

(i.)   Custody  and  Sealing  of  Papers,  232 

(2.)  Abscnee  of  Papers,  233 

(3.)    Conecalment  and  Spoliation  of  Papers,  233 

(4.)    Other  Frauds  Concerning  Papers,  234 

(5.)  Enemy's  Flag,  Passport  and  License,  234 

(6.)   Invocation   of  Papers  From    Other  Causes, 

235 

b.  Captured  Property  As  Bi'idencc,  235 

c.  Examination  in  Preparatorio,  236 

(i.)   Deviation  From  Rule,  236 
(2.)   Examination    Upon    Standing    Interrogato- 
ries, 236 
(3.)   Duty  of  Commissioners  on  Examination.  237 
(4.)    Objections  to  Examination,  237 
(5.)    Sealing  and  Custody  of  Examinalion.  2^J 

C.  Test  Affida-Ats  of  Claimants.  237 

a.  Test  Affidavits  by  Agent.  238 

b.  Papers  Anne.ved  to  Affidavits.  238 

c.  Limits  of  Claims  and  Affidavits.  238 

D.  Further  Proof.  239 

a.  Mode  of  Further  Proof.  239 

b.  Caution  As  to  Further  Proof.  240 

c.  Further  Proof  of  Claimants.  240 

(i.)    JVhen  Not  Allowed.  241 

d.  Further  Proof  of  Captors.  242 

(i.)   IVhcn  Not  Allozved,  243 

e.  Failure  of  Further  Proof.  243 

II.  RELATION  OF  PROOF  TO  PLEADING,  244 

1.  In  General.  244 

A.  Evidence  Under  General  Pleading.  244 
P..  Material  I'ariance.  245 

2.  Amendments  to  Support  Evidence.  245 

A.  Of  Lib  el.  243 

;i.   When  Not  Allowed.  246 

Vol.  I 


ADMIRALTY.  221 

B.  Of  Ansi^'cr,  246 

a.  When  Not  Alloi^'cd,  247 
3.  Pleadings  As  Bi'idcncc,  247 

A.  In  General,  247 

B.  Admissions  in  Pleading.  247 

a.  Failure  to  Take  Issue,  248 

b.  Absence  of  Replication,  248 

C.  Limitation  of  Pleadings  As  Ei'idencc.  249 

D.  Interrogatories  and  Ansii'crs.  249 

III.  PRESUMPTION  AND  BURDEN  OF  PROOF,  250 

1.  General  Presumption.  250 

A.  Vessel  and  Cargo,  250 

B.  Master  of  l^cssel,  250 

C.  Ei'idencc,  250 

2.  Burden  of  Proof  in  General.  250 

A.  Performance  of  Conditions,  250 

B.  Non-Performance,  251 

C.  Interpretation  of  Conditions,  251 

D.  Title  Under  Master's  Sale,  251 

E.  Wrongs,  251 

F.  Pilotage,  251 

G.  fFa^fj  of  Seaman,  252 
H.  Change  of  Voyage,  252 

3.  /;;  Cases  of  Prize.  252 

A.  Presumptions.  252  « 

a.  r»7/^,  252 

b.  Hostility  of  Ship  and  Cargo,  252 

(I.)   Trade  With  Enemy.  252 

c.  Blockade,  253 

(I.)   Notice  of  Blockade.  253 

B.  Burden  of  Proof.  253 

a.  Captors,  253 

b.  Claimants.  253 

c.  Blockade,  254 

d.  Violation  of  Neutrality.  234 

(i.)   Augmentation  of  Force.  254 

4.  r(/.?rjr  0/  Forfeiture,  254 

A.  Registry  of  J'essels,  254 

B.  Embargo  and  Non-Intercourse  Laws.  254 

C.  .S"/(77'r  Trade.  255 

Vol.  I 


222  ADMIRALTY. 

D.  Customs,  255 

5.  Bottomry  and  Rcfiairs,  256 

A.  Presumptions.  256 

B.  Burden  of  Proof.  256 

6.  Cases  of  Collision.  257 

A.  Presumptions,  257 

a.  Lazvs  Applicable,  2^j 

b.  Fact  of  Collision,  257 

c.  Fault  in  Management,  258 

d.  Sailing  Vessels  Colliding,  258 

e.  Steamers  Colliding,  259 

f.  Collision  of  Steamers  With  Other  l-'essels.  259 

g.  One  Vessel  Oirrtaking  Another,  260 
h.  Collision  JVitli  Moored  Vessel,  261 

B.  Burden  of  Proof,  261 

a.  /;)  General,  261 

b.  Neglect  of  Statutory  Rules,  262 

c.  Vessel  Bound  to  Keep  Out  of  li^ay,  262 

d.  Vessel  Bound  to  Keep  Course,  263 

e.  Moored  Vessels,  263 

(i.)    Burden   Upon  Moring  J'essels.  263 
(2.)   Burden  Upon  Moored  Vessel.  264 
(3.)   Burden  Upon  Ship  Tozved,  264 

f.  Collision  in  Narrow  Place,  264 

g.  Collision  JVith  Pier.  263 

7.  Tozi'age,  265 

A.  Presumptions,  265 

B.  Burden  of  Proof,  265 

a.  [//"o;;   Owners  of  Tote,  265 

b.  [//joj/   O-ii'uers  of  Tug,  266 

8.  Salvage.  266 

9.  Scazvo rth iness .  266 

A.  Presumptions.  266 

a.  Implied  Contract.  266 

b.  .Staunchness  of  Vessel,  267 

c.  Improper  Manning.  267 

d.  Leakage  and  Sinking  of  J'essel.  26/ 

e.  Insecure  Port-hole.  267 

B.  Burden  of  Proof,  268 
10.   Injury  to  Cargo,  268 

A.  Presumptions,  268 

a.  NeiiHinence  of  J'essel,  268 

b.  Cffi-r  0/  Shipper.  268 

c.  .Stoz^'agc.  2(^)8 

I>.  Burden  of  Proof,  269 

a.   ?//>('//   Ozi'uer  of  Cargo,  269 

Vol.  I 


ADMIRALTY.  223 

b.   Upon  Ozi'iier  of  I'csscl.  270 
(  I.)   Bill  of  Lading,  270 
(2.)   Stozvagc,  271 
(3-)   Baggage,  272 
(4.)   Incompetent  AhMter,  272 
(  5. )   Shortage  in  Cargo  Delivered.  2j2 
(6.)   Delivery  of  Cargo,  273 
II.  Personal  Injuries,  274 

A.  Assault,  274 

B.  Negligence.  274 

IV.  JUDICIAL  NOTICE,   275 

1.  Laivs  and  Regulations,  275 

2.  Notorious  Facts,  276 

3.  Naz'i gable  Waters,  276 

4.  Lease  of  Vessel,  276 

5.  Location  of  Places,  276 

f).  Shelving  of  Facts  Judicially  Noticed,  276 

V.  COMPETENCY  OF  WITNESSES,   2" 

1.  Incompetency,  277 

A.  Common  Law  Rule,  2/j 

B.  Waiver  of  Objection,  277 

2.  Competent  JVitnesses.  277 

A.  Parties,  2yj 

B.  Master  of  Vessel,  278 

C.  O ?//('/•  Persons.  278 

VI.  MODE  OF  TAKING  EVIDENCE,  279 

1.  Ori)/  Testimony,  2jy 

A.  Permissibility,  279 

B.  Mode  of  Taking  Down,  279 

C.  Ora/  Cross-Exaniination,  2"/!.) 

D.  Ora/  Evidence  in  the  Supreme  Court.  279 

2.  Affidavits,  279 

A.  /h  F«'.;f  C(7;/.sTj,  279 

B.  Affidavits  of  Merits,  279 

C.  Other  Affidavits,  280 

3.  Depositions,  280 

A.  Rules  of  Practice,  280 

B.  Depositions  de  Bene  Esse,  280 

C.  Comnrission  to  Take  Depositions,  281 

D.  Objections  to  Depositions,  281 

E.  t/jc  of  Depositions  Upon  Another  Libel.  282 

4.  Reference  to  Commissioners,  282 

Vol.  I 


224  ADMIRALTY. 

A.  Cases  for  Reference,  282 

B.  Proceedings,  283 

a.  Time  for  Taking  E'^'idence,  283 

b.  Mode  of  Procedure,  283 

c.  Reception  of  Evidence,  283 

d.  Control  of  Proceedings  by  Court.  283 

e.  Objections  to  Evidence,  284 

f.  Report  of  Commissioners.  284 

g.  Objections  to  Report.  284 

C.  Decision  of  Commissioner,  284 

D.  Motion  to  Dismiss  for  Want  of  lividence,  285 

E.  Taxation  of  Testimony,  285 

VII.  DOCUMENTARY  EVIDENCE,  285 

1.  Official  Certificates.  285 

A.  OriginaJs,  285 

B.  Certified  Copies,  286 

C.  Best  Evidence,  286 

2.  Documents  Pertaining  to  Vessels,  287 

A.  Log  Book,  287 

B.  Protests,  288 

C.  Shipping  Articles,  289 

a.  Admissibility,  289 

b.  Validity  and  Effect,  290 

c.  Best  Evidence,  292 

D.  Bills  of  Lading,  293 

a.  Effect  As  Evidence,  293 

b.  Lco^a/  Effect,  293 

c.  Transfer,  294 

d.  Bt'j/  Evidence,  295 

E.  Charter  Party,  295 

a.  Relation  to  Bills  of  Lading.  295 

b.  Usage.  296 

c.  Of/!fr  Questions  of  Proof,  299 

F.  Other  Documents,  300 

a.  Ship's  Manifest,  300 

b.  Commercial  Documents.  301 

c.  5"t(r7'£'3'  0/  Vessel,  301 

d.  Delivery  Book  of  Cargo,  301 

e.  Letters,  301 

f.  T?V/£?  0/  Vessel,  301 
3.  Judgments  and  Decrees,  303 

A.  Conelusi^'cness,  303 

B.  Inconelusiveness.  307 

C.  Proof  of  Record  of  Judg)uent.  311 

D.  B«/  Evidence,  311 

Vol.  I 


ADMIRALTY. 

4.  Official  Documents,  312 

A.  Message  of  President,  312 
1j.  Official  Proclamation,  312 

C.  Commission  of  Public  Ship,  313 

D.  Certificate  of  Foreign  Governor,  313 

5.  Parol  Evidence  in  Relation  to  Documents,  313 

A.  Inadmissibility,  313 

a.  Contracts,  313 

b.  Otiier  Instruments,  315 

B.  Admissibility,  316 

a.  Contracts,  316 

(i.)   Parties  to  Contracts,  317 
(2.)  Explanation  of  Contract,  318 

b.  Receipts,  320 

c.  Other  Documents,  323 

VIII.  DECLARATIONS  AND  ADMISSIONS,  324 

1.  0/  Master.  324 

2.  O/-'  Captain,  326 

3.  O/'  Other  Members  of  Creiv,  326 

4.  0/  Ow'«(?rj  of  Vessel,  327 

5.  O/^  Other  Persons,  327 

A.  Attorney,  327 

B.  Shipping  Notaries,  327 

C.  Admissions  by  Tender,  Offer  or  Settlement.  327 

IX.  OPINION  EVIDENCE,  328 

1.  Of  Non-Experts,  328 

2.  0/  Experts,  328 

A.  Admissibility,  328 

a.  Collision,  328 

b.  Transportation,  329 

c.  Marine  Insurance,  329 

B.  Inadmissibility,  329 

C.  Weiglit  of  Expert  Evidence,  330 

X.  RELEVANCE  AND  COMPETENCY  OF  EVIDENCE,  331 

1.  Admissibility,  331 

2.  Inadmissibility,  332 

XI.  WEIGHT  OF  EVIDENCE,  333 

1.  /»  General,  333 

2.  /w  Collision  Cases,  334 

A.  OccMrr^ncfj  o;;  Board,  334 

B.  Relative  Position  of  Vessels,  335 

IS  Vol.  I 


226  ADMIRALTY. 

C.  Credibility  of  Witnesses,  335 

a.  Facts  and  Inferences  Relating  to  Credibility,  336 

b.  Caution  As  to  Testimony,  337 

c.  Positive  and  Negative  Testimony,  337 

d.  Absence  of  Testimony,  337 

3.  In  Cases  of  Seaman,  338 

4.  Position  of  Blockading  Vessel,  338 

5.  Circumstantial  Evidence,  338 

XII.  EVIDENCE  UPON  APPEAL,  339 

1.  In  Circnit  Court,  339 

A.  Trial  dc  Novo,  339 

B.  Burden  of  Proof  Upon  Appeal,  340 

C.  Neiv  Evidence,  340 

a.  Admissibility,  340 

b.  Caution  As  to  Neiv  Evidence,  340 

c.  New  Evidence  After  Default,  340 

D.  Decision  of  District  Court  Upon  Conflicting  Evidence, 

341 

E.  Libel  for  Neivly  Discovered  Evidence.  341 

F.  Commission  to  Take  Testimony,  341 

G.  Deposition  Not  Made  Part  of  Record.  341 

2.  In  Circuit  Court  of  Appeals,  341 

A.  Appeals,  Hozc  Governed,  341 

B.  Trial  de  Novo,  342 

C.  Record  Upon  Appeal,  342 

D.  New  Evidence,  343 

a.  When  Allowed,  343 

b.  When  Not  Alloived,  344 

c.  Mode  of  Taking  Evidence,  344 

E.  Decision  of  Lower  Court,  344 

F.  Rehearing,  345 

3.  In  Supreme  Court,  345 

A.  Act  of  1875,  345 

B.  Prior  Decisions,  346 

a.  Trial  de  Novo,  346 

b.  Ne7v  Evidence,  346 

c.  Deposition  Taken  in  Circuit  Court.  347 

4.  /;;  Other  Courts,  347 

A.  Appeal  From  Territorial  Court.  347 

B.  New  Evidence.  347 
Vol.  I 


ADMIRALTY 


227 


I.  GENERAL  PRINCIPLES  AND  RULES. 

1.  In  Cases  Generally. — A.  Admiralty  Proceedings  Distin- 
guished. —  Admiralt)'  proceedings  are  of  a  peculiar  nature,  and  as 
a  class,  are  distinguished  from  actions  at  law  and  suits  in  equity.^ 
In  general,  no  proceedings  can  be  more  unlike  than  those  in  the 
common  law  courts  and  in  the  courts  of  admiralty." 

a.  Trial  by  Jury  Not  a  Test.  —  That  a  trial  by  jury  may  be  had 
in  a  common  law  court  of  the  same  subject  matter,  is  not  a  test 
of  the  jurisdiction  in  admiralty,^  and  does  not  require  a  trial  by 
jury  in  admiralty  court.*  When  a  case  of  concurrent  jurisdiction 
comes  rightfully  into  a  court  of  admiralty,  it  is  to  be  conducted, 
tried  and  decided  by  the  court  according  to  the  usages  of  that 
court  ;^  in  which  a  trial  by  jury  is  generally  not  allowed,"  except  in 
cases  arising  upon  the  lakes  under  the  Act  of  1845.' 

b.  Court  Judge  of  Law  and  Pact. — A  court  of  admiralty  is 
judge  both  of  the  law  and  of  the  facts.*  A  verdict  of  a  jury, 
when  allowed,  is  deemed  only  advisory  to  the  court."  The  court 
of  admiralty  will  determine  a  question  of  fraud  or  good  faith  in  the 
purchase  of  a  vessel,  from  the  evidence,  upon  the  same  principles 
which  usually  govern  trials  by  jury.'" 

c.  Proceedings  Modeled  Upon  Civil  Law.  —  The  proceedings  in 
the  courts  of  admiralty  are,  in  general,  modeled  after  the  forms 
of  the  civil  law,"  though  the  courts  of  the  United  States  do  not 


1.  Waring  v.  Clarke,  5  How.  441. 
Exclusion  From  General  Statutes. 

Admiraky  proceedings  are  so  pecu- 
liar and  diverse  from  ordinary  civil 
suits,  that  they  will  be  deemed  ex- 
cluded from  general  statutes  regu- 
lating civil  proceedings,  unless  ex- 
pressly alluded  to.  Atkins  v.  Fibre 
Disintegrating  Co.,  i  Ben.  118,  2  Fed. 
Cas.    No.   600. 

2.  The  Schooner  .\deline.  g 
Cranch  244. 

Principles  of  Common  Law  Inap- 
plicable.—  The  principles  of  the 
common  law  are  inapplicable  to 
process  and  proceedings  in  admiralty. 
Clarke  v.  New  Jersey  Steam  Nav. 
Co.,  I  Story  531,  5  Fed.  Cas.  No. 
2859;  The  Harriet,  01c.  222,  II  Fed. 
Cas.   No.  6096. 

3.  Waring  v.  Clarke.  5  How.  441. 

4.  Davis  V.  New  Brig.  Gilp.  473. 
7  Fed.  Cas.  No.  3643 ;  Boon  v.  The 
Hornet,  Crabbe  426.  3  Fed.  Cas.  No. 
1640;  Waring  v.  Clarke,  5  How.  441. 

5.  Boon  V.  The  Hornet.  Crabbe 
426,  3  Fed.  Cas.  No.  1640;  Davis  v. 
New  Brig,  Gilp.  473,  7  Fed.  Cas.  No. 
^643;  Atlee  V.  Packet  Co.,  21  Wall. 
389' 


6.  Waring  v.  Clarke,  5  How.  441  ; 
The  Sarah,  8  Wheat.  391  ;  U.  S.  v. 
The  Betsey  and  Charlotte,  4  Cranch 
442;  Whelan  v.  U.  S.,  7  Cranch  112; 
Parsons  v.  Bedford,  3  Pet.  433 ;  The 
Margaret,  9  Wheat.  421  ;  The  Ven- 
geance, 3  Dall.  297 ;  Atlee  v.  Packet 
Co..  21  Wall.  389;  The  Paolina  S., 
II  Fed.  171;  Clark  v.  U.  S.,  2  Wash, 
C.  C.  S19,  S  Fed.  Cas.  No.  2837;  The 
Erie  Belle,  20  Fed.  63;  Bigley  v.  The 
Venture,  21    Fed.  880. 

7.  The  Eagle,  8  Wall.  15:  Gillet 
V.  Pierce,  i  Brown  Adm.  553,  10  Fed. 
Cas.   No.   5437. 

8.  Elwell   V.    Martin,    i    Ware   S3, 

8  Fed.  Cas.  No.  4425. 

9.  The  Empire.  19  Fed.  558;  San- 
derson V.  City  of  Toledo,  7^:,  Fed. 
220. 

10.  The  Romp,  Olc.  196.  20  Fed. 
Cas.  No.  12,030. 

11.  American  Ins.  Co.  v.  Johnson, 
Blatchf.  &  H.  9.  I  Fed.  Cas.  No.  303 : 
U.  S.  V.  The  Betsey  and  Charlotte, 
4  Cranch  442 ;  The  Schooner  Adeline, 

9  Cranch  244. 

Proceedings  in  Rem.  —  A  proceed- 
ing   in    rem    is    a    proceeding    under 

Vol.  I 


228 


ADMIRALTY. 


exercise  all  the  jjinvers  of  admiralty  courts  organized  under  the 
civil  law.'- 

(1.)  Process  Acts  of  Congress.  —  The  Process  Act  of  I/Sy  regulat- 
ing proceedings  in  admiralty  referred  generally  to  the  civil  law ;  but 
the  Act  of  1792  employed  the  terms:  "According  to  the  principles, 
rules  and  usages  which  belong  to  courts  of  admiralty,  as  distin- 
guished from  courts  of  common  law,"  which  referred  to  the  admi- 
ralty practice  of  this  country,  as  engrafted  upon  the  British  prac- 
tice." 

d.  Causes  Governed  by  Maritiine  Lazv.  —  Causes  in  admiraltx 
are  governed  by  the  rules  of  the  maritime  .law,  as  recognized  and 
adopted  in  this  country,"  excepting  in  so  far  as  modified  by  t-lie 
legislation  of  Congress.'" 

(1.)  Effect  of  Local  Law. — The  maritime  law  and  the  jurisdiction 
of  the  admiralty  courts  thereunder  cannot  be  limited  or  abrogated 
by  any  local  law,'"  though  a  court  of  admiralty  may,  in  the  exercise 
of  its  maritime  jurisdiction,  enforce  a  state  statute  conferring  a 
maritime  right,  according  to  the  rules  of  courts  of  admiralty.'' 

(2.)  Law  of  Nations.  —  A  court  of  admiralty  is  a  court  of  the  law 


the  civil  law.  The  Mo.ses  Taylor,  4 
Wall.  411- 

12.  Ex  parte,  Easton,  95  U.  S.  68. 

13.  Manro  v.  Ahiieida,  10  Wheat. 

473- 

14.  Maritime  Law  in  the  United 

States Though      the      constitvitio  1 

grants  judicial  power  over  all  cases 
of  admiralty  and  maritime  jurisdic- 
tion, a  case  in  admiralty  does  not 
arise  under  the  constitution  or  laws 
of  the  United  States,  but  such  cases 
are  as  old  as  navigation,  and  the 
ancient  law,  admiralty  and  maritime, 
is  applied  by  the  federal  courts  to  the 
cases  as  they  arise.  American  Ins 
Co.  V.  Canter,  i  Pet.  S'l- 

The  constitutional  grant  had  refer- 
ence to  the  maritime  law  which  was 
generally  recognized  in  this  countrv 
when  the  constitution  was  adopted. 
Ex  parte  Easton,  98  U.  S.  68:  The 
Lottawanna,    21    Wall.    558. 

And  is  not  to  be  restricted  or  in- 
terpreted by  what  were  cases  of  ad- 
miralty and  maritime  jurisdiction  in 
England.  Waring  t.  Clark.  5'  How. 
441  :  Steele  v.  Thatcher,  i  Ware  85. 
22  Fed.  Cas.  No.  i.3.,148:  Davis  v. 
Seneca,  Gilp.  10,  7  Fed.  Cas.  No. 
.^650;  The  Seneca.  ,3  Wall,  Jr.  395,21 
Fed.  Cas.  No.  12.670 :  The  Huntress. 
2  Ware  80,  12  Fed.  Cas.  No.  6914. 

Operation  of  Maritime  Law. 
The    maritime    law     is    only    so     far 

Vol.  I 


operative  in  any  country,  as  it  is 
adopted  by  its  laws  and  usages.  The 
received  maritime  law  may  differ  ii' 
different  countries  without  impairing 
the  general  integrity  of  the  .system, 
as  a  harmonious  whole.  The  I.,otta- 
wanna,  21  Wall.  558:  The  Scotland, 
IDS    U.    S.   24. 

15.  The  Barque  Chusan,  2  Story 
455,  5'  Fed.  Cas.  No.  2717:  U.  S.  v. 
The  Little  Charles,  i  Brock.  347,  26 
Fed.  Cas.  No.  15.612;  The  Siren,  13 
Wall.  389;  Butler  v.  Boston  etc. 
Steamship  Co.,  130  U.  S.  527:  The 
City  of  Washington.  92  U.  S.  31  : 
Ex  parte  Garnett,   141   U.   S.   r. 

16.  Butler  v.  Boston  etc.  Steam- 
ship Co.,  130  U.  S.  .527:  The  J.  E. 
Rumbell,  148  U.  S.  i  ;  Workman  r. 
New  York  City,  179  U.  S.  5.5-':  The 
Lottawanna,  21  Wall.  558 :  The  Eagle 
V.  Fraser.  8  Wall.  15:  The  Barc|uc 
Chusan,  2  Story  455,  5  Fed.  Cas.  No. 
2717. 

17.  Pevroux  ?■.  Howard,  7  Pet. 
324;  The  J.  E.  Rumbell.  148  U.  S.  i; 
The  Lottawanna,  21   Wall.  558. 

Jurisdiction  Not  Conferred.  —  No 
state  law  can  confer  jurisdiction  upon 
the  admiralty  courts,  and  local  laws 
can  only  furnish  rules  to  ascertain 
the  rights  of  the  parties,  in  cases 
of  maritime  jurisdiction.  The  Or- 
leans.   II    Pot.    175. 


ADMIRALTY. 


229 


of  nations,  and  derives  in  part  its  jurisdiction  from  tiiat  law."*  The 
law  of  prize,  which  is  part  of  the  general  maritime  law/''  is  based 
upon  the  law  of  nations,  consisting  of  the  common  consent  of  civ- 
ilized countries.-"     No  one  nation  can  change  the  law  of  the  sea.-' 

(3.)  Usages  of  the  Sea.  —  The  usages  of  the  sea  were  the  rules  of 
decision  in  admiralty  in  cases  of  collision,  prior  to  the  adoption  of 
the  sailing  rules  by  Congress. -- 

(4.)  Judicial  Question.  —  The  question  as  to  what  are  the  true  limits 
of  the  maritime  law,  and  of  the  admiralty  jurisdiction,  is  a  judicial 
question.-''' 

B.  Gener.-xl  Rules  oe  Evidence.  —  a.  State  Rules  Inapplicable. 
State  laws  and  rules  regulating  evidence  in  the  state  courts  are 
not  applicable  in  a  court  of  admiralty  holding  its  session  within 
the  state.-* 

b.  Common  Laii'  Rules.  —  In  general,  courts  of  admiralty  follow 
the  common  law  rules  of  evidence,  when  justice  does  not  require 
a  departure  therefrom,-^  but  they  are  not  confined  to  the  strict  rules 
of  common  law  as  to  the  admission  of  evidence.-"     Where  justice 


18.  The  Huntress,  2  Ware  89,  12 
Fed.  Cas.  No.  6914. 

19.  The  Siren,  13  Wall.  389;  The 
Admiral,    3   Wall.   603. 

20.  The  Schooner  Adeline,  9 
Cranch  244;  30  Hogsheads  of  Sugar. 
9  Cranch   191. 

General     Maritime     Law From 

the  general  practice  of  commercial 
nations  in  making  the  same  general 
law  the  hasis  and  groundwork  of 
their  respective  maritime  systems,  the 
great  mass  of  maritime  law  which 
is  received  by  those  nations  in  com- 
mon became  the  maritime  law  of  the 
world.  The  Lottawanna,  21  Wall. 
558. 

21.  The  law  of  the  sea  is  of  uni- 
versal obligation,  and  no  statutes  of 
one  or  two  nations  can  create  obli- 
gations for  the  world.  Like  all  the 
laws  of  nations,  it  rests  upon  the 
common  consent  of  civilized  com- 
munities.    The  Scotia,   14  Wall.   170. 

22.  The  City  of  Washington,  92 
r.   S.  31. 

23.  The  Lottawanna.  21  Wall.  55S 

24.  Construction      of      Judiciary 

Act §34   of   the    Judiciary    act    of 

Congress  which  adopts  state  rules  of 
evidence  applies  only  to  civil  cases  at 
common  law.  and  not  to  cases  in 
admiralty.  The  Independence,  2 
Curt.  350,  13  Fed.  Cas.  No.  7014;  The 
William  Jarvis,  i  Spr.  485,  30  Fed. 
Cas.   No.   17.697. 

Competency   of  Witnesses.  —  State 


statutes  making  the  parties  com- 
petent witnesses  cannot  apply  to  a 
court  of  admiralty.  The  Indepen- 
dence, 2  Curt.  350,  13  Fed.  Cas.  No. 
7014 ;  The  Australia,  3  Ware  240,  2 
Fed.    Cas.   No.   667. 

Depositions  "  According  to  Com- 
mon Usage."  —  §  866  of  the  Revised 
Statutes  authorizing  federal  courts  to 
issue  commissions  to  take  deposi- 
tions "  according  to  common  usage," 
does  not  require  a  court  of  admiralty 
to  conform  to  the  practice  of  the 
state  courts,  and  it  may  by  rule  pro- 
vide a  different  method  for  taking 
depositions.  The  Westminster,  96 
Fed.  766. 

m5.  The  J.  F.  Spencer,  3  Ben.  337. 
13  Fed.  Cas.  No.  7315;  The  Ann 
Green,  i  Gall.  274,  i  Fed.  Cas.  No. 
414;  The  Liverpool  Packet,  i  Gall. 
513,  15  Fed.  Cas.  No.  8406;  The  San 
Jose  Indiano,  2  Gall.  268,  21  Fed.  Cas. 
i\o.  12,322;  Jeffries  v.  De  Hart,  102 
Fed.    765. 

Rules  as  to  Competency  of  Wit- 
nesses  The   rules   of   the   common 

law  as  to  the  competency  of  wit- 
nesses are  adopted  in  a  court  of  ad- 
miralty in  the  exercise  of  its  juris- 
diction as  an  instance  court.  The 
Boston,  I  Sum.  328,  3  Fed.  Cas.  No. 
1673 ;  except  as  modified  by  act  of 
congress.  U.  S.  v.  Cigars.  Woolw. 
123,  28  Fed.  Cas.  No.   16,451. 

26.     F.lwell  r.   Martin,   i  Ware  53. 

Vol.  I 


230 


ADMIRALTY. 


requires  it,  courts  of  admiralty  may  take  notice  of  facts  outside  of 
the  record,-'  and  may  accept  hearsay  and  belief  as  testimony.'-^ 

c.  Laxity  of  Rules  in  Admiralty.  —  From  the  nature  of  the  case 
heard,  the  character  of  the  witnesses,  and  the  place  ( the  sea) 
where  not  much  documentary  evidence  is  made  or  preserved,  the 
rules  of  admiralty  are  lax  and  must  often  bend  to  circumstances.-" 

d.  Rules  of  Lqiiify.  —  Courts  of  admiralty,  within  the  limits  of 
their  jurisdiction,  administer  justice  rather  according  to  the 
enlarged  and  liberal  rules  and  principles  of  equity,  than  the  strict 
rules  of  the  common  law,'"  and  will  equitably  construe  documen- 
tary evidence.'^  In  causes  in  admiralty  based  upon  negligence,  if 
the  negligence  alleged  is  proved,  evidence  of  the  contributory  negli- 
gence of  the  libellant,  will  not  bar  recovery,  as  in  an  action  at  law ; 
but  the  admiralty  court  will  determine  the  case  upon  principles  of 
equity,  and  damages  will  be  awarded  or  apportioned  between  the 
parties,  as  equity  and  justice  may  require.'-  But  courts  of  admi- 
ralty do  not  recognize  the  equity  rule  making  a  sworn  answer  equal 
to  two  witnesses,  or  one  witness  with  corroborating  circumstances.'' 
Nor  can  thev  award  distinctly  equitable  relief,'"*  or  enforce  ec|uitablc 
titles.'^ 


8  Fed.  Cas.  No.  4425  ;  The  J.  F.  Spen- 
cer, 3  Ben.  337,  13  Fed.  Cas.  No. 
7315';  The  Vivid,  4  Ben.  319,  28  Fed. 
Cas.  No.  16,978;  The  Harriet,  Olc. 
222,  II  Fed.  Cas.  No.  6096. 

Proof  of  Commercial  Documents. 
A  court  of  admiraUy  may  receive 
commercial  documents  in  evidence  on 
proof  less  formal  than  would  be 
necessary  in  a  common  law  court. 
The  Boskenna  Bay,  22  Fed.  662. 

27.  The  J.  F.  Spencer,  3  Ben. 
337,   13  Fed.   Cas.   No.  7315. 

28.  The  Olinde-Rodrigues,  89  Fed. 
los;  The  Estrella,  4  Wheat.  298. 

29.  The  Vivid,  4  Ben.  319,  28  i<ed. 
Cas.  No.   16,978. 

30.  The  Sarah  Ann,  2  Sum.  206, 
21  Fed.  Cas.  No.  12,342;  The  Betsy 
and  Rhoda,  2  Ware  117,  3  Fed.  Cas. 
No.  1366;  Brown  v.  Lull,  2  Sum. 
443.  4  Fed.  Cas.  No.  2018;  The  Vir- 
gin, 8  Pet.  538;  O'Brien  v.  Miller, 
168  U.  S.  287 ;  Brown  z'.  Burrows, 
4  Fed.  Cas.  No.  1995 ;  Richmond  v. 
New  Bedford  Copper  Co..  2  Low. 
315,  20  Fed.  Cas.  No.  11,800;  Pope 
V.  Nickerson,  3  Story  465,  19  Fed. 
Cas.    No.    11,274. 

31.  O'Brien  v.  Miller,  168  U.  S. 
287;  Pope  V.  Nickerson,  3  Story  465. 
19  Fed.  Cas.  No.  11,274;  The  Virgin. 
8   Pet.    ■;38. 

32.  The    E.xplorer,    20    Fed.    135; 

Vol.  I 


The  Wanderer,  20  Fed.  140:  The 
Daylesford,  30  Fed.  633 ;  The  Mabel 
Comeaux,  24  Fed.  490 ;  The  Truro, 
31  Fed.  158;  Olson  v.  Flavel,  34  Fed. 
477 ;  The  Eddystone,  33  Fed.  925 ; 
Anderson  v.  The  Ashebrooke,  44  Fed. 
124;  Finch  V.  The  Lighter  Mystic, 
44  Fed.  398;  Carmody  •;■.  The  City 
of  Rome,  49  Fed.  592 ;  The  Max 
Morris,  28  Fed.  881  ;  The  Continental. 
14  Wall.  345;  Atlee  v.  Packet  Co.,  21 
Wall.  389;  The  Mariana  Flora.  11 
\V  neat,  i  ;  The  North  Star,  106  U.  S. 
17;  Hostetter  v.  Park,  137  L'.  S.  i. 

33.  U.  S.  V.  The  Matilda,  5 
Hughes  44,  26  Fed.  Cas.  No.  15,741  : 
Sherwood  v.  Hall.  3  Sum.  127.  2i 
Fed.  Cas.  No.  12,777;  Jay  ^'-  Almy, 
Woodb.  &  M.  262,  13  Fed.  Cas.  No. 
7236;  Hutson  V.  Jordan,  i  Ware  385. 
393,  12  Fed.  Cas.  No.  6959. 

34.  Montgomery  v.  Henry,  i  Dall. 
52;  Ward  r.  Thompson.  22  How. 
3.30;  Bogart  V.  The  John  Jay.  17 
How.  399;  Schuchardt  I'.  Babbidge, 
19  How.  239;  Davis  v.  Child,  2  Ware 
78,  7  Fed.  Cas.  No.  3628;  The  Wil- 
liam D.  Rice,  3  Ware  134,  29  Fed. 
Cas.  No.  17,691  ;  Paterson  v.  Dakin, 
31   Fed.  682. 

30.  Kynoch  v.  The  S.  C.  Ives, 
Newb.  205,  14  Fed.  Cas.  No.  7958 ; 
The  William  D.  Rice,  3  Ware  134, 
29   Fed.    Cas.    No.    17,691  ;    The    Ella 


ADMIRALTY.  231 

e.  J iispcction  of  Books  and  I'apcrs.  —  A  proceeding  in  rem  in 
adniiralt)'  is  not  within  the  act  of  Congress  of  1782  for  ordering 
the  inspection  of  books  and  papers, "'^  nor  can  an  inspection  or  copies 
of  letters  or  documents  not  in  issue  be  obtained  by  interrogatories 
annexed  to  the  libel. ^'  Where  a  paper  has  been  intrusted  to  the 
libellant  for  the  benefit  of  both  parties,  the  court,  on  motion,  will 
order  its  production  before  answer.^* 

f.  Proof  of  Foreign  Lazes.  —  In  the  district  court  of  the  L'nitetl 
States  sitting  in  admiralty,  the  law  of  England  may  be  proved  by 
printed  books  of  statutes,  reports  of  decisions,  and  text  writers,  as 
well  as  by  the  testimony  of  experts.^"  Foreign  laws  which  justify 
the  seizure  of  a  vessel  cannot  be  proved  by  the  mere  certificate  of 
the  American  consul,  but  must  either  be  verified  by  oaths,  or  authen- 
ticated under  the  national  seal.'"'  Foreign  laws  must  be  proved  as 
facts  in  courts  of  admiralty,  as  well  as  in  other  courts."  The 
written  foreign  law  may  be  proved  by  a  properly  authenticated 
copy ;  the  tmwritten  by  the  testimony  of  experts.''-  A  collision 
occurring  in  foreign  waters  between  foreign  vessels,  is  to  be  gov- 
erned by  the  foreign  law,  if  it  is  proved  as  a  fact,  but  if  not  so 
proved,  it  will  be  governed  by  the  maritime  law  of  the  forum." 
Marine  ordinances  of  a  foreign  country  promulgated  by  the  lawful 
executive  authority  of  the  United  States,  are  admissible  in  a  court 
of  admiralty  in  this  country.*** 

2.  In  Prize  Causes.  —  A.  Gener.'\l  Rules.  —  a.  Rules  of  Law. 
In  prize  catises,  in  a  special  manner,  the  allegations,  proofs  and 
proceedings,  are  in  general,  modeled  on  the  civil  law,  with  such 
alterations  as  the  practice  of  nations,  and  the  rights  of  belligerents 
and  neutrals  unavoidably  impose.*^     The  court  of  prize  is  emphati- 

J.    Slaymaker,    28    Fed.    767;    Wen-  the  courts  of  this  country  cannot  be 

berg  V.  Cargo  of  Mineral  Phosphate.  presumed  to  be  acquainted  with,  and 

15  Fed.  285;  Rea  v.  The  Eclipse,  135  should   be  pleaded   and   proved   in  a 

U.    S.    599;    Kellum    v.    Emerson,    2  court    of   admiralty.      The    Montana, 

Curt.  79,  14  Fed.  Cas.  No.  7669.  129  U.  S.  104- 

36.  U.  S.  V.  Twenty-eight  Pack-  40.  Church  z:  Hubbart,  2  Crancli 
ages  of  Pins,  Gilp.-3o6,  28  Fed.  Cas.  165. 

No.   16,561.  41.     The  Montana.   129  U.   S.   104; 

37.  Havermeyers  &   E.   S.   R.   Co.       Talbot   v.    Seeman.    i    Cranch    I. 

V.  Compania  Transatlantica  Espanola,  42.     Ennis  v.   Smith,   14  How.  400. 

J?  Fed.  90.  43.     The  Scotland,  105  U.  S.  24. 

38.  Letter A    letter    addressed  44.     Proof     of     Law     of     France. 

to    the    libellant    forming    part    of   a  The    law    of    France    upon   a   matter 

contract,  is  not  such  a  paper  as  will  of  such  concern  as  the  condemnation 

be    ordered    to    be    produced.      The  of  a  neutral  vessel,  which  was  pro- 

Voyaguer  de  la  Mer,  6  Sprague  372,  mulgated  in  this  country  as  the  law 

13   Fed.   Cas.   No.  7025.  of    France    by    the   joint   act    of   the 

39.  The  Pawashick,  2  Low.  142,  departments  of  state  and  of  war, 
19  Fed.   Cas.   No.   10,851.  assumed  a  character  of  such  notoriety 

Law   of   Great   Britain,   Matter   of  as   to   be   admissible   in    evidence    in 

Fact — The    law    of    Great    Britain,  our  courts   of  admiralty.     Talbot   i'. 

since    the    Declaration    of    Indepen-  Seeman,  I  Cranch  I. 

dence,  is  the  law  of  a  foreign  country,  tS.     The      Schooner      Adeline,      9 

and  as  such  is  matter  of  fact  which  Cranch   244 ;   The   Olinde   Rodrigues, 

Vol.  I 


232  ADMIRALTY. 

cally  a  court  of  the  law  of  nations/"  The  rules  of  the  prize  court 
as  to  the  vesting  of  property  are  those  of  common  law/'  hut  com- 
mon law  rules  of  evidence  and  practice  cannot  be  allowed  to  prevail 
in  prize  cases. ''^  The  common  law  doctrine  as  to  the  incompetency 
of  interested  witnesses  is  not  applicable  in  prize  cases.*" 

b.  Oral  Testimony  Not  Allo7Ved.  —  Oral  testimony  in  open  court 
is  not  permissible  in  prize  cases, '^''  and  it  is  an  irregularity  to  allow 
the  captured  crew  to  be  examined  or  re-examined  rk'a  7'uca,  in  open 
court. ^^ 

B.  Proofs  Upon  Hearing.  —  Prize  causes  are  usually,  heard,  in 
the  first  instance,  upon  papers  found  on  the  captured  vessel,  and  the 
examination  of  officers  and  members  of  the  captured  crew,  taken 
in  preparatorio.^- 

a.  Papers  of  Captured  P^esscl. — All  ship's  papers  found  on  board, 
including  bills  of  lading,  letters,  and  other  papers  relating  to  the 
ship  or  cargo,  constitute  evidence  on  the  question  of  prize,  or  no 
prize,  and  are  presumptive  evidence  of  the  facts  of  which  they 
speak. °''  A  bill  of  lading  aiifords  a  weak  presumption  of  ownership, 
which  should  be  supported  by  satisfactory  proof."* 

(1.)  Custody  and  Sealing  of  Papers.  —The  custody  of  the  papers  of 
the  captured  vessel  belongs  exclusively  to  the  prize  court,  and  the 
captors  must  deliver  them  on  oath  immediately  on  arrival  in  port  to 
the  registry  of  the  prize  court.""  The  papers  are  to  be  kept  under 
seal,  until  the  cause  is  ready  for  hearing,  when  their  publication  is 
ordered. ^^ 


89  Fed.   105;   Penhallovv  z'.   Doanc.  3 
Dall.    54. 

46.  Thirty  Hogsheads  of  Sugar,  g 
Cranch  191  ;  The  Schooner  Adeline, 
g  Cranch  244 ;  Penhallow  v.  Doane, 
3  Dall.  54,  Prize  Cases,  2  Black  635. 

47.  The  San  Jose  Indiano,  2  Gall. 
268,  21   Fed.  Cas.   No.   12,322. 

48.  The  Dos  Hernianos,  2  Wheat, 
76.    I    Wheat.   Appcndi.x   499. 

49.  The  Anne,  3  Wheat.  435. 

50.  The  George,  2  Gall.  249,  10 
Fed.  Cas.  No.  5327. 

51.  The  Pizarro,  2  Wheat.  227 ; 
The  Dos  Hernianos,  2  Wheat.  76 ;  i 
Wheat.  Appendi.x  498. 

52.  The  Sallv  Magee.  3  Wall.  4,1  ; 
The  Sir  William  Peel,  J  Wall.  S17; 
The  Newfoundland,  89  Fed.  99;  The 
Olinde  Rodrigues,  89  Fed.  105 ;  The 
Adula,  176  U.  S.  361  ;  The  George. 
I  Wheat.  408;  The  Pizarro,  2  Wheat 
227;  The  Amiable  Isabella  6  Wheat 
i;  The  Dos  Hermanos,  2  Wheat,  76; 
The  Falcon,  Blatchf.  Pr.  Cas.  52, 
8  Fed.  Cas.  No.  4616;  The  Julia.  2 
Spr.  164,  14  Fed.  Cas.  No.  7576;  The 
Liverpool  Packet.  1  Gall.  513,  15  Fed. 

Vol.  I 


Cas.  No.  8406 ;  The  Ann  Green,  i 
Gall.  274,  I  Fed.  Cas.  No.  414,  1 
Wheat.  Appendix  498;  Gushing  t. 
I.aird,   107  U.   S.  69. 

53.  Effect  of  Papers  as  Proof. 
If  the  papers  affirm  the  ship  and 
cargo  to  be  such  property  as  is  not 
prize,  there  must  be  an  acquittal, 
unless  the  captors  are  able  by 
counter-evidence  to  defeat  the  pre- 
sumption arising  from  the  papers, 
and  to  show  ground  for  condemna- 
tion; and  on  the  other  hand,  if  the 
papers  affirm  the  ship  and  cargo 
lo  belong  to  any  enemy,  there  must 
be  a  condemnation,  unless  those  con- 
testing the  capture  can  produce  clear 
and  unquestionable  evidence  to  the 
contrary.  The  Resolution,  2  Dall, 
19. 

54.  The  Arrabella,  2  Gall.  368.  i 
Fed.   Cas.   No.  501. 

55.  The  Dos  Hermanos.  2  Wheat. 
76;  Gushing  V.  Laird,  107  U.  S.  69; 
I  Wheat.  Appendix  495 ;  2  Wheat. 
Appendix  81  ;  The  Diana,  2  Gall. 
03.   7   Fed.    Cas.    No.    3876. 

'  56.     Object     of     Sealing     Papers. 


ADMIRALTY 


233 


(2.)  Absence  of  Papers.  —  The  omission  of  the  captors  to  bring  in 
the  ship's  papers  must  be  explained  to  the  court,  or  condemnation 
will  be  withheld.'^'  The  failure  of  the  owners  of  the  captured  prop- 
erty to  put  on  board  documentary  evidence  of  the  property  forfeits 
their  right  to  prove  it."**  The  absence  of  bills  of  lading  and  the 
manifest,  and  the  want  of  any  invoice  or  charter-party  on  a  vessel 
carrying  contraband  of  war,  are  circumstances  indicating  a  strong 
sus]iicion  of  the  illegality  of  the  voyage.^"  The  absence  of  the  log- 
book of  a  vessel  captured  under  suspicious  circumstances,  is  evi- 
dence against  the  honesty  of  her  voyage.""  But  the  absence  of  the 
ship's  papers  will  not  justify  condemnation  if  a  legitimate  voyage 
is  shown. "^ 

(3.)  Concealment  and  Spoliation  of  Papers.  —  If  any  of  the  ship's 
papers  are  concealed  and  su]3pressed,  and  not  given  up  to  the  cap- 
tors, nor  produced  at  the  preparatory  examination,  they  should  not 
afterwards  be  allowed  to  be  proved.''-  The  sjioliation  of  papers 
upon  the  captured  vessel,  when  seized,  warrants  the  most  unfavor- 
able inferences  against  her,  if  not  satisfactorily  explained,"^  but  it 
is  open  to  satisfactory  explanation,  and  is  not  of  itself  a  sufficient 
ground  of  condemnation,"^  though  it  is  evidence  more  or  less  con- 


The  practice  of  the  prize  courls  to 
seal  the  ship's  papers  is  designed 
to  prevent  injustice  and  fabrication 
of  evidence,  and  to  detect  fraud  and 
prevent  false  claims  to  ownership. 
The    Cuba.   2    Spr.    i68,  6   Fed.   Cas, 

No.  34.^7- 

Papers    Not    Admissible    at   Heai'- 

ing Papers    not    delivered    to    the 

custody  of  the  court  and  offered  for 
the  first  time  at  the  hearing  in  the 
prize  court,  are  not  admissible.  The 
PeterhofT,  Blatchf.  Pr.  Cas.  463,  19 
Fed.  Cas.  No.  11,024;  The  Liverpool 
Packet,  I  Gall.  513,  15  Fed.  Cas.  No. 
8406;  The  Ann  Green,  i  Gall.  274. 
I  Fed.  Cas.  No.  414;  i  Wheat.  Ap- 
pendix, note  II,  497. 

57.  The  Arabella,  2  Gall.  368,  I 
Fed.    Cas.    No.    501. 

58.  The  Flying  Fish,  2  Gall.  ^74. 
9  Fed.  Cas.  No.  4892. 

59.  The  Springbok,  Blatchf.  Pr. 
Cas.  434,  22  Fed.  Cas.  No.  13,264; 
The  Stephen  Hart,  Blatchf.  Pr.  Cas. 
387.    22    Fed.    Cas.    No.    13,364. 

60.  The  Joseph  H.  Toone, 
Blatchf.  Pr.  Cas.  223,  13  Fed.  Cas. 
No.  7541. 

61.  Gushing  V.  V.  S,  22  Ct.  CI.  i. 
Absence    of    Papers    of    American 

Merchantman The  absence  of  the 

passport  and  manifest  required  to 
protect    an    American    merchantman 


from  search,  under  a  treaty,  does 
not  render  her  liable  to  condemna- 
tion, but  merely  places  her  under  the 
rules  of  international  law.  The 
X'enus,   27   Ct.    CI.    116. 

62.  The  .\un  Green,  i  Gall.  274, 
I   Fed.   Cas.   No.  414. 

Rule  Not  to  be  Relaxed.  —  It  is  a 
rule  not  to  be  relaxed,  that  as  the 
evidence  to  acquit  or  condemn  must 
come  in  the  first  instance  from  the 
ship's  papers  and  preparatory  ex- 
amination, no  papers  should  he  al- 
lowed which  are  not  produced  at 
the  first  examination.  Papers  to  be 
allowed  as  evidence  at  the  hearing 
should  be  delivered  up,  at  least,  at 
the  time  of  the  preparatory  ex- 
amination, and  in  an  unmutilated  and 
unsuspicious  state.  The  Liverpool 
Packet,  I  Gall.  513,  15  Fed.  Cas.  No. 
8406. 

63.  The  Andromeda,  2  Wall.  48; 
The  Bermuda,  3  Wall.  514;  The 
Julia,  8  Cranch  181,  21  Fed.  Cas.  No. 
12,232;  The  Pizarro,  2  Wheat.  227; 
The  Olinde  Rodrigues,  174  U.  S 
510;  The  St.  Lawrence,  I  Gall.  467; 
The  Mersey,  Blatchf.  Pr.  Cas.  187, 
17  Fed.  Cas.  No.  9489;  The  Peter- 
hoff,  Blatchf.  Pr.  Cas.  463,  I9  Fed. 
Cas.  No.  11.024;  The  Cheshire,  3 
Wall.  234,  5  Fed.  Cas.  No.  2655. 

64.  Rule   Stated "Concealment. 

Vol.  I 


234  ADMIRALTY. 

vincing  of  the  existence  of  such  ground.''"'  Where  conceahiieiil  of 
papers  touching  shipment  on  an  enemy's  vessel  is  indicated,  there 
must  be  clear  and  decisive  proof  of  the  integrity  of  the  claim,  or 
condemnation  will  follow.^" 

(4.)  Other  Frauds  Concerning  Papers. —  Where  false  and  simulated 
papers  are  mixed  with  genuine  papers,  the  captors  are  not  bound 
to  unravel  the  fraud,  or  to  trust  the  explanation  of  those  captured, 
but  should  submit  the  whole  to  the  scrutiny  and  decision  of  the 
prize  court. '^'  Where  the  papers  show  that  the  ship  is  off  her 
regular  course,  a  strong  presumption  of  fraud  arises.'**  Where  the 
ship's  papers  show  an  absolute  port  of  destination,  the  concealment 
from  them  of  the  fact  that  it  was  contingent  upon  the  raising  of  a 
blockade,  is  strong  evidence  of  the  dishonesty  of  the  voyage.''-' 
Where  the  destination  stated  in  the  ship's  papers  is  false,  and  the 
real  voyage  is  of  doubtful  legality,  the  false  destination  is  sufficient 
ground  for  condemnation.'"  The  attempt  of  a  neutral  vessel  by  a 
deceptive  representation  in  the  ship's  papers  to  mislead  a  blockad- 
ing force,  is  fraudulent  misconduct  which  justifies  condemnation."' 
The  mutilation  of  the  log-book  of  a  vessel  seized  under  suspicious 
circumstances,  unexplained  by  proof,  is  sufficient  ground  for  con- 
demnation.'- Where  a  ship  sailing  with  false  papers  carries  contra- 
band of  war,  and  the  master  testifies  falsely  as  to  the  cargo,  the 
ship  will  be  condemned.'" 

(5.)  Enemy's  Flag,  Passport  and  License.  —  Evidence  of  the  volun- 
tary use  of  the  enemy's  flag  and  passport, '■*  or  of  the  documentary 

or   even   spoliation   of   papers   is   not  Fed.   Cas.   No.  5328. 

of    itself    sufficient    ground    of    con-  68.     The        Joseph       H.       Toone, 

demnation    in    a    prize    court.      It    is  Blatchf.    Pr.    Cas.   223,    13   Fed.    Cas. 

undoubtedly    a    very    awakening    cir-  No.    7541. 

cuinstance,    calculated    to    excite    the  69.     The     Cheshire.     Blatchf.     Pr 

vigilance,    and    to    justify    the    sus-  Cas.    151.   5   Fed.   Cas.   No.   2655. 

picions    of    the    court.      But    it    is    a  70.     The    Revere,    2    Spr.    107,    20 

circumstance     open     to     explanation.  Fed.  Cas.  No.  11,716. 

.     .     .     and  if  the  party   in  the  first  71.     The    Louisa    Agnes.    Blatchf. 

instance,   frankly   explains    it   to   the  Pr.  Cas.   107,   15  Fed.  Cas.  No.  8531. 

satisfaction  of  the  court,  it   deprives  72.     The  Ella  Warley,  Blatchf.  Pr. 

him  of  no  right  to  which  he  is  other-  Cas.     288,    8    Fed.     Cas.     No.    4373. 

wise     entitled.        If     on     the     other  73.     The     PeterhofF,     Blatchf.     Pr. 

hand,  the   spoliation  be  unexplained,  Cas.  463.   19   Fed   Cas.   No.    11,024. 

.     .     .     if     the     cause     labor     under  74.     The    Hiawatha,     Blatchf.     Pr. 

heavy  suspicions     ...     it  is  made  Cas.   I,   12  Fed.  Cas.   No.  6451;  The 

the    ground    of    a    denial    of    further  Hallie    Jackson,    11     Fed.    Cas.    No. 

proof,     and     condemnation      follows  5961  ;  The  Guido,  175  U.  S.  382. 

from   defects   in  the   evidence,   which  Estoppel     of     Owners.  —  When     a 

the    party    is    not    permitted   to    sup-  ship  is  captured  as  prize  of  war.  she 

ply."      The    Pizarro,   2    Wheat.    227 ;  is  bound  by  the  flag  and  pass  under 

The    Olinde    Rodrigues,    174    U.    S.  which   she   sailed.     Owners   are   not 

5IO-  at    liberty,    when    there    happens    to 

65.  The  Olinde  Rodrigues,  174  U.  be  evidence  against  them,  to  turn 
S.   510.  around   and   deny   the   character   the 

66.  The  London  Packet,  i  Mason  ship  has  assumed  for  their  benefit. 
14,  15  Fed.  Cas.  No.  8474.  The   William    Bagaley,   5   Wall.   410. 

67.  The   George,    i    Mason   24,    10  It   is  a   well   settled  principle  of  the 

Vol.  I 


ADMIRALTY. 


235 


license  of  the  enemy,  used  in  the  enemy's  interest,  though  uuder 
another's  flag,'^  is  sufficient  proof  that  she  is  the  enemy's  vessel,  and 
justifies  condemnation. 

(6.)  Invocation  of  Papers  From  Other  Causes.  —  The  captors  may  in- 
voke before  the  prize  court,  the  ship's  papers  and  other  original 
evidence  in  other  prize  causes  in  which  the  same  claimants  have  an 
interest,'"  but  not  depositions  taken  as  further  proof.''  The  invo- 
cation of  papers  by  a  claimant  is  granted  only  on  motion  and  at 
the  discretion  of  the  court.'* 

b.  Captured  Property  As  Evidence.  —  The  captured  property 
itself  is  part  of  the  original  evidence  allowed  at  the  first  hearing, 
and  the  court  may  order  a  survey  and  report  thereof,  for  purposes 
of  proof.'" 


law  of  prize  that  sailing  under  flag 
and  pass  of  an  enemy,  is  one  of  the 
modes  by  which  a  hostile  character 
may  be  affixed  to  property ;  for  if 
a  neutral  vessel  enjoys  the  privilege 
of  a  foreign  character,  she  must  ex- 
pect at  the  same  time  to  be  sub- 
ject to  the  inconveniences  attaching 
to  that  character.  Rogers  v.  The 
Amado,  Newb.  400,  20  Fed.  Cas. 
No.  12,005.  The  fact  that  British 
subjects  were  interested,  and  that 
British  underwriters  insured  a  vessel 
which  had  a  Spanish  registry  and 
sailed  under  a  Spanish  flag  and  Span- 
ish license,  and  was  officered  and 
manned  by  Spaniards,  cannot  change 
the  rule  that  she  must  be  deemed  a 
Spanish  ship  and  dealt  with  accord- 
ingly.    The   Pedro,   175   U.   S.  354- 

75.  The  Julia,  8  Cranch  181  :  The 
Aurora,  8  Cranch  203;  The  Hiram, 
I  Wheat.  +40 ;  The  Ariadne,  2  Wheat. 
143 ;  The  Langdon  Cheves,  4  Wheat. 
103;  The  Adula,  176  U.  S.  361;  The 
Alliance,  Blatchf.  Pr.  Cas.  2O2,  i  Fed. 
Cas.    No.    245. 

Concealed   Enemy   Interest The 

vessel  of  a  nation  sailing  under  the 
passport  or  license  of  its  enemy, 
affords  a  strong  presumption  of  con- 
cealed enemy  interest,  or  at  least 
of  ultimate  destination  of  enemy  use. 
The  Julia,  8  Cranch   181. 

License  to  Pass  Fortifications. 
Evidence  of  mere  possession  of  a 
custom  house  clearance  and  a  license 
or  permit  from  the  enemy  to  pass 
fortifications,  does  not  render  the 
vessel  liable  to  seizure  otherwise 
than  it  indicated  that  she  is  the 
enemy's  property.     The  Sarah  Starr,- 


Blatchf.    Pr.    Cas.    69,    21    Fed.    Cas. 
No.   12,352. 

76.  The  Springbok,  Blatchf.  Pr. 
Cas.  434,  22  Fed,  Cas.  No.  13,264; 
The  George,  I  Wheat.  408;  The  Ex- 
periment, 4  Wheat.  84.  Invocation 
of  such  papers  should  regularly  be 
allowed  after  the  hearing  and  only 
when  there  are  suspicious  circum- 
stances. 

77.  The  Experiment,  4  Wheat.  84 ; 
The  Joseph  H.  Toone,  Blatchf.  Pr. 
Cas.   124,  13  Fed.  Cas.  No.  7540. 

78.  The  Springbok,  Blatchf.  Pr. 
Cas.  434.  22  Fed.  Cas.  No.  13.264; 
The  Peterhoff.  Blatchf.  Pr.  Cas.  463, 
19  Fed.  Cas.   No.   11,024. 

79.  Test  of  Ground  of  Seizure. 
The  law  does  not  authorize  distinct 
tests  of  the  ground  of  seizure  to  the 
captors  and  to  the  court,  and  the 
prize  property  is  part  of  the  evidence 
in  every  prize  cause  upon  the  original 
hearing.  The  cargo  cannot  (leceive, 
and  an  inspection  thereof  lor  con- 
cealed contraband  is  usual.  The 
origin  of  the  captured  property  may 
be  ascertained  by  the  court,  regard- 
less of  the  formal  papers.  The  Liver- 
pool Packet,  I  Gall.  513.  15  Fed. 
Cas.  No.  8406;  The  Dos  Hermanos. 
2  Wheat,  76;  Gushing  v.  Laird,  107 
U.  S.  69;  The  Flying  Fish,  2  Gall. 
374,   9   Fed.   Cas.    No.   4892. 

Duty  of  Captors,  How  Enjoined. 
The  duty  of  the  captors  to  bring  in 
for  examination  the  principal  officers 
of  the  prize,  is  enjoined  by  the  prize 
act.  by  the  instructions  of  the  presi- 
dent, and  by  the  settled  rule  of  the 
prize  courts.  The  Arabella,  2  Gall. 
368,  I  Fed.  Cas.  No.  501  ;  The  Both- 

Vol.  I 


2M> 


ADMIRALTY 


c.  Examination  in  Prepavatorio.  ■ — As  a  settled  rule,  the  captors 
are  required  to  bring  in  for  the  examination  /';;  preparatorio  the 
master,  principal  officers,  and  others  of  the  crew  of  the  captured 
vessel,  and  the  examination  should  be  confined  to  these,*"  unless 
special  leave  is  first  given  by  the  court  to  examine  other  witnesses.*^ 
In  the  absence  of  special  leave,  the  testimony  of  other  witnesses 
should  be  excluded  from  evidence  at  the  hearing.^- 

(1.)  Deviation  From  Rule.  — Any  deviation  by  the  captors  from  the 
settled  rule  must  be  explained  to  the  court,  or  condemnation  will 
be  withheld.*^  An  unexplained  examination  confined  to  witnesses 
not  on  Ijoard  the  captured  vessel,  is  a  great  irregularity.**  But 
where  the  monition  against  the  cargo  is  not  replied  to,  although  no 
one  on  board  was  sent  as  a  witness,  the  testimony  of  a  person  pres- 
ent at  the  capture  of  the  vessel  and  cargo,  will  be  allowed  against 
the  cargo.*''  If  the  usual  testimony  is  shown  to  be  unavailable,  the 
want  of  it  may  be  supplied  by  affidavits  of  the  captured  taken  bona 
fide  in  another  port.*"  but  not  by  copies  of  them.'^ 

(2.)  Examination  Upon  Standing  Interrogatories.  —  The  examination 
in  preparatorio  is  taken  in  reply  to  standing  interrogatories.**  .gen- 
erally adopted  by  the  courts  of  prize  in  this  country,*"  and  is  usually 
taken  before  standing  prize  commissioners.""  The  witnesses  brought 
in  by  the  captors,  in  order  to  prevent  collusion,  should  be  examined 


nea.  2  Gall.  78.  3  Fed.  Cas.  No.  1686 ; 
I  Wheat.  Appendix  495;  2  Wheat. 
Appendix  81. 

Examination    of    Charterer Tin- 

charterer  of  a  vessel,  entered  as 
supercargo,  should  be  examined  a< 
one  of  the  crew  of  the  captured 
vessel.     The  Adula,  89  Fed.  351. 

80.  The  Olinde  Rodrigues.  89 
Fed.  los;  The  Sir  William  Peel,  ^. 
Wall.  517;  The  Newfoundland,  89 
Fed.  99;  The  Alliance,  Blatehf.  Pr. 
Cas.  646,  I  Fed.  Cas.  No.  246 ;  i 
Wheat,   .■\ppendix,  495-6. 

81.  The  Alliance,  Blatchf.  Pr. 
Cas.  646.  I  Fed.  Cas.  No.  246;  The 
Falcon,  Blatchf.  Pr.  Cas.  52,  8  Fed. 
Cas.  No.  4616;  I  Wheat.  Appendi.\ 
496. 

82.  The  Olinde  Rodrigues,  8y 
Fed.  10:; ;  The  Sir  William  Peel.  ^ 
Wall.    51;- 

83.  The  Arabella,  2  Gall.  368.  i 
Fell.   Cas.   No.   501. 

Omission  of  Duty  Reprehended. 
The  omission  of  duty  on  the  part 
of  the  captors  to  obey  the  settled 
rule  is  reprehended  in  the  strong- 
est terms  by  the  prize  courts,  and  if 
not    explained,    is    deemed    indicative 

Vol.  I 


of  fraud.  The  Bothnea,  2  Gall.  78, 
?   Fed.    Cas.    No.    i685. 

84.  The  Alliance,  Blatchf.  Pr. 
Cas.   646,    I    Fed.    Cas.    No.   246. 

85.  The  Wave,  Blatchf.  Pr.  Cas. 
329,  29  Fed.  Cas.   No.   17,299. 

86.  2  Wheat.  Appendix  24;  The 
Arabella,  2  Gall.  368,  I  Fed.  Cas.  No. 
501. 

87.  The  Arabella,  2  Gall.  368.  i 
Fed.   Cas.   No.  501. 

88.  The    George,    I    Wheat.    408; 

1  Wheat.  Appendix  495 ;  2  Wheat. 
Appendix    81  ;    The    Dos    Hermanos, 

2  Wheat.  76;  Gushing  v.  Laird,  107 
U.  S.  69;  The  Ann  Green,  I  Gall. 
274,   I   Fed.   Cas.   No.  414. 

89.  Adoption  of  Standing  Inter- 
rogatories.—  Tlie  standing  interro- 
gatories of  the  English  High  Court 
of  .\dmiralty  were  generally  adopted 
as  a  model  by  the  district  judges  in 
the  principal  states,  during  the  war 
of  1812,  with  few  additions  and 
scarcely  any  variations.  I  Wheat. 
Appendix  49^ ;  2  Wheat.  Appendix 
81. 

90.  I  Wheat.  Appendix  495';  The 
.A.nn  Green,  i  Gall.  274,  i  Fed.  Cas. 
No.  414. 


ADMIRALTY. 


237 


as  soon  as  possible  after  the  arrival  of  the  captured  vessel,'"  and 
without  communication  with  or  instruction  by  counsel,"-  and  should 
be  separately  examined."^  The  standing  interrogatories  are 
framed  to  elicit  the  truth  on  the  question  of  prize  or  no  prize,  and 
to  draw  forth  everything,  within  the  knowledge  of  the  witnesses, 
on  the  controversy  between  the  captors  and  the  captured."* 

(3.)  Duty  of  Commissioners  on  Examination. —  It  is  the  duty  of  com- 
missioners in  examining  the  witnesses,  not  merely  to  require  a 
formal  and  direct  answer  to  every  part  of  each  interrogatory,  but 
to  require  each  witness  to  state  the  facts  with  all  minuteness  and 
detail,''^  and  not  to  suffer  a  witness  to  evade  a  sifting  inquiry.'"' 

(4.)  Objections  to  Examination.  —  Exceptions  to  the  mode  of  proof 
should  be  taken  at  the  examination,  or  they  will  be  considered 
waived,"''  and  the  court  will  not  notice  on  the  final  hearing  objec- 
tions to  irregularities  of  the  commissioners  in  the  mode  of  examina- 
tion, or  in  the  admission  of  testimon}',  or  to  the  competency  of 
witnesses  examined."*  An  irrelevant  statement  of  a  witness  exam- 
ined made  in  relation  to  another  witness,  will  be  stricken  out."" 

(5.)  Sealing  and  Custody  of  Examination.  — The  examination  in  pre- 
paratorio,  when  completed  and  signed  b}'  the  witnesses,  should  be 
sealed  and  directed  to  the  custody  of  the  proper  district  court, 
together  with  any  paper  not  already  lodged  by  the  captors  in  the 
registry  of  the  court.' 

C.  Test  Affid.wits  of  Ci,.mmants.  —  Claimants  of  the  captured 
property,  or  of  any  part  of  the  cargo,  are  required  to  make  a  test 


91. 
92. 

69;  1 
93. 
94. 
95. 


I    Wheat.    Appendi.x   495. 
Ciishing   f.    Laird,    107   U.    S. 
Wlieat.   .Appendix  497. 
I    Wheat.    Appendix   498. 
The   George,   i   Wheat.  408. 
The   .^nn   Green,    i    Gall.   27.1, 
I    Fed.   Cas.   No.   414. 

96.  I    Wheat,    .\ppendix.   41S. 
Solemnity      of      Examination      in 

Preparatorio.  —  The  greatest  solem- 
nity is  attaclied  to  the  examination 
ill  frcftaratorio ;  and  a  witness  ex- 
amined will  not  be  allowed  afttrvvar  1 
to  contradict  his  own  declarations 
in  answer  to  the  standing  interro- 
gatories, npon  the  important  qnes- 
tion  of  domicile  or  national  charac- 
ter. Cargo  of  El  Telegrafo.  i  Newh. 
383.   5   Fed.   Cas.   No.   2535. 

97.  Intervention    of    Consul    Im- 
material  The     intervention     of     a 

consul  who  intervened  for  the 
claimant  cannot  excuse  laches  in 
failing  to  object  to  the  mode  of  proof 
at  the  proper  time.  The  Elizabeth, 
Rlatchf.  Pr.  Cas.  250,  8  Fed.  Cas. 
No.   4350. 


98.  Mode  of  Rectifying  Testi- 
mony  In  order  to  rectify  or  sup- 
press testimony,  an  application  should 
be  made  to  court  upon  special 
motion,  with  notice,  pointing  out 
irregularities  complained  of,  and 
praying  proper  relief.  The  Ezilda, 
Blatchf.  Pr.  Cas.  232,  8  Fed.  Cas. 
No.  4599. 

Enlargement     of     Testimony A 

witness  examined  upon  the  standing 
interrogatories  cannot  claim  a  right 
to  modify  or  enlarge  his  testimony 
after  its  completion  and  submission ; 
but  where  mistake  appears,  the 
court  may  allow  him  to  answer 
special  interrogatories.  The  Peter- 
hof¥,  Blatchf.  Pr.  Cas. 
Cas,    No.    11,022. 

99.  The     Peterhoff. 
Cas.  345,   19  Fed,   Cas. 

1.  Signature  of  Witness.  —  When 
the  evidence  is  taken,  each  sheet  is 
afterwards  read  over-  to  the  witness 
and  separately  signed.  I  Wheat.  Ap- 
pendi.x  498. 

Vol.  I 


345.    19    Fed. 

Blatchf.     Pr. 
No.   11,022. 


238 


ADMIRALTY. 


affidavit  of  the  verity  of  their  claims,"  which  should  rei:;;ularly  state 
that  the  property,  both  at  the  time  of  the  shipment  and  at  the  time 
of  the  capture,  belonged,  and  will,  if  restored,  belong  to  the  claim- 
ant,' and  the  claimant  may  aver  that  the  alleged  prize  is  not  liable 
to  condemnation  and  seizure.* 

a.  Test  Affidavits  by  Agent.  —  Test  affidavits  by  an  agent  of  the 
claimant  when  the  principal  is  out  of  the  country,  is  the  common 
course  of  the  admiralty.^  But  claims  in  prize  cases  should  not  be 
verified  by  agents,  where  the  principals  are  within  the  jurisdiction, 
as  the  captors  in  such  case  have  a  right  to  the  oath  of  the  claim- 
ant." If  a  test  affidavit  is  made  by  an  agent,  in  the  absence  of  the 
principal,  if  he  is  within  reach,  his  suppletory  oath  should  be  ten- 
dered." When  the  claim  is  put  in  by  the  master  in  behalf  of  the 
owner,  the  master's  affidavit  may  state  his  belief  merely.^  But  the 
test  affidavit  of  an  agent  who  does  not  assume  to  have  personal 
knowledge  of  the  facts  stated,  is  not  evidence." 

b.  Papers  Annc.ved  to  Affidavits.  —  Papers  annexed  to  the  test 
affidavits  are  not  thereby  made  evidence,  and  will  be  stricken  from 
the  record  as  irregular  and  inadmissible." 

c.  Limits  of  Claim  and  Affidavit.  —  The  claim,  answer  and  test 
oath  of  the  claimants  should  not  stand  in  opposition  to  the  ship's 
papers,  and  preparatory  examination,  unless  the  case  arose  before 
the  war,"  and  should  be  limited  to  the  question  of  prize  or  no  prize, 
and  introduce  no  matter  extraneous  thereto.'-     Nor  can  the  claim- 


2.  I  Wheat.  Appendix  500;  The 
Schooner  Adeline,  9  Cranch  244; 
The  Lively,  i  Gall.  315.  15  Fed.  Cas. 
No.  8403;  The  St.  Lawrence,  i  Gall. 
467,  21  Fed.  Cas.  No.  12,232;  The 
Sally.  I  Gall.  401,  21  Fed.  Cas.  No. 
12,258;   2   Wheat.    Appendi.x   21. 

3.  2   Wheat.    Appendix   21. 

Irregularity  Not  Fatal An  ir- 
regularity in  the  affidavit  of  owner- 
ship, in  omitting  to  state  it  as  of 
the  time  of  the  shipment,  is  not  fatal 
The  Schooner  Adeline,  g  Cranch  244. 

4.  The  Lynchburg,  Blatchf.  Pr. 
Cas.  49,  Fed.  Cas.  No.  8637a;  The 
Napoleon,  Blatchf.  Pr.  Cas.  296,  17 
Fed.  Cas.  No.  10,012;  The  Joseph 
H.  Toone,  Blatchf.  Pr.  Cas.  124,  13 
Fed.  Cas.  No.  7540;  The  John  Gil- 
pin, Blatchf.  Pr.  Cas.  291,  13  Fed. 
Cas.    No.   7343. 

5.  I  Wheat,  .\ppendix  500;  The 
Schooner  .Adeline,  9  Cranch  244. 

6.  The  Lively,  I  Gall.  315,  15  Fed 
Cas.  No.  8403 ;  The  St.  Lawrence, 
I  Gall.  467,  21  TFcd.  Cas.  No.  12,232; 
The  Sally,  i  Gall.  401.  21  Fed.  Cas. 
No.    12,258. 

Vol.  I 


7.  The  Schooner  Adeline,  9 
Cranch  244. 

8.  Gushing  v.  Laird,  107  U.  S. 
69. 

9.  The  D,  Sargeant.  Blatchf.  Pr. 
Cas.  576,  7  Fed.   Cas.  No.  4098. 

10.  The  Delta,  Blatchf.  Pr.  Cas. 
I.'?3.  7  F'ed-  Cas.  No.  3777 :  The  Em- 
press, Blatchf.  Pr.  Cas.  146.  8  Fed. 
Cas.  No.  4476;  The  Cheshire,  Blatchf. 
Pr.  Cas.  151,  5  Fed.  Cas.  No.  2655. 

Correspondence  Referred  to  in 
Test  Affidavit. —  The  test  affidavit 
cannot  be  considered  as  evidence  of 
the  correspondence  referred  to  there- 
in, as  being  in  possession  of  the 
claimant ;  and  if  the  correspondence 
is  not  itself  produced  in  evidence, 
it  will  be  presumed  adverse  to  the 
claimant.     The  Sally  Magee,  3  Wall. 

451- 

11.  I  Wheat.  Appendix  501  ;  The 
Ann  Green,  i  Gall.  274,  i  Fed.  Cas. 
No.  414;  The  Diana,  2  Gall.  93,  7 
Fed.  Cas.  No.  3876. 

12.  The  Delta.  Blatchf.  Pr.  Cas. 
133.  7  F'ed.  Cas.  No.  3777;  The  Em- 
press, Blatchf.  Pr.  Cas.  146,  8  Fed. 
Cas.    No.    4476:     The    John    Gilpin, 


ADMIRALTY. 


239 


ant  question  the  authority  of  the  captors,'^  nor  any  irregularities  on 
the  part  of  the  captors."  The  affidavit  of  the  claimant  that  he  is 
not  within  the  exceptions  of  a  proclamation,  which  is  silent  as  to 
the  capture  involved,  is  not  proof  of  the  negative  averred. '^ 

D.  Further  Proof.  • —  Where  the  court  has  doubts  upon  tlu- 
hearing,  it  may  in  its  discretion  order  further  proof  either  siio 
spontc,'"  or  upon  motion  of  an  interested  party  upon  affidavits  or 
other  proof  showing  ground  therefor. ''  The  court  may  by  its 
order,  provide  that  both  the  claimants  and  the  captors  shall  be 
allowed  the  benefit  of  further  proof.'*  But  upon  a  simple  order 
for  further  proof,  the  captors  are  not  entitled  to  introduce  new 
evidence,  if  not  specially  authorized,'"  unless  the  new  evidence  is 
upon  plea  and  proof,  in  which  case  both  parties  are  permitted  to 
introduce   new   evidence   to  support   their   respective  allegations.-" 

a.  Mode  of  Further  Proof.  —  Further  proof,  when  allowed  1)\ 
the  prize  court,  may  be  taken  by  affidavits,"'  and  additional  docu- 


Blatchf.  Pr.  Cas.  291,  13  Fed.  Cas. 
No.  7343 ;  The  Napoleon,  Blatchf. 
Pr.  Cas.  296,  17  Fed.  Cas.  No.  10,012; 
The  Sunbeam,  Blatchf.  Pr.  Cas.  316, 
22  Fed.  Cas.  No.  13,013;  The  Joseph 
H.  Toone,  Blatchf.  Pr.  Cas.  124,  13 
Fed.  Cas.  No.  7540;  The  Lynchburg, 
Blatchf.  Pr.  Cas.  49,  15  Fed.  Cas. 
No.  8637a ;  The  Louisa  Agnes, 
Blatchf.  Pr.  Cas.  107,  ij  Fed.  Cas. 
No.  8531 ;  The  Cheshire,  Blatchf.  Pr 
Cas.   151,  5  Fed.  Cas.   No.  2655. 

13.  The  Tropic  Wind.  Blatchf.  Pr. 
Cas.  64.  24  Fed.  Cas.   No.   14,486. 

Question  Between  Government  and 
Captors The  question  of  the  au- 
thority for  the  seizure  is  between 
the  government  and  the  captors,  and 
is  one  with  which  the  claimant  has 
nothing  to  do.  It  only  goes  to  the 
question  whether  condemnation  shall 
go  to  the  government  or  to  the 
captors.  The  Dos  Hermanos,  2 
Wheat.  76 ;  The  Amiable  Isabella,  6 
Wheat.    I. 

14.  The  Joseph  H.  Toone,  Blatchf. 
Pr.  Cas.  223,  13  Fed.  Cas.  No.  7541. 

15.  The  Gray  Jacket,  s  Wall.  342- 

16.  The  Sir  William  Peel,  s  Wall. 
517;   The   Sally  Magee,  3  Wall.  45i- 

17.  The  Sally  Magee,  3  Wall. 
451:  The  Sir  William  Peel,  5  Wall. 
517;  The  .\my  Warwick,  2  Spr.  123. 
I   Fed.  Cas.  No.  341. 

Exceptions     to     Rule     Requiring 

Showing The     general      rule     rc- 

(|uiring  a  detailed  showing  upon  oath 
to  obtain  an  order  for  further  proof, 


does  not  apply  where  it  is  sought  to 
meet  evidence  of  an  opponent  by 
counter  evidence  on  the  same  points. 
The  Amy  Warwick,  2  Spr.  123,  i 
Fed.   Cas.   No.  341. 

Rejected  Depositions  Used  as  Affi- 
davits  The      rejected     depositions 

of  witnesses  whose  depositions  were 
not  properly  taken  upon  the  prepara- 
tory examinations  may  be  used  as 
affidavits  on  motion  for  an  order 
for  further  proof.  The  Sir  William 
Peel,   5   Wall.    5I7- 

18.  The  George,  i  Wheat.  408;  I 
Wheat.  Appendi.x  504;  The  Mary,  8 
Cranch  388;  The  St.  Lawrence,  8 
Cranch  434;  The  Fortuna,  2  Wheat. 
161;  The  Venus.  I  Wheat.  112;  The 
Grotius,  8  Cranch  456 ;  The  Sir  Wil- 
liam Peel,  5'  Wall.  517 1  The  Olinde 
Rodrigues,  174  LT.  S.  510. 

19.  I    Wheat.    Appendix    504. 
Affidavits  of  Captors  Exceptional. 

Except  under  peculiar  circumstances, 
the  affidavits  of  captors  are  not  re- 
ceived in  our  prize  courts.  2  Wheat. 
.Appendix  26. 

20.  I    Wheat.    Appendix   504. 

21.  I   Wheat.   .Appendix,  504,  506. 

Affidavits  Taken  in  Foreign  Coun- 
tries  Ufon  further  proof  allowed. 

.•\ffidavits  taken  in  foreign  countries 
before  notaries  public,  whose  at- 
testations are  properly  verified  are  in 
general  admissible.  2  Wheat.  Ap- 
pendix 26:  The  Arabella,  2  Gall.  368. 
I   Fed.  Cas.  No.  501. 

Vol.  I 


:m) 


ADMIRALTY 


nientary  evidence  then  introduced,  if  properly  verified.--  When 
the  benefit  of  further  proof  is  allowed  to  the  captors,  their  affidavits, 
properly  attested,  are  admissible  evidence  as  to  the  facts  within  their 
knowledge.-^  Claimants,  upon  further  proof,  may  produce  affi- 
davits showing-  their  proprietary  interest,-''  and  authenticated  copies 
of  correspondence  and  invoices  bearing  upon  that  question.-'' 
Further  proof,  when  allowed  upon  appeal  to  the  supreme  court,  in 
a  prize  case,  must  be  taken  by  commission  under  its  rule.-"  But  it 
is  a  general  rule  of  the  prize  court  not  to  issue  a  commission  to  take 
evidence  in  the  enemy's  country.^' 

b.  Caution  As  to  Further  Proof.  —  An  order  for  further  proof  is 
made  with  caution,  because  of  the  temptation  it  holds  out  to  fraud 
and  ])erjury,-*  and  will  not  be  allowed  in  favor  of  a  party  who  is 
guilty  of  fraud  or  misconduct,-"  or  who  has  shown  himself  capable 
of  abusing  the  order. ^" 

c.  Further  Proof  of  Claimants.  —  IJberal   indulgence   is  usualh' 


22.  I  Wheat.  Appendix  504,  506 ; 
I,a  Nereyda,  8  Wheat.  108. 

Necessity  of  Verification  of  Papers. 
Papers  hy  themselves  prove  nothing, 
and  both  the  original  ship's  papers 
and  papers  introduced  upon  further 
proof  must  be  verified  to  the  satis- 
faction of  the  court.  2  Wheat.  Ap- 
pendix 23;  The  Fortuna,  2  Wheat. 
161. 

23.  The  Sally,  i  Gall.  401,  21  Fed. 
Cas.  No.  12,258;  I  Wheat,  .'\ppendix 
506:    2   Wlieat.    .'\ppendi.x    26. 

Affidavits  of  Captors,  'When  Al- 
lowed—  The  attestations  of  captors, 
upon  further  proof  allowed  to  them, 
are  admissible  under  the  ordinary 
usage  of  prize  courts,  especially  as  to 
facts  within  their  knowledge  relating; 
to  the  circumstances  of  the  capture, 
and  no  objection  lies  to  their  com- 
petency as  witnesses  in  the  prize 
court.     The  Anne,  3  Wheat.  435. 

24.  2  Wheat.  Appendix  26;  The 
Friendschaft,  3  Wheat.  14;  The  Ata- 
lanta,  3  Wheat.  409;  The  Mary,  9 
Cranch   126. 

TTsage    as    to    Further    Proof    by 

Claimant It   is   so   much   the   liabit 

of  the  prize  courts  to  expect  that 
upon  further  proof  allowed  the 
claimant  will  comply  with  the  usual 
and  almost  invariable  practice  to 
prove  his  proprietary  interest  upon 
oath,  and  to  explain  the  nature, 
origin  and  character  of  his  rights, 
that  the  absence  of  such  proofs  leads 
to  considerable  doubts.  La  Nereyda, 
8  Wheat.  108. 

Vol.  I 


Introduction   of    Letters   Referred 

to Letters  referred  to  in  an  affi- 
davit on  further  proof  should  be  pro- 
duced and  further  time  may  be  al- 
lowed therefor.  The  Frances,  8 
Cranch  354. 

25.  The  Friendschaft.  3  Wheat. 
14;   2   Wheat   .-X-ppendix   26. 

26.  The  London  Packet.  2  Wheat. 
371;  2  Wheat.  Appendix  26:  The 
Argo,  2  Wheat.  287,  note ;  Tlie  For- 
tuna, 2  Wheat.   161. 

27.  The  Diana,  2  Gall.  93,  7  Fed. 
Cas.  No.  3876;  2  Wheat,  .\ppendix 
26. 

28.  The  Sally  Magec,  3  Wall.  4St  ; 
The  Gray  Jacket,  s  Wall.  34-2;  The 
Adula.  176  U.  S.  361  ;  The  St.  Law- 
rence, 8  Cranch  434. 

29.  I  Wheat.  Appendix  505-6; 
The  St.  Lawrence,  8  Cranch  4.34 ; 
The  Hazard,  9  Cranch  205 ;  The  IJos 
Hermanos,  2  Wheat.  76;  The  Pi- 
zarro,  2  Wheat.  227 ;  The  Gray 
Jacket,  5  Wall.  342;  The  Liverpool 
Packet,  I  Gall  513,  15  Fed.  Cas.  No. 
8406;  The  Sally,  i  Gall.  401,  21  Fed. 
Cas.  No.  12.258;  The  Bothnea,  2  Gall. 
78,  3  Fed.  Cas.  No.  1686;  The  George, 
2  Gall,  249,  10  Fed.  Cas.  No.  5327; 
The  Betsy,  2  Gall,  377,  3  Fed.  Cas, 
No,  1364;  The  Springbok,  Blatchf, 
Pr,  Cas,  434,  22  Fed.  Cas.  No,  13,- 
264. 

30.  The  San  Jose  Indiano,  1 
Mason  38,  21  Fed.  Cas.  No.  12.324; 
I    Wheat,    .\ppcndix   506. 


ADMIRALTY. 


241 


allowed  to  claimants  who  have  not  clearly  violated  good  faith,  in 
ordering  further  proof  to  support  their  claim,"'  especially  if  there 
is  doubt  as  to  the  proprietary  interest  and  neutral  character  of  the 
claimants,^-  or  if  the  preliminary  proofs  do  not  satisfactorily  estab- 
lish a  lawful  capture.^^  Further  proof  for  the  claimants  received 
without  objection,  though  otherwise  objectionable,  will  be  deemed 
consented  to,  and  allowed.^"' 

(1.)  When  Not  Allowed.  —  The  claimant  will  not  be  allowed  further 
proof  to  contradict  his  evidence  at  the  preparatory  examination.''" 
Further   proof   should   be   denied    to   a   claimant   who   has    falsely 


31.  I  Wheat.  Appendi.x  504;  The 
Frances.  8  Cranch  354 ;  The  St.  Law- 
rence, 8  Cranch  434 ;  The  Dos  Her- 
nianos.  2  Wheat.  76;  The  Atalanta, 
3  Wheat.  409 ;  The  Amiable  Isa- 
bella, 6  Wheat.  I  ;  The  London 
Packet,  5  Wheat.  132;  The  Ann 
Green,  i  Gall.  274,  i  Fed.  Cas.  No. 
414;  The  Rapid,  I  Gall.  295,  20  Fed. 
Cas.  No.  11,576;  The  Liverpool 
Packet,  I  Gall.  513,  15  Fed.  Cas.  No. 
8406;  Moodie  -■.  The  Betty  Carth- 
cart.  Bee  292.  17  Fed.  Cas.  No.  9742; 
The  Avery,  2  Gall.  308,'  2  Fed.  Cas. 
No.  671  ;  The  Falcon,  Blatchf.  Pr. 
Cas.  52,  8  Fed.  Cas.  No.  4616;  The 
Julia,  2  Spr.  164,  14  Fed.  Cas.  No. 
7576. 

Indulgence  to  Remove  Doubts  of 

Good  Faith Where  the  case  of  the 

claimant  seemed  false  and  fraudulent 
but  there  was  a  possibility  that  it 
might  be  genuine,  the  court  said : 
"  This  court,  without  better  evidence 
than  was  thus  presented  to  our  view, 
gave  the  most  liberal  indulgence  for 
procuring  evidence  to  support  the 
claim.  We  now  express  our  satis- 
faction in  having  done  so,  inasmuch 
as  it  has  enabled  an  honest  man  both 
to  save  his  property,  and  vindicate  his 
reputation."  The  Venus,  5  Wheat. 
127. 

Fraud  of  Master  Not  Imputable  to 
Claimant.  —  The  fraud  of  the  master 
of  a  belligerent  vessel  in  throwing 
papers  overboard,  cannot  preclude  a 
bona  Ade  neutral  claimant  of  part 
of  the  cargo,  to  whom  no  fraud  was 
imputable,  from  being  allowed  fur- 
ther proof  of  property.  The 
Friendschaft,    3    Wheat.    14. 

32.  The  Mary,  9  Cranch  126; 
The  San  Jose  Indiano,  2  Gall.  268; 
21   Fed.   Cas.   No.   12,322. 

Names    and    Domiciles   of    Copart- 

16 


ners Where     the     shipment     was 

made  to  a  firm,  who  were  claimants 
of  the  cargo,  if  their  names  do  not 
appear,  further  proof  will  be  ordered 
as  to  the  names  and  domiciles  of 
each  of  its  members.  The  Adeline, 
9   Cranch   244. 

Consignment  to  Neutral  Claimant. 
A  bill  of  lading  consigning  goods  to 
a  neutral  claimant,  though  without 
invoice  or  letter  of  advice,  is  a  suffi- 
cient foundation  for  further  proof. 
The  Friendschaft,  3  Wheat.   14. 

Doubt  as  to  Neutrality  of  Claim- 
ant  If      the      neutrality      of      the 

claimant  is  in  doubt  upon  the  ship's 
papers,  he  cannot  complain  of  the 
delay  in  restitution  attending  further 
proof  to  remove  the  doubt.  The 
George,  I  Wheat.  408. 

33.  The  Sir  William  Peel.  S  Wall. 
517;  I  Wheat.  Appendix  504;  The 
Grotius,  8  Cranch  456;  The  Amiable 
Isabella,  6  Wheat,  i  ;  The  Ann  Green, 
I  Gall.  274,  I  Fed.  Cas.  No.  414;  The 
Rapid.  I  Gall.  295,  20  Fed.  Cas.  No. 
11,576;  The  Liverpool  Packet,  i  Gall. 
513,  15  Fed.  Cas.  No.  8406:  The 
Nellie,  Blatchf.  Pr.  Cas.  553,  I7  Fed. 
Cas.  No.  10,095;  The  Falcon.  Blatchf. 
Pr.  Cas.  52,  8  Fed.  Cas.  No.  4616; 
The  Avery,  2  Gall.  308,  2  Fed.  Cas. 
No.  671 ;  The  Julia,  2  Spr.  164,  14 
Fed.  Cas.  No.  7576. 

34.  The  Pizarro,  2  Wheat.  227. 

35.  The  Alexander,  I  Gall.  532,  I 
Fed.  Cas.  No.  164;  The  Adula.  176 
U.    S.   361. 

Shipment     in     Hostile     Ship If 

the  shippers  in  a  hostile  ship  fail 
to  put  on  board  documentary  evi- 
dence of  a  neutral  character,  they 
will  be  denied  further  proof.  The 
Flying  Fish,  2  Gall.  374.  9  Fed.  Cas. 
No.  4892. 

Vol.  I 


242 


ADMIRALTY. 


claimed  property  belonging  in  part  to  another,''"  or  who  is  a  mere 
voluntary  assignee  of  claims  for  which  he  has  paid  nothing,  and 
which  he  has  agreed  to  prosecute  at  his  own  risk  and  expense,^' 
or  if  he  has  made  a  guilty  concealment  in  his  test-affidavit  and 
claim,''*'  or  has  been  guilty  of  concealment  or  spoliation  of  papers 
which  is  not  satisfactorily  explained,''''  or  of  a  fraudulent  use  of 
papers.'"'  Further  proof  will  not  be  allowed  where  the  case  for  the 
claimant  is  incapable  of  satisfactory  explanation,"  nor  will  it  be 
readily  allowed  upon  appeal  upon  the  same  points  upon  which  it 
.vas  allowed  in  the  lower  court/- 

d.  Fitrtlicr  Proof  of  Captors.  —  When  the  case  at  the  original 
hearing  is  not  sufficiently  clear  to  authorize  either  condemnation 
or  restitution  of  the  captured  property,  the  captors  will  be  allowed 
further  proof  of  its  validity.'"'  They  will  be  allowed  further  proof 
where  the  circumstances  create  a  suspicion  of  the  illegality 
of  the  voyage,''*  or  where  part  of  the  cargo  libeled  as  prize 
was  taken  from  a  burned  ship  from  which  no  witnesses  could 
be  obtained, ^"^  or  where  the  sinking  of  the  captured  vessel  precludes 
a  preparatory  examination  of  the  crew.^°  or  to  rebut  a  collusive 
capture,""  or  to  rebut  the  defense  of  claimants.''*  or  to  counteract 


36.     Tlie  Dos  Hermanos,  2  Wheat. 
76. 
87.     The  Euphrates,  8  Cranch  385. 

38.  The  Gray  Jacket.  5  Wall.  342, 

39.  Eelaxation    of    Rule It    is 

a  relaxation  of  the  ri;les  of  the 
prize  cotu't  to  allow  further  proof 
where  there  is  a  concealment  of  ma- 
terial paper.  The  Fortuiia,  3  Wheat. 
161  ;  The  Pizarro,  2  Wheat.  227 ; 
The  St.  Lawrence,  8  Cranch  434 ;  i 
Wheat.    Appendi.x    505. 

40.  I    Wheat.    Appendix    505. 

41.  The  Dos  Hermanos,  2  'Wheat. 
76;  The  Hazard,  9  Cranch  205';  The 
I'.uphratcs,  8  Cranch  385  ;  The  Adula, 
176   U.   S.   361  ;    I    Wheat.   Appcndi.x 

505. 

42.  The  Dos  Hernianos,  2  Wheat 
76. 

43.  The  Groiius,  8  Cranch  456; 
The  Sir  William  Peel,  5  Wall.  517; 
The  Newfoundland,  89  Fed.  99,  176 
U.  S.  97;  The  Olinde  Rodrigucs. 
89  Fed.  105,  91  Fed.  274:  The  Nellie, 
Blatchf.  Pr.  Cas.  553,  17  Fed.  Cas. 
No.  lo.ogs;  The  Elizaheth,  Rlatchf. 
Pr.  Cas.  250.  8  Fed.  Cas.  No.  4350. 
The  ,\nnie.  Blatchf.  Pr.  Cas.  209,  i 
Fed,  Cas.  No.  415. 

Irregularity   of   Captors Wlure 

the  captors  have  been  irrcKidar  in 
not  bringing  in  the  ship's  papers, 
and   the  master  nf  the  captured   ship, 

Vol.  I 


further  proof  nf  the  nature  of  the 
captured  property  will  be  ordered. 
The  London  Packet,  i  Mason  14, 
i.S  Fed.  Cas.  No.  8474. 
'44.  The  Newfoundland.  89  Fed. 
99,  176  U.  S.  97:  The  Olinde  Rod- 
rigues,   89    Fed.    105. 

45.  The  Thomas  Watson,  Blatchf. 
Pr.  Cas.  120,  23  Fed.  Cas.  No.  13,- 
933;  The  Sarah,  Blatclif.  Pr.  Cas. 
19s,  21   Fed.  Cas.   No.   12,337. 

t6.  The  Actor,  Blatchf.  Pr.  Cas. 
200,  I   Fed.  Cas.  No.  36. 

47.  Exculpation     of     Charge     of 

Fraud Where      the      captors      arc 

charged  with  direct  and  positive 
fraud  which  is  to  strip  them  of  their 
rights,  it  will  rarely  happen  that  the 
original  evidence  on  the  question  of 
condemnation  or  restoration  of  the 
captured  vessel  will  afford  sufficient 
light  to  determine  whether  the  cap- 
ture was  bona  fide  or  collusive,  and 
if  the  circumstances  are  of  doubtful 
appearance,  justice  requires  that  an 
opportunity  he  afforded  to  the  cap- 
tors to  explain  those  circumstances, 
and  to  clear  themselves  of  the  im- 
putation of  fraud.  The  collusiveness 
of  the  capture  must  be  almost  con- 
fessed before  the  court  will  refuse 
further  proof.  The  George,  i  Wheat. 
408. 

48.  Further  Proof  After  Opinion 


ADMIRALTY. 


243 


further  proof  allowed  to  the  claimants,'-'  or  to  add  proof  where  the 
claimants  failed  to  object  to  the  proof  taken  prior  to  the  liearing,''" 
or  to  establish  a  joint  interest  in  the  prize. '^^ 

(1.)  When  Not  Allowed.  —When  the  case  for  the  claimant  appears 
unsuspicious  upon  the  original  evidence,  the  court  is  inclined  not 
to  allow  further  proof  to  the  captors,"^  and  will  not  ordinarily 
include  the  captors,  where  the  case  stands  merel}-  for  further  proof 
by  possil)Ic  claimants  who  have  not  appeared  and  may  not  appear.^'' 

e.  Failure  of  further  Proof.  —  \\'here  an  order  for  further  proof 
is  made,  and  the  party  disobeys  its  injunctions  or  neglects  to  com- 
ply with  them,  courts  of  prize  consider  such  negligence  as  con- 
tumacy leading  to  presumptions  fatal  to  the  claim. ^■'  Where  in  a 
doubtful  case  further  proof  is  allowed  for  a  year  and  a  day  to  claim- 
ants who  have  not  appeared,  if  no  claimant  appears  and  makes  proof 
within  that  period,  all  claims  are  deemed  abandoned  and  condemna- 
tion follows  as  of  coiu'sc."''  Where  further  proof  was  allowed  to 
captors  and  claimants,  and  the  claimants  without  adducing  proof 
moved  for  restitution,  the\-  could  not  reserve  a  right  to  further 
proof  in  case  of  denial  of  the  motion. ''° 


Pronounced.  —  Where  the  claimants 
niaflo  a  full  defense  on  the  record, 
the  lihcllants  were  allowed  to  put 
in  further  proof  after  the  opinion 
was  pronounced.  The  Sarah  Starr, 
Blatchf.  Pr.  Cas.  69.  21  Fed.  Cas. 
No.    i2.,^52. 

49.  Tile  St.  Lawrence,  8  Cranch 
4.U.  The  Mary,  8  Cranch  388:  The 
Fortuna,  2  Wheat.  161  ;  The  Venus, 
I  Wheat.  112;  The  Sir  William  Peel. 
5'  Wall.  .SI-. 

50.  Excuse     Not     Required In 

such  case  no  excuse  need  he  shown 
for  failure  to  bring  in  as  witnesses 
only  the  master  and  cahin  boy  nut  of 
a  large  crew,  in  order  to  allow  further 
and  explanatory  proof  bv  the  cap- 
tors. The  Elizabeth,  Blatchf.  Pr. 
Cas.   2S0,  8  Fed.   Cas.   No.  4350. 

51.  The   George,    i    Wheat.' 408. 

52.  The  Bothnea.  2  Gall.  78.  3 
Fed.  Cas.  No.  1686;  i  Wheat.  .\p- 
pendix    504. 

53.  ]  Wheat.  Appendix  504 ;  2 
Wheat,    .\ppendix    19,    20,    21-fi. 

54.  Conclusive  Evidence  of  Hos- 
tile Interest.  —  If,  upon  further 
proof  allowed,  no  proof  is  adduced, 
or  if  proof  is  defective,  or  the  parties 
refuse  to  swear,  or  swear  evasively, 
it  is  deemed  conclusive  evidence  of 
hostile  interest.  I  Wheat,  .\ppendix 
:;o6;  La  Nereyda,  8  Wheat.  108;  The 
'Pearl,  5  Wall.   574. 


55.  Suspension  Confined  to  Cases 
of  Doubt.  —  The  suspen^ion  for  a 
year  and  a  day  is  confined  to  cases 
where  it  is  doubtful  upon  the 
original  evidence  whether  the  prop- 
erty captured  belongs  to  an  enemy 
or  to  a  neutral.  The  Falcon,  Blatchf. 
Pr.  Cas.  52,  9  Fed.  Cas.  No.  4616: 
The  Julia,  2  Spr.  164,  14  Fed.  Cas. 
No.  7576;  The  Harrison,  i  Wheat. 
298;  I  Wheat.  Appendix  501;  2 
Wheat.   Appendix   20;    The   .\deline, 

9  Cranch  244;  The  Avery,  2  Gall. 
308,  2  Fed.  Cas.  No.  671. 

If  the  right  of  capture  is  not  doubt- 
ful, notwithstanding  there  are  un- 
explained defects  in  the  original 
proof,  condemnation  will  be  made  at 
the  hearing,  without  suspension  for 
further  proof.  The  Zaralla,  Blatchf. 
Pr.  Cas.  173,  30  Fed.  Cas.  No.  18203; 
The    Gipscy,    Blatchf.    Pr.    Cas.    126, 

10  Fed.    Cas.    No.    5456. 

Claim  Presented  During  Suspen- 
sion  A     claim     presented     within 

the  limit  of  a  year  and  a  day  al- 
lowed therefor,  cannot  be  approved 
in  the  supreme  court  upon  appeal ; 
but  the  cause  will  be  remanded  to 
the  court  below,  for  presentation  to 
that  court.  The  Harrison,  i  Wheat. 
298. 

56.  Settled  Practice The  set- 
tled practice  of  the  prize  courts  for- 
bids  the   taking  of  proof  under   such 

Vol.  I 


244 


ADMIRALTY. 


II.  RELATION  OF  PROOF  TO  PLEADING. 

1.  In  General. — Though  the  technical  rules  of  the  common  law- 
pleading  do  not  prevail  in  admiralty, .  there  must  be  a  substantial 
agreement  between  the  pleadings  and  the  proof,-''  and  in  general 
no  evidence  is  admissible  unless  it  is  applicable  to  some  allegation 
in  the  libel'**  or  in  answer. ="  Evidence  outside  of  the  allegations 
made  by  either  party  cannot  be  considered  in  support  of  the  cause 
of  action  or  defense."" 

A.  Ex'iDENCE  Under  General  Pleading.  —  Evidence  of  special 
damage  may  be  given  in  admiralty  under  a  general  allegation,''' 
and  damages  may  be  proved  under  a  prayer  for  general  relief."-  and 
are  not  limited  to  the  specific  amount  averred  in  the  libei."^     The 


circumstances.       The     Olinde-Rodri- 
gues,  174  U.  S.  510. 

57.  Hays  v.  Pittsburg  G.  &  B. 
Packet  Co.,  33  Fed.  552 ;  Jenks  v. 
Lewis,  I  Ware  43,  13  Fed.  Cas.  No. 
7280;  McKinley  v.  Morrish,  21  How. 
343;  The  William  Harris,  i  Ware 
373,  2g  Fed.  Cas.  No.  17,69s; 
Krammc  r.  The  New  England,  i 
Newb.  481.  14  Fed.  Cas.  No.  7930; 
Campbell  i'.  The  Uncle  Sam,  i  Mc- 
AU.  77,  4  Fed.  Cas.  No.  2372;  The 
Boston,  I  Sum.  328,  3  Fed.  Cas.  No. 
1673 ;  The  Sarah  Ann,  2  Sum.  206, 
21  Fed.  Cas.  No.  12,342;  The  Mor- 
ton, I  Brown  Adm.  137  17  Fed. 
Cas.  No.  9864. 

58.  McKinley  v.  Morrish,  21 
How.  343 ;  Soule  z\  Rodoconachi, 
Newb.  504,  22  Fed.  Cas.  No.  13,178; 
The  Thomas  Melville,  31  Fed.  486; 
Jenks  V.  Lewis,  i  Ware  43,  13  Fed. 
Cas.  No.  7280;  The  Boston,  i  Sum. 
328,  3  Fed.  Cas.  No.  1673;  The  Wil- 
liam Harris,  I  Ware  373,  29  Fed. 
Cas.   No.   17,695. 

59.  Examples.  —  Evidence  is  in- 
admissible to  show  a  forfeiture  of 
seaman's  wages,  not  pleaded  in  the 
answer,  or  to  prove,  under  a  plea 
that  libellant,  a  pilot,  withdrew  his 
signal  and  sailed  away ;  that  other 
pilots  offered  their  services  at  the 
same  time,  and  that  taking  the  libel- 
lant as  pilot  would  have  incon- 
venienced the  vessel  (Marshall  ?'. 
The  Earnwell,  68  Fed.  228),  or  to 
prove  a  defense,  not  pleaded,  that  a 
lien  was  lost  by  laches  (The  Shady 
Side,  23  Fed.  731).  Orne  i'.  Town- 
send,  4  Mason  541,  18  Fed.  Cas.  No. 
10,583;  Turner  v.  The  Black  War- 
rior,  I   McMl.   181,  24  Fed.  Cas.  No. 

Vol.  I 


14,253 ;  The  Boston,  i  Sum.  328,  3 
Fed.   Cas.   No.   1673. 

60.  The  Morton,  i  Brown  Adni. 
137,  '7  Fed.  Cas.  No.  9864;  Kramme 
V.  The  New  England,  i  Newb.  481. 
14  Fed.  Cas.  No.  7930;  Davis  v. 
Leslie,  I  Abb.  Adm.  123,  7  Fed.  Cas. 
No.  3639;  The  Sarah  Ann,  2  Sum. 
206,  21  Fed.  Cas.  No.  12,342 ;  The 
Rhode  Island.  01c.  505,  20  Fed.  Cas. 
No.   11,745- 

Examples Evidence   of   a   naked 

tort  cannot  support  a  libel  upon  a 
contract.  Hays  7'.  Pittsburg  G.  &  B. 
Packet  Co.,  33  Fed.  552.  Nor  can 
evidence  supply  facts  not  averred  in 
an  information  for  forfeiture  in  ad- 
miralty. The  Hoppet,  7  Cranch  389. 
Nor  can  a  penalty  demanded  against 
a  vessel  be  recovered  upon  proof  of 
grounds  not  averred.  The  Pope 
Catlin,  31  Fed.  408.  Nor  can  proof 
of  a  claim  for  salvage  or  as  lighter- 
men be  considered  upon  a  libel  in 
rem  for  seamen's  wages.  The  Sarah 
E.  Kennedy.  29  Fed.  264 ;  nor  can 
proof  of  a  defense  not  pleaded  avail 
the  claimants.  The  Washington  Ir- 
ving, Abb.  Adm.  336,  29  Fed.  Cas. 
No.  17,243;  White  v.  Rainier,  45  Fed. 
773- 

61.  West  V.  The  Uncle  Sam.  i 
McAll.  505,  29  Fed.  Cas.  No.  17,427- 

62.  Penhallow  v.  Doane,  3  Dall. 
54;  The  Gazelle,  128  U.  S.  474: 
Pratt  V.  Thomas,  i  Ware  4.^7.  lO 
Fed.    Cas.    No.    ii,377- 

63.  Grubbs  v.  The  John  H. 
Fisher  (Dist.  Court 'W.  D.  of  Pa.), 
22  Pitts.  Law  J.  N.  S.  122;  Pratt  v. 
Thomas,  i  Ware  437,  19  Fed.  Cas. 
No.    11.377;   The   Gazelle,    128   V.   S. 


ADMIRALTY. 


245 


court  of  admiralty  is  not  precluded  from  grantino-  an_\-  relief  appro- 
priate to  the  case  appearing  upon  the  record  and  prayed  for  in  the 
libel,  merely  because  the  entire  case  is  not  distinctly  stated  in  the 
libel." 

B.  Material  Variance.  —  In  courts  of  admiralty  there  are  no 
technical  rules  of  variance  which  will  prevent  recovery  in  a  merito- 
rious case."^  The  object  of  the  rule  requiring  a  substantial  agree- 
ment between  the  pleadings  and  proofs  is  to  prevent  surprise,*"*  and 
the  unintended  omission  in  the  libel  to  state  facts  proved  which  have 
not  occasioned  surprise,"''  or  which  have  been  supplied  by  the 
defense,"'  is  not  a  material  variance  which  will  be  allowed  to  work 
injury  to  the  libellant. 

2.  Amendments  to  Support  Evidence.  —  A.  Of  Libel.  —  The 
libellant  will  be  allowed  to  amend  his  pleadings  to  conform  to  the 
proof  at  any  stage  of  the  case,""  or  to  support  evidence  of  increased 


474;  AlcCready  v.  The  Brother  Jona- 
than, 15  Fed.  Cas.  No.  8732a. 

64.  Dupont  V.  Vance,  ig  How. 
162. 

Relief  Upon  Substantial  Facts  Al- 
leged  If     a     libellant     propounds 

with  distinctness  the  substantive 
facts  upon  which  he  relies,  and 
prays,  either  specially  or  generally, 
for  appropriate  relief  (even  if  there 
is  some  inaccuracy  in  his  statement 
of  subordinate  facts,  or  of  the  legal 
effect  of  the  facts  propounded),  the 
court  may  award  any  relief  which 
the  law,  applicable  to  the  case,  war- 
rants.    The  Gazelle,  128  U.  S.  474. 

Relief  Inconsistent  With  Prayer. 
Where  specific  relief  and  general 
relief  were  both  prayed  for,  it  was 
held  in  the  circuit  court  that  no 
relief  could  be  granted  which  was 
entirely  inconsistent  with  or  differ- 
ent from  the  specific  relief  prayed. 
Wilson  z'.  Graham,  4  Wash.  C.  C. 
53,   30    Fed.    Cas.    No.    17,804. 

65.  The  Clement.  2  Curt.  363,  J 
Fed.  Cas.  No.  2879;  The  Cambridge, 
2  Low.  21,  4  Fed.  Cas.  No.  2334; 
Crawford  v.  The  William  Penn.  3 
Wash.  C.  C.  484,  7  Fed.  Cas.  No. 
3373 ;  Davis  v.  Leslie,  I  Abb.  Adm. 
123,  7  Fed.  Cas.  No.  3639;  The  Ga- 
zelle, 128  U.  S.  474;  Dupont  V. 
Vance,  19  How.  162 ;  West  v.  The 
Uncle  Sam,  i  McAU.  505,  29  Fed. 
Cas.  No.  17,427;  Talbot  v.  Wake- 
man,  23  Fed.  Cas.  No.  13,731a;  The 
General  Meade,  20  Fed.  923 ;  West 
V.  Silver  Wire  etc.  Mfg.  Co.,  S 
Blatchf.  477,  29  Fed.  Cas.  No.  17,425; 


Young  V.  The  Kendal,  56  Fed.  2^,7 ; 
Davis  V.  Adams,  102  Fed.  52b ;  Henry 
V.  Curry,  I  Abb.  .\Am.  433,  11  Fed. 
Cas.  No.  6381  ;  The  Syracuse,  12 
Wall.  167. 

Waiver  of  Variance An  ob- 
jection that  the  libel  does  not  allege 
the  particular  facts  proved  by  reason 
of  its  generality,  cannot  be  urged 
upon  appeal  for  the  first  time.  The 
Quickstep,  g  Wall.  665.  Objection 
to  a  variance  must  be  taken  when 
the  evidence  is  offered  at  the  trial, 
and  it  is  too  late  after  the  evidence 
is  closed.  Dunstan  v.  The  Kirk- 
land,  3  Hughes  641,  8  Fed.  Cas.  No. 
4181. 

66.  Dupont  I'.  Vance,  19  How. 
162;  The  Quickstep,  9  Wall.  665; 
The   Syracuse,   12  Wall.   167. 

67.  The  Clement,  2  Curt.  363,  5 
Fed.  Cas.  No.  2879;  The  Quickstep, 
9  Wall.  66s ;  The  Syracuse,  12  Wall. 
167. 

68.  The  Iris,  i  Low.  520,  13  Fed. 
Cas.  No.  7062 ;  The  Cambridge,  2 
Low.   21,  4   Fed.   Cas.   No.  2334. 

Defendant   Not   Surprised   by   His 

Own     Showing While     the     court 

takes  care  to  prevent  surprise,  the 
defendant  cannot  be  surprised  when 
he  makes  a  case  for  the  libellant. 
Dupont  V.  Vance,  19  How.  162; 
Deming  v.  The  Rapid  Transit,  52 
Fed.  320. 

69.  Davis  v.  Leslie,  i  Abb.  Adm. 
123,  7  Fed.  Cas.  No.  3639;  Nevitt  v. 
Clark,  01c.  316,  18  Fed.  Cas.  No. 
10,138;    The    City    of    New    Orleans, 

Vol.  I 


246 


ADMIRALTY. 


damages,'"  or  of  a  newly  discovered  ground  of  forfeiture,"'  or  of  the 
different  ownership  of  a  vessel  from  that  alleged.'-  Where  a 
supplementary  libel  is  allowed  in  a  prize  case  to  support  additional 
testimony,  such  testimony  must  be  confined  to  the  new  allegations."'' 
The  libel  may  be  amended  to  add  interrogatories  to  he  answered  by 
the  defendant.'"* 

a.  When  Not  Allo-a'cd.  —  An  amendment  of  the  libel  will  not  be 
allowed  so  as  to  chalige  the  entire  nature  of  the  claim  to  the 
prejudice  of  the  rights  of  others,'^  nor  to  introduce  a  new  ground  of 
claim  upon  which  proper  evidence  has  not  been  taken,  after  the 
defendant's  witnesses  have  gone,'"'  nor  to  support  evidence  of  a 
distinct  kind  of  negligence,  or  new  kind  of  damage,  where  the  cir- 
ctimstances  make  it  inequitable,''  nor  inec|uitably  to  support  an 
increased  claim  for  demurrage." 

B.  Of  Answer.  —  A  defective  answer  may  be  amended  so  as  to 
point  out  what  proof  of  notice  is  to  be  introduced.'"  or  to  sustain 
proof  of  damages  by  a  collision,*"  and  the  court  may  grant  leave 
to  change  an  admission  in  the  answer  to  a  denial.'*'  but  a  clean  show- 


33  Fed.  683;  Davis  t'.  Adams.  102 
Fed.   320. 

Change  of  Tort  to  Contract An 

amendment  may  lie  allowed  to  con- 
form to  the  proofs,  even  although 
it  may  change  a  libel  for  tort  to 
one  upon  contract,  when  required  by 
equity  and  natural  justice,  and  when 
the  amendment  will  not  be  a  hard- 
ship to  the  defendant.  Where  there 
is  no  objection  to  evidence,  and  no 
dispute  about  the  facts,  the  pleading- 
will  be  deemed  amended  to  support 
the  proofs.  The  Rhode  Island,  17 
Fed.    554;    The    Maryland,    IQ    Fed. 

551- 

70.  iMcCready  v.  The  Brother 
Jonathan,  15'  Fed.  Cas.  No.  8732a; 
The  St.  John,  7  Blatchf.  220,  21  Fed. 
Cas.  No.  12,224 ;  Darrell  z'.  The  Alice 
Gray,  6  Fed.  Cas.  No.  3579;  The 
J.    E.   Trudeau,    54   Fed.   907. 

71.  U.  S.  V.  the  Haytian  Repub- 
lic, 57  Fed.  508. 

72.  U.  S.  V,  The  Que.'u.  4  Ben. 
237,    27    Fed.    Cas.    No.    16,107. 

73.  The  Boston,  i  Sun.  328.  3 
Fed.   Cas.    No.    1673. 

74.  Interrogatories  to  be  Ap- 
pended  Interrogatories      must     be 

appended  at  the  close  of  the  libel, 
and  cannot  be  propounded  after 
answer  without  an  amendment  of  the 
libel.  The  Edwin  Baxter.  32  Fed. 
295. 

75.  Prejudicial     Amendment. 

Vol.  I 


Material  men,  claiming  as  such,  in 
their  pleadings  and  proofs,  cannot, 
on  final  argument,  be  allowed  to 
amend  to  change  the  entire  nature 
of  their  claims  so  as  to  prejudice  the 
rights  of  other  creditors  seeking 
payment  from  an  inadequate  fund. 
The  Alanson  Sumner,  28  Fed.  670. 

76.  The   Keystone,   31    Fed.   412. 

77.  Inequitable  Circumstances. 
The  circumstances  making  such 
amendment  inequitable,  are  the  dis- 
persion of  the  goods  damaged,  long 
lapse  of  time,  loss  of  defendant's 
witnesses,  and  a  failure  to  explain 
why  a  distinct  kind  of  negligence 
desired  to  be  proved  was  not  made 
part  of  the  original  libel.  The 
Thomas  Melville,  3T  Fed.  486. 

78.  Increase  of  Demurrage  De- 
nied  An  amendment  of  a  libel  to 

increase  a  claim  for  demurrage  will 
be  denied,  when  the  fads  were 
known,  and  the  claim  as  pleaded 
was  twice  before  verified  on  oath, 
and  the  amendment  was  not  asked 
until  after  trial  and  apportionment 
of  damages.  New  Haven  Steamboat 
Co.   v.   Mayor  etc.,  36   Fed.   716. 

79.  Virginia  Home  In.s.  Co.  v. 
Sundberg,   54  Fed.   389. 

80.  The  Pennsylvania,  12  Blatchf 
67,  :9  Fed.  Cas.  No.  10,951. 

81.  Kenah  v.  The  John  Markee 
Jr.,   ^  Fed.  45:  Whitney  r.  The  Em- 


ADM  IRA  LTV. 


247 


iiig  of  grounds  must  be  made  by  affidavit  to  cbange  an  admission 
to  a  denial,  or  to  allege  a  new  defense  not  previously  sbown.*- 

a.  When  Not  Alloz<.'cd.  —  An  answer  cannot  be  amended  after 
the  hearing  to  contradict  a  material  admission  therein,'*''  nor  to  set 
up  and  prove  a  different  claim  of  right  from  that  contended  for  to 
the  close  of  the  trial,**  nor  so  to  recast  the  answer,  in  view  of  the 
decision,  as  to  shift  the  burden  of  proof,  and  obtain  other  advan- 
tages ;*^  nor  can  it  be  amended  at  the  hearing  to  conform  to  the 
evidence,  by  changing  an  averment  of  a  material  fact  deliberately 
pleaded,  under  fidl  knowledge  of  the  grounds  relied  upon  bv  the 
libellant,'*'' 

3.  Pleadings  As  Evidence.  —  A.  In  Geneual.  —  Neither  party  to 
a  suit  in  admiralty  can  contradict  the  averments  of  his  own  plead- 
ing.*' A  sworn  answer  is  in  general,  not  evidence,  as  such  for  the 
respondent,'*  but  it  may  be  referred  to,  to  explain  ambiguities  in 
the  testimony,  and  in  aid  of  presumptions  arising  from  the  evidence, 
to  supply  connecting  links  in  the  proof,*''  and  when  such  answer  is 
fully  responsive  to  the  libel,  and  states  the  case  fairly,  it  has  some 
effect  as  evidence  for  the  respondent.*" 

B.  Admissions  in  Pleading.  —  One  party  is  entitled  to  rely  ujion 
averments  made  by  the  opposite  party,  as  admissions  of  the  facts 
averred.'"  and  thou"h  the  answer  be  amended  to  change  an  admis- 


pire  State,  i  Ben.  57,  29  Fed.  Cas. 
No.    17.586. 

82.  Amendment  Denying  Docu- 
ments  An     amendment     to     deny 

docimnents  before  admitted,  rcciiiiros 
an  affidavit  denying  the  signatures. 
and  explaining  the  admission ;  and 
to  deny  copies  admitted  correct 
requires  a  showing  that  the  originals 
are  in  the  possession  of  the  libellant. 
and  can  be  produced  without  delay. 
Lamb  V.  Parkman,  14  Fed.  Cas,  No, 
8019. 

83.  The  Mary  C.  i  Hask.  474. 
16  Fed.   Cas.   No.  9201. 

After  decision  upon  appeal  that 
averments  in  the  answer  insisted 
upon  at  the  hearing  and  in  ar- 
gument, were  conclusive  admis- 
sions that  appellant's  vessel  was  in 
fault,  there  is  no  equity  in  an  ap- 
plication to  amend  by  striking  out 
those  averments  and  it  nnist  be 
denied.  The  Horace  B.  Parker.  74 
Fed.  640,  20  C.  C.  A,  572. 

84.  McCarthy  v.  Eggers,  10  Ben. 
688.  15  Fed.  Cas,  No.  8681:  The 
Prindiville,  i  Brown  Adm.  485.  ig 
Fed.  Cas,   No,   11,435. 

85.  Lamb  v.  Parkman.  14  Fed, 
Cas,    No,    8019, 


86.  The  Inla.  1.3  Fed.  Cas.  No. 
7057, 

87.  Totlen  v.  The  Pluto.  24  Fed. 
Cas.    No,    14,106. 

88.  The  Crusader,  i  Ware  448.  6 
Fed,  Cas.  No.  3456:  The  .Australia, 
3  Ware  240,  2  Fed.  Cas,  No.  667; 
Cushman  v.  Ryan,  I  Story  gi.  6 
Fed,  Cas.  No.  3515;  The  Thomas 
&  Henry,  i  Brock.  367.  23  Fed.  Cas. 
No.  13,919;  Jay  V.  Almy,  i  Woodb. 
&  M,  262.  13  Fed.  Cas,  No.  7236. 

89.  The  Crusader,  I  Ware  448.  6 
Fed,  Cas,   No.  3456. 

90.  Equity  Rule  Not  Applied. 
The  equity  rule  as  to  the  effect  of 
a  sworn  answer  as  testimony  is  not 
applied  in  admiralty.  Hutson  v.  Jor- 
dan. I  Ware  393.  12  Fed,  Cas.  No. 
6959 ;  U.  S,  V.  The  Matilda.  5  Hughes 
44,  26  Fed.  Cas.  No.  15.741 ;  Eads  v. 
The  H.  D.  Bacon,  Newb,  274,  8  Fed, 
Cas.  No.  4232 ;  The  Crusader,  i 
Ware  448,  6  Fed,  Cas,  No,  3456; 
Jay  V.  .'Mmy,  i  Woodb,  &  M,  262. 
1 1    Fed.    Cas.    No.    7236. 

91.  Totten  V.  The  Pluto.  24  Fed. 
Cas.  No.  14.106;  Ward  v.  The 
Fashion,  6  McLean  152,  Newb.  8,  29 
Fed,  Cas.  No.  i7,i.S4;  The  Belle. 
6    Ben,    287.   3   Fed,    Cas.    No,    1271  ; 

Vol.  I 


248 


ADMIRALTY. 


sion  to  a  denial,  such  amendment  does  not  relieve  the  respond- 
ent from  the  efifect  of  the  admissions  as  evidence."-  In  general,  an 
allegation  of  the  libel  which  is  neither  expressly  admitted  nor  denied, 
is  not  deemed  admitted,  and  must  be  proved,"''  but  in  certain  cases 
the  failure  to  deny  an  averment  of  the  libel,  may  be  taken  as  an 
admission  of  the  facts  averred."* 

a.  Failure  to  Take  Issue.  —  The  libel  must  generally  be  proved 
in  case  of  default,""  but  the  court  has  discretion  whether  to  require 
proof  or  not.""  An  admission  in  answer  to  a  libel  for  seamen's 
wages,  that  the  seamen  shipped  for  the  voyage  and  performed 
the  service,  entitles  them  to  recover  without  proof  if  no  defense  is 
shown."'  Where  a  plea  to  the  libel  interposes  no  defense,  the  court 
may  either  allow  an  answer  to  be  filed,  or  enter  a  decree  at  once  for 
the  damages  claimed."' 

b.  Absence  of  Replication.  —  If  the  answer  is  sworn  and  no  repli- 
cation is  filed,  the  truth  of  the  answer  is  deemed  admitted,"''  but  if 
the  sworn  answer  was  not  demanded,  the  libellant  may  contradict 


The  Aldebaran,  01c.  130,  i  Fed.  Cas. 
No.  150;  The  Santa  Clans,  01c.  428, 
21  Fed.  Cas.  No.  12,327;  The  Serapis, 
37   Fed.  436. 

Allegations     as     Evidence The 

allegations  of  a  party  are  not  evi- 
dence for  him  unless  used  by  the 
other  side  as  evidence,  and  when  so 
used,  they  are  to  be  weighed  as  they 
deserve  without  requiring  more  than 
one  witness  in  all  cases  to  overcome 
them.  Jay  v.  Almy,  i  Woodb.  &  M. 
262,  13  Fed.  Cas.  No.  7236. 

The  libellant  in  a  suit  for  seaman's 
wages  is  entitled  to  use  an  admission 
as  to  the  date  of  his  service,  without 
being  bound  by  an  averment  as  to 
when  it  began.  Berry  v.  The  Mon- 
tezuma. 3  Fed.  Cas.  No.  1358a. 

92.  Kenah  v.  The  John  Markee 
Jr.,  3  Fed.  45 ;  'V\'hitney  z'.  The  Em- 
pire State,  I  Ben.  ^7,  29  Fed.  Cas. 
No.    17,586. 

93.  the  Dictator,  30  Fed.  699; 
Clarke  v.  The  Dodge  Healey,  4 
Wash.  C.  C.  651,  5  Fed.  Cas.  No. 
2849. 

94.  Examples The      failure     to 

take  a  dilatory  plea  and  to  contradict 
facts  in  a  seaman's  libel  showing 
that  the  action  was  not  premature, 
precludes  proof  of  the  contrary.  The 
William  Harris,  i  Ware  373,  29  Fed. 
Cas.  No.   17,695- 

The  failure  to  deny  a  material 
averment  of  the  libel  in  a  collision 
case,  will  be  considered  upon  a  con- 

Vol.  I 


flict  of  testimony  on  the  point,  not- 
withstanding an  amendment  was  al- 
low'ed  to  deny  the  averment.  Hutson 
V.  Jordan,  i  Ware  393,  12  Fed.  Cas. 
No.   6959. 

95.  Phipps  V.  The  Lopez,  43  Fed. 
95;  Cape  Fear  Towing  and  Transpor- 
tation Co.  z'.  Pearsell,  90  Fed.  435 ; 
Sanders  i'.  The  Sea  Fowl,  21  Fed. 
Cas.  No.  i2.2Q6a. 

Cause    Heard    Ex    Parte Upon 

default,  the  cause  is  heaid  and 
adjudged  e.v  parte;  but  when  mistake 
of  the  defendant  appears,  through 
ignorance  of  the  practice,  his  counsel 
may  be  allowed  to  offer  evidence  as 
iinticus  curiae.  The  David  Pratt,  I 
Ware  495,  7  Fed.  Cas.  No.  3597. 

The  filing  of  a  claim  does  not  stay 
proceedings  e.v  parte  by  the  libellant, 
if  there  is  no  appearance  on  the 
return  day.  Baxter  z>.  The  Dona 
Fermoas,  2  Fed.   Cas.   No.   1123a. 

96.  U.  S.  V.  The  Mollie,  2  Woods 
318,  26  Fed.  Cas.  No.  15,795. 

Effect  of  Default  as  an  Admission. 
A  default  amounts  to  a  formal  ad- 
mission of  the  truth  of  the  allegations 
of  the  libel  against  a  vessel.  Rostron 
z:   The   Water   Witch.  44   Fed.  95. 

97.  The  Belle,  6  Ben.  287,  3  Fed. 
Cas.    No.    1271. 

98.  The  Sea  Gull,  Chase  14S.  21 
Fed.  Cas.  No.  12,578. 

99.  The  Mary  Jane,  I  Blatchf.  & 
H.   390,   16  Fed.   Cas.    No.  9215. 


ADMIRALTY. 


24'J 


it  by  proof,  without  rci)lication  or  notice  of  iiroof.'  When  evidence 
is  ofTered  at  the  hearing,  if  no  objection  is  made  to  the  faihire  to 
lile  a  replication,  it  is  deemed  waived. - 

C.  Limitation  of  Pleadings  As  Evidence. — Where  two  Hbels 
for  salvage  are  separately  filed,  the  answer  of  the  vessel  admitting 
the  allegations  of  one  libel  cannot  conclude  the  other  libellant.^  A 
libel  in  admiralty  cannot  be"  given  in  evidence  against  the  libellant 
in  another  court  as  an  admission  or  confession.*  The  statement  of 
a  seaman  in  a  libel  for  wages  is  not  competent  evidence  to  prove 
services  rendered  under  shipping  articles.'^ 

D.  Interrogatories  and  Answers.  —  Either  party  in  an  admi- 
ralty proceeding  has  the  right  to  append  interrogatories  to  his 
pleading  touching  the  matter  at  issue,  which  the  other  party  must 
answer  under  oath,"  and  upon  default  of  such  answer  the  subject 
matter  may  be  taken  pro  confcsso  against  him.'  The  answers  to  the 
interrogatories  are  evidence  in  the  cause,  for  both  parties,'  though 
not  positive  evidence  in  favor  of  the  party  answering  them,"  and 
not  conclusive  as  to  disputed  facts  in  favor  of  either  party. ^^ 
Answers  to  interrogatories,  annexed  to  the  pleadings  which  admit 


1.  The  Infanta,  i  Abb.  Aflni.  263, 
13  Fed.  Cas,  No.  7030. 

2.  Thomas  r.  Gray,  i  Blatchf.  & 
H.  493,  23  Fed.  Cas.   No.   13,898. 

3.  The  Venezuela,   55   Fed.  416. 

4.  Evidence  by  Cestui  Que  Trust. 
Where  the  suit  was  brought  by  the 
hbellant  as  a  trustee,  the  cestui  qui- 
trust  may  give  in  evidence  the  record 
of  recovery  by  the  trustee,  to  show 
the  recovery  and  the  title  on  which 
it  rested.  Church  z'.  Shelton,  2 
Curt.  271,  s  Fed.  Cas.  No.  2714. 

5.  The  Osceola,  01c.  450,  18  Fed. 
Cas.  No.   10,602. 

6.  The  David  Pratt,  i  Ware  495, 
7  Fed.  Cas.  No.  3597;  Cammell  v. 
Skinner,  2  Gall.  43,  9  Fed.  Cas.  No. 
5210;  The  Australia,  3  Ware  240, 
a  Fed.  Cas.  No.  667 ;  Admiralty 
Rules,  23.  27,  30,  32. 

Compliance  with  Admiralty  Rules. 
The  admiralty  rules  of  the  supreme 
court  requiring  the  interrogatories  to 
be  appended  at  the  close  of  the  plead- 
ing, must  be  complied  with.  Scobel 
V.  Giles,  19  Fed.  224:  The  Edwin 
Baxter,  32  Fed.  296. 

Inspection  of  Documents  Not  Al- 
lowed. —  Interrogatories  appended  to 
the  libel  must  be  confined  to  issuable 
matters  to  which  only  the  defend- 
ant's  oath   is   required,   and   such   as 


ask  for  the  production  of  letters  be- 
tween defendants  and  their  agents 
to  prove  damage,  should  be  stricken 
out.  Havermeyers  etc.  Co.  t'.  Coni- 
pania  etc.  Espanola,  43  Fed.  90; 
Stoffregan  v.  The  Mexican  Prince, 
70  Fed.  246. 

7.  Admiralty  rules  23,  27,  30,  32 ; 
The  David  Pratt,  I  Ware  495,  7  Fed. 
Cas.    No.   35-97. 

8.  The  David  Pratt,  i  Ware  495, 
7  Fed.  Cas.  No.  3597;  The  Australia, 
3  Ware  240,  2  Fed.  Cas.  No.  667 ; 
The  L.  B.  Goldsmith,  Newb.  123,  15 
Fed.  Cas.  No.  8152. 

9.  Cushman  v.  Ryan,  i  Story  91, 
6  Fed.  Cas.  No.  3515;  The  Serapis, 
37  Fed.  436. 

10.  Effect  of  Answers  as  Evidence. 
Their  effect  at  most  is  to  turn  the 
scale  of  disputed  evidence  when  in 
cquilibrio.  They  are  no  more  evi- 
dence for  one  party  than  the  other, 
and  will  not  be  conclusive  for  either, 
if  the  weight  of  proof  is  on  the  other 
side,  or  if  by  self-contradiction  sus- 
picion attaches  to  the  answers  them- 
selves. The  equity  rule  as  to  the 
effect  of  answers  as  evidence  does  tiot 
apply  in  favor  of  an  answer  to  in- 
terrogatories. Eads  V.  The  H.  D. 
Bacon,  Newb.  274,  8  Fed.  Cas.  No. 
4232;  The  L.  B.  Goldsmith,  Newb. 
Adm.    123,   IS  Fed.  Cas.   No.  8152. 

;  Vol.  I 


250  ADMIRALTY. 

facts,  stand  as  evidence  like  the  pleadings  and  reqnirc  no   further 
proof  of  the  facts  admitted." 

III.  PRESUMPTION  AND  BURDEN  OF  PROOF. 

1.  General  Presumption.  —  A.  X'icssel  and  Cakgo.  —  Joint 
owners  of  a  vessel  and  cargo  are  presumed  to  own  in  equal  parts, 
unless  the  contrary  appears.'^  A  consignee  of  cargo  is  presumed 
to  know  the  contents  of  the  charter-party."  It  will  be  presumed 
that  a  contract  of  shipment  is  controlled  by  maritime  law,  and  that 
the  principles  of  general  law  were  not  changed  by  statute  in  another 
jurisdiction,  where  consigned  bills  of  lading  limiting  the  liability 
of  a  vessel  were  executed,  though  changed  in  the  place  of  the 
forum. ^*  The  master  of  a  vessel  must  be  presumed  to  have  con- 
tracted to  carry  wheat  in  reference  to  the  course  of  trade  connected 
with  getting  it  forward.'^ 

B.  Master  of  Vessel.  —  The  person  described  as  master  in  the 
registry  of  a  vessel  must  be  deemed  master  for  every  legal  intend- 
ment and  purpose,'"  and  a  person  once  a  master  will  be  presumed 
to  continue  such  until  displaced  by  some  overt  act  or  declaration 
of  the  owners.'"  The  master  is  conclusively  presumed  to  know  the 
existence  and  contents  of  the  ship's  papers.'* 

C.  Evidence.  —  It  is  presumed  that  evidence  wilfully  suppressed 
by  an  owner  or  claimant,  would  be  adverse,  if  produced.'"  A  claim- 
ant is  presumed  to  confess  the  truth  of  facts  within  his  knowledge, 
which  he  does  not  deny  in  presence  of  the  court.-"  Where  the  tes- 
timony is  irreconcilable  and  evenly  balanced,  the  non-production  of 
a  material  witness  by  one  who  has  the  burden  of  proof,  raises  a 
decisive  presumption  against   him."'     \\'here  the  evidence  is  con- 

■  flicting,  a  waiver  of  the  libellant's  claim  cannot  be  presumed. -- 

2,  Burden  of  Proof  in  General,  —  A.  Performance  of  Condi- 
tions.—  The  burden  is  ujjon  the  libellant  to  show  the  performance 

11-     The  Serapis,  37  Fed.  436.  lie  governed  accordingly.     The  Con- 
Rebuttal     of     Presumption In-  voy"s  Wheat,  3  Wall.  225. 

surancc   by   each    owner   in    different  16.     The    Dubuque,    2    .\bb.   20,   7 

parts  may  rebut   the   presumption   of  Fed.  Cas.  No.  4,110. 

equal  ownership.     The  Betsey,  23  Ct  17.     fhe   Tribune    3   Sum.    T44.  2.| 

CI-  277.  ped.  Cas.  No.  14,171. 

12.  Shaw  7'.  Thompson,  Olc.    144.  10      t^i      t   r      o   ,^^         10. 
p    1     r>        M       ,^»^,/;  1°-     The  Julia.   8   C  ranch    181. 

21   Fed.  Cas.   No.   12,726.  •' 

13.  The  Countess  of  Dufferin,  10  19-  The  Bermuda.  3  Wall.  514: 
Ren.    155,  6  Fed.   Cas.   No.  3280.  The   Sally   Magcc.  3  Wall.  451  I   The 

14.  "the  Henry  B.  Hvde,  82  Fed.  .Vndromeda,  2  Wall.  481  ;  The  Oc- 
f,g]                                         '  tavia,    I    Wheat.   20;   The   Luminary. 

15.  Course    of    Trade    for   Wheat.  S   Wheat.   407. 

Where  the  course  of  trade  for  wheal  20.     The     Silver     Moon,     i     Mask. 

demanded  that   it   should  be  shipped  262,  22  Fed.  Cas.   No.   12,856. 

at     a     particular     port     through     an  21.     The    Fred.    M.  .Lawrence,    15 

elevator  to  a   railway,  the  master  of  Fed.    635. 

the  vessel  must  be  held  to  have  con-  22.     The     llaniillon     J.     Mills.    22 

traded  with  knowledge  of  it,  and  to  Fed.    790. 

Vol,  I 


ADMIRALTY 


251 


of  the  statutory  conditions  of  enftircing  a  lien  upon  a  vessel,-'  and 
that  the  conditions  of  suit  embodied  in  shipping  articles  have  been 
complied  with.-''  The  burden  is  upon  the  owner  of  the  vessel  to 
prove  that  a  sufficient  medicine  chest  was  provided  for  seamen.-' 

B.  Non-Performance.  —  The  burden  is  upon  the  libellant  to 
show  non-performance  or  injury  from  neglect  or  unskillful  per- 
formance of  an  agreement  to  tow  a  vessel,-"  and  to  prove  an  e.xcuse 
for  failure  to  exercise  usual  display  and  diligence  in  performing 
lighterage  service.-' 

C.  Interpret.xtion  of  Conditions.  —  The  burden  is  upon  a 
libellant  to  prove  his  interpretation  of  the  conditions  of  a  charter 
party  as  to  "  working  hours,"  according  to  the  custom  of  the  port.-* 

D.  Title  Under  AI.-\ster'9  Sale.  —  The  burden  is  on  one  claim- 
ing title  under  the  sale  of  a  vessel  by  the  master,  by  virtue  of  his 
office,  to  prove  that  the  sale  was  bo)ia  Mc  and  necessary."" 

E.  Wrongs.  —  The  burden  is  upon  a  libellant  for  demurrage  to 
prove  that  a  fault  caused  the  delay  ,^''  and  is  upon  the  libellants 
against  a  tug  for  taking  seamen  and  their  baggage  from  a  ship  to 
prove  knowledge  of  those  in  charge  of  the  tug,  that  they  were  doing 
a  wrongful  act.'" 

F.  PiLOT,\r,E.  —  The  burden  is  upon  a  pilot  suing  for  pilotage 
fees  for  services  not  performed,  to  prove  the  refusal  or  neglect  of 
the  master  of  the  vessel  to  accept  his  ofifer,^-  and  to  show  that  upon 
speaking  a  vessel  for  pilotage,  his  offer  and  signals  were  heard  and 
understood."-'     The  burden  is  upon  the  libellant  of  a  tug  in  charge 


23.  Kretzmcr  v.  The  William  A. 
Levering.   J5   Fed.    783. 

24.  Proof  of  Right  to  Sue. 
Where  the  shipping  articles  forbade 
a  suit  for  wages  of  seamen  until  the 
ship  was  imloaded.  the  burden  is 
upon  them  to  show  cither  that  the 
vessel  was  actually  unloaded  when 
the  libel  was  filed,  or  that  the  ship 
had  been  moored  for  the  full  time 
allowed  for  unloading.  Granon  v. 
Hartshorne,  i  Pdatchf.  &  H.  454,  10 
Fed.  Cas.  No.  5689. 

25.  Harden  v.  Gordon.  2  Mason 
i4i,  II  Fed.  Cas.  No.  6047. 

26.  The  Webb,  14  Wall.  406 ;  The 
Burlington  v.  Ford,  137  U.  S.  386 ; 
The  G.  H.  Starbuck,  5  Ben.  53,  10 
Fed.   Cas.   No.   5378. 

27.  The  Nadia.  18  Fed.  729. 

28.  Proof  of  Suspension  of  Hire. 
Where  the  charter-party  provided  for 
a  suspension  of  hire  "  in  the  event 
of  damage  preventing  the  working  of 
the  ship  for  more  than  24  working 
hours,"  and  the  ship  was  docked  for 
repairs  from  Saturday  afternoon  to 
Monday  afternoon,  and  the  charterer 


^uing  for  such  suspension  claimed 
that  the  contract  did  not  mean  day 
liours  merely,  but  one  day  and  night 
of  24  consecutive  hours,  the  burden 
was  upon  him  to  prove  that  the  word^ 
used  had  that  meaning  according  to 
the  custom  of  the  port  in  loading 
and  unloading  vessels.  The  Prin- 
cipia,  34  Fed.  667. 

29.  The  Henry,  I  Blatchf.  &  H. 
465,  II  Fed.  Cas.  No.  6372;  The 
.\melie.   6  Wall.   18. 

Purchase  of  'Wrecked  -VesseL 
The  purchaser  of  a  wrecked  vessel 
from  the  master  may  prove  honesty 
of  the  master  and  the  necessity  to 
sell,  by  presumptive  evidence.  The 
Lucinda  Snow,  .A.bb.  .\dni.  305,  15 
Fed.  Cas.   No.  8591. 

30.  Levech  v.  Cargo  of  Wooden 
Posts,    34    Fed.    917. 

31.  The  G.  H.  Starbuck.  3  Ben. 
53,  10  Fed.  Cas.  No.  5378. 

'^32.  The  Talisman,  23  Fed.  II i", 
The  Thomas  Turrall,  6  Ben.  404,  23 
Fed.  Cas.  No.  13.932;  The  Harriet  S. 
Jackson,  32  Fed.  no. 

33.     The  Mascotte,  .39  Fed.  871. 

Vol  I 


252  ADMIRALTY. 

of  a  pilot  for  injury  to  the  tow,  to  show  that  the  tug  caused  such 
injury.'^'' 

G.  Wages  of  Seamen.  —  The  burden  is  upon  seamen  suing  for 
wages  to  prove  all  facts  denied  except  as  to  the  shipping  articles 
and  log  book,^^  and  to  sustain  the  suit  in  accordance  with  the  ship- 
ping articles.^"  The  burden  is  upon  the  master  of  the  vessel  suing 
for  services  performed  to  show  employment  for  the  voyage.'''  The 
burden  is  upon  the  owners  of  the  vessel  to  prove  defenses  to  an 
action  for  the  wages  of  seamen,^'  or  payments  made  thereon,^"  and 
to  give  clear  proof  that  the  seamen  were  informed  of  and  agreed  to 
a  clause  in  an  unusual  place  in  the  shipping  articles,  reducing  their 
wages. ^^ 

H.  Change  of  \'ovage.  —  The  burden  is  on  the  charterer  of  a 
vessel  taking  a  different  voyage  from  that  agreed  upon  in  the 
charter  to  prove  that  such  voyage  was  substituted  therefor.^' 

3.  In  Cases  of  Prize. — A.  Presumptions.  —  a.  Title.  —  Title  is 
presumed  from  possession,*-  and  is  presumed  to  be  in  accordance 
with  the  ship's  papers. '"' 

b.  Hostility  of  Ship  and  Cargo.  —  A  ship  sent  into  an  enemy's 
port  for  adjudication  as  prize,  and  allowed  to  proceed  upon  her 
voyage  therefrom,  is  presumed  to  have  the  enemy's  license,''*  and 
if  the  proprietary  interest  in  a  captured  vessel  does  not  clearly 
appear,  she  is  presumed  enemy's  property,*'^  and  goods  found  upon 
a  hostile  ship  are  presumed  to  be  enemy's  property.'"' 

(1.)  Trade  'With  Enemy.  —  The  trade  from  an  enemy's  country  is 

34.     Benefit  of  Reasonable  Doubt.  40.     The    Ringleader,    6    Ben.    400, 

In    such   case,   the   tug   in   charge   of  20  Fed.   Cas.   No.   11,850. 

the  pilot   should  have  the  benefit  of  41.     'V\'heelwright     v.     'Walsh,     42 

any  reasonable   doubt  as  to  whether  Fed.   S62. 

the  weather  forbade  the  continuance  42.     Extent      of      Presumption, 

of    her    course.      The    Frederick    E.  The  presumption  of  title  from  posses- 

Ives,  25  Fed.  447.  sion  prevails  in  admiralty  as  against 

35'.     Orne   v.   Townsend,   4   Mason  a')    except    the    rightful    owner,    and 

541,   18  Fed.   Cas.   No.   10,583.  where  neutral  property  is  taken  from 

'   ,'c      ^                         Tj     I  T,                ,  the   prior   possession   of   the   rightful 

00.     Granon      v.      Hartshorne,      i  v                  u-      ■         ^     a    ,-  j 

Di  »  1  r    o    TT      _            p  J    /-        XT  owner,  its  ownership  is  not  affected 

Blatchf.  &  H.  454,  10  Fed.  Cas.   No.  ^^^  ^^^  possession  of  a  British  priva- 

S?;     Burden      Sustained     by     In-  teer    from  which  it  is  recaptured  by 

*•■«_„„        T          J       ^           ..  •            ,  an   American   privateer.      Ihe    Keso- 

ference.       In   order   to   sustain    such  ^^^^.        ^  p^„    ^     ^  Wheat  .\ppendix 

burden    by    inference    from    services 

rendered  in  getting  the  vessel  ready  ^3    '  ^^^    Resolution,    2    Dall.     i  ; 

for  the  voyage,  the  inference  must  b.  ^,^^  ^^^,^^  p    ^           j^,  ^    g    g 

such    as    to    exclude    all    reasonable  44      ^^^       Langdon       Cheves,      4 

doubt  of  employment  for  the  voyage.  wjieat       ,0^ 

Jones  r.  Davis,  I  Abb.  Adm.  446,  l,<  45.    '^    ^heat.    Appendix    24. 

Fed.  Cas.  No.  7460.  46_     ^^^^  London  Packet,  s  Wheat. 

38.  The  Belle,  6  Ben.  287,  3  Fed.  ,32;  The  Sally  Magee,  3  "Wall.  451; 
Cas.  No.  1271 ;  The  'V'illa  y  Herman.  The  Carlos  F.  Roses,  177  LI.  S.  655; 
lOi    Fed.    132.  The  Flying  Fish,  2  Gall.  374,  9  Fed. 

39.  The  Napoleon,  Olc.  208,  17  Cas.  No.  4892;  The  San  Jose  In- 
Fed.  Cas.  No.  10,015;  The  FritheofT,  diano,  2  Gall.  268,  21  Fed.  Cas.  No. 
14  Fed.  302.  12,322;    2   Wheat.    Appendix    24. 

Vol.  I 


ADMIRALTY.  253 

deemed  hostile,  regardless  of  the  domicile  of  the  parties/'  A  neu- 
tral ship  violating  her  neutrality  in  aid  of  the  enemy  is  deemed 
enemy's  property/'*  and  a  colorable  transfer  of  an  enemy's  vessel 
to  a  neutral,  is  presumed  from  continued  hostile  trade  under  the 
management  or  in  the  interest  of  the  former  owners,  and  from  non- 
payment of  the  purchase  money.'"'  An  American  ship  dealing  with 
the  enemy  is  deemed  hostile,  and  lawful  prize. ^" 

c.  Blockade.  —  The  intention  to  violate  a  blockade  may  be  pre- 
sumed from  the  conduct  and  position  of  the  vessel  when  captured.''' 
The  deviation  of  a  voyage  into  a  blockaded  port  is  presumed  to  be 
in  the  interest  of  the  cargo,  if  it  is  not  shown  that  those  in  charge 
had  no  knowledge  of  the  blockade. °- 

(1.)  Notice  of  Blockade.  —  Notice  of  a  blockade  at  the  port  of  des- 
tination will  be  presumed  from  its  notoriety  when  the  voyage  was 
begun, ^'''  and  a  vessel  in  a  blockaded  port  when  the  blockade  was 
begun,  is  presumed  to  have  knowledge  when  it  began.-''*  A  public 
blockade  notified  to  neutral  powers  is  presumed  to  continue  until 
public  notification  or  other  absolute  proof  of  its  discontinuance."''' 

B.  Burden  of  Proof.  —  a.  Captors.  —  The  burden  is  upon  the 
captors  to  prove  a  lawful  capture  of  enemy's  property ,''''  and  to 
overcome  any  presumption  from  the  ship's  papers  to  the  contrary." 

b.  Claimants.  —  The  burden  is  upon  the  claimants  to  rebut  any 
presumption  or  suspicion  of  hostile  interest,^*  to  prove  neutral  inter- 


47.  The  Friendschaft.  4  Wheat. 
105 ;  The  Cheshire,  3  Wall.  231  ;  The 
Prize  Cases,  2  Black  681. 

48.  Maley  v.  Shattuck,  3  Cranch 
458;  The  Brig  Eastern,  2  Dall.  34; 
The  Society,  9  Cranch  209;  The 
Hazard,  9  Cranch  205 ;  The  .Antonio 
Johanna,  i  Wheat.  159;  The  Fortuna, 
3  Wheat.  236;  The  Baigorry,  2  Wall. 
474;  The  Hart,  3  Wall.  559;  The 
Comniercen,  2  Gall.  261,  6  Fed.  Cas. 
No.  3055;  The  Alliance,  Blatchf.  Pr. 
Cas.  262,  I  Fed.  Cas.  No.  245;  The 
Gondar,  Blatchf.  Pr.  Cas.  266,  10 
Fed.   Cas.    No.   5526. 

49.  The  Benito  Estenger,  176  U. 
S.   568. 

50.  The  Alexander,  8  Cranch  i6y ; 
The  Julia,  8  Cranch  181;  The  Au- 
rora, 8  Cranch  203;  The  Sally,  8 
Cranch  382;  The  St.  Lawrence.  8 
Cranch  434;  The  Hiram,  8  Crancli 
444;  The  Joseph,  8  Cranch  451;  The 
-Admittance,  18  How.  no;  The 
Rugen,  I  Wheat.  62 ;  The  Diana,  2 
Gall.   93,   7   Fed.    Cas.    No.   3876. 

51.  The  Cornelius,  3  Wall.  214; 
The    Cheshire,    3    Wall.   231. 


52.  The  Sunbeam,  Blatchf.  Pr. 
Cas.  656,  23  Fed.  Cas.  No.  13,615. 

53.  The  Adula,  89  Fed.  351. 

54.  Law  of  Nations This  pre- 
sumption is  a  settled  rule  of  the  law 
of  nations.  Prize  Cases,  2  Black 
635.  677. 

55.  The  Baigorry,  2  Wall.  474. 

56.  The  Resolution,  2  Dall.  i  ; 
The  Thomas  Watson,  Blatchf.  Pr. 
Cas.  120.  23  Fed.  Cas.  No.  13.933; 
The  Sarah  and  Caroline,  Blatchf.  Pr. 
Cas.  123,  21  Fed.  Cas.  No.  12,340. 

57.  The  Ship  Resolution,  2  Dall. 
I. 

58.  Proof  to  Overcome  Presump- 
tion  In  order  to  overcome  a  pre- 
sumption of  enemy's  property,  the 
proof  must  be  clear-  and  unquestion- 
able. The  Resolution,  2  Dall.  i. 
And  the  claimants  must  show  the 
absence  of  anything  to  impeach  the 
transaction,,  and  disclose  fully  all 
the  circumstances.  The  Carlos  F. 
Roses,  177  U.  S.  655;  Hooper  v. 
U.    S.   22   Ct.   CI.   408. 


Vol.  I 


254 


ADMIRALTY 


est,"'"  or  foreign  property  alleged,''"  and  to  make  clear  proof  of  title"' 
and  of  payment  therefor. "- 

c.  Blockade.  —  The  burden  is  upon  a  neutral  vessel  attempting 
to  enter  a  blockaded  harbor  to  prove  beyond  a  reasonable  doubt, 
that  it  was  owing  to  absolute  and  uncontrollable  necessity."^ 

d.  Halation  of  Neutrality.  —  Where  one  belligerent  vessel  cap- 
tured by  another  seeks  the  aid  of  a  neutral  port  for  restitution,  the 
burden  is  upon  its  owner  to  prove  a  violation  of  neutrality,''^  and 
clear  proof  of  any  violation  thereof  which  is  charged  will  justify 
restitution  to  the  owner,"'''  but  if  they  fail  to  prove  it  beyond  a  rea- 
sonable doubt,  restitution  will  be  ordered  to  the  captors."" 

(1.)  Augmentation  of  Force.  — The  burden  is  upon  the  captured  ves- 
sel charging  an  augmentation  of  force  by  the  captors  by  enlistment 
in  the  neutral  territory,  to  prove  such  enlistment,"'  and  is  then  upon 
the  captors  to  prove  enlistment  of  subjects  of  their  government 
transiently  within  the  United  States."' 

4.  Cases  of  Forfeiture.  —  A.  Registry  of  Vessels.  —  To  sustain 
a  forfeiture  of  a  vessel  for  violation  of  the  registry  of  vessels  act, 
the  burden  is  upon  the  prosecution  to  prove  the  violation  beyond 
a  reasonable  doubt,""  but  if  a  prima  facie  case  is  made,  the  burden 
is  upon  the  claimants  to  rebut  it  bv  papers  and  other  proofs  within 
their  power,  else  the  vessel  will  be  condemned.'" 

T\.  E.^n!.\K^,o  .\kd  Non-Intkrcourse  L.\ws.  —  .\  ]irohii'itefl  cargo 


59.  Tlie  Benito  Esicngor,  i"6  U. 
S.  568;  The  Jenny,  ;  'Wall.  18 v.  U. 
S.  V.  The  Lilla,  2  Ciiff.  169,  26  Fed. 
Cas.  No.  15,600;  U.  S.  r.  Havward. 
2  Gall.  485.  26  Fed.  Cas.  No.  i,=;„?.<i: 
The  San  Jose  Indiano,  2  Gall.  26S, 
21   Fed.   Cas,   No.    12,^^22. 

Proof  of  Neutral  Interest Ncu 

tral  inti-rest  must  he  proved  licyond 
a  reasonahle  douht.  The  ."Xniiablc 
Isahella.  6  Wheat,   i. 

60.  The  Napoleon.  Olc.  208,  17 
Fed.  Cas.  No.   10,015. 

61.  The  Benito  Estcnger,  176  U. 
S.  568;  The  Carlos  F.  Roses,  177  U. 
S.  655 ;  Johnson  r.  Thirteen  Bales, 
2  Paine  639,  13  Fed.  Cas.  No.  7415. 

62.  The  Benito  Estenger,  176  U. 
S.  568;  The  Rover,  2  Gall.  240,  20 
Fed.  Cas.  No.  12,091. 

63.  Stringency     of     Rule Any 

rule  less  stringent  would  open  the 
door  to  fraud  and  pretenses  of  dis- 
tress and  danger ;  and  where  a  sim- 
ilar excuse  has  been  proved  by  the ' 
same  vessel  before,  wdiieli  was  there- 
upon released,  the  second  production 
of  e.xcidpating  testimony  for  a  sec- 
ond attempt,  will  be  rigidly  scruti- 
nized.    The   Diana,   7   Wall.   3.54. 

Vol.  I 


64.  The  Kstrella,  4  Wheat.  298; 
La  .\mistad  de  Rues,  5  Wheat.  385 ; 
The  Santissitna  Trinidad.  7  Wheat. 
283. 

65.  The  Estrella,  4  Wheat.  298; 
The  Santissima  Trinidad.  7  Wheat. 
283;  The  Gran  Para.  7  Wheat.  471; 
The  Santa  Maria.  7  Wheat.  490;  The 
.■\rrogantc  Barcelones,  7  Wheat.  496. 

Forfeitures  of  Right  of  Redress. 
Where  it  appears  that  the  captured 
vessel  begau  hostilities  in  neutral 
waters,  she  forfeits  all  right  to  pro- 
tection and  redress  from  the  neutral 
govermnent.      The    Anno,    3    Wheat. 

435- 

66.  La  Amistad  de  Rues.  5 
Wheat.  ,592;  The  Santissima  Trini- 
dad,  7  Wheat.   339- 

67.  The  Estrella,  4  Wheat.  298; 
La  Amistad  de  Rues,  5  Wheat.  385  ; 
The  Santissima  Trinidad,  7  Wheat. 
283. 

68. 
The 
283. 

69. 
682. 

70.     The   Luminary.  8  Wheat.  407. 


The    Estrella,   4    Wheat,    .'o'^; 
Santissima    Trinidad,    7    Wheat. 

U.   S.   V.  The   Burdett.  g   Pet. 


ADMIRALTY. 


255 


laden  at  a  prohibited  port  and  brouglit  into  a  United  States  port,  is 
presumed  to  have  been  laden  with  unlawful  intent,  unless  rebutted 
by  proof.'^  The  burden  is  upon  the  government  to  prove  that  a 
prohibited  cargo  claimed  as  forfeited,  for  violation  of  the  non-inter- 
course law,  was  on  board  as  part  of  the  cargo  at  the  time  of  the 
offense."-  The  burden  is  upon  the  owners  of  the  vessel  to  sustain 
any  defense  set  up  against  the  forfeiture,'^  to  prove  that  the  case 
was  an  exception  to  the  act,'^  to  prove  by  clear  and  positive  evidence 
an  excuse  of  necessity,'^  and  the  absence  of  intention  to  violate  the 
law,"  and  to  disprove  the  identity  of  the  vessel  when  presumptively 
shown."' 

C.  Slave  Trade.  —  The  burden  is  on  a  slave  trader  enterifig  a 
port  of  the  United  States  in  violation  of  law,  to  prove  a  plea  of 
necessitv  and  distress  by  conclusive  testimony.'*  The  government 
may  sustain  its  burden  to  prove  that  a  vessel  was  fitted  out  to 
engage  in  the  slave  trade  by  circumstantial  evidence,"''  and  the  bur- 
den is  on  the  vessel  to  give  clear  explanation  to  rebut  strong  indica- 
tions of  guilty  purpose,  or  the  vessel  and  cargo  will  be  condemned.*" 
The  burden  is  upon  the  claimants  of  the  captured  property  to  make 
clear  proof  of  a  foreign  proprietary  interest.*' 

D.  Customs.  —  The  burden  of  proof  is  upon  the  government 
prosecuting  the  master  of  a  vessel  for  not  reporting  to  the  offices, 
of  customs  to  prove  that  no  report  was  made  at  the  proper  office  ;*- 
where  the  government  makes  out  a  prima  facie  case  against  a  ves- 
sel seized  for  violation  of  the  revenue  law,  the  burden  is  upon  the 
claimants  to  rebut  it.*'' 


71.  U.  S.  V.  The  Paul  Shearman, 
I  Pet.  C.  C.  98,  27  Fed.  Cas.  No. 
16.012. 

72.  U.  S.  :■.  \n  Open  Boat,  5 
Mason  232,  27  Fed.  Cas.   No.   15,968. 

73.  The  Short  Staple,  I  Gall. 
T04,  22  Fed.  Cas.  No.  12,813 ;  The 
Argo.  I  Gall.  150,  i  Fed.  Cas.  No. 
ii6;  Ten  Hogsheads  of  Rum,  i  Gall. 
187,   2,1,   Fed.    Cas.    No.   13,830. 

Degree    of    Proof A    defense    to 

forfeiture  must  be  proved  beyond  a 
reasonable  dnulit.  The  Octavia,  i 
Wheat.    20. 

74.  British  Goods  Imported  in 
Neutral  Vessels.  —  Where  the  ex- 
ception was  of  British  goods  im- 
ported in  neutral  vessels,  the  burden 
is  upon  the  claimants  to  show  the 
neutralit)-  of  the  vessel.  U.  S.  z'- 
Hayward,  2  Gall.  485.  26  Fed.  Cas. 
No.    15,336. 

75.  Brig  James  Wells  '■.  U.  S., 
7  Cranch  22;  The  New  York,  3 
Wheat.  59;  The  .\eolus,  3  Wheat. 
,W2. 


76.  The  New  York,  3  Wheat.  59. 

77.  Tlie  Schooner  Jane,  7  Cranch 

363. 

78.  Vigilance  Against  Slave  Trade. 

In  the  e.xecution  of  the  laws  of  the 
United  States  against  the  slave  trade, 
no  vigilance  can  be  excessive,  and 
restitution  ought  never  to  be  made 
but  in  cases  which  are  purged  of 
every  intentional  violation,  by  proofs 
the  most  clear,  the  most  explicit 
and  unequivocal.  The  Josefa  Se- 
cunda.  s  Wheat.  338;  U.  S.  v..  The 
Sally.  2  Cranch  406. 

79.  The  Slaver  ''  Reindeer,"  2 
Wall.  383;  The  Slaver  "Weather- 
gage,"  2  Wall.  375 ;  The  Slaver 
"  Sarah,"    2    Wall.    366. 

80.  The  Slaver  "Kate,"  2  Wall, 
35°. 

81.  The  Antelope,  10  Wheat.  66; 
The   Plattsburg,   10  Wheat.   133. 

82.  U.  S.  V.  Galacar,  i  Spr.  545, 
2S  Fed.  Cas.  No.   15.181. 

83.  The  John  Griffin.  15  Wall.  29. 

•    Vol.  I 


256 


ADMIRALTY. 


5.  Bottomry  and  Kepairs. — A.  Presumptions.  —  Presumptions 
are  in  favor  of  bottomry  bonds, "^  and  where  the  bond  does  not 
import  to  the  contrary,  the  master  must  be  presumed  to  have  law- 
fully executed  it.**^  Necessary  advances  for  repairs  and  supplies 
in  a  foreign  port  ordered  by  the  master,  are  presumed  to  have  been 
made  on  the  credit  of  the  vessel,*"  but  such  presumption  of  credit 
may  be  repelled  by  proof  that  supplies  were  sold  to  the  owner  or  his 
agent.*'  The  lender  on  bottomry  is  presumed  to  have  made  due 
inquiry  as  to  the  apparent  necessity  for  repairs,**  and  where  such 
apparent  necessity  is  shown,  there  is  a  presumption  of  the  necessity 
of  credit  by  the  vessel.*" 

B.  Burden  of  Proof.  —  The  burden  is  on  the  obligee  of  a  bot- 
tomry bond  to  show  a  necessity  for  the  advances,'"'  and  is  upon  a 


84.  Bottomry       Bonds       Favored. 

Bottomry  bonds,  for  the  benefit  of 
the  ship  owners,  and  the  general  ad- 
vantage of  commerce,  are  greatly 
favored  in  courts  of  admiralty,  and 
where  there  is  no  suspicion  of  fraud 
every  fair  presumption  is  made  to 
support  them.  O'Brien  v.  Miller, 
i68  U.  S.  287. 

85.  Matters  of  Defense.  —  The 
want  of  authority  of  the  master  to 
execute  the  bond  for  not  communi- 
cating with  the  owners  of  the  cargo, 
if  practicable,  is  matter  of  defense 
to  be  pleaded  and  proved,  especially 
where  the  necessity  for  the  bond, 
and  the  fact  that  it  was  for  the  best 
interests  of  the  cargo  owners  is 
shown,  O'Brien  v.  Miller,  168  U.  S. 
2S7. 

86.  Hazelhurst  v.  The  Lulu,  10 
Wall.  192 ;  The  Patapsco  i'.  Boyce, 
i.^  Wall.  329;  The  Metropolis,  9 
Ben.  83,  17  Fed.  Cas.  No.  9503; 
The  Acme,  7  Blatchf.  366,  I  Fed. 
Cas.  No.  28;  The  Plymouth  Rock, 
9  Ben.  79,  19  Fed.  Cas.  No.  11,236; 
The  Emily  B.  Souder,  17  Wall.  666; 
The  Washington  Irving,  2  Ben.  323, 
29  Fed.  Cas.   No.   17,245- 

87.  The  Aurora,  i  Wheat.  96; 
Phelps  V.  The  Camilla,  Taney  400, 
19  Fed.  Cas.  No.  11,073;  The  St. 
John.    -4    Fed.   842. 

Satisfactory  Proof  Required — The 
presuinption  can  only  be  repelled  by 
clear  and  satisfactory  proof.  The 
Emily  B.  Souder,  17  Wall.  666. 

88.  The  Fortitude,  3  Sum.  228,  9 
Fed.   Cas.   No.  4953. 

89.  The  Grapeshot.  9  Wall.  129; 
Hazelhurst    v.    The    Lulu,     10    Wall. 

Vol.  I 


192;  The  Chusan,  2  Story  455.  5  Fed, 
Cas,  No.  2717;  The  Plymouth 'Rock. 
9  Ben.  79.  19  Fed.  Cas.  No.  11.236; 
The  Native,  14  Blatchf.  34,  17  Fed. 
Cas.  No.  10,054;  The  Eclipse,  3  Biss. 
99.  8  Fed.  Cas,  No,  4268, 

Degree  of  Proof  Required Proof 

of  absolute  and  indispensable  neces- 
sity is  not  required,  where  supplies 
are  furnished  on  the  credit  of  the 
ship  in  a  foreign  port :  and  in  such 
cases,  courts  of  admiralty  do  not 
scrutinize  carefully  the  accounts 
against  the  ship.  The  Grapeshot.  g 
Wall.  129,  And  necessity  is  suffi- 
ciently shown  where  the  furnishing 
was  in  good  faith  on  the  order  of 
the  master,  and  honestly  and  reason- 
ably believed  to  be  necessary  to  fit 
the  ship  for  her  voyage  from  the 
foreign  port, 

90.  The  Fortitude,  3  Sum.  228.  g 
Fed.  Cas.  No.  4953;  The  Lulu,  10 
Wall.  201. 

Less  strictness  of  proof  is  required 
against  the  ship,  than  against  a  hy- 
pothecation of  the  cargo.  The  Julia 
Blake,  107  U.  S,  418;  The  Aurora, 
I  Wheat,  96;  The  Grapeshot,  9  Wall. 
129 ;  The  Kalorama,  10  Wall.  204 ; 
Bush  &  Sons  Co.  v.  Fitzpatrick,  73 
Fed,  501  ;  Putnam  v.  The  Polly,  Bee 
157,  20  Fed,  Cas,  No,  11,482:  Hurry 
V.  The  John  and  Alice,  i  Wash,  293, 
12  Fed,  Cas,  No,  6923;  Welden  v. 
Chamberlain,  3  Wash.  290.  28 
Fed.  Cas.  No.  17,055 ;  Rucher  v. 
Conyngham,  2  Pet.  Adm.  295,  20  Fed. 
Cas.  No.  12,106;  The  Mary,  i  Paine 
671,  16  Fed.  Cas.  No.  9187;  Patton  v. 
The  Randolph.  Gilp,  457.  18  Fed.  Cas. 
No,  10,837;  The  Bridgewater,  01c. 
35,  4  Fed.  Cas.  No,   1865, 


ADMIRALTY. 


257 


libellant  for  money  borrowed  by  the  master  upon  a  pledge  of 
unearned  freight,  to  show  the  necessity  of  the  vessel."'  But  where 
an  apparent  necessity  is  shown  for  advances  for  repairs  or  supplies, 
the  burden  is  upon  the  owners  of  the  vessel  to  prove  that  the  master 
had  other  sufficient  funds  or  credit,"-  to  the  knowledge  or  means 
of  knowledge  of  the  lender,''^  and  that  the  advances  were  not  made 
upon  the  credit  of  the  vessel.'"  The  burden  is  on  the  owner  when 
sued  for  repairs,  to  show  delay  and  damage,  and  to  show  error 
in  a  bill  of  particulars  certified  by  his  agent. "^ 

6.  Cases  of  Collision.  —  A.  Presumptions.  —  a.  Laivs  Applicable. 
The  rules  and  regulations  adopted  by  the  principal  maritime  nations 
whose  vessels  navigate  the  Atlantic  Ocean,  will  be  presumed  to 
bind  both  foreign  and  domestic  ships  in  cases  of  collision,  between 
them,''"  except  that  each  may  probably  follow  the  sailing  rules  of 
its  own  country,"'  and  that  the  mpritime  law  deemed  applicable  will 
be  that  recognized  by  the  court  of  the  forum."*  Collisions  between 
foreign  vessels  of  the  same  nationality  in  foreign  waters  or  on  the 
high  seas  will  be  deemed  governed  by  the  laws  of  their  nationality."" 
It  will  be  presumed  that  the  rules  of  navigation  governing  cases  of 
collision  in  Canadian  waters  are  the  same  as  those  of  the  United 
States."" 

b.  Fact  of  Collision.  —  The  mere  fact  of  collision  between  ves- 
sels does  not  raise  a  presumption  of  negligence,'  but  proof  of  the 


91.  Bush  &  Sons  Co.  v.  Fitz- 
patrick,  73  Fed.  501. 

92.  The  Ship  Virgin,  8  Pet.  538; 
The  Grapeshot,  9  Wall.  129;  The 
Lulu,  10  Wall.  192;  The  Custer,  10 
Wall.  204 ;  The  Kalorama,  10  Wall. 
204;  The  Emily  B.  Souder,  17  Wall. 
666;  The  Phebe,  I  Ware  265,  19 
Fed.  Cas.  No.  11,064;  The  Nestor,  i 
Sum.  73,  18  Fed.  Cas.  No.  10,126; 
The  Fortitude,  3  Sum.  228,  9  Fed. 
Cas.  No.  4953. 

Neglect  of  Means  of  Knowledge. 
The  lender  cannot  shut  his  eyes  to 
the  means  of  knowledge,  and  must 
make  reasonable  inquiry.  The  Julia 
Blake,    107    U.    S.    418." 

93.  The  Sarah  Starr,  i  Spr.  453, 
12  Fed.  Cas.  No.  12.354;  The  Forti- 
tude, 3  Sum.  228,  9  Fed.  Cas.  No. 
4953;  The  Grapeshot,  9  Wall.  129; 
The  Lulu.  10  Wall.  192;  The  Kalo- 
rama, 10  Wall.  204:  The  Custer,  10 
Wall.  204;  The  Emily  B.  Souder,  17 
Wall.  666. 

94.  Concurrent       Credit Credit 

may  be  given  both  to  the  vessel  and 
to   the   owner   or   the   master.     The 


Ship  Virgin,  8  Pet.  538;  The  Chusan, 
2  Story  455,  5  Fed.  Cas.  No.  2717; 
The  Patapsco,  13  Wall.  329;  The 
Prospect,  3  Blatchf.  526,  20  Fed.  Cas. 
No.  11,443;  The  George  Dumois,  68 
Fed.  926. 

95.  The  Mattano,  52  Fed.  876. 

96.  The  Belgenland,  114  U.  S. 
355;  The  Scotia,  14  Wall.  170;  The 
City  of  Washington,  92  U.  S.  31. 

97.  The  Scotia,  14  Wall.  170;  The 
Belgenland,    114   U.    S.   355. 

98.  The  Scotland,  105  U.  S.  24; 
The  Belgenland,  114  U.  S.  355;  Smith 
I'.   Condn,',   i   How.  28. 

99.  The  Scotia,  14  Wall.  170;  The 
Scotland,  105  U.  S.  24. 

100.  Robinson  z:  Detroit  etc.  Nav. 
Co.,  73   Fed.   883. 

1.  Collision  Between  Tugs. 
Where  two  colliding  tugs  are  libelled 
for  injury  to  the  tow,  there  is  no 
presumption  of  negligence  against 
either  tug.  The  L.  P.  Dayton,  120 
U.  S.  337;  The  James  Bowen.  10 
Ben.  430,  13  Fed.  Cas.  No.  7192 ;  The 
Bridgeport,  7  Blatchf.  361,  4  Fed. 
Cas.   No.   1861. 


17 


Vol.  I 


258 


ADMIRALTY 


circumstances   of   the   injured   vessel   may   raise  a   presumption   of 
negligence  against  the  other. - 

c.  Fault  in  Managonent.  — A  colliding  vessel  is  presumed  to  have 
contributed  negligently  to  a  collision  if  it  omitted  to  comply  with 
statutory  requirements,^  or  with  rules  essential  to  good  seaman- 
ship.* or  if  defectively  manned,'^  or  having  an  incompetent,"  or 
unskillful  and  negligent  pilot,'  or  an  incompetent  and  unskillful  offi- 
cer in  charge  of  the  deck,*  or  failing  to  have  a  trustworthy  and 
sufficient  lookout." 

d.  Sailing  Vessels  Colliding.  —  A  sailing  vessel  meeting  another 
end  on,  is  deemed  negligent  in  not  porting  her  helm,  but  star-board- 
ing it,^"  and  one  with  wind  free  is  presumed  negligent  in  colliding 


2.  The  Bridgeport,  7  Blatchf.  361, 
4  Fed.  Cas.  No.  1861. 

3.  The  Pennsylvania,  19  Wall. 
125;  The  Martello,  153  U.  S.  64; 
Taylor  v.  Harwood,  Taney  437,  23 
Fed.  Cas.  No.  13,794;  The  Bolivia, 
49  Fed.  169;  Merchants'  and  Miners' 
Transportation  Co.  z'.  Hopkins,  108 
Fed.  890;  Foster  v.  The  Miranda,  6 
McLean,  221,  17  Fed.  Cas.  No.  9997. 

4.  The  Martello,  153  U.  S.  64; 
The  H.  F.  Dimock,  77  Fed.  226 ;  The 
New  York  z:  Rae,  18  How.  223 ;  The 
Alliort  Diimois,   177  U.  S.  240. 

Faulty  Navigation Faulty  nav- 
igation is  per  se  a  sufficient  answer 
to  the  defense  of  inevitahle  accident, 
^labey  z'.  Cooper,   14  Wall.  204. 

Imminence  of  peril  caused  by  tnis- 
management  of  the  vessel  cannot  ex- 
cuse the  violation  of  a  rule  of  nav- 
igation. Peters  i'.  The  Dexter,  23 
Wall.  69. 

5.  Presumption  Not  Conclusive, 
The  presumption  from  want  of  suffi- 
cient manning  is  not  conclusive,  and 
must  yield  if  overcome  by  inference 
from  the  circumstances.  The  fact 
that  the  vessel  was  short  handed, 
and  had  no  proper  lookout,  is  not 
decisive  of  fault,  but  is  considered 
as  bearing  upon  probabilities  and 
raising  a  presumption  against  the 
vessel.  Robinson  v.  Detroit  &  C.  S. 
Nav.  Co.,  73  Fed.  883;  The  Albert 
Dumois,   177  U.   S.  240. 

6.  Employment  of  Cooper —  The 
liresumptions  are  against  the  proper 
management  of  a  vessel  by  one  act- 
ing as  a  pilot,  who  is  a  cooper  and 
not     a     pilot     by     occupation.       The 

Vol.  I 


Washington,  3  Blatchf.  276,  29  Fed. 
Cas.  No.   17,220. 

7.  The  China,  7  Wall.  153;  The 
Great  Republic,  23  Wall.  20;  Bussy 
z'.  Donaldson,  4  Dall.  206 ;  The  Mer- 
rimac,  14  Wall.  199;  The  Civilta  and 
The  Restless,  103  U.  S.  699;  Camp 
z:  The  Marcellus,  i  Cliff.  481,  4  Fed. 
Cas.  No.  2347 ;  The  Alabama,  1  Ben. 
476,  I  Fed.  Cas.  No.  122;  The  Car- 
olus,  2  Curt.  69,  5  Fed.  Cas.  No.  2424; 
Smith  v.  The  Creole,  2  Wall.  Jr.  485, 
22  Fed.  Cas.  No.  13,033;  The 
Blossom,  Olc.  188,  3  Fed.  Cas.  No. 
1564;  Ward  V.  Ogdensburgh,  5  Mc- 
Lean 622,  29  Fed.  Cas.  No.  17,158; 
The  Parkersburgh,  5  Blatchf.  247, 
18  Fed.  Cas.  No.  10,753 ;  The  Ottawa, 
3  Wall.  268;  The  Hypodamc,  6  Wall. 
216. 

8.  Chamberlain  i:  Ward,  21  How. 

S48. 

9.  The  Genesee  Chief,  12  How. 
443;  The  Catharine,  17  How.  170; 
Chamberlain  v.  Ward,  21  How.  548; 
The  George  W.  Roby,  in  Fed.  601; 
Hancy  r.  Baltiinore  Steamer  Packet 
Co.,  23  How.  287;  The  Ottawa,  3 
Wall.  268;  The  Ariadne,  13  Wall. 
475;  The  Clara,  102  U.  S.  200;  The 
Nevada,  106  U.  S.  154;  The  Oregon, 
158  U.  S.  i86;  The  Emily,  Olc.  132, 
8  Fed.  Cas.  No.  44S3 ;  The  Blossom, 
Olc.  188,  3  Fed.  Cas.  No.  1564;  The 
New  York  z:  Rae,  18  How.  223; 
The  Hypodame,  6  Wall.  216;  St. 
John  -■.  Paine,  10  How.  557 ;  Ward  v. 
The  Ogden.sburgh,  5  McLean  622,  29 
Fed.   Cas.   No.   17,158. 

10.  The  Annie  Lindsley,  104  U. 
S  185;  The  De.Kter,  23  Wall.  69; 
The  Nichols.  7  Wall.  122;  The  Mag- 
gie J.  Smith,   123  U.  S.  M9- 


ADMIRALTY. 


259 


with  one  close-hauled:"  hut  the  latter  is  deemed  negligent  if  she 
luft's  into  the  wind  instead  of  keeping  her  course.'-  X'essels  collid- 
ing in  an  open  lake  with  plenty  of  room  to  maneuver  in  easy  naviga- 
tion, are  both  presumed  negligent." 

e.  Steamers  Colliding.  —  A  steamer  colliding  squarely  with 
another  is  presumed  negligent  in  not  porting  her  helm.'''  If  their 
lines  cross,  the  steamer  colliding  on  the  starboard  side  is  deemed 
negligent.'"'  A  steamer  running  against  the  tide  is  deemed  negli- 
gent in  not  stopping  to  prevent  a  collision  with  one  running  with  the 
tide.'*'  An)-  steamer  not  taking  diligent  precaution  to  avoid  collis- 
ion with  another,  is  presumed  negligent." 

f.  Collision  of  Steamers  U'itli  Otiier  Vessels.  —  A  steamer  must 
keep  out  of  the  way  of  a  sailing  vessel,  and  is  presumed  negligent 
for  colliding  therewith,"'  unless  proper  precautions  were  made  inef- 


11.  The  Argus,  Olc.  304,  i  Fed. 
Cas.  No.  521  ;  The  Erastus  Wiman, 
20  Fed.  245 ;  St.  John  v.  Paine,  10 
How.  557 ;  The  Ann  CaroHne,  2 
Wall.  538;  Bentley  v.  Coyne,  4  Wall. 
SOg ;  The  Mary  Eveline.  16  Wall. 
348;  The  Rebecca,  Blatchf.  &  H.  347, 
20  Fed.  Cas.  No.  11,618. 

12.  The  Catharine  v.  Dickinson, 
17  How.  177;  The  Argns,  Olc.  ,304, 
I  Fed.  Cas.  No.  521 ;  The  Elizabeth 
Jones,  112  U.  S.  S14;  The  Mao' 
Eveline,  16  Wall.  348. 

Exception,  —  The  close  hauled  ves- 
sel is  not  deemed  negligent  for  luff- 
ing, if  the  accident  was  inevitable. 
Bentley  v.   Coyne,   4  Wall.   509. 

13.  "Pettit  z:  Camden  County 
Freeholders;  87   Fed.  96S. 

14.  N.  Y.  etc.  Co.  V.  Philadelphia 
etc.  Co.,  22  How.  461 ;  Union  b.  S. 
Co.  etc.  V.  N.  Y.  etc.  Co.,  24  How. 
307;  The  Vanderbilt.  6  Wall  22=,; 
The  Galatea,  92  U.  S.  4.39 :  The  .'Vm- 
erica,  92  U.  S.  432;  The  Johnson, 
9  Wall.   146. 

15.  The  Corsica,  9  Wall.  6.30: 
The  Columbia,  10  Wall.  246;  Belden 
V.  Chase,  150  U.  S.  674;  The  E.  A. 
Packer  v.  N,  J.  Lighterage  Co.,  140 
U.   S.   360. 

IG,     The  Galatea,  92  U.  S.  439. 

17.  The  America,  92  U.  S.  432 ; 
Chamberlain  r.  Ward,  21  How.  ^'48 ; 
The  Maria  Martin,  12  Wall.  31 ;  The 
Connecticut,  103  U.  S.  710;  The 
Southern  Belle,  18  How.  584:  Wil- 
liamson V.  Barrett,  13  How.  loi  ;  The 
Continental,  14  Wall.  345 :  The  Brit- 
annia 7:  Cleugh,  153  U.  S.  130; 
Nichels  ■:■.  The  Servia,  149  U.  S.  144; 


The  Breakwater,  155  U.  S.  252;  The 
Manitoba,  122  U.  S.  97;  The 
Favorita,  I  Ben.  30,  8  Fed.  Cas.  No. 
4693;  The  Umbria,  166  U.  S.  404: 
Goslee  z>.  Shute,  18  How,  463 ;  Snow 
V.  Hill,  20  How.  543;  The  Victory, 
168  U.  S.  410;  The  R.  L.  Mavbey, 
4  Blatchf.  88,  20  Fed.  Cas.  No,  11,- 
870;  The  Relief,  Olc.  104,  20  Fed. 
Cas.  No.  11,693;  The  Santa  Claus, 
Olc.  428,  21  Fed.  Cas.  No.  12,327; 
The  Chesapeake,  i  Ben.  23,  5  Fed. 
Cas.  No.  2642 ;  Sturgis  7'.  Clough,  21 
How.  451  ;  The  Scranton,  5  Blatchf. 
400,  21  Fed.  Cas.  No.  12,558;  The 
Niagara,  3  Blatchf.  37,  18  Fed.  Cas. 
No.  10,220;  The  Washington,  3 
Blatchf.  276,  29  Fed.  Cas.  No.  17,220; 
The  Cayuga,  i  Ben.  171,  5  Fed.  Cas. 
No.    25.36. 

18.  'The  Winona,  8  Blatchf.  499, 
29  Fed.  Cas.  No.  17,411:  The  New- 
Orleans,  8  Ben.  loi.  18  Fed.  Cas. 
No.  10,179;  The  Washington  Irving, 
Abb.  Adm.  336,  29  Fed.  Cas.  No. 
17,243:  The  J.  D.  Peters,  42  Fed. 
269;  Merchants  and  Miners  Transp. 
Co.  T'.  Hopkins,  108  Fed.  890: 
Squires  v.  Parker,  lOi  Fed.  843; 
Barker  v.  The  City  of  New  York. 
I  ClifT.  75,  2  Fed.  Cas.  No.  765; 
Newton  r.  Stebbins,  10  How.  586; 
The  Monticello,  17  How.  152 ;  The 
Oregon  v.  Rocca,  18  How.  570 ;  N.  Y. 
etc.  S.  S.  Co.  I'.  Rumball,  2i  How. 
372;  The  Fannie,  11  Wall.  238;  The 
Scotia,  14  Wall.  170:  The  Falcon, 
19  Wall.  751 ;  The  Sea  Gull,  23  Wall. 
165;  The  Commerce,  16  Wall.  3.^: 
The  Clarita  &  The  Clara,  23  Wall. 
I ;  Ward  v.  The  Fashion,  6  McLean, 

Vol.  I 


260 


ADMIRALTY. 


fective  by  the  fault  of  the  saihng  vessel.^"  A  change  of  course  of 
the  sailing  vessel  is  not  presumed  negligent,  if  the  fault  of  the 
steamer  made  the  collision  inevitable.""  A  steamer  colliding  with 
a  flat  boat  or  floating  boat,  is  presumed  negligent.-'  A  steamer  is 
deemed  negligent  in  not  avoiding  collision  with  another  vessel 
where  it  failed  to  slacken  its  speed,--  or  to  stop  and  reverse  the 
engine  in  a  case  of  emergency.-^  A  sailing  vessel  at  fault  for  not 
having  the  fog  horn  required  is  presumed  to  have  contributed  negli- 
gently to  a  collision  with  a  steamer  in  a  fog.-'' 

g.  One  Vessel  Overtaking  Another.  —  One  vessel  coming  behind 
another  and  seeking  to  pass  it  is  presumed  negligent  for  any  result- 
ing collision,-^  but  a  vessel  wrongfully  or  carelessly  interposed  in 


152,  29  Fed.  Cas.  No.  17,154;  The 
Maverick,  i  Spr.  16,  Fed.  Cas.  No. 
9316;  The  -Carroll,  8  Wall.  302;  N. 
Y.  etc.  S.  S.  Co.  V.  Calderwood,  19 
How.  241 ;  The  Fairbanks,  9  Wall. 
420;  The  City  of  Paris,  9  Wall.  634; 
The  Stephen  Morgan,  94  U.  S.  599; 
The  Abbotsford,  98  U.  S.  440;  The 
Louisiana,  21  How.  I ;  The  Civilta 
and  The  Restless,  103  U.  S.  699;  The 
Belgenland,  114  U.  S.  355:  The 
Benefactor,  102  U.  S.  214;  The 
Nacooche,  137  U.  S.  330;  The  Blue 
Jacket  I'.  The  Tacoma  Mill  Co.,  144 
U.   S.  371;   The   Martello,   IS3  U.   S. 

64. 

Presumption  Against  Willful  Col- 
lision  A  steamer  colliding  with  a 

sailing  vessel  is  presumed  not  to 
have  run  it  down  willfully.  The 
Rochester,  81   Fed.  237, 

19.  Mistakes  In  Extremis The 

steamer  is  not  responsible  for  mis- 
takes jji  e.vtrcniis  caused  by  the  fault 
of  the  sailing  vessel.  The  Blue 
Jacket  -■.  Tacoma  Mill  Co.,  144  U.  S. 
371.    25    Fed.    831. 

Deviation  of  Course The  sail- 
ing vessel  may  deviate  sufficiently 
to  avoid  obstructions,  but  is  deemed 
at  fault  in  not  resuming  her  course, 
and  in  taking  it  into  the  pathway 
of  the  steamer.  The  John  L.  Has- 
brouck,  93  U.  S.  40s ;  The  Potomac, 
8  Wall,  ■^90;  The  Scotia,  14  Wall. 
170;  The  Illinois,  103  U.  S.  298;  The 
S.  C.  Tryon,  105  U.   S.  267. 

20.  The  Falcon,  19  Wall.  75;  The 
Fairbanks,  9  Wall.  420;  The  City  of 
Paris,  q  Wall.  6'?4;  The  Wenona.  ig 
Wall,  41;  The  Lucille,  15  Wall.  676; 
The   .Adriatic.   T07  U.   S,   512. 

Violation  of  Sailing  Rule.  _  The 
failure   of   the    steamer   to   keep   out 

Vol.  I 


of  the  way  is  no  defense  for  the 
sailing  vessel  in  violating  an  express 
sailing  rule.  The  Stephen  Morgan, 
94   U.    S.   599- 

21.  Ure  V.  Coffman,  19  How.  50; 
Pearce  v.  Page,  24  How.  228;  Nelson 
T.  Leland,  22  How.  48 ;  Fretz  z\  Bull. 
12  How.  466 ;  Culbertson  z\  Shaw, 
18  How.  584;  The  Southern  Belle, 
Newb.  461,  6  Fed.  Cas.   No.  3462. 

22.  The  Pennsylvania.  19  Wall. 
125 ;  Newton  v.  Stebbins.  10  How. 
586;  The  Sea  Gull,  23  Wall.  165; 
The  Alleghenv,  9  Wall.  522;  The 
Favorita,  18  Wall.  598;  McCready 
V.  Goldsmith,  18  How.  89;  The 
Martello,  153  U.  S.  64:  The 
Nacooche,  137  LI.  S.  330;  The  Vic- 
tory, 168  U.  S.  410;  Rogers  v.  The 
St,  Charles,  19  How.  108 ;  The  New 
York  V.  Rae,  18  How.  223, 

23.  The  Sea  Gull.  23  Wall.  165: 
The  Martello,  153  U.  S.  64:  The 
City  of  New  York,  147  V.  S.  72; 
Nelson  v.  Leland.  22  How.  48:  Wil- 
liamson r.  Barrett,  13  How.  lOi. 

24.  The  Martello,  153  L^.  S.  64: 
The  Bolivia,  49  Fed.  169 ;  Merchants 
and  Miners  Transp,  Co.  f.  Hopkins, 
108  Fed.  890;  The  Pennsvlvania,  19 
Wall.    125. 

25.  Whitridge  '•.  Dill,  23  How. 
448;  The  Great  Republic.  23,  Wall. 
20;  The  Cayuga,  74  Wall.  270;  The 
Suffolk  County,  9  Wall,  651;  The 
Carolus,  2  Curt,  69,  5  Fed,  Cas,  No. 
2424;  The  Rhode  Island.  01c.  505.  20 
Fed.  Cas.  No.  Il,74i;  The  Governor. 
I  Abb.  Adm.  108.  10  Fed.  Cas.  No. 
S'6,i5;  Ward  v.  The  Dousman,  6  Mc- 
Lean, 211.  29  Fed,  Cas,  No,  17.153: 
The  Osceola,  30  Fed.  383 :  The  Has- 
brouck,  29  Fed.  463 ;  The  Continental. 
31   Fed,  166;  The  Narragansett.  01c. 


ADMIRALTY. 


261 


ihc  track  of  another,  so  as  to  render  the  colhsioii  inevitable,  is 
deemed  responsible  therefor,-''  and  the  overtaking  vessel  is  not  pre- 
sumed responsible  for  a  collision  which  would  not  have  occurred 
but  for  the  fault  of  the  other  vessel.-' 

h.  Collision  With  Moored  Vessel.  —  There  is  a  presumption  of 
negligence  against  any  moving  vessel  which  collided  with  another 
vessel  that  was  moored,-**  unless  it  was  anchored  in  an  improper 
and  unexpected  place  which  rendered  the  collision  inevitable.-"' 
The  presumption  of  fault  is  conclusive  against  the  moving  vessel, 
where  the  vessel  at  anchor  collided  with  was  on  proper  ground  and 
showed  proper  lights,'"'  and  where  the  colliding  vessel  had  her  can- 
vas fully  spread  in  a  fog  so  as  to  prevent  prompt  maneuvering.'^ 

B.  Burden  of  Proof.  —  a.  In  General.  —  The  burden  of  proof  is 
upon  the  libellant  to  establish  negligence  of  the  libelled  vessel  in 
causing  the  collision,'-  and  to  prove  the  freedom  from  fault  of  his 
own  vessel.''     The  burden  is  ujjon  each  of  two  colliding  vessels  to 


246,  17  Fed.  Cas.  No.  10,019;  Sea- 
man V.  The  Crescent  City,  i  Bond 
105,  18  Fed.  Cas.  No.  12,581  ;  The 
Rhode  Island,  i  Blatchf.  363.  20  Fed. 
Cas.  No.  11,743;  The  City  of 
Merida,  24  Fed.  229;  The  Isle  of 
Pines,   24   Fed.   498. 

26.  The  New  Jersey,  Olc.  415,  18 
Fed.  Cas.  No.  10,161 ;  The  Narragan- 
sett,  Olc.  246,  17  Fed.  Cas.  No.  10,- 
019. 

27.  Long  Island  R.  Co.  v.  Killien, 
6-   Fed.   365. 

28.  Mercer  v.  The  Florida,  3 
Hughes  488,  17  Fed.  Cas.  No.  9433; 
The  St.  John,  54  Fed.  1015 :  The 
Brady.  24  Fed.  300;  The  Bulgaria, 
74  F'ed.  898;  The  Scioto,  2  Ware 
360.  21  Fed.  Cas.  No.  12,508;  The 
Lady  Franklin,  2  Low.  220,  14  Fed. 
Cas.  No.  7984;  The  Oregon,  158 
r.  S.  186;  The  Le  Lion,  84  Fed. 
lOli;  Stroiit  V.  Foster,  I  How.  89; 
The  Granite  State,  3  Wall.  310;  The 
Louisiana,  3  Wall.  164;  The  Bridge- 
port, 14  Wall.  116;  McCready  v. 
Gold.smith,  18  How.  89;  The  South- 
ern Belle,  18  How.  584;  The  New 
York  V.  Rae,  18  How.  223 ;  The  Vir- 
ginia  Ehrman,  97   V.    S.   309. 

"  29.  The  .\ilsa,  76  Fed.  868 ;  The 
Oliver,  22  Fed.  848;  Strout  v.  Foster, 
I  How.  89;  Martin  v.  Five  Canal 
Boats.  24  Fed.  500. 

30.  The  Florida,  3  Hughes  488, 
17  Fed.  Cas.  No.  9433. 

31.  The  George  Bell.  3  Hughes 
368,  II  Fed.  Cas.  No.  5856. 

32.  The    Edwin    H.    Wehster,    18 


Fed.  724;  The  William  Young,  Olc. 
38,  30  Fed.  Cas.  No.  17,760;  The 
Joseph  Stickney,  I  Fed.  624;  The 
.-Amanda  Powell,  14  Fed.  486;  The 
David  Dows,  16  Fed.  154;  The  New 
Jersey,  Olc.  415,  18  Fed.  Cas.  No. 
10,161 ;  The  Neptune,  Olc.  483.  17 
Fed.  Cas.  No.  10,120;  The  Rescue, 
51  Fed.  927;  The  Fred  Schlesinger, 
71  Fed.  747;  The  Hercules,  5s'  Fed. 
120;  The  Wioma  ^5  Fed.  3(8;  The 
Maryland,  14  Fed.  367 ;  The  Chas.  L. 
Jeffrey,  55  Fed.  685 ;  The  Washington 
Irving,  Abb.  Adm.  336,  29  Fed.  Cas. 
No.   17,243. 

Libel   of   Tow   Ag^ainst   Tugs A 

ship  towed  by  a  tug,  libelling  its  own 
tug  and  another  for  collision  has  the 
burden  of  proving  negligence  against 
each  tug  separately.  The  L.  P.  Day- 
ton, 18  Blatchf.  411,  4  Fed.  834,  120 
U.    S.   3.V. 

Identity  of  Libelled  Tug.  —  A 
canal  boat  libelling  a  steam  tug  for 
collision,  has  the  burden  to  prove  the 
identity  of  the  defendant,  with  the 
colliding  tug.  The  City  of  Chester, 
18  Fed.  603. 

33.  Collision  Upon  Canal,  —  The 
libellant  for  collision  upon  a  canal 
has  the  burden  to  excuse  his  non- 
compliance with  a  rule  of  the  canal. 
The  Curtis  Park,  19  Fed.  797. 

A  canal  boat  tying  up  in  a  fog  on 
the  tow  path  side  has  the  burden  to 
prove  a  sufficient  warning  to  an  ap- 
proaching vessel  colliding  therewith. 
The  City  of  Milwaukee,  14  Fed.  365 ; 
The   Relief,    Olc.    104,   20   Fed.    Cas. 

Vol.  I 


262 


ADMIRALTY. 


■establish  fault  on  the  part  of  the  other,"''  and  is  upon  a  vessel 
neglecting  ordinary  precaution  to  prove  that  such  neglect  did  not 
cause  or  contribute  to  the  collision.-'^  A  vessel  clearly  in  fault  fur  a 
collision  ha-s  the  burden  to  prove  clearly  the  contributory  negligence 
of  the  other  vessel,'"'  and  any  reasonable  doubt  must  be  resolved 
in  its  favor. ^' 

b.  Neglect  of  Statutory  Rules.  —  A  vessel  neglecting  compliance 
with  a  statutory  rule  of  navigation,  has  the  burden  to  prove  not 
only  that  such  neglect  did  not  cause  the  collision,''*  but  also  that  it 
could  not  have  contributed  thereto,'"'  and  that  the  collision  would 
have  happened  if  the  statute  had  not  been  violated,''"  and  to  establish 
by  clear  and  indisputable  evidence  that  she  was  not  wholly  at  fault, ^' 
or  that  she  was  justified  in  departing  from  the  rule  by  impending 
peril,^-  or  by  agreement/^ 

c.  J'esscl  Bound  to  Keep  Out  of  ll'ny.  —  A  vessel  bound  in  duty 
to  keep  out  of  the  way  of  another  has  the  burden  to  prove  either 
that  she  kept  out  of  the  way,"  or  that  there  was  a  sufficient  reason 
for  not  doing  so,''-''  that  due  care  was  used  to  avoid  the  collision,^'' 


No.  11,693;  Ward  v.  The  Fashion, 
6  McLean  152,  29  Fed.  Cas.  No.  17,- 
154;  The  Cohimbus,  Abb.  Adm.  '384, 
6  Fed.  Ca.s.  No.  3043 ;  The  Charles 
L.  Jeffrey,  55  Fed.  685;  The  Henry 
Clark  r.  O'Brien,  65  Fed.  815. 

34.  The  Victory,  168  U.  S.  410. 

35.  The  H.  F.  Dimock,  77  Fed. 
226;  The  John  Craig,  66  Fed.  596; 
The  Anglo-Norman,  Newb.  492,  16 
Fed.  Cas.  No.  9174;  The  Clapp  v. 
Young,  5  Fed.  Cas.  No.  2786;  The 
Great  Republic,  23  Wall.  20;  Don- 
nel!  I'.  Boston  Towboat  Co.,  89  Fed. 
757;  The  Lion,  i  Spr.  40,  15'  Fed. 
Cas.  No.  8379 ;  The  George  W.  Roby, 
III  Fed.  601;  Call  V.  Old  Dominion 
S.   S.  Co.,  31   Fed.  234. 

36.  The  Churchill,  103  Fed.  690; 
The  Minnie,  100  Fed.  128;  The  City 
of  New  York,  147  U.  S.  72;  The 
Oregon,  158  U.  S.  186:  The  Victory, 
168  U.  S.  410;  The  Mexico,  84  Fed. 

504. 

37.  The  City  of  New  York,  147 
U.  S.  72;  The  Victory,  168  U.  S. 
410;  The  Umbria,  166  U.  S.  404; 
The  Ludvig  Holberg,  157  U.  S.  60; 
The  Saale,  ^g  Fed.  716;  The  Minnie, 
100  Fed.  128;  The  Oregon,  is8  U.  S. 
186. 

38.  The  St.  Louis,  98  Fed.  750; 
The    Trave,    55    Fed.     117. 

39.  The  Richelieu  etc.  Co.  •;■.  Bos- 
ton, 136  U.  S.  408;  The  Martello  v. 
Willey,  153  U.  vS.  64;  The  Britannia, 

Vol.  I 


153  U.  S.  130;  The  Glendale,  81 
Fed.  633;  The  Trave,  55  Fed.  117; 
Tnanies  Towboat  Co.  r.  Central  R. 
Co.  61  Fed.  117;  St.  Louis  and  N. 
O.  Transp.  Co.  Z'.  U.  S.,  33  Ct.  CI. 
51;  The  Lansdowne,  105  Fed.  436; 
1  he  Bolivia,  49  Fed.  169 ;  The  Yar- 
mouth, 100  Fed.  667 ;  The  Belden  v. 
C!;asc,   150  L'.   S.  674. 

Absence  of  Mechanical  Foghorn. 
The  absence  of  the  mechanical  fog- 
horn required  by  statute,  must  be 
shown  not  to  have  contributed  to  a 
colHsion  in  a  fog.  The  Pennsylvania 
V.   Troop,   19  Wall.   I2> 

40.  The  Saale,  59  Fed.  716. 

41.  Taylor  r.  Harwood.  Taney 
447 ;  Martinez  r.  Anglo-Norman, 
Newb.  492,  16  Fed.  Cas.  No.  9174. 

42.  Belden  z:  Chase,  150  U.  S. 
674;  Crockett  ;'.  Isaac  Newton,  18 
How.  583 ;  The  Sunnvsidc,  91  L'.  S. 
208. 

43.  The  .Milwaukee,  I  Brown 
Adm.  313,  17  Fed.  Cas.  No.  9626. 

44.  The  City  of  .-Kugusta.  80  Fed. 
297. 

45.  The  lava,  14  Blatchf.  524.  13 
Fed.  Cas.  No.  7233- 

46.  The  Norniandie.  4''  Fed.  151; 
The  Wenona.  8  Blatchf.  499,  29  Fed. 
Cas.  No.  17,411  ;  The  Henry  Clay,  72 
Fed.  1021  ;  The  Maverick,  75  Fed. 
845;  The  Liva,  14  Blatchf.  524,  13 
Fed.  Cas.  No.  7233;  The  George  L. 
Garlick,   88   Fed.   553;    Henderson   v. 


ADMIRALTY. 


2f)3 


and  that  it  was  inevitable/'  or  was  owing  to  the  fauh  of  the  other 
vessel/* 

d.  Vessel  Bound  to  Kec[>  Course.  —  A  vessel  in  duty  bound  to 
keep  her  course,  which  changed  it  prior  to  collision,  has  the  burden 
to  show  that  the  change  of  course  was  justified  by  the  conduct  of 
the  other  vessel,*''  or  was  necessary  to  avoid  immediate  collision.'" 
or  did  not  contribute  to  the  collision,^'  and  that  the  collision  was 
inevitable,^-  and  without  fault  on  her  part/''' 

e.  Moored  Vessels.  —  (1.)  Burden  TJpon  Moving  Vessels.  —  The  bur- 
den is  upon  a  moving  vessel  which  collides  with  a  moored  or 
anchored  vessel  to  rebut  the  presumption  of  negligence,^''  and  to 


Cleveland,  93  Fed.  844 ;  Merchants 
and  Miners  Transp.  Co.  z:  Hopkins, 
108  Fed.  890;  Squires  v.  Parker,  lOi 
Fed.  846;  The  Oregon  z:  Rocca,  18 
How.  570;  U.  S.  S.  Co.  z:  Rumball, 
21  How.  385 ;  The  Lucy,  74  Fed.  572 ; 
The  Clement,  2  Curt.  363,  5  Fed. 
Cas.  No.  2879;  The  Bessie  \Iorris, 
13  Fed.  397. 

47.  The  Mary  A.  Bird,  102  Fed. 
648 ;  Merchants  and  Miners  Transp. 
Co.  V.  Hopkins,  108  Fed.  890;  The 
Clement,  2  Curt.  363,  5  Fed.  Cas. 
No.  2879;  The  Henry  Clav,  72  Fed. 
102;  U.  S.  S.  Co.' I'.  Rumball,  2X 
How.  372 ;  The  Nettie  Sundberg,  100 
Fed.  886 ;  La  Bourgogne,  86  Fed. 
475:  The  Homer,  99  Fed.  795;  The 
X'irginia    Ehrman,   97   \J.    S.   309. 

Steamship  Colliding  With  Sailing 

■Vessel A  steamer  colliding  with  a 

sailing  vessel  has  the  burden  to  prove 
that  it  could  not  have  been  prevented 
by  any  reasonable  precaution.  Squires 
Z'.   Parker,  lOi   Fed.  .S53- 

48.  The  :\Iary  Bird,  loi  Fed.  648 ; 
The  lava,  14  Blatchf.  524,  13  Fed. 
Cas.  No.  7233;  The  Lizzie  Major,  8 
Ben.  333.  15  Fed.  Cas.  No.  8422;  The 
Washington  Irving,  .\bb.  Adm,  336, 
29  Fed.  Cas.  No.  17,243;  The  Seneca, 
47  Fed.  87 ;  Bigelow  v.  Nickerson,  78 
Fed.  113;  The  Clement,  2  Curt.  363, 
5  Fed.  Cas.  No.  2879;  The  Gypsum 
Prince,   67   Fed.   6l2. 

49.  Turning  Toward  Backing 
Vessel.  —  A  vessel  bound  to  keep 
her  course  which  turned  toward  a 
vessel  that  was  backing  out  of  her 
way.  has  the  burden  to  prove  a  suffi- 
cient cause  therefor  in  the  conduct 
of  the  backing  vessel.  The  Corsica 
z:    Schuyler,    g    Wall.    630. 


Sheer    of    Steamer The    burden 

of  proving  that  the  sheer  of  a 
steamer  in  a  narrow  channel  was 
caused  by  the  fault  of  a  meeting 
steamer,  and  tow,  is  on  those  al- 
leging it.  The  Alexander  Folsom,  52 
Fed.    403. 

50.  The  Ella  Warner,  30  Fed.  203. 

51.  Donnell  z'.  Boston  Towboat 
Co.,    89    Fed.    757. 

52.  Tlie  Sagua  ?•.  The  Grace,  42 
Fed.  461. 

53.  Sheering  Caused  by  Suction. 
A  vessel  sheering  from  lier  course, 
owing  to  the  alleged  suction  of 
another  vessel,  and  colliding  with  a 
third  vessel  which  had  agreed  to  pass 
in  a  certain  way.  must  "prove  her 
entire  freedom  from  fault.  The 
Ohio,  91    Fed,   547. 

54.  Henderson  z\  Cleveland,  93 
Fed.  844;  The  America,  95  Fed.  191  : 
The  Milwaukee.  2  Biss.  509,  17  Fed. 
Cas.  No.  9625;  The  Wm.  M.  Hoag, 
69  Fed.  742;  The  Dean  Richmond, 
103  Fed.  701,  107  Fed,  looi ;  Amos- 
keag  etc.  Co.  z:  The  John  Adams,  i 
Cliff.  404,   I    Fed.   Cas.   No.   338. 

Rebuttal  of  Presumption There 

is  not  only  a  presumption  in  favor 
of  a  vessel  at  anchor  because  she  is 
at  anchor,  but  also  a  presumption  of 
fault  on  the  part  of  the  colliding 
vessel,  which  shifts  the  burden  upon 
the  latter  to  rebut  it  by  clear  proof 
of  the  fault  of  the  vessel  at  anchor. 
The   Oregon,    158   U.    S.    186, 

Steamer   Towed    Out    of   Slip .\ 

steamer  towed  out  of  a  slip  which 
injured  moored  vessel  by  jamming  it 
with  the  towline,  has  the  burden  to 
show  that  she  was  without  fault. 
The  City  of  Augusta,  30  Fed.  844. 


Vol.  I 


264  ADMIRALTY. 

show  that  she  could  not  have  prevented  the  colHsion,^^  and  that  the 
moored  vessel  was  at  fault.'"  The  burden  is  upon  a  vessel  breaking 
away  from  her  moorings  and  colliding  with  another  vessel  at 
anchor,  to  prove  inevitable  accident,'^  and  to  excuse  the  breaking 
away  and  drifting  against  the  other  vessel.'* 

(2.)  Burden  Upon  Moored  Vessel. — The  burden  is  upon  a  barge 
sunk  at  her  mooring  amidst  breaking  ice,  after  a  collision,  to  show 
that  the  sinking  was  not  caused  by  the  breaking  of  the  ice,  but  was 
the  fault  of  the  colliding  vessel.''"  A  vessel  anchored  in  a  channel 
at  night  lias  the  burden  to  prove  that  she  exhibited  a  proper  light 
and  maintained  a  watch  to  prevent  the  collision.""  A  vessel  moored 
in  an  improper  place  has  the  burden  to  show  that  the  collision  was 
not  catised  by  its  fault,  but  by  the  act  of  the  other  vessel."^  Upon 
collision  in  a  dense  fog  between  a  steamer  and  a  moored  vessel,  the 
burden  is  upon  the  moored  vessel  to  show  that  she  was  moored  in  a 
proper  place. "- 

(3.)  Burden  Upon  Ship  Towed.  — The  owner  of  a  ship  which  collided 
with  a  vessel  at  anchor,  while  towed  by  a  tug,  has  the  Ijurden  to 
prove  the  negligence  of  the  tug."' 

f.  Collision  in  Narrow  Place.  —  An  unencumbered  steamer  pass- 
ing a  tug  with  a  heavy  tow  in  a  narrow  channel  has  the  burden  to 
prove  that  the  side  of  passage  chosen  was  the  only  safe  one,  and 
that  she  took  every  precaution  to  avoid  the  collision."*  A  steamer 
crossing  the  channel  of  a  river  to  anchor  mvist  prove  great  care 
against  collision."'  and  a  steamer  backing  from  a  shoal  in  a  narrow 

55.  The  Nettie  Siindberg,  lOO  which  made  the  posts  give  way  at 
Fed.  886:  La  Bourgogiie.  86  Fed.  which  they  were  moored.  The 
475.  Waterloo     and     The     Glenalvon,     79 

Exoneration     of     Moving     Vessel.  Fed.   113,   100  Fed.  332;   The  Chick- 

A  moving  vessel  colliding  with  a  ves-  asaw.  38  Fed.  358. 

sel    at    anchor    must    exonerate    her-  59.     ^he  Maryland,  14  Fed.  ^67. 

self    by    proof    that    it    was    not    m  en      ti      a           •     £_  r>    1     £., 

her  power  to  prevent  the  collision  by  ^°-     ^he  Armoma,  67  Fed.  362. 

anv     practicable     precautions.       The  61-     St.   Louis   M.   V.  Transp.   Co. 

Homer,  99  Fed.  795;  The  Milwaukee,  '^'^  U.  S.,  33  Ct.  CI.  250. 

2  Biss.  509,  17  Fed.  Cas.  No.  9625;  62.  Amoskeag  etc.  Co.  v.  The 
The  Louisiana.  3  Wall.  164 ;  The  John  Adams,  I  Cliff.  404,  1  Fed.  Cas. 
Virginia    Ehrman    and    The    Agnese,  No.  338. 

97  U.  S.  309.  63.     Responsibility      of      Ship. 

56.  ,\moskeag  etc.  Co.  v.  The  Where  the  collision  was  caused  by 
John  Adams,  I  Cliflf.  404,  i  Fed.  Cas.  the  wrong  steering  of  the  ship,  and 
No.  338;  The  Oregon,  158  U.  S.  186;  its  failure  to  steer  with  the  tug,  the 
The  Milwaukee,  2  Biss.  509,  17  Fed.  ship  alone  is  deemed  responsible 
Cas.  No.  9625 ;  The  Porter  v.  therefor.  The  Invcrtrossachs,  59 
Hemunger,  6  Can.   F,x.   208.  Fed.    194. 

57.  The  Fremont,  3  Sawy.  571,  9  But  where  the  ship  tried  to  follow 
Fed.   Cas.   No.   5094 ;   The  Louisiana,  the  tug,  but  was  negligently  thrown 

3  Wall.   164.  loose  from  it,  and   caused  to  collide 

58.  Sufficiency      of      Excuse A  with  the  anchored  vessel,  the  ship  is 

sufficient   excuse   is   slinwn   by   proof  not    deemed    at    fault.      The    James 

that  all   practicable  precautions  were  Gray,    106    LL    S.    184. 

taken    and    that    the   breaking   away  64.     The    Lucy,    74   Fed.    572. 

and  collision  were  owing  to  a  storm,  65.     The    Maryland,    14    Fed.    367. 

Vol.  I 


ADMIRALTY. 


265 


place  has  the  Inirilen  to  show  that  the  liacking  (hd  not  contribute 
to  a  colhsion  with  a  barge  in  tow.°° 

g.  Collision  With  Pier.  —  A  vessel  complaining  of  the  owner  of 
a  pier  for  collision  has  the  bnrden  to  prove  that  she  was  not  in  fault, 
and  that  the  pier  was  an  obstruction  to  navigation.'" 

7.  Towage. — A.  Presumptions.  —  Damage  sustained  b\-  the 
tow  does  not  ordinarily  raise  a  presumption  that  the  tug  has  been 
in  fault,'''  but  the  negligence  of  the  tug  may  be  presumed  from  the 
circumstances,'''"  and  will  lie  presumed  where  the  tow  was  stranded 
upon  a  shoal  owing  to  the  fact  that  the  tug  deviated  from  a  proper 
course,'"  or  where  the  tow  was  not  properly  constructed,  and  broke 
loose  to  its  injury,'^  or  where  the  stopping  of  the  tug  in  its  harbor 
caused  the  tow  to  impinge  upon  a  pier,'-  or  where  a  tow  delivered 
in  good  condition  was  sunk,'^  or  logs  were  lost  from  a  seaworthy 
raft  by  collision  with  the  shore  and  breaking  of  the  tow-line,'*  or  by 
insecure  fastening  of  the  raft.'^  The  presumption  that  government 
buoys  correctly  indicate  places  of  danger,  cannot  justif}'  the  fol- 
lowing of  them  blindly  by  a  tug  which  towed  a  vessel  upon  a  rock 
without  looking  for  displacement  of  the  buoys. '° 

B.  Bl^RdEn  oe  Proof.  —  a.  Upon  Oivncrs  of  Tow.  —  The  burden 
is  upon  the  owners  of  the  tow  to  prove  a  breach  of  the  contract  of 
towage,"  and  negligence  of  the  tug,''  and  that  such  negligence  was 
the  proximate  cause  of  the  loss,"  and  to  show  a  total  loss  of  the  tow, 
and  that  it  would  cost  more  than  it  would  be  worth  to  raise  and 


66.  The  John  Craig,  66  Fed.   S96. 

67.  The  Henrv  Clark  v.  O'Brien, 
65   Fed.  815. 

68.  Contract     of     Towage The 

contract  of  towage  requires  no  more 
than  that  he  who  undertakes  to  tow 
shall  carry  out  his  undertaking  with 
that  degree  of  caution  and  skill 
which  prudent  navigators  employ  in 
similar  services.  The  Steamer  Webh, 
14    Wall.    406. 

69.  The  Steamer  Webb,  14  Wall. 
406;  The  Quickstep.  Q  Wall.  665; 
The  Seven  Sons,  29  Fed.  ^43. 

70.  The  Steamer  Webb,  14  Wall. 
406. 

71.  The  Quickstep,  9  Wall.  665. 

72.  The  Margaret,  94  U.  S.  494; 
The    Cayuga,     16    Wall.     177. 

73.  The  Seven  Sons.  29  Fed.  .543. 

74.  Loss  of  Files  From  Raft. 
The  mere  loss  of  piles  from  a  raft 
in  tow  will  not  be  presumed  negli- 
gent. The  A.  R.  Robinson,  57  Fed. 
677 :  Wilson  ?■.  Siblev,  .36  Fed.  379. 

75.  The   Wasp.   8<5   Fed.   470. 

76.  The   Hercules,  8l   Fed.  218. 

77.  Breach     of     Contract The 

burden     is     upon     one     who     alleges 


breach  of  the  contract  of  towage  to 
show  either  that  there  has  been  no 
attempt  at  performance,  or  that  there 
has  been  negligence  or  imskillful- 
ness  to  his  injury  in  the  perform- 
ance. The  Steamer  Webb,  14  Wall. 
406. 

78.  Richter  v.  The  Olive  Baker, 
40  Fed.  904;  The  Frederick  E.  Ives, 
25  Fed.  447 :  The  Brazos,  14  Blatchf. 
446,  4  Fed.  Cas.  No.  1821  ;  The  Mary, 
14  Fed.  S84;  The  Aurora,  2^  Fed. 
778;  The  "Hercules,  55  Fed.  126:  The 
America.  6  Ben.  122,  i  Fed.  Cas.  No. 
282;  The  George  L.  Garlick,  16  Fed. 
703;The  W.  H,  Simpson,  80  Fed. 
153 ;  Pederson  t'.  John  D.  Spreckels 
&  Bros.  Co.,  87  Fed.  938:  The  Car. 
bonero.  106  Fed.  329 ;  The  W.  E. 
Gladwish,  17  Blatchf.  77,  29  Fed. 
Cas.   No.   17,355- 

79.  The  Carbonero.   106  Fed.  329. 
loss  After  Towage The  loss  of 

a  barge  three  days  after  the  towage 
was  finished  must  be  proved  to  have 
been  proximately  caused  by  negli- 
gent   towage.      The    Mary,    14    Fed. 

5S4- 

Loss   of  Dredge   Towed A   libel- 

Vol.  I 


266  ADMIRALTY. 

repair  it.**"  Where  the  tug  assumed  no  risk  of  unseaworthiness. 
the  tow  which  sprung  a  leak  has  the  burden  to  prove  the  amount 
of  loss  over  what  it  would  have  been  if  due  care  had  been  lised/' 
The  owners  of  a  tow  lost  in  a  squall,  have  the' burden  to  prove 
negligence  of  the  tug  in  proceeding  before  the  squall,**-  and  if  the 
tug  was  in  charge  of  a  pilot,  it  should  have  the  benefit  of  any 
reasonablq  doubt  as  to  the  weather's  permitting  continuance. **■■ 

b.  Upon  Owners  of  Tug.  — The  owners  of  the  tug  have  the  bur- 
den to  excuse  the  stranding  of  the  vessel  towed  out  of  her  usual 
course,'*  or  the  abandoning  of  the  tow  during  a  storm,*^  or  the 
striking  of  the  tow  upon  a  rock,"'  or  unseen  obstructions  in  the 
channel,*'  and  to  prove  that  the  grounding  of  the  tow  was  in  the 
customary  channel,  and  owing  to  unusually  low  water,***  and  that 
due  care  was  exercised  by  the  tug  in  navigation.*"  The  burden  is 
upon  a  tug  which  stopped  en  route  in  breach  of  contract,  to  prove 
that  the  subsequent  loss  of  the  tow  from  springing  a  leak  and  cap- 
sizing, was  not  owing  to  such  breach,''"  and  where  a  tug  stopped 
en  route  for  good  reason,  and  the  tow  was  thereafter  injured  in  a 
squall,  the  tug  has  the  burden  to  prove  that  at  no  time  could  she 
have  resumed  the  towage  so  as  to  avoid  the  injury."^ 

8.  Salvage.  —  The  burden  is  upon  the  owner  of  a  wrecked  vessel 
to  prove  that  the  price  agreed  upon  for  salvage  was  exorbitant,  and 
was  extorted  under  unfair  circumstances,"-  and  to  prove  a  defense 
of  the  forfeiture  of  the  claim  of  salvage  by  misconduct,"^  and  to 
prove  an  alleged  agreement  to  pay  the  usual  compensation,  instead 
of  a  fixed  compensation  as  alleged  in  the  libel."'' 

9.  Seaworthiness. — A.  Presumptions. — a.  Implied  Contract. 
In  every  contract  to  carry  goods  by  sea,  an  implied  contract  of  war- 
ranty of  absolute  seaworthiness  of  the  vessel  at  the  beginning  of  the 
voyage,  is  presumetl,   in   the  absence  of  a  stipulation  to  the  con- 

lant  seeking  to  recover  the  value  of  87.     The  Ellen   .McGovern.  27  Fed. 

a    dredge    sunk   while    in    tow,   must  868. 

prove  that  the  negligence  of  the  tug  88.     The    James    H.    Brewster,    34 

caused    the    sinking.      The    Hercules,  Fed.  77. 

55    Fed.    120.  89.     The   Steamer  Wchh.   14  Wall. 

80.  Dowell  z:  The  Pa.  R.  Co.,  1.3  406;  The  Ellen  McGovern.  27  Fed. 
Blatchf.  403,  7  Fed.  Cas.  No.  4039.  868;  The  Kalkaska,  107  Fed.  959. 

81.  McCormick  v.  JarreU,  .57  Fed.  90.  Phillips  f.  The  Sarah,  38  Fed. 
380.  2^2. 

82.  The  George  L.  Garlick,  16  "91.  The  W.  E.  Cheney,  6  Ben. 
Fed.  703;  The  Frederick  E.  Ives,  25  178,  2Q  Fed.  Cas.  No.  17,344. 

Feci.   447.  92.     Connoly    r.    The    Dracona,    5 

83.  The     Frederick     E.     Ives,    25       Can.'    Ex.    146. 

Fed.   447-  93.     Pleading     and     Proof.  —  The 

84.  The  Steamer  Webb,  14  Wall.  defense  of  misconduct  must  be 
406 ;   The   Kalkaska,   107   Fed.   959.  si)ecially    pleaded     with     distinctness 

85.  The  Clematis,  i  Brown  .A.dm.  and  must  be  proved  as  alleged.  The 
499,   5   Fed.   Cas.    No.   2876.  .Me.xandra,   104  Fed.   904. 

86."   The   Belle,   8g   Fe<l.   879;   The  94.     Elphicke  v.  White  Line  Tow- 

Taurus,  91   Fed.  796.  ing   Co.,    106   Fed.   945. 

Vol.  I 


ADMIRALTY. 


267 


trary,"^  which  inchides  latent  defects  rendering  the  vessel  unsea- 
worthy,""  and  latent  defects  subsequently  discovered  rendering  the 
vessel  unseaworthy,  are  presumed  to  have  existed  when  the  voyage 
began."' 

b.  Staunchness  of  rcsscl.  —  A  vessel  is  presumed  seaworthy 
which  was  staunch  and  strong  in  the  perils  of  the  sea  for  a  con- 
siderable time,"'  and  which  is  found  seaworthy  upon  a  careful  pre- 
liminary survey  by  the  charterer.""  There  is  no  presumption  of 
unseaworthiness  from  the  breaking  of  a  crank-shaft  in  the  perils 
of  the  sea,  after  enduring  them  safely  for  many  years. "^ 

c.  hnpropcr  Manning.  —  A  vessel  not  properly  manned  is  pre- 
sumed unseaworthy."  and  the  same  presumption  follows  from  an 
incorrect  compass,  and  want  of  skill  of  the  officers  in  command.' 

d.  Leakage  and  Sinking  of  Vessel.  —  A  vessel  is  presumed 
unseaworthv  which  springs  a  leak  before  encountering  the  perils 
of  the  sea,*  or  which  capsizes  from  overloading,^  or  in  smooth 
waters  from  the  swell  of  a  steamer,"  or  which  sinks  at  her  dock. 
when  loaded,"  or  sinks  shortly  after  starting  upon  her  voyage.' 

e.  Insecure  Port  Hole.  —  A  vessel  is  presumed  unseaworthy 
if  a  port  hole  is  left  insecure  when  starting  upon  her  voyage, 
through  which  sea  water  is  admitted  ii]ion  the  cargo." 


95.  The  Edwin  I.  Morrison,  153 
U.  S.  199:  The  Caledonia,  43  Fed. 
681  ;  The  Director,  34  Fed.  57 ;  The 
Eugene  Vesta,  28  Fed.  762 ;  Bow- 
ring  I'.  Thebaud,  42  Fed.  794 ;  The 
Northern  Belle,  g  Wall.  517;  Law- 
rence V.  Minturn,  17  How.  100;  The 
Carib  Prince,  63  Fed.  266;  Kellogg 
V.  La  Crosse  etc.  Packet  Co.,  3  Biss. 
496,  14  Fed.  Cas.  No.  7663 ;  Work  v. 
Leathers.  97  U.  S.  379;  The  Rover, 
33  Fed.  515. 

96.  The  Caledonia,  1S7  U.  S.  124; 
The  Edwin  L  Morrison.  153  U.  S. 
199;  The  Carib  Prince,  6^  Fed.  266; 
Work  V.  Leathers,  97  LT.  S.  379;  The 
Rover.  3i  Fed.  515. 

97.  Work   V.    Leathers,    97   U.    S. 


37Q- 
98. 

413: 
Fed. 
667; 
Fed. 

99. 

1. 
wick 

2.  Holland  v.  725  Tons  of  Coal, 
36  Fed.  784;  The  Sarah.  2  Spr.  31, 
21  Fed.  Cas.  No.  12.338. 

3.  Bazin  '•.  Steamship  Co..  3 
Wall.  Jr.  229,  2  Fed.  Cas.  No.  1152. 

4.  Pacific  Coast  S.  S.  Co.  z:  Ban- 


The   Warren   .\daiTis,   74  Fed. 

The    Calvin    S.    Edwards,    50 

477 ;  The  Marlborough.  47  Fed. 

The    Millie    R.    Bohannon,    64 

883. 

The  Piskataqua,  3t  Fed.  622. 
The  Rover,  33  Fed.  "515;  Chad- 
-    Denniston,  41  Fed.  58 


croft- Whitney  Co.,  94  Fed.  180;  Kel- 
logg V.  La  Crosse  etc.  Packet  Co., 
3  Biss,  496,  14  Fed.  Cas.  No.  7663 ; 
The  Queen  of  the  Pacific,  75  Fed. 
74;   The  Gulnare,   42  Fed.  861. 

5.  The  Oneida,   108  Fed.  886. 

6.  The   Nord-Deutscher   Lloyd  v.  ■ 
Ins.  Co.  of  North  America,  no  Fed. 
420;    Ins.    Co.   of   North   .\merica   i'. 
North   German   Lloyd   Co.,    106   Fed. 

973- 

7.  Forbes  7'.  Merchants  E.xp.  & 
Transp.  Co.,  in  Fed.  796;  Tygert- 
Allen  Fertilizer  Co.  i'.  Hogan.  103 
Fed.  663. 

8.  The  .\rctic  Bird,   109  Fed.   167. 

9.  The  Phoenicia,  90  Fed.  116; 
Farr  &  Bailey  Mfg.  Co.  z:  Inter- 
national Nav.  Co..  98  Fed.  636. 

Failure  to  Close  Port  Holes The 

failure  to  close  port  holes  before 
sailing,  against  which  goods  are 
stored,  renders  the  vessel  unsea- 
worthy. Putnam  i'.  Manitoba.  104 
Fed.  145.  ."Mso  the  failure  to  se- 
curely fasten  them  whereby  they 
become  open,  though  accessible.  But 
if  the  glass  doors  are  fastened  and 
merely  the  iron  doors  are  left  open 
and  accessible  the  fault  is  one  merely 
of  management.  The  Silvia,  171  U. 
S.  462. 

Vol.  I 


268 


ADMIRALTY. 


B.  BcRDiiN  uK  1'kooF.  —  Where  loss  is  claimed  from  perils  of 
the  sea,  the  burden  is  upon  the  vessel  to  prove  seaworthiness  at  the 
beginning  of  the  voyage,"'  and  where  unseaworthiness  was 
excepted,  provided  due  diligence  was  used  to  make  the  vessel  sea- 
worthy, the  burden  is  upon  her  to  prove  due  diligence  and  thorough 
and  carefid  inspection." 

10.  Injury  to  Cargo.  —  A.  Presumptions.  —  a.  Negligence  of 
Vessel.  —  A  presumption  o"f  negligence  arises  from  injury  to  the 
cargo  from  a  leak  in  the  vessel, ^^  or  from  leakage  from  casks 
caused  by  interference  therewith,"  or  from  injury  by  the  gnawing 
of  rats,"  or  from  any  injury  to  goods  acknowledged  to  have  been 
received  in  good  condition."* 

b.  Care  of  Sliifiper.' — The  shipper  is  presumed  to  have  used 
proper  care  in  packing  the  damaged  goods,'"  and  it  is  presumed 
that  the  packages  were  full  when  shipped.'" 

c.  Stowage.  —  Goods  shipped  under  a  common  bill  of  lading  are 
presumed  to  be  properly  stowed  under  deck  according  to  common 
usage,'*  unless  otherwise  indicated."     The  vessel  is  presumed  negli- 


10.  The  British  King,  89  Fed. 
872.  92  Fed.  1018;  The  Thomas  Mel- 
ville, 31  Fed.  486;  The  Phoenicia,  90 
Fed.    116.   99   Fed.    1005. 

Negligence  of  Vessel The  neg- 
ligence of  the  owners  of  the  vessel 
in  failing  to  make  the  vessel  sea- 
worthy, is  not  inclnded  in  an  ex- 
ception of  perils  of  the  sea,  and  the 
vessel  has  the  burden  to  prove  that 
a  cap  and  plate  not  securely  fastened 
to  a  bilge  pump  hole  were  originally 
safe,  and  were  carried  away  by  the 
perils  of  the  sea.  The  Edwin  1. 
Morrison,    153    U.    S.    199. 

11.  The  Friesland.  104  Fed.  99. 

12.  The  Samuel  E.  Spring,  29 
Fed.  397;  Kellogg  v.  La  Crosse  etc. 
Packet  Co.,  3  Biss.  496.  14  Fed.  Cas. 
No.   7663. 

13.  The  GigHo  '■.  The  Brittannia, 
31  Fed.  432 ;  The  Newark,  I  Blatchf. 
203,  18  Fed.  Cas.  No.  10,141. 

Natural    Loss    of    Liquids The 

vessel  is  not  deemed  negligent  for 
ordinary  leakage  from  casks,  or  loss 
therefrom  by  evaporation,  or  by  fer- 
mentation and  bursting  of  the  casks. 
Nelson   f.   Woodruff,    i    Black   156. 

Breach  of  Stipulation A  ves- 
sel not  complying  with  stipulations 
is  accountable  for  leakage  resulting 
therefrom,  though  stipulated  against. 
Hunncwell  v.  T;dier,  2  Spr.  I.  12 
Fed.   Cas.    Nn.  6880. 

Injury  to  Other  Cargo —  The  ves- 
sel is  deemed  Iia1)le  for  leakage 
Vol.  I 


whicli  injures  the  cargo,  if  not 
caused  by  the  perils  of  the  seas. 
Bearse  v.  Ropes,  i  Spr.  331,  2  Fed. 
Cas.   No.   1 192. 

14.  The  Carlotta.  9  Ben.  i,  5 
Fed.  Cas.  No.  2413;  The  Isabella,  8 
Ben.  139,  14  Fed.  Cas.  No.  7099; 
Stevens  r.  The  Navigazione  Generale 
Italiana,  39  Fed.  562 ;  The  Euripides, 
71  Fed.  728;  The  Miletus,  5  Blatchf. 
335.  17  Fed.  Cas.  No.  9545;  The 
Italia,  59  Fed.  617;  The  Timor,  61 
Fed.   633. 

15.  Nelson  v.  Woodruff,  i  Black 
156,  Choate  V.  Crowninshield,  3 
Cliff.  184.  5  Fed.  Cas.  No.  2691  ;  The 
Black  Hawk,  9  Ben.  207,  3  Fed.  Cas 
No.  1469 ;  The  Isabella,  8  Ben.  139, 
14  Fed.  Cas.  No.  7099;  English  v. 
Ocean  Steam  Nav.  Co.,  2  Blatchf. 
425,  8  Fed.  Cas.  No.  4490;  The  Wil- 
liam Taber.  2  Ben.  329,  29  Fed.  Cas. 
No.  17,757;  Western  Mfg.  Co.  v. 
The  Guiding  Star,  37  Fed.  641  ;  The 
Historian,  28  Fed.  336;  Howard  v. 
Wissman,   18  How.   231. 

16.  English  V.  Ocean  Steam  Nav. 
Co.,  2  Blatchf.  425,  8- Fed.  Cas.  No. 
4490 ;  The  Moravian,  2  Hask.  157,  17 
Fed.  Cas.   No.  0789 

17.  American  Sugar  Refining  Co. 
V.  The  Euripides,  63  Fed.   140. 

18.  The  Delaware,  14  Wall.  579; 
The  Peytona,  2  Curt.  21,  19  Fed.  Cas. 
No.  11.058;  Vernard  v.  Hudson,  3 
Sum.  405,  28  Fed.  Cas.  No.  16.921. 

19.  Goods     Specially     Marked. 


ADMIRALTY. 


269 


gent  and  liable  to  loss  or  injury  to  goods  which  are  improperly 
stowed.-"  A  presumption  of  improper  stowage  is  raised  from  the 
breaking  of  packages  delivered  in  good  order.-'  But  mere  injury 
to  the  cargo  by  motion  of  the  ship  in  heavy  weather  does  not  raise 
a  presumption  that  it  resulted  from  bad  stowage. -- 

B.  Burden  of  Proof.  —  a.  Upon  Owner  of  Cargo. — The  owner 
of  cargo,  the  injury  to  which  is  prima  facie,  excused  by  the  vessel, 
has  the  burden  to  prove  that  it  might  have  been  avoided  by  rea- 
sonable care,-"'  and  that  the  negligence  of  the  vessel  caused  or  con- 
tributed to  the  injury,-''  and  to  prove  negligence  avoiding  the  effect 


Goods  liable  to  sweat  in  the  hold, 
which  are  marked  "  cabin  store- 
room," are  improperly  stored  in  the 
hold.  The  Star  of  Hope,  17  Wall. 
651. 

Goods  to  be  Stowed  on  Deck. 
Goods  properly  stowed  on  deck,  un- 
der the  terms  of  a  bill  of  lading, 
if  necessarily  jettisoned,  are  at  the 
owner's  risk.  Lawrence  v.  Mintum, 
17    How.    100. 

20.  The  Delaware,  14  Wall.  579; 
The  Star  of  Hope,  17  Wall.  651  ; 
The  Rebecca,  i  Ware  187.  20  Fed. 
Gas.  No.  11,619;  The  Paragon,  i 
Ware  326,  18  Fed.  Gas.  No.  10,708; 
The  Sloga,  10  Ben.  315,  22  Fed.  Gas. 
No.  12,955 ;  The  America,  8  Ben. 
491,  I  Fed.  Gas.  No.  283;  The  Joliet 
S.  S.  Go.  V.  Yeaton,  29  Fed.  331 ; 
The  Bergenseren,  36  Fed.  700:  Hills 
V.  Mackill,  36  Fed.  702;  The  Gloam- 
ing, 46  Fed.  671 ;  The  Maggie  M., 
30  Fed.  692;  The  Keystone,  31  Fed. 
412;  The  Bitterne,  35  Fed.  927;  The 
Nith,  36  Fed.  86,  383;  The  Johanne, 
48  Fed.  y^i ;  The  Britannia,  34  Fed. 
906;  The  Frey,  92  Fed.  667;  The 
Glide,  78  Fed.  152;  The  .'Kspasia,  79 
Fed.  91  ;  The  Earnwood,  83  Fed.  315 ; 
Paturzo  V.  Gompagnie  Francaise,  31 
Fed.  611;  The  David  v.  Caroline,  5 
Blatchf.  266,  7  Fed.  Gas.  No.  3593. 

21.  The   Burgundia,   29   Fed.   607. 

22.  The  Polynesia,  30  Fed.  210; 
The  Connanght,  32  Fed.  640. 

23.  Glark  7\  Barnwell,  12  How. 
272;  Western  Transportation  Go.  v. 
Downe,  11  Wall.  129;  Hunt  v.  The 
Cleveland,  6  McLean  76,  12  Fed. 
Gas.  No.  6885:  The  Olbers,  3  Ben. 
148,  18  Fed.  Gas.  No.  10,477;  The 
Warren  .'Xdams,  74  Fed.  413. 


24.  The  Strathdon,  89  Fed.  374; 
94  Fed.  206 ;  loi  Fed.  604 ;  Western 
Transportation  Co.  v.  Downer,  II 
Wall.  129;  Turner  v.  The  Black 
Warrior,  I  McAll.  181,  24  Fed.  Gas. 
No.  14,253 ;  The  Rocket,  i  Biss.  354, 
20  Fed.  Gas.  No.  11,975;  The  In- 
vincible, I  Low.  225,  13  Fed.  Gas. 
No.  7055 ;  The  Delhi,  4  Ben.  345,  7 
Fed.  Gas.  No.  3770;  Vaughan  v. 
630  Casks  of  Wine,  7  Ben.  506,  28 
Fed.  Gas.  No.  16,900 ;  630  Casks  of 
Sherry,  14  Blatchf.  517,  22  Fed.  Gas. 
No.  12,918;  The  Pereire,  8  Ben.  301, 
20  Fed.  Gas.  No.  10,979 ;  The  Mora- 
vian, 2  Hask.  157,  17  Fed.  Gas.  No. 
9789 ;  Hunt  V.  Cleveland,  6  McLean 
76,  12  Fed.  Gas.  No.  6885;  The 
Neptune,  6  Blatchf.  193,  17  Fed.  Gas. 
No.  10,118;  The  Montana,  17  Fed. 
377;  The  Jefferson,  31  Fed.  489;  The 
Thomas  Melville,  31  Fed.  486;  The 
Connanght,  32  Fed.  640 ;  The  Port- 
uense,  35  Fed.  670;  The  Barraconta, 
39  Fed.  288;  The  Hindoustan,  67 
Fed.  794;  The  Centurion,  68  Fed. 
382;  The  Flintshire,  69  Fed.  471; 
The  Warren  Adams.  74  Fed.  413 ; 
Crowell  V.  Union  Oil  Co.,  107  Fed. 
302 ;  The  Southwark,  108  Fed.  188. 

Doubt     as     to     Negligence The 

owner  of  the  cargo  cannot  recover 
for  injury,  if  the  cause  is  left  in 
doubt,  and  may  as  well  be  attributa- 
ble to  perils  of  the  sea  as  to  negli- 
gence. Rich  V.  Lambert,  12  How. 
347 ;  The  George  Heaton,  20  Fed. 
323. 

loss     of     Cargo    by     Fire The 

owner  of  cargo  destroyed  by  fire  has 
the  burden  to  prove  that  it  was 
caused  by  the  ship's  negligence.  New 
Jersey  Steam  Nav.  Co.  v.  Merchant's 
Bank,   6   How.   344. 


Vol.  I 


270 


ADMIRALTY 


of  a  stipulation  limiting  the  vessel's  liability.-''  and  the  effect  of  a 
deterioration  of  goods  from  natural  causes,'-"  and  to  prove  that 
damage  to  the  cargo  was  done  on  board  the  steamer,-'  and  to  prove 
that  it  was  the  result  of  bad  stowage,-*  or  of  injury  from  rats.-" 

b.  U['on  Otvncr  of  Vessel.  —  (l.)  Bill  of  Lading.  —  The  owner  of 
the  vessel  has  the  burden  to  prove  that  damage  or  loss  of  cargo 
shipped  under  a  bill  of  lading  as  being  in  good  order  and  condi- 
tion, was  from  a  cause  excepted  b>-  the  bill  of  lading,'"  or  existed 
when  the  goods  were  laden  on  board,'"  or  was  the  result  of  inherent 


25.  Excepted  Perils  of  Navigation. 
"Where  an  excepted  peril  of  navi- 
gation is  shown  prima  facie,  there  is 
no  presumption  of  neghgence  from 
injury  to  the  cargo,  and  the  burden 
of  proving  it  to  avoid  the  excep- 
tion is  upon  the  claimants  of  the 
cargo.  Western  Transportation  Co. 
V.  Downer.  12  'Wall.  129 :  Clark  v. 
Barnwell.   12  How.  272. 

Excepted  Leakage —  To  avoid  an 
exception  of  average  leakage,  the 
claimant  of  casks  of  wine,  shown  to 
be  casks  of  an  inferior  quality,  has 
the  burden  to  prove  greater  than 
average  leakage,  and  that  it  was 
owing  to  the  vessel's  negligence. 
'Vaughan  7'.  630  Casks  of  'Wine.  14 
Blatchf.  517,  22  Fed.  Cas,  No.  12,- 
918;  The  Henry  B,  Hyde.  90  Fed. 
114;  Turner  Z'.  The  Black  'Warrior, 
I  McAll.  181,  24  Fed.  Cas.  No.  14.- 
253;  Hunt  V.  The  Cleveland,  6  Mc- 
Lean 76,  12  Fed.  Cas.  No.  6885; 
The  Portuense.  35  Fed.  670:  The 
Montana,  17  Fed.  377;  The  Jefiferson, 
31  Fed.  489 ;  The  Hindoustan,  67 
Fed.  794-,  Crowell  v.  Union  Oil  Co.. 
107  Fed.  302. 

26.  Natural  Deterioration. 
Damage  to  goods  shipped  resulting 
either  from  an  intrinsic  principle  of 
decay,  or  from  the  humidity  and 
dampness  of  the  ship,  must  be  borne 
by  the  owner  of  the  goods  unless  he 
proves  that  the  damage  might  have 
been  avoided  by  reasonable  care  of 
the  ship.  Clark  T.  Barnwell.  12 
How.   281. 

Excepted  liability  for  the  deteriora- 
tion of  garlic  must  be  borne  by  the 
owner  thereof  unless  he  makes  the 
same  proof.  Tlie  Hindo\istan,  67 
Fed.  794. 


27.  The  Adriatic,  16  Blatchf. 
424,  I  Fed.  Cas.  No.  90;  The  "Vin- 
cenzo,  10  Ben.  228,  28  Fed.  Cas.  No. 
16,948;  Nelson  v.  National  S.  S.  Co., 
7  Ben.  340.  17  Fed.  Cas.  No.  10,112. 

28.  Bad  Handling.  —  The  bad 
handling  of  goods  stowed,  is  in- 
cluded in  bad  stowage.  The  Black 
Hawk,  9  Ben.  207,  3  Fed.  Cas.  No. 
1469;  Rich  V.  Lambert,  12  How. 
356;  The  America,  8  Ben.  491,  I  Fed. 
Cas.  No.  283 ;  The  Delhi,  4  Ben.  345. 
7  Fed.  Cas.  No.  3770:  Crowell  v. 
Union  Oil  Co.,  107  Fed.  302;  The 
Connaught.  32  Fed.  640;  The  Cen- 
turion, 68  Fed.  382. 

29.  The  Carlotta.  5  Fed.  Cas.  No. 
2621. 

30.  Degree  of  Proof.  —  The  ves- 
sel must  prove  clearly  beyond  a  rea- 
sonable doubt  that  the  loss  was 
caused  by  excepted  perils  of  the  sea, 
and  it  is  not  sufficient  to  prove  that 
it  might  have  been  so  caused.  The 
Compta,  4  vSawy.  375,  6  Fed.  Cas. 
No.  3069. 

ftuestions  of  Fact Whether  ex- 
cepted perils  includes  breakage  and 
leakage  in  the  violence  of  the  sea  is 
a  question  of  fact  depending  on  the 
circumstances  of  the  case.  The 
Frcy,    106   Fed.   319. 

31.  Nelson  7'.  Woodruff,   i   Black 

Iron    Injured    by    Rust Where 

iron  shipped  as  in  good  order  and 
condition  but  marked  "  rusty,"  was 
badly  corroded  with  rust  from  salt 
water  at  the  end  of  the  voyage,  the 
vessel  has  the  burden  to  prove  that 
when  received  on  board,  it  was  other- 
wise aflfected  than  by  atmospheric 
rust.     The  Nith,  .36  Fed.  86. 


Vol.  I 


ADMIRALTY. 


271 


defects,^-  and  that  the  vessel  is  not  at  fault  for  such  damage.^" 

(2.)  Stowage.  —  The  vessel  has  the  burden  to  rebut  presumed 
negligence  in  the  stowage  of  the  cargo-,^*  and  to  prove  that  the 
injury  could  not  have  been  avoided  by  reasonable  care  in  stowage."^ 


32.  Western  Mfg.  Co.  v.  Guiding 
Star,  37  Fed.  641  :  The  Olbers.  3 
Ben.   148,   18  Fed.  Cas.   No.   10,447. 

Prima    Facie    Soundness Where 

the  owner  of  a  vessel  is  committed 
to  the  prima  facie  facts  of  soundness 
and  good  condition  of  potatoes  ship- 
ped the  burden  is  on  him  to  over- 
come the  prima  facie  presumption, 
and  to  prove  that  the  potatoes  when 
loaded  on  board  were  unsound  and 
unfit  for  shipment.  The  Howard  J'. 
Wissman,    18    How.    231. 

Visible      Circumstances The 

prima  facie  evidence  arising  from 
the  shipping  of  goods  as  in  good 
order  and  condition  only  extends 
to  open  and  visible  circumstances 
and  does  not  preclude  the  vessel  from 
sustaining  the  burden  to  show  that 
the  loss  was  due  to  intrinsic  qualities 
or  the  heat  and  humidity  of  the  ves- 
sel for  which  the  vessel  was  not 
responsible.  Nelson  v.  Woodruff, 
I   Black  156. 

Contents    Unknown Where   the 

bill  of  lading  adds  to  the  shipment 
"  contents  unknown  "  any  implication 
of  admission  as  to  the  intrinsic 
qualities  of  the  article  is  excluded. 
Clark  I'.  Barnwell,  12  How.  272 ; 
The  Columbo,  3  Blatchf.  521,  6  Fed. 
Cas.  No.  3040;  The  California,  2 
Sawy.   12,  4  Fed.  Cas.  No.  2314. 

Apparent     Good     Order Where 

goods  in  packages  were  shipped  "  in 
apparent  good  order "  the  burden  is 
on  the  vessel  to  show  that  a  package 
was  in  fact  secretly  defective  or  in- 
sufficient. The  Oriflamue,  i  Sawy. 
176.   18  Fed.  Cas.   No.   10,571. 

33.  The  Maggie  M.,  30  Fed.  6q2  ; 
The  Zone,  2  Spr.  19,  30  Fed.  Cas. 
No.  18,220;  Zerega  r.  Poppe.  .^.bb. 
.■\dm.  397.  30  Fed.  Cas.  No.  18,213 ; 
The  Burgundia,  29  Fed.  607 ;  The 
Martha.  Olc.  140,  16  Fed.  Cas.  No 
9145 ;  Soule  V.  Rodocanachi.  Newb 
504,  22  Fed.   Cas.   No.   13,178. 

Broken    Cask    of    Wine Where 

a  cask  of  wine  shipped  as  in  good 
order  was  broken  the  vessel  must 
show     that     the     damage     was     not 


caused  by  its  negligence.  The  Black 
Hawk,  9  Ben.  207,  3  Fed.  Cas.   No. 

14(19- 
Goods      Properly       Packed The 

vessel  must  show  that  goods  prop- 
erly packed  were  not  damaged  by  its 
fault.     The  Historian,  28  Fed.  336. 

Damage  Upon  Ordinary  Voyage. 
The  burden  is  upon  the  vessel  to 
sliow  that  goods  damaged  upon  an 
ordinary  voyage  were  not  damaged 
by  its  negligence.  The  Wilhelmina, 
3  Ben.   no,  29  Fed.  Cas.   No.   17,658. 

Damage  From  Rats —  Damage 
from  rats  is  not  included  in  ex- 
cepted perils  of  the  sea,  and  the 
burden  is  upon  the  owner  of  the 
vessel  to  rebut  presumed  negligence 
from  such  damage.  Stevens  i'.  Navi- 
gazione  Generale  ItaHana,  39  Fed. 
562. 

34.  The  Maggie  M.,  30  Fed.  692 ; 
The  Black  Hawk,  9  Ben.  207,  3  Fed. 
Cas.  No.  1469;  The  Burgundia,  29 
Fed.  607. 

Stowage  of  Salt  Over  Iron The 

stowage  of  salt  over  iron  around  the 
main  mast,  without  drainage  away 
from  it  is  presumed  negligence,  which 
the  vessel  must  overcome  by  proof 
that  the  iron  was  injured  by  rust 
otherwise  than  by  such  salt  mi.xed 
with  sea  water  which  broke  down 
the  mast  coat  during  the  storm  and 
burst  in  upon  the  salt  and  iron.  The 
Nith,   36   Fed.   86. 

Precaution      in     Stowage Goods 

injured  from  mere  "blowing"  upon 
an  ordinary  voyage  are  presumed  to 
have  been  negligently  stowed  and 
the  burden  is  upon  the  vessel  to 
prove  otherwise  and  that  proper 
precautions  were  taken  to  avoid  the 
danger.  The  Wilhelmina,  3  Ben. 
no,  29  Fed.   Cas.   No.   17,658. 

35.  Oil  Stowed  Over  Cork. 
Where  oil  barrels  stowed  over  cork 
bales  got  adrift  in  heavy  weather  and 
being  thereby  smashed  injured  the 
cork,  the  burden  is  on  the  vessel  to 
prove  that  reasonable  care  in  storing 
the    cargo    could    not    have    avoided 

Vol.  I 


272 


ADMIRALTY. 


(3.)  Baggage.  —  The  owners  of  a  vessel  carrying  passengers  have 
the  burden  to  prove  that  injury  to  baggage  resulted  wholly  from 
inevitable  accident,^"  and  that  baggage  damaged  in  a  storm  was 
properly  stowed.^' 

(4.)  Incompetent  Master. —  The  owners  of  the  vessel  have  the  bur- 
den to  prove  diligence  in  the  employment  of  an  incompetent  master 
by  whose  incompetent  management  the  cargo  was  injured.^* 

(5.)  Shortage  in  Cargo  Delivered.  —  The  burden  is  upon  the  vessel 
to  explain  a  short  delivery  of  cargo  under  a  bill  of  lading  specifying 
a  greater  amount,  and  to  show  that  it  delivered  all  that  it  received  f^ 
but  it  is  upon  the  shipper  or  owner  of  the  cargo  to  prove  the  delivery 
of  the  greater  amount  to  the  vessel  if  no  bill  of  lading  was  taken/"  or 
if  it  specifies  that  the  (juantit)',  number  or  weight  is  unknown/'  and 


the  injury.  The  Maggie  M.,  30  Fed. 
692. 

36.  Inevitable  Accident.  —  In 
order  to  prove  inevitable  accident  it 
must  be  shown  that  the  injury  could 
not  have  been  prevented  by  any 
human  efforts,  sagacity  and  care. 
The  Majestic,  166  U.  S.  375;  Dibble 
V.  Morgan,  i  Woods  406,  7  Fed.  Cas. 
No.  3881. 

37.  Drifting  of  Baggage.—Where 
baggage  got  adrift  in  a  severe  gale 
and  was  thereby  damaged  the  burden 
is  upon  the  ship  owner  to  prove  that 
it  was  properly  stowed  in  order  to 
avail  himself  of  excepted  perils  of 
the    sea.      The    Kensington,   88    Fed. 

331. 

38.  Burden      Not      Sustained. 

Such  burden  is  not  sustained,  but 
the  owners  of  the  vessel  must  be 
deemed  negligent  toward  the  owners 
of  the  cargo,  where  it  appears  that 
they  Iiave  employed  a  master  of  such 
intemperate  habits  and  so  addicted 
to  into.xication,  as  to  render  him  un- 
fit for  his  position  without  exercising 
due  diligence  in  such  employment. 
The  Guild   Hall,  58  Fed.  796. 

39.  Alanchester  v.  Milne,  -A-bb. 
Adm.  115,  16  Fed.  Cas.  No.  9006; 
The  J.  W.  Brown,  i  Biss.  76,  14  Fed. 
Cas.  No.  7590;  Brouty  i'.  5346 
Bundles  of  Staves,  21    Fed.   SQO. 

Degree  of  Proof. —  The  proof  of 
mistake  in  quantity  should  be  clear 
and  unquestionable  to  rebut  the  evi- 
dence afforded  by  the  bill  of  lading. 
Goodrich  v.  Norris,  Abb.  ."Hdm.  196, 
10  Fed.   Cas.   No.   5545. 

Weighing  Done  by  Ships.  —  Where 
the  ships  did  the  weighing,  the  vessel 

Vol.  I 


is  exonerated  by  proof  that  it  de- 
livered to  the  consignee,  all  that  it 
received  from  the  shipper.  Hopkins 
V.  Wood,  12  "Fed.  Cas.  No.  6693. 

Estoppel  of  Vessel. —  The  vessel 
is  not  ordinarily  estopped  as  against 
the  shipper  to  contradict  the  weights 
and  quantities  specified  in  the  bill 
of  lading,  and  it  cannot  be  estopped 
to  show  that  no  cargo  was  delivered 
under  the  bill  of  lading.  Pollard  v. 
Vinton,  105  U.  S.  7 ;  The  Freeman  v. 
Buckingham,  18  How.  182 ;  The  Lady 
Franklin,  8  Wall.  325;  The  Sutton 
V.  Kettell,  I  Spr.  309,  23  Fed.  Cas. 
No.  13,647 ;  Adams  v.  The  Pilgrim, 
I  Ohio  Dec.  477. 

Clean    Bill    of    Lading A    clean 

bill  of  lading  for  a  specified  quan- 
tity or  which  expressly  specifies  that 
any  deficiency  is  to  be  paid  for  by 
the  vessel,  cannot  be,  avoided  by 
proof  of  delivery  of  a  less  quantity 
as  being  all  that  was  received. 
Merrick  v.  19,514  Bushels  of  Wheat, 
3  Fed.  340 ;  Sawyer  z:  Cleveland  Iron 
Min.  Co.,  69  Fed.  211;  Creighton  v. 
George's  Creek,  6  Fed.  Cas.  No. 
3382. 

40.  Manning  z'.  Hoover,  Abb. 
Adm.  188,   16  Fed.  Cas.  No.  9044. 

41.  Unknown       Particulars In 

an  action  for  a  short  delivery  of 
cargo,  where  it  a])pears  that  the  ves- 
sel delivered  all  that  it  received,  the 
amount  shipped  must  be  shown  by 
the  claimant  where  the  bill  of  lading 
specifies  "  quantity  and  qualitv  un- 
known "  or  "  weight  and  quality  un- 
known "  or  "  weight,  contents  and 
value  unknown,"  or  "  weight  un- 
known,"  or   that   the   vessel    is   "  not 


ADMIRALTY. 


273 


to  ^liow  the  value  of  goods  not  delivered/- 

(6.)  Delivery  of  Cargo.  —  The  shijiper  suing  for  non-deHvery  of 
cargo  must  prove  it,^''  whereupon  the  burden  is  upon  the  vessel  to 
show  delivery,''*  or  to  excuse  a  failure  to  deliver  it  to  the  con- 
signee,^^ and  to  show  that  a  missing  part  was  placed  upon  a  wharf 
where  his  goods  were  kept,*"  and  that  notice  was  given  to  the  con- 


accoimtable  for  mmibers  or  weiglU." 
Abbott  V.  The  National  S.  S.  Co., 
33  Fed.  895 ;  Eaton  v.  Neiimark. 
33  Fed.  891,  37  Fed.  375;  Cani- 
'part  V.  The  Prior,  2  Fed.  819;  The 
Pietro  G.,  38  Fed.  148;  The  Ismaele, 
14  Fed.  491  ;  The  Qiierini  Stam- 
phalia,  ig  Fed.  123 ;  Tlie  Fern 
Holme,  24  Fed.   502. 

Presumptive  Liability  Removed. 
By  snch  clauses  the  presumptive  lia- 
bility of  the  vessel  for  a  short  de- 
livery of  an  amount  stated  in  the 
bill  of  lading  is  removed  and  a  short 
delivery  cannot  be  claimed  under 
proof  by  the  vessel  of  complete  de- 
livery of  what  was  received  in  the 
absence  of  further  proof  than  the 
amount  stated  in  the  bill  of  lading 
or  in  a  weigh-master's  certificate; 
and  where  different  weights  are  put 
in  evidence  the  greater  cannot  be 
adopted  without  preponderating 
proof.  Eaton  v.  Neumark,  3?  Fed. 
891;  Abbott  V.  National  S.  S.  Co., 
33  Fed.  895;  Pietro  G.,  38  Fed.  148; 
The  Qnerini  Stamphalia.  19  Fed. 
123;  The  Ismaele,   14  Fed.  491. 

Burden     on      Consignee Under 

such  clauses  the  burden  is  on  con- 
signee claiming  a  short  delivery  to 
prove  that  the  missing  quantity  was 
abstracted  by  the  vessel  and  to  prove 
that  an  increased  shortage  in  de- 
livery of  goods  separated  by  its 
agents  from  those  of  another  con- 
signee, who  received  an  increase  of 
the  amount  shipped  was  owing  to 
the  fault  of  the  vessel.  Eaton  v. 
Neumark.  37  Fed.  373;  The  Ismaele. 
14  Fed.  491. 

Proof  of  Shortage.  —  Under  such 
a  clause  it  will  require  more  than 
the  proof  that  a  weigher  found  some 
of  a  specified  number  of  bags  of 
canary  seeds  shipped  a  few  pounds 
short  in  weight  to  establish  respon- 
sibility for  shortage.  The  Fern 
Holme,  24  Fed.   502. 

Bona   Fide   Purchaser.  —  The   ves- 

18 


sel  may  under  such  a  clause  clear 
itself  of  a  short  delivery  of  a  par- 
ticular number  and  weight  stated  by 
proof  of  complete  delivery  of  the 
amount  shipped  even  as  against  a 
bona  tide  purchaser  of  the  bill  of 
lading. 

42.  Seller  v.  The  Pacific.  Deady 
17.  21   Fed.  Cas.   No.    12.644. 

43.  Alternate  Consignees Under 

a  bill  of  lading  specifying  delivery 
to  either  one  of  two  persons  the 
shipper  must  give  some  evidence 
showing  that  no  delivery  was  made 
to  either  of  them,  and  proof  of  non- 
delivery to  one  of  them  is  not  suffi- 
cient. The  Falcon,  3  Blatchf.  64,  8 
Fed.   Cas.   No.  4617. 

44.  Burden,    How    Cast Slight 

evidence  of  non-delivery  will  cast 
the  burden  on  the  vessel  to  prove 
delivery.  The  Falcon,  3  Blatchf.  64, 
8   Fed.    Cas.    No.   4617. 

45.  Delivery  to  True  Owner. 
The  vessel  may  show  as  an  excuse 
for  non-delivery  to  the  consignee 
that  the  goods  were  delivered  to  the 
true    owner.      The    Idaho,   93    U.    S. 

575- 

Absence  of  Excuse It  is  no  ex- 
cuse for  a  delivery  by  the  vessel 
to  the  wrong  person  where  the  bill 
of  lading  stipulated  for  delivery  to 
order  and  was  not  produced.  The 
Thames.   14  Wall.  98. 

A  Mis-delivery  by  the  vessel  is 
not  excused  though  made  by  mistake 
or  imposition.  The  Santee,  2  Ben. 
519,  21  Fed.  Cas.  No.  12.328;  7 
Blatchf.  186.  21  Fed.  Cas.  No.  12.- 
330 ;  The  Huntress,  2  Ware  89,  12 
Fed.  Cas.  No.  6914. 

46.  Carry  v.  Atkins,  6  Ben.  562, 
5  Fed.  Cas.  No.  2399. 

Reception  of  Goods  at  Wharf. 
A  consignee  who  received  the  goods 
from  the  vessel  at  the  wharf,  without 
qualification  or  reservation,  upon 
proof  by  the  vessel  of  due  care 
and  delivery  of  all  in  its  possession. 

Vol.  I 


;74 


ADMIRALTY. 


sigiiee  of  the  place  of  delivery/'  or  that  it  was  excused  hy  usages 
and  circumstances,'"*  and  to  prove  usages  atfecting  the  delivery,'"*  or 
that  the  vessel  acted  inider  the  consignee's  directions,-''"  and  to 
establish  an  agreed  day  for  delivery.^' 

11.  Personal  Injuries. — A.  Assault.  —  The  burden  is  on  the 
master  to  justify  an  assault  and  battery  committed  upon  a  seaman,"^- 
but-  is  upon  a  seaman  suing  a  vessel  for  an  assault  by  the  master 
to  prove  that  the  master  was  acting  within  the  scope  of  his  duty  f^ 
and  to  prove  that  an  assault  by  the  master  by  way  of  punishment 
for  his  fault  was  excessive  in  degree,  or  unlawful  in  its  kind."'' 
The  burden  is  upon  a  father  who  sues  for  an  assault  upon  his 
minor  child  upon  the  high  seas,  to  prove  actual  damage,  or  what 
is  such  by  intendment  of  law.''" 

B.  Negligence.  —  The  burden  is  on  the  vessel  to  prove  that 
injury  to  a  stevedore  from  fall  of  an  insecure  stanchion  was  not 
occasioned  by  its  negligence,'*"  and  to  show  in  case  of  injury  to  a 
longshoreman  from  falling  on  a  dark  night  through  an  unlighted 
hatch,  in  the  path  to  the  bunkers,  that  he  customarily  left  the 
hatches  open  on  dark  nights  without  a  light. '^^     The  burden  is  upon 


has  tlie  burden  to  prove  that  a  sub- 
sequenlly  discovered  deficiency  was 
chargeable  to  the  wrongful  acts  of 
the  vessel.  McCready  v.  Holmes. 
15'  Fed.   Cas.   No.  8733. 

47.  The  Prince  Albert,  5  Ben. 
386,  19  Fed.  Cas.  No.  11.426. 

48.  The  Mary  Washington,  Chase 
125,   16  Fed.   Cas.   No.  9229. 

Notorious    IJsage A     usage     or 

custom  to  excuse  notice  must  be 
known  to  the  shipper  and  must  be 
clear  and  notorious.  Howe  v.  Lex- 
ington.  12  Fed.  Cas.    No.  6-6ys.. 

Ignorance  of  Names  of  Consignees. 
A  master  of  a  vessel  who  has  wrong- 
fully omitted  to  sign  bills  of  lading, 
and  sailed  without  learning  the 
names  of  the  consignees  cannot  ex- 
cuse notice  to  them  of  the  landing 
of  the  goods.  The  Peytona,  2  Curl. 
21.  19  Fed.  Cas.  No.   11.058. 

49.  Usages  of  Place  of  Delivery. 
Contracts  for  the  delivery  of  cargo 
are  presumed  to  have  been  made 
with  reference  to  the  reasonable 
usages  of  the  place  of  delivery.  The 
Richmond,  i  Biss.  49.  20  Fed.  Cas. 
No.  11,796;  Field  v.  Lovctt  Peacock, 
9  Fed.  Cas.  No.  4768 ;  Irzo  v.  Perkins, 
TO  Fed.  779;  The  .Mill  Boy,  13  Fed. 
181  ;  The  Grafton.  OIc.  4.^  10  Fed. 
Cas.    No.    5656;    I     Blatchf.    173.    lO 

Vol.  I 


Fed.  Cas.  No.  5657;  Bradstreet  v. 
Heran,  Abb.  Adm.  209,  3  Fed.  Cas. 
No.  10.792;  The  Boston,  i  Low.  464, 
•?  Fed.  Cas.  No.  1671  ;  Higgins  v. 
U.  S.  Mail  S.  S.  Co.,  3  Blatchf.  282, 
12  Fed.  Cas,  No.  6469;  Devato  z>. 
823   Barrels    Phimliago,  20   Fed.   510. 

50.  The    Staincliffe.    15    Fed.    350. 

51.  Petrie  v.  Heller,  35  Fed.  310. 

52.  Treadwell  "'.  Joseph,  i  Suin. 
390,  24  Fed.  Cas.   No.  14,157. 

53.  Spencer  v.  Kellev,  ^2  Fed. 
838. 

54.  Carleton  v.  Davis.  2  Ware 
225,  5  Fed  Cas.  No.  241 1;  Stout  v. 
Weedin,  95  Fed.   looi. 

55.  Plummer  ;■.  Webb,  i  Ware 
75.  19  Fed.  Cas.  No.   11.234. 

56.  Failure  to  Inspect  Stanchion. 
In  the  absence  of  evidence  of  care 
to  inspect  the  stanchion,  the  fasten- 
ings of  which  were  insecure,  for 
injury  to  the  stevedore  from  its  un- 
expected fall,  he  being  ignorant  of 
the  insecurity,  the  vessel  is  respon- 
sible. Tlie  William  Branfoot.  48 
Fed.  914. 

57.  TJnlighted       Lanterns The 

ship  is  rcs]>onsible  for  the  unlighted 
condition  of  the  passage-way  while 
coaling,  although  supplying  lanterns, 
without  using  care  to  see  that  they 
were  lighted.  The  Saratoga,  87 
Fed.  349. 


ADMIRALTY. 


275 


a  person  injured  by  a  tug  in  freeing  Ijarges  for  tow,  to  sliow  the 
negligence  of  the  tug/*'  and  is  upon  a  laborer  eniploj-ed  in  stowing 
cotton  in  the  hold  of  a  ship,  injured  by  the  rolling  against  him  of 
bales  of  cotton  lowered  by  the  winchman.  to  prove  the  incom- 
petence or  gross  negligence  of  the  winchman  in  order  to  charge 
the  shi])  for  the  injury. ■'■'  A  libellant  suing  for  negligence  does  not 
have  the  burden  to  ])rove  his  freedom  from  contributory  fault.'"'" 

IV.  JUDICIAL  NOTICE. 

1.  Laws  and  Regulations.  — Courts  of  admiralty  will  take  judicial 
notice  of  regulations  of  the  light-house  board  made  upon  authority 
of  an  act  of  Congress,"'  and  that  laws  of  the  sea  have  been  recog- 
ni;:ed  and  acquiesced  in  by  the  jirincipal  commercial  states  of  the 
world,''-  and  that  a  rule  of  international  law  exempts  fishing  vessels 
from  capture  as  prize,  in  the  absence  of  a  treaty  or  public  act  of  the 
government  :'•■'  the  supreme  court  will  take  judicial  notice  of  a 
treaty,  in  pursuance  of  which  a  decree  in  admiralty,  correct  when 
made,  will  be  reversed  and  restoration  decreed  as  provided  in  the 
treaty:"*  but. an  appellate  court  will  not  take  judicial  notice  of  a 
rule  of  supervising  inspectors,  which  the  lower  court  held  to  have 
been  violated.*"  A  foreign  statute  caimot  be  judicially  noticed,"" 
but  must  be  offered  in  evidence  and  be  made  part  of  the  record 
upon  appeal."' 


58.  Burden  Not  Sustained The 

Imrdeii  is  not  sustained  when  the 
testimony  of  the  tug's  crew  leaves 
the  evidence  equally  credible  on  liotli 
Mdes.     The  Meta.  88  Fed.  2i. 

59.  Incompetence  of  Winchman. 
Tlie  incompetence  of  a  winchman 
whose  duties  required  skill  cannot 
relieve  a  ship-owner  from  liability 
for  the  injury  on  the  ground  that  he 
was  a  fellow-servant  where  the  ship- 
owner did  not  use  reasonable  care 
to  provide  a  skillful  winchman. 
The  Anaces,  96  Fed.  856. 

60.  The  Frank  and  Willie,  45 
Fed.  494. 

61.  Rules  Prescribing  Lights. 
Rules  prescribing  the  number  and 
kinds  of  lights  to  be  placed  on  the 
draws  of  bridges  across  navigable 
streams  were  iudicially  noticed, 
though  not  pleaded  nor  ofifered  in 
evidence.  Smith  v.  City  of  Shako- 
pee.   103   Fed.   240. 

62.  Recognition  of  Historical 
Fact.  —  Tliis  is  only  a  recognition  of 
the  historical  fact  that,  by  common 
consent  of  mankind  these  rules  have 
been  acquiesced  in  as  of  general  ob- 


servation ;  the  law  of  nations  may  be 
judicially  noticed  and  need  not  be 
proved  as  facts.  Sears  r'.  The  Sco- 
tia,   14   Wall.    170. 

63.  Works       of       Jurists The 

works  of  jurists  and  commentators 
on  international  law  are  resorted  to 
by  the  courts  for  trustworthy  evi- 
dence of  what  that  law  really  is. 
The  Paquete  TIabana.  175  U.  S.  677. 

64.  Treaty    Affecting    Rights    of 

Parties A  treaty  is  the  law  of  the 

land,  and  where  it  affects  the  rights 
of  parties  litigating  in  court,  the 
treaty  binds  those  rights  and  is  as 
much  to  be  regarded  by  the  court  as 
an  act  of  Congress,  and  a  vessel 
cannot  be  condemned,  the  restora- 
tion of  which  is  directed  by  the 
treaty.     The    Peggv,    I    Cranch    103. 

65."    The   Clara,   SS   Fed.    102. 

66.  Sears  •;■.  The  Scotia.   14  Wall. 
170;   The   New   York,  82  Fed.   81Q. 

67.  Insufficient  Certiiicate The 

statement  of  the  clerk  that  a  foreign 
statute  returned  upon  appeal  is  a 
correct  copy  of  the  statute  as  pub- 
lished without  any  showing  that  it 
was    made    part    of    the    record    by 

Vol.  I 


276 


ADMIRALTY. 


2.  Notorious  Facts. — The  courts  will  take  judicial  notice  of  the 
notorious  course  of  travel  between  a  neutral  port  and  blockadetl 
ports,"**  and  that  certain  persons  have  been  notoriously  engaged  in 
violating  a  blockade;""  they  will  take  judicial  notice  of  historical 
facts,  and  consult  public  documents  and  histories  in  determining 
such  facts."  They  will  take  notice  that  American  gold  coin  became 
an  article  of  merchandise  and  traffic.'^ 

3.  Navigable  Waters. — Courts  of  admiralty  will  take  judicial 
notice  that  the  waters  on  which  a  maritime  contract  is  to  be  per- 
formed are  navigable,'"  and  that  the  yachting  season  in  northern 
waters  ends  before  the  first  of  November."" 

.4.  Lease  of  Vessel. — Judicial  notice  will  be  taken  that,  under  a 
lease  of  a  sailing  vessel  for  ninety-nine  years,  the  vessel  will  have 
fallen  apart,  and  that  the  owner  will  be  dead  before  the  expiration 
of  the  term.'^ 

5.  Location  of  Places.  —  Upon  a  libel  against  a  ferry-boat  cross- 
ing East  River  from  Astoria  to  New  York,  the  court  will  judicially 
notice  that  Astoria  is  on  Long  Island,  and  that  its  inhaliilants  have 
commercial  relations  with  other  states."^  The  court  will  judicially 
notice  the  situation  of  a  town  in  a  foreign  country  which  lies  at  the 
mouth  of  the  river  wdiere  a  bar  exists  which  the  vessel  in  suit 
could  not  cross.'" 

6.  Showing  of  Facts  Judicially  Noticed.  —  The  claimant  of  a  lien 
for  wages  may  bring  tiefore  the  court  facts  judicially  known,  which 
do  not  appear  in  the  libel,  in  an  allegation  attached  to  exceptions."" 


being  offered  and  received  in  evi- 
dence will  not  entitle  it  to  be  con- 
sidered. The  New  York,  82  Fed. 
819. 

b8.  The  Mersey,  Blatchf.  Pr.  Cas. 
187,  17  Fed.  Cas.  No.  9489;  The 
William  H.  Northrup,  Blatchf.  Pr. 
Cas.  23s.  29  Fed.  Cas.  No.  17,696; 
The  Stephen  Hart,  Blatchf.  Pr.  Cas, 
387,  22  Fed.  Cas.  No.  n.,364 :  The 
Peterhoff,  Blatchf.  Pr.  Cas.  463.  19 
Fed.  Cas.  No.   11.024. 

69.  The  Minna,  Blatchf.  Pr.  Cas. 
333.  17  Fed.  Cas.  No.  9634. 

70.  U.  S.  V.  1500  Bales  of  Cot- 
ton, 27  Fed.   Cas.   No.   15.958. 

71.  Current  History. —The  court 
in  1868  took  judicial  notice  of  the 
fact  that  gold  coin  was  no  longer 
used  as  money  in  the  business  of  the 
country,  but  had  become  an  article 
of  merchandise  and  traffic.  U.  S.  t'. 
American  Gold  Coin,  i  Woolw.  217, 
24  Fed.   Cas.    No.   14,439. 

72.  Lands  t'.  Cargo,  etc.  of  Coal, 
4  Fed.  478;  King  t.  .-Xmerican 
Transp.  Co.,  i  Flip.  i.  14  Fed.  Cas. 
No.  7787. 

Vol.  I 


73.  Demurrage.  —  The  allowance 
of  demurrage  after  the  close  of  the 
yachting  season,  of  which  the  court 
takes  judicial  notice,  without  any 
proof  of  any  use  of  the  vessel  there- 
after, is  improper.  The  Conqueror, 
166  U.  S.  no. 

74.  The  Cygnet.  66  Fed.   349. 

75.  Commerce  With  Ferry-Boats. 
The  court  will  judicially  notice  that 
commerce  is  there  carried  on  with 
other  states  by  means  of  the  ferry- 
boats ;  and  proof  that  a  ferry-boat 
from  Astoria  to  New  York  was 
ready  to  carry  all  passengers  and 
freight  that  might  offer,  was  suffi- 
cient to  throw  upon  the  ferry-boat 
the  burden  of  proving  that  they 
were  not  destined  for  otlier  states, 
in  order  to  avoid  the  provisions  of 
the  steamboat  act  re(|uiring  her 
boiler  to  be  inspected.  The  Sunds- 
wick,  6  Ben.  112,  23  Fed.  Cas.  No. 
13.624. 

76.  The  Peterhoff,  Blatchf.  Pr. 
Cas.  463,  19  Fed.  Cas.  No.   11,024. 

77.  The   Seminole,  42  Fed.  924. 


ADMIRALTY 


277 


V.   COMPETENCY  OF  WITNESSES. 

1.  Incompetency. — A;  Co.mmox  Law  Rule.  —  In  the  absence 
of  an  act  of  Congress  altering  the  rule  of  the  common  law,  wit- 
nesses who  were  incompetent  to  testif}'  at  common  law  are  held 
incompetent  in  the  instance  court  of  admiralty.^*  Interested  wit- 
nesses are  excluded  excepting  in  cases  of  necessity,  and  state  laws 
allowing  the  party  to  testify  are  inapplicable.'"  The  master  of  a 
vessel  is  incompetent  to  prove  any  matter  of  defense  which  origi- 
nated in  his  own  acts  for  which  he  was  responsible,*"  and  is  not 
competent  to  prove  that  a  medicine-chest  was  on  board  the  vessel 
for  the  purpose  of  throwing  the  expense  of  medical  advice  on  a 
seaman.'^ 

B.  W'ainek  oE  Objectiox.  —  The  court  will  receive  the  testi- 
mony of  the  libellants,  if  not  objected  to  by  the  respondents,'*"  and 
an  objection  that  a  witness  w-as  interested  cannot  be  made  after 
the  hearing.*"  A  libellant  who,  upon  the  taking  of  a  deposition, 
cross-examined  the  witness  and  read  the  cross-examination  in  sup- 
port of  the  libel,  cannot  afterward  object  to  the  competency  of  his 
testimony  in  chief  for  the  claimants  of  the  libelled  vessel.** 

2.  Competent  Witnesses.  —  .\.  Parties.  —  An  interested  party 
may  be  examined  upon  interrogatories,  upon  demand  of  the  adverse 
party. *^  Seamen  having  a  common  interest  in  the  litigation  may 
testifv  for  each  other,*''  and  the  testimony  of  joint  libellants  in  an 


78.  Testimony    of    Parties.  —  The 

testimony  of  parties  to  a  suit  sliould 
1)e  taken  nnder  a  special  order  of 
tlie  court  showing  the  cause,  so  that, 
in  the  order,  the  court  may  restrict 
tlie  inquiries  within  the  exceptions 
to  the  rule  which  renders  parties  in- 
competent witnesses.  The  Boston,  i 
Sum.  328,  3  Fed.  Cas.  No.   1673. 

Rules     of     Evidence Admiralty 

courts  are  governed  by  the  same 
rules  of  evidence  as  common  law 
courts,  as  respects  the  competency 
of  witnesses,  where  justice  does  not 
require  a  different  rule.  The  J.  F. 
Spencer,  3  Ben.  337.  13  Fed.  Cas.  No. 

7315- 

79.  The  Independence.  2  Curt. 
350.  13  Fed.  Cas.  No.  7014:  The 
.■\ustralia,  3  Ware  240.  2  Fed.  Cas, 
No.  667;  The  William  Jarvis.  i  Spr. 
485,  2g  Fed.  Cas.  No.  17.697. 

80.  The  William  Harris,  i  Ware 
.^73.   29   Fed.    Cas.    Nn.    17,695. 

Forfeiture     for     Misconduct The 

master  of  the  vessel  is  not  a  compe- 
tent witness  upon  an  information  in 
rem  for  a  forfeiture  occasioned  by 
his  misconduct.  The  Hope.  2  Gall. 
48,  12  Fed.  Cas.  No.  6678. 


Lost    or    Damaged    Goods hi    a 

suit  ill  rem  against  the  vessel  for  the 
value  of  lost  or  damaged  goods, 
the  master  is  an  interested  and  in- 
competent witness,  unless  made  com- 
petent by  release.  The  Peytona,  2 
Curt.  21,   19  Fed,   Cas,   No.   11,058, 

81.  The  William  Harris,  i  Ware 
373,  29  Fed,   Cas.   No.   17,695, 

82.  Ferrara  v.  The  Talent,  Crabbe 
216,  8  Fed.  Cas.  No.  4745. 

83.  Nelson  v.  Woodruff,  i  Blatchf. 
156. 

84.  The  Osceola,  01c.  450,  18 
Fed,   Cas,   No,    10,602, 

85.  The  Australia,  3  Ware  240,  2 
Fed,  Cas,  No,  667;  Gammell  v.  Skin- 
ner, 2  Gall,  45,  9  Fed,  Cas,  No. 
5210;  The  David  Pratt,  I  Ware 
509,  7  Fed.  Cas,  No,  3597 ;  Cush- 
man  v.  Rvan,  i  Story  91,  6  Fed.  Cas. 
No,  3515-;  The  L.  B,  Goldsmith, 
Newd).  .A.dm,  123,  15'  Fed,  Cas,  No. 
8152;    The   Serapis,   i7   Fed.   436. 

86.  Question  of  Credibility. — The 
only  question,  in  such  case,  is  as  to 
the  credibility  of  the  witnesses,  and 
not  as  to  their  competency.  The 
Elizabeth  v.  Rickers.  2  Paine  291,  8 
Fed.  Cas.  No,  4353, 

Vol,  I 


278 


ADMIRALTY. 


action  in  rem  is  admissible,  one  for  the  other.'*'  Parties  are  ren- 
dered competent  by  permission  of  the  court  to  strike  their  names 
oflf  as  parties  to  the  action  in  order  that  they  may  testify  where 
good  cause  is  shown  therefor;'*'*  and  parties  generally  are  rendered 
competent  to  testify  in  admiralty  cases  by  the  act  of  Congress  of 
July  12,  1864,  giving  parties  such  right  in  civil  actions/^''  In 
courts  of  prize,  no  person  is  incompetent  to  testify,  merely  on  the 
ground  of  interest."" 

B.  Master  of  A'essel.  —  The  master  of  a  vessel  is  rendered 
competent  to  testify  where  his  interest  in  the  event  of  the  litigation 
is  released, ''^  and  is  a  competent  witness  for  the  owner  of  the  vessel 
in  a  suit  /))  inn  for  wages,"-  and  the  master  and  crew  are  compe- 
tent witnesses  for  the  owner  of  a  vessel  in  case  of  collision. "■'  The 
master  is  a  competent  witness  for  the  owners  in  a  suit  for  contribu- 
tion by  way  of  general  average,  for  loss  of  the  mast,  sails  and 
rigging  of  the  vessel  sacrificed  for  the  common  benefit  of  ship. 
cargo  and  freight,"^  and  also  in  a  suit  by  the  owners  of  the  vessel 
against  the  shippers  of  cargo  for  freight,  where  the  defense  is  that 
the  cargo  was  never  delivered  to  consignee. '■'■'' 

C.  Other  Persons.  —  An  officer  who  aided  in  a  seizure  for  vio- 
lation of  the  revenue  laws,  is  a  competent  witness  for  the  govern- 


87.  Scrutiny   of   Evidence Sucli 

testiniDiiy,  though  legally  admissible, 
ought  to  be  narrowly  scrutinized, 
and  received  with  great  caution. 
Graham  v.  Hoskins,  01c.  224,  10 
Fed.  Cas.  No.  5669;  The  Swallow, 
01c.  334,  23  Fed.  Cas.  No.   13.665. 

88.  The  Osceola,  01c.  450,  18  Fed. 
Cas.    No.    10,602. 

89.  Definition.  —  The  phrase 
"  civil  action,"  as  used  in  the  stat- 
ute, includes  all  judicial  controver- 
sies in  which  rights  of  property  are 
involved,  and  extends  to  the  trial  of 
a  seizure  of  property  for  the  viola- 
tion of  the  internal  revenue  laws, 
and  the  claimant  of  the  property  is 
a  competent  witness  in  his  own  he- 
half.  U.  S.  V.  Cigars,  Woolw.  123, 
28  Fed.   Cas.   No,   16.451. 

90.  Common  Law  Doctrine  Not 
Applied — It  is  a  mistake  to  suppose 
that  the  common  law  doctrine  as  to 
competency,  is  applicable  to  prize 
proceedings.  The  testimony  of  in- 
terested persons  is  admissible,  sub- 
ject to  all  exceptions  as  to  its  credi- 
bility.   The   Anne.   3   Wheat.   43.';- 

91.  Bottomry  Bond The  mas- 
ter of  a  vessel  wlio  gave  a  bottomry 
bond,  is  a  competent  witness  for  the 
owner    of    the    bond,    particularly    if 


released  by  him.  The  Medora,  I 
Spr.  138,  16  Fed.  Cas.  No.  9,391  : 
Furniss  v.  Magonn,  Olc.  55.  q  Fed. 
Cas.   No.   5163. 

Release  by  Some  Part  Owners .\ 

release  of  the  master  made  by  some 
of  the  part  owners  of  lost  or  dam- 
aged goods  will  render  him  compe- 
tent to  testify  in  a  suit  tn  rem  to 
recover  their  value.  The  Peytona.  2 
Curt.  21.  19  Fed.  Cas.  No.  11.058. 
A  sale  by  the  master  of  his  interest 
as  part  owner  of  the  vessel  before 
suit,  and  a  release  to  him  by  his  co- 
owners  of  all  liability  to  them  for  re- 
covery of  wages,  render  him  a  com- 
petent witness  in  an  action  against 
the  vessel  therefor.  The  Osceola. 
Olc.  450.   18  Fed.   Cas.   No.    10.602. 

92.  The  TTudson.  Olc.  396.  12 
Fed.   Cas,    No.   6831. 

93.  The  Osceola.  Olc.  450.  18  Fed. 
Cas.   No.    10.602. 

94.  Exception — The  case  is  ex- 
cepted where  the  master  would  be 
exonerated  from  some  certain  lia- 
bility, provided  the  owner  should 
prevail.  Patten  v.  Darling,  i  ClifT. 
254.  18  Fed.  Ca.s.  No.  10.812. 

95.  Swctt  V.  Black.  T  Spr.  574.  23 
Fed.  Cas.  No.   13.690. 


Vol.  I 


ADMIRALTY.  279 

ment.""     An   informer  is  made  by  statute    a  competent  witness  at 
the  trial,  when  he  is  a  necessary  witness."'' 

VI.  MODE  OF  TAKING  EVIDENCE. 

1.  Oral  Testimony.  —  A.  ri;i;.Missir,iLiTV.  —  t)ral  testimony  is 
not  permissible  in  prize  cases, ""^  bnt  is  permitted  in  proceedings  in 
admiralty  generally  by  Section  30  of  the  Judiciary  Act.''-' 

B.  Mode  of  Taking  Down.  —  Oral  evidence  in  an  admiralty 
case  should  be  taken  down  in  the  narrative  form,  and  not  by  ques- 
tions and  answers.' 

C.  Or.\l  Cross-examination.- — The  oral  cross-examination  of 
witnesses  on  a  commission  sent  abroad  may  be  allowed  on  condition 
of  waiving  irregularity  in  the  motion  for  the  commission. - 

D.  Oral  Enidknce;  in  the  Supreme  Court.  —  Oral  evidence 
may  be  used  in  the  supreme  court  in  an  admiralty  proceeding  to 
prove  the  value  in  a  matter  of  dispute,^  liut  it  cannot  be  used  as 
further  evidence  in  the  cause.'' 

2.  Affidavits.  —  A.  In  Prize  Causes.  —  Atifidavits  of  ownership 
are  used  in  jirize  causes,''  and  the  want  of  regular  evidence  in  such 
causes  may  be  supplied  by  the  affidavits  of  the  captured  crew,  in  a 
proper  case." 

B.  Aefid.-wits  of  Merits.  —  An  affidavit  of  merits,  or  a  sworn 
answer  showing  merits,  is  required  in  order  to  set  aside  a  default 
in  an  admiralty  case.'  The  rule  of  courts  of  law  that  affidavits 
of  merits  should  be  made  by  the  parties  is  not  inflexible  in  admi- 
ralty, and  such  affidavits  mav  be  made  by  the  attorney  or  proctor 
upon  good  cause  shown.'     Where  affidavits  are  conflicting  as  to  the 

96.  Contingent  Interest.  —  The  is  within  reach  of  the  court  in  a 
contingency  that  trespass  would  be  cause  of  admiralty  jurisdiction 
brought  against  the  officer  for  the  should  give  his  testimony  in  open 
seizure  is  too  remote  to  sustain  the  court,  unless  his  deposition  is  taken 
objection  of  incompetency.  U.  S.  i'.  by  order  of  the  court.  The  Samuel, 
25   Cases  of  Cloth,  etc.,  Crabhe  35'6,  i  Wheat.  9. 

28  Fed.  Cas.  No.   16.562.  1.     The    Syracuse.   6   Blatchf.    238, 

97.  Necessity  a  Question  for  the      23  Fed.  Cas.  No.  13,718. 

Court Of  the  necessity  of  the  in-  2.     The   Louisiana,   i   Ben.   328,   15 

former's    becoming     a     witness,    the  Fed.  Cas.  No.  8536. 

court   is   to   judge,   after  hearing  the  3.     U.'  S.  r'.  Brig  Union.  4  Cranch 

evidence  in  the  case,  and  the  deposi-  216. 

lion    of    the    informer,    taken    before  4.     The   Samuel,  3  Wheat.   77. 

the    trial,     is     not     admissible.     The  5.     The       Schooner      Adeline,      g 

Thomas  and  Henry,  i  Brock,  367.  23  Cranch    244;     The     Grey    Jacket,    5 

Fed.    Cas.    No.    13,919.  Wall.  342,   i  Wheat.  .-Xpp.  =;oo. 

98.  The  George,  2  Gall.  24Q.  10  6.  The  .\rabella.  2  Gall.  .368.  i 
Fed.  Cas.  No.  3327.  Fed.    Cas.    No.   501. 

99.  Provision  of  Judiciary  Act.  7.  Matters  of  Opinion.  —  An  affi- 
The  .^oth  section  of  the  judiciary  act  davit  of  merits  setting  forth  matters 
directs  that  "the  mode  of  proof  by  of  opinion  is  not  sufficient.  Scott  v. 
oral  testimony  and  the  examination  The  Young  .America,  Newh.  107.  21 
of  witnesses  in  open  court,  shall  be  Fed.  Cas.  No.  12.550. 

the    same    in    all    the    courts    of    the  8.     Authority      of      Proctor.  —  A 

United    States."   and   a   witness   who      proctor  in  admiralty  is  in  many  cases 

Vol.  I 


280 


ADMIRALTY 


merits  of  the  cause,  a  motion  to  discharge  the  respondent  from 
arrest  on  the  ground  that  there  is  no  cause  of  action  against  him, 
cannot  be  granted." 

C.  Other  Affiu.wits.  —  A  proctor  may  make  affidavit  upon  a 
motion  to  file  adchtional  security  for  costs. ^"  An  affidavit  must  be 
made  to  show  the  exchision  of  a  witness  which  is  not  reported  by 
the  master  to  whom  the  cause  was  referred,  and  to  show  to  the 
court  the  testimony  expected  to  be  given  by  such  witness."  An 
affidavit  of  the  respondent  cannot  be  used  upon  the  hearing  of  an 
exception  to  the  libel,'-  nor  can  affidavits  be  used  to  support  a 
motion  to  discharge  property  from  custody. '■'  Affidavits  may  be 
used  in  the  supreme  court  to  prove  the  value  of  the  matter  in  dis- 
pute,'* but  cannot  be  used  as  further  proof  tmless  taken  upon  com- 
mission.'^ 

3,  Depositions.  —  A.  Rulks  of  Practice.  — A  court  of  admiralty 
is  not  required  liy  Section  886  of  the  Revised  Statutes,  to  conform 
to  the  practice  of  the  state  courts  in  taking  depositions,  and  it  may 
by  rule  provide  a  different  method  of  taking  them.'" 

B.  Depositions  de  Bene  Esse.  —  Depositions  dc  bene  esse  may 
be  taken  in  the  district  and  circuit  courts  in  admiralty  cases,"  but 
cannot  be  taken  upon  appeal  to  the  supreme  court,"*  or  to  the  cir- 


clothcd  witli  all  tlie  authority  of  the 
party  himself,  and  courts  of  admi- 
ralty admit  proctors  to  all  the  func- 
tions of  attorneys-at-la\v,  and  they 
may  make  affidavits  on  motions  inci- 
dental to  the  suit,  when  the  facts 
cannot  he  supposed  to  be  peculiarly 
within  the  knowledge  of  the  party. 
The  Harriet,  Olc.  222,  11  Fed.  Cas. 
No.  fx396. 

9.  Wicks  z:  Ellis,  Abl>.  .\dm. 
444.  29  Fed.  Cas.  No.   17,614. 

10.  The  Harriet.  Olc.  222,  11 
Fed.  Cas.   No.  6096. 

11.  Object  of  Affidavit.  —  Such 
affidavit  is  required  in  order  that 
the  court  may  know  whether  the  ex- 
cluded testimony  would  be  independ- 
ent evidence,  or  only  cumulative. 
The   New   Philadelphia,    i    Black  62. 

12.  Prince  Steam  Shipping  Co.  v. 
Lehman,  39  Fed.   704. 

13.  Ownership,  How  Determined. 
The  question  whether  the  property 
sought  to  be  discharged  upon  affi- 
davits, is  the  property  of  the  United 
States,  cannot  be  determined  upon 
affidavits,  Imt  should  be  raised  by 
claim  and  answer.  Cartwright  v. 
The  Othello,  i  Ben.  4^.  5  Fed.  Cas, 
No.  2483. 

14.  Appeal  in  Collision  Case. 
Upon    appc.-il    in    a    collision    case,    to 

Vol.  I 


the  supreme  court,  leave  was 
granted  to  the  appellants  to  make 
proof  of  the  jurisdictional  value  by 
affidavits.  The  Grace  Girdler,  6 
Wall.    441- 

15.  The  London  Packet,  2  Wheat. 

16.  Rule    in    Admiralty Under 

a  rule  in  admiralty  of  a  district 
court,  which  permits  parties  to  attend 
the  examination  of  witnesses  whose 
testimony  is  taken  on  commission, 
either  personally  or  by  their  proc- 
tors, if  the  adverse  party  desires  to 
be  represented  he  should  furnish  the 
name  and  address  of  his  representa- 
tive to  the  party  taking  out  the  com- 
mission or  to  the  commissioner,  in 
order  that  lie  may  be  notified.  The 
Westminster.  96  Fed.  766. 

17.  The  Argo,  2  Wheat.  287 ;  The 
London  Packet,  2  Wheat.  371 :  The 
Samuel.  1  Wheat,  g;  The  Osceola, 
Olc.  450,   18  Fed.   Cas.   No.    10,602. 

18.  Unauthorized  Practice — The 
30th  section  of  the  judiciary  act  of 
1789  as  to  taking  depositions  dc  bene 
esse,  applies  in  terms  only  to  cases 
in  the  district  and  circuit  courts,  and 
not  to  cases  pending  in  the  supreme 
court :  but  an  unauthorized  practice 
had  prevailed  prior  to  this  decision, 
to  take   depositions  de  bene  esse  in 


ADMIRALTY. 


281 


cuit  court  of  appeals.'-'  Such  a  deposition  cannot  be  taken  in  a 
foreign  countr)'.-"  A  deposition  dc  bene  esse  cannot  be  taken 
mereh-  because  of  the  habiHty  of  the  witness  to  be  ordered  out  of 
the  reach  of  the  court.-'  Such  a  deposition  can  only  be  used  upon 
proof  that  the  attendance  of  the  witness  cannot  be  procured  upon 
the  trial,  and  is  not  evidence-in-chief. '"  The  waiver  of  objection 
to  a  deposition  de  bene  esse,  does  not  make  it  a  deposition-in-chief.-'' 

C.  Commission  to  Take  Depositions.  —  No  commission  is 
allowable  to  take  depositions  in  an  enemy's  country  in  prize  cases,-* 
but  in  admiralty  cases  generally,  commissions  are  issued  to  take 
evidence  in  foreign  countries.-''  Commissions  must  issue  to  take 
depositions  for  use  as  further  evidence  upon  appeals  in  admiralty- 
cases.-" 

D.  Objections  to  Depositions.  —  A  deposition  taken  before  the 
clerk  of  the  court  to  the  knowledge  of  the  objecting  parties  will  be 
admitted  in  an  admiralty  case,  notwithstanding  objections  that 
there  was  no  preliminary  proof  of  the  materiality  of  the  evidence, 
and  that  it  was  not  proved  that  the  commission  was  sealed  up,  and 


causes  there  pending,  and  because-  of 
this  unaulliorized  practice,  leave  was 
given  to  take  the  testimony  in  due 
form,  luider  commissions  in  the  su- 
preme court,  where  depositions  dc 
bene  esse  according  to  the  usual 
practice  were  objected  to.  The 
.■\rgo,  2  Wheat.  287. 

19.  The  Becche  Dene.  55  Fed. 
jjn. 

20.  Tlie  .McNaiKh-a,   104  Fed.  904. 

21.  Unauthorized  Deposition.  — .\ 
deposition  dc  liciic  esse  not  author- 
ized by  tlie  terms  of  the  judiciary 
act  nor  by  any  order  of  tlie  court,  is 
inadmissible  in  evidence.  The  Sam- 
uel,  I   Wheat,  g. 

22.  The   Samuel,   i   Wheat,  g. 
Proof    Required ,\     party    who 

offers  a  depositioi-i  dc  bene  esse  in 
evidence,  must  show  that  the  requi- 
sites of  the  judiciary  act  have  been 
complied  with,  and  that  the  depo- 
nent is  out  of  reach  of  the  court,  as 
provided  in  the  act,  and  unless  he 
does  this,  the  deposition  cannot  be 
read.  Thomas  and  Henry,  i  Brock. 
.^67,  23  Fed.  -Cas.  No.  i.^gig. 

23.  Construction     of     General 

■Waiver The     general     waiver     of 

objection  to  the  deposition  de  bene 
esse  must  be  understood  as  extend- 
ing the  waiver  to  the  deposition  only 
in  the  character  in  wbich  it  was 
taken,  and  not  as  imparting  any  new 
character    to    it.     The    Thomas    and 


Henry.    I    Brock.    367,   23    Fed.    Cas. 
No.   I  ?,9ig. 

24.  The  Diana,  2  Gall.  g^.  7  Fed. 
Cas.  No.  3876. 

25.  -Waiver  of  Irregularities. 
Where  there  were  irregularities  in 
a  motion  made  by  the  claimant  for  a 
commission  to  examine  witnesses 
abroad,  and  the  libellants  offered  to 
waive  such  irregularities,  provided 
the  claimants  would  permit  them  to 
cross-e.xamine  the  witnesses  orally, 
the  court  issued  a  commission  allow- 
ing them  to  do  so.  The  Louisiana, 
I   Ben.  328,   15  Fed.  Cas.   No.  S536. 

Appointment  of  Commissioner. 
Upon  application  for  a  commission 
to  take  a  deposition  abroad,  if  no 
other  person  is  known  wdio  could  act 
as  commissioner,  the  wife  of  the  wit- 
ness may  be  named  by  the  court  as 
commissioner.  The  Norway,  2  Ben. 
121,   18  Fed.   Cas.   No.   10,358. 

-Witnesses  Not  Named  in  Commis- 
sion  The  testimony  of  the  wit- 
nesses whose  names  were  not  in- 
serted in  a  commission  to  take  testi- 
mony abroad,  may  be  taken  if  it  is 
satisfactorily  proved  after  return  of 
the  deposition  that  their  names  and 
materiality  were  not  known  when 
the  commission  was  sued  out  and 
transmitted.  The  Infanta,  i  Abb. 
Adm.  263,  13  Fed.  Cas.  No.  7030; 
The  Diana,  2  Gall.  93,  7  Fed.  Cas. 
No.  3876. 

26.  The   Louisiana,   i   Ben.   328. 

Vol.  I 


282 


ADMIRALTY. 


that  no  notice  was  given  of  its  liling.-"  A  libellant  who  submitted 
to  an  objection  to  a  deposition  at  the  trial,  on  being  allowed  a 
continuance  with  leave  to  re-examine  the  witness,  cannot  long 
afterwards  use  the  same  deposition  objected  to.-'*  A  motion  to 
suppress  depositions  must  be  promptly  made  after  they  have  been 
returned  to  the  court.-"  The  depositions  of  witnesses  for  a  claim- 
ant will  not  be  suppressed  because  taken  before  answer,  if  prejudice 
to  the  libellant  does  not  appear.^" 

E.  Use  oi'  Deposition  Upon  Anotukk  Libel.  —  A  deposition 
taken  upon  a  libel  for  a  collision  on  behalf  of  the  owners  of  the 
injured  vessel,  libellants,  is  not  admissible  upon  a  libel  for  the  same 
collision  by  the  master  of  the  vessel  on  behalf  of  the  cargo  owners."' 
Depositions  taken  without  notice  to  the  defendants  in  another  suit 
for  collision,  though  involving  the  same  questions  as  upon  the 
second  libel,  are  not  admissible  where  the  defendants  are  not  the 
same  and  had  no  right  or  opportunity  to  cross-examine  the  wit- 
nesses, especially  where  no  reason  appears  why  the  witnesses  were 
not  introduced  in  person. ^- 

4.  Reference  to  Commissioners.  —  A.  Cases  for  Referknce. 
The  court  will  refer  causes  in  admiralty  to  commissioners  or  ref- 
erees for  their  opinion  and  advice  on  questions  of  fact,"'"'  or  questions 
of  nautical  skill. "'^  or  to  state  an  account.''^  or  accertain  flamages,^" 


27.  The  Argo,  2  Wheat.  287 ;  The 
London  Packet,  2  Wheat.  371  ;  The 
Beeche  Dene,  55  Fed.  526 ;  The 
GHde.  68  Fed.  719. 

Sufficiency  of  Acts  of  Clerk. 
Where  the  clerk  of  the  court  was 
the  commissioner  wlio  filed  the 
deposition  in  the  clerk's  office,  it 
need  not  be  sealed  up  and  directed 
to  the  clerk,  and  where  it  was 
marked  "  filed "  in  the  clerk's  office 
and  the  usual  order  was  then  en- 
grossed upon  the  minutes  that  the 
deposition  be  filed  and  opened,  the 
failure  of  the  libellants  to  give  for- 
ma! notice  of  the  act  of  filing  to  the 
respondent's  proctor  only  leaves  to 
the  latter  the  burden  of  disproving 
the  regularity  of  the  proceedings. 
Nelson  7'.   Woodrufif.    i   Black   156. 

Presumption  of  Order  for  Commis- 
sion  Where     both     parties    joined 

in  the  execution  of  a  commission  is- 
sued in  the  usual  form  by  the  clerk 
of  the  court,  it  must  be  presumed 
that  an  order  for  the  conunission 
was  entered  or  waived.  Rich  v. 
Lambert.  12  How.  .147. 

28.  The  Emulous,  24  Fed.  43. 

29.  Smith  r-.  Serapis,  49  Fed.  393. 

30.  The  Pride  of  the  Ocean.  10 
Ben.  610.  19  Fed.  Cas.  No.  11.419. 

Vol.  I 


31.  The  John  H.  Starin,  g  Ben. 
331,   13   Fed.   Cas.   No.   7351. 

32.  Rutherford  v.  Geddes,  4  Wall. 
220. 

33.  Lee  v.  Thompson,  3  Woods 
167,  15  Fed.  Cas.  No.  8202. 

34.  Reference  to  Expert  Commis- 
sioners  Where  the  rights  nf  par- 
ties depend  upon  questions  of  nauti- 
cal skill  or  seamanship  in  the  man- 
agement of  a  vessel,  the  court  may 
refer  the  subject  to  persons  skilled 
in  navigation,  and  act  upon  their  re- 
port thereon.  The  Emilv.  Olc.  132. 
8  Fed.  Cas.  No.  4,453. 

35.  Shaw  V.  Collyer,  4  Blatchf. 
370,  21  Fed.  Cas.  No.  12,718. 

36.  The  Ship  Shand,  4  Fed.  925; 
The  Lively,  i  Gall.  315,  15  Fed.  Cas. 
No.  8403:  Murray  v.  The  Charming 
Betsey,  2  Cranch  64;  The  Baltic.  3 
Ben.  195,  2  Fed.  Cas.  No.  824 ; 
Howe  I'.  The  Lexington,  12  Fed. 
Cas.  No.  6767b ;  The  Narragansett, 
Olc.  388,  17  Fed.  Cas.  No.  10.020; 
Farre'll  v.  Campbell,  7  Blatchf.  is8, 
8  Fed.  Cas.  No.  4682;  Taber  v. 
Jenny,  I  Spr.  315,  23  Fed.  Cas.  No. 
13,720;  Ross  V.  Southern  Cotton  Oil 
Co.,  41  Fed.  152;  The  Transit,  4 
Ben.  138.  24  Fed.  Cas.  No.  14,1,38; 
The  Beaver,  8  Ben.  594;  3  Fed.  Cas. 


ADMIRALTY 


283 


or  to  take  the  testimony. ■■' 

U.  Proceedings. — a.  Time  for  Taking  Ei'idcncc.  —  A  limited 
time  for  closing  all  evidence  before  the  commissioners,  tixed  by 
order  of  the  court,  will  be  enlarged  upon  proof  of  new  evidence 
which  the  party  could  not  prociTVe  to  be  taken  within  the  time 
limited. -'^ 

b.  Mode  of  Procedure.  —  The  proceedings  on  a  reference  to  a 
commissioner  to  compute  damages  in  a  collision  case  are  to  be  con- 
ducted in  the  manner  usual  on  a  reference  in  chancery  ;■■"  but  com- 
missioners appointed  to  state  damages  in  a  case  of  illegal  capture, 
are  subject  to  common  law  rules. ^" 

c.  Reception  of  Evidence.  —  Commissions  appointed  to  state 
damages  should  not  hear  c.v  parte  evidence  without  notice  to  the 
other  party.'"  L'pon  an  order  of  reference  to  a  commissioner  to 
ascertain  damages,  a  statement  by  the  court  as  to  a  fact  affecting 
the  amount  of  damages,  and  not  material  to  the  question  of  lia- 
bility, is  not  binding,  and  does  not  preclude  either  party  from 
introducing  any  competent  evidence  before  the  con.imissioner  as  to 
the  extent  of  the  damages. ■*" 

d.  Control  of  Proceedings  bv  Court.  —  If  the  commissioner 
refuses  to  allow  a  witness  to  testify  before  him,  application  should 
be  made  to  the  court  to  control  the  proceedings  upon  a  certificate 
of  the  commissioner,  prior  to  the  report  of  the  commissioner,""^ 
and  a  statement  of  the  commissioner  in  his  report  of  the  refusal  of 
a  witness  to  testify  before  him  will  be  disregarded  by  the  court.''* 
On  a  reference  to  the  master  to  take  evidence,  where  a  witness  was 
not  allowed  to  testify  before  him,  whose  exclusion  was  not  reported 


Xo,  1200;  Panama  R.  Co.  v.  Napier 
Shipping  Co..  6i    Fed.   408. 

Questions  Not  Submitted.  —  Tlie 
conrt  will  not  hear  qnestions  arising 
on  a  reference  to  tlie  commissioner 
to  compute  damages,  at  the  instance 
of  tlie  parties,  unless  they  have  suh- 
mitted  them  to  the  commissioner, 
and  he  has  decided  them,  or  de- 
clined to  do  so.  The  E.  C.  Scran- 
ton.  2  Ben.  81.  8  Fed.  Cas.  No.  4271. 

Legality  of  Order  of  Reference. 
The  legality  or  propriety  of  an  order 
of  reference  to  ascertain  damages 
cannot  be  impeached  upon  exception 
to  the  commissioner's  report.  The 
Rhode  Island,  I  .\bh.  .\dm.  100,  20 
Fed.   Cas.    No.    11.74J. 

37.  Power  of  Court.  _  The  court 
of  admiralty,  whenever  it  deems  it 
necessary  or  expedient,  may  refer  a 
cause  to  a  commissioner  to  take  tes- 
timony ;  and  it  is  not  necessarj-v 
when  the  cause  is  referred  to  the 
clerk  as  such  commissioner,  to  assign 
any   especial    reason    for   such    refer- 


ence. The  Wavelet.  25'  Fed.  733 ; 
The  SalHe  P.  Linderman,  22  Fed. 
SS7:  The  New  Philadelphia,  i  Black 
■1,62 ;  Puget  Sound  Machinery  Depot 
V.  The  Guy  C.  Goss.  53  Fed.  826. 

38.  The  Ruby.  5  Mason  451,  20 
Fed.  Cas.  No.   12,10?. 

39.  The  E.  C.  Scranton.  2  Den. 
81.  8  Fed.  Cas.  No.  4271. 

40.  The  Lively,  i  Gall  315.  15 
Fed.  Cas.   No.  8403. 

41.  The  Lively,  i  Gall.  315.  15 
Fed.  Cas.  No.  8403. 

42.  Tlie   Ship   Shand.  4  Fed.  925. 

43.  Application  to  Court Ap- 
plication to  the  court  in  the  case  of 
any  improper  or  irregular  proceed- 
ings by  a  commissioner,  or  to  con- 
trol the  proceedings  before  Iiini,  can 
only  be  had  on  a  certificate  as  to  his 
proceedings.  The  E.  C.  Scranton, 
2  Ben.  81.  8  Fed.  Cas.  Xo.  4271.  4 
Ben.  127,  8  Fed.  Cas.  Xo.  4272. 

44.  The  Peterhoff,  Blatchf.  Pr. 
Cas.  463,   ig  Fed.   Cas.   Xo.   11.024. 

Vol.  I 


284  ADMIRALTY. 

l)y  the  master,  proof  must  be  made  to  the  court  of  such  exchision 
and  of  his  proposed  testimony.'''' 

e.  Objections  to  Evidence.  —  An  objection  to  tlie  mode  of  proof 
before  a  commissioner  should  J#e  taken  at  the  examination,  or  it 
will  be  considered  waived.'"''  Ubjection  to  the  admission  of  evi- 
dence before  the  commissioner  cannot  be  raised  by  exception  to  his 
report.''"  A  neglect  at  the  trial  to  object  to  the  competency  of 
evidence  is  a  waiver  of  the  right  to  object  to  the  same  evidence 
upon  a  subsequent  reference  to  the  clerk.'"'  Exceptions  to  evidence 
before  the  commissioner,  not  accompanied  b}-  report  of  the  evidence 
objected  to,  cannot  be  noticed.''' 

f.  Report  of  Conuitissioners. — Commissioners  appointed  to  assess 
the  amount  of  damages  in  a  case  of  illegal  capture,  should  make  a 
special  report,  stating  the  items  in  detail.'"'"  The  clerk's  report  in 
matters  referred  to  him  should  state. facts  and  conclusions,  and  not 
detail  the  evidence  at  length.'''  A  report  of  a  commissioner 
ap]3ointed  to  ascertain  the  amount  due  to  the  libellant,  need  not 
detail  the  allowances,  unless  a  specification  is  demanded. ^- 

g.  Objections  to  Report.  —  .\n  objection  to  the  report  as  to  the 
amount  of  damages  in  an  admiralty  case  cannot  be  taken  by  argu- 
ment.''^ Upon  a  new  trial  upon  appeal,  the  appellant  may  object 
to  damages  found  by  a  commissioner  in  the  district  court,  though 
not  there  objected  to.'''  The  credibility  and  reliability  of  witnesses 
cannot  be  investigated  on  exceptions  to  the  report  unless  the  objec- 
tions rest  wholly  on  questions  of  law.''-'' 

C.  Decision  of  Commissioner.  —  The  decision  of  the  commis- 
sioner on  questions  of  fact  is  not  conclusive.'''"  and  will  be  reversed 
when  clearl}'  erroneous  :^~  but  the  court  will  adopt  the  conclusion 
of  the  commissioner  where  the  testimony  conflicts  unless  there  is 

45.  Tlie  New  Philadelphia,  i  any  explanation  of  the  principles  on 
Black  ,?62.  which   that   .sum  was  allowed  by  the 

46.  The  Elizabeth,  Blatchf.  Pr.  commissioners  are  improperly  al- 
Cas.   2;o,  8  Fed.   Cas.   No.  4350.  lowed.      Murray    ;■.    The    Charming 

47.  "The    E.    C.    Scranton.   4    Ben.       Betsey.  2   Cranch   64. 

127,  8  Fed.  Cas.  No.  4272;  The  Tran-  51.     The    Trial,    i    Blatchf.    &    H. 

sit.    4    Ben.    i-?8.    24    Fed.    Cas.    No.  94,  24   Fed.   Cas.   No.   14,170. 

T4.1.38;    The    Emily,    4    Ben.    235,    8  58.     Mitchell    r.    Kelsev,    17    Fed. 

Fed.   Cas.   No.  4451.  Cas,    No.   9663. 

48.  The  Trial,' Blatchf,  &  H.  04.  53.  Howe  r.  The  Le.xington.  12 
24  Fed.   Cas,   No.   14.170.  Fed,    Cas,    No.    6767b. 

49.  Indefinite  Exceptions.  _  In-  54.  Farrell  r.  Campbell.  7  Blatchf. 
definite  exceptions  to  the  admission  158.  8  Fed.  Cas.  No.  4682;  Ross 
or  exclusion  of  evidence,  or  to  its  j.^  Southern  Cotton  Oil  Co.  41  Fed. 
insufficiency,    not   properly   explained  jj^. 

by  evidenc'e,  must  be  rejected.     The  "55      ^^^^.j^,,    ,,     q.,,^.    Commandcr- 

Commander-m-Ch.ef.   i    Wall.  43-  i„-Chief,  4  Fed,   Cas,   No,  2215. 

50.  The    Lively.    I    Gall.    315.    15  .„        '  ^         „,                        ,,,      . 
Fed.    Cas.    No.    8403.  /^-     L4^%^'^°"t'P'"«"'    ^   ^°"''' 

Improper  Assessment  of  Damages.       '"z.   15   red.  Las.  No.  8202. 
Damages    assessed    as    a    gross    sum  57.     The     Cayuga.    59   Fed.   483.  8 

without  any  'specification  of  items  or      C.    C.    .\.    188. 

Vol.  I 


ADMIRALTY 


285 


a   clear  preponderance   of   evidence,''"   or   palpable  error  appears."'" 

D.  Mu'noN  TO  DiSiMiss  i'ok  Want  of  Eviuicxcu.  —  Where  the 
libellant  rested  his  proof  before  the  commissioners  without  notice 
of  further  proof,  whereupon  the  claimant  filed  a  motion  to  dismiss 
for  want  of  evidence,  and  without  then  submitting  the  motion  to 
the  court,  but  upon  notice  that  it  was  not  waived  proceeded  with  his 
evidence,  the  claimant  is  entitled  to  have  the  motion  decided  by  the 
court  on  the  evidence  in  chief  for  the  libellant,  unaided  by  evidence 
adduced  by  the  libellant  on  cross-examination  of  claimant's  wit- 
nesses, or  in  rebuttal.''" 

E.  Taxation  of  Testimony.  —  Under  the  revised  statutes,  upon 
the  reference  of  an  admiralty  case  to  a  commissioner  to  take  testi- 
mony, the  testimony  of  each  witness  is  to  be  considered  as  a  depo- 
sition, and  is  taxable  as  such.''' 

VII.  DOCUMENTARY  EVIDENCE. 

1,  Official  Certificates.  —  A.  Originals.  —  The  official  certificate 
of  a  notary  is  competent  evidence  in  admiralty  to  prove  the  making 
of  a  marine  protest  and  its  contents."-  The  commission  of  a  public 
ship,  signed  by  the  proper  authorities  of  a  nation  to  which  she 
belongs,  is  complete  proof  of  her  national  character."''     The  certifi- 


58.  Holmes  v.  Dodge,  Abb.  Adm. 
6o,  12  Fed.  Cas.  No.  6637 ;  Panama 
R.  Co.  V.  Napier  Shipping  Co.,  61 
Fed.   108. 

Decision  by  Experts.  —  Where 
a  case  in  rem  is  referred  to  e.xperts 
to  ascertain  and  report  upon  facts 
appertaining  to  their  calling  or  ex- 
perience, their  decision  will  be 
adopted,  unless  there  is  a  manifest 
preponderance  of  testimony  against 
it.  The  Isaac  Newton,  .^bb.  .Vdm. 
588,   13  Fed.   Cas.   No.   7090. 

Decision  Upon  Maritime  Lien. 
Where  the  right  to  a  maritime  lien 
for  supplies  depends  on  questions  of 
fact,  such  as  whether  the  supplies 
were  ordered  by  the  master  and  fur- 
nished on  the  credit  of  the  vessel, 
and  the  evidence  is  conflicting,  the 
finding  of  the  commissioner  thereon, 
who  heard  and  saw  the  witnesses, 
will  not  be  disturbed.  The  John  AIc- 
Dermott,   109  Fed.  90. 

59.  The  Narragansett.  Olc.  388, 
17  Fed.  Cas.  No.  10.020;  Panama 
R.  Co.  z:  Napier  Shipping  Co.,  61 
Fed.   108,  9  C.  C.  A.  533. 

60.  Puget  Sound  r^Iachinerv  De- 
pot V.  The  Guy  C.  Goss,  ii  Fed. 
826. 

61.  Proctor's       Affidavit.  —  The 


proctor's  affidavit  to  expenses  ac- 
tually incurred,  is  not  sufficient,  if 
objected  to,  to  support  a  ta.xation  by 
the  clerk.  The  Sally  P.  Linderman, 
22   Fed.   557. 

62.  Deposition  Not  Required. 
The  examination  of  the  notary  upon 
a  deposition  under  a  commission  is 
not  required  as  additional  proof. 
The  Gallego,  30  Fed.  271. 

Protest  of  Master  of  'Vessel. 
Where  a  protest  was  certified  by  the 
master  of  a  vessel,  a  copy  thereof, 
which  the  master  when  called  as  a 
witness,  did  not  dispute,  is  admissible 
evidence.  The  Vivid,  4  Ben.  319, 
28  Fed.  Cas.  No.   16,978. 

63.  Absolute  'Verity  of  Commis- 
sion. —  Mr.  Justice  Story,  deliver- 
ing the  opinion  of  the  court, 
said :  ''  The  commission,  there- 
fore,     of      a       public      ship,      when 

duly  authenticated,  so  far  at  least 
as  foreign  courts  are  concerned, 
imports  absolute  verity,  and  the  title 
is  not  examinable.  The  property 
must  be  taken  to  be  duly  acquired 
and  cannot  be  controverted.  This 
has  been  the  settled  practice  between 
nations ;  and  it  is  a  rule,  founded  in 
public  convenience  and  policy,  and 
cannot   he   broken   in    upon,    without 

Vol.  I 


286 


ADMIRALTY. 


cate  of  a  consul  in  a  foreign  port,  that  a  seaman  was  discharged 
by  his  consent,  is  conclusive  evidence,  if  not  assailed  for  fraud;"* 
but  a  consular  certificate  of  the  discharge  of  a  seaman,  on  applica- 
tion of  the  master,  is  only  prima  facie  evidence  of  the  facts  stated 
therein,. as  against  the  seaman."' 

B.  CiiKTiFiED  Copies.  —  The  proceedings  of  a  vice-admiralty 
court  of  a  foreign  nation,  certified  to  be  a  true  copy  from  the 
record,  are  sufficiently  verified  to  be  admitted  in  evidence  by  proof 
of  the  hand-writing  of  the  judge  and  the  register  of  the  court  to  the 
certificate.'''''  Certified  copies  of  documents  relating  to  the  condem- 
nation and  sale  of  a  vessel,  certified  by  the  British  consul  to  be 
copies  of  official  documents  on  file  in  his  office,  and  provecl  by  depo- 
sitions before  the  trial,  are  admissible  in  evidence."" 

C.  Best  Evidence.  —  The  certificate  of  a  consul  is  not  the  best 
evidence  of  any  unofficial  act,  or  of  any  act  not  performed  by 
himself."*     A  paper  certified  by  a  consul  to  be  a  true  copy  of  a 


endangering  the  peace  and  repose, 
as  well  of  neutral  as  of  belligerent 
sovereigns.  The  commission  in  the 
present  case  is  not  expressed  in  the 
most  equivocal  terms ;  but  its  fair 
purport  and  interpretation  must  be 
deemed  to  apply  to  a  public  ship  of 
the  government.  Tlie  Santissima 
Trinidad.   7   Wheat,   28,?. 

Commission  of  Unacknowledged 
Government.  —  The  seal  to  the  com- 
mission of  a  new  government  not 
acknowledged  by  the  government  of 
the  United  States,  cannot  prove  it- 
self ;  but  the  fact  that  a  vessel 
cruising  under  such  commission  is 
employed  by  such  government,  may 
be  established  by  other  evidence, 
without  proving  the  seal.  U.  S.  v. 
Pahner,  3  Wheat.  610.  Cited  also 
in  The  Estrclla,  4   Wheat.  298. 

64.  Showing  of  Consent  Essen- 
tial  The    discharge    of    a    seaman 

in  a  foreign  port  by  the  consul  can 
only  be  certified  upon  the  consent 
of  the  seaman  given  or  proved 
before  him  and  the  party  relying 
upon  such  discharge  in  defense  to  an 
action  for  subsequent  wages,  must 
show  that  such  consent  was  given. 
Lamb  V.  Briard,  Abb,  Adm.  367,  14 
Fed.  Cas.  No.  8010;  The  Atlantic. 
Abb.  Adm.  451.  2  Fed.  Cas.  No. 
620. 

65.  Effect  of  Certificate  of  Dis- 
charge  If  such  certificate  of  dis- 
charge was  granted  by  the  consul 
for  a  cause  sanctioned  by  the 
usages    and    principles    of    maritime 

Vol,  I 


law,  as  recognized  in  the  United 
States,  the  payment  of  the  wages 
then  earned  bars  future  wages ;  but 
the  certificate  being  only  prima  facie 
evidence  of  the  material  facts  stated, 
in  a  suit  for  wages  for  the  unper- 
formed part  of  the  voyage  by  the 
discharged  seaman,  it  may  be  proved 
that  the  discharge  was  illegal  or 
without  sufficient  cause.  The  F.  F. 
Oalcs,  36   Fed.   442, 

Fraud   of  Master If  the  master 

fraudulently  procures  a  certificate  of 
discharge  by  a  United  States  consul 
in  a  foreign  port,  he  can  claim  no 
benefit  or  immunity  under  it.  Tingle 
V.  Tucker,  i  Abb,  Adm.  519,  23  Fed. 
Cas.   No.   14.057. 

66.  Mumford  v.  Bowne.  .Anthon 
S6. 

67.  The  J.  F.  Spencer,  3  Ben,  337. 
13   Fed,   Cas,   No,   7315, 

68.  Certificate  As  to  Ship's  Pa- 
pers. —  The  certificate  of  tlie  Amer- 
ican consul  at  a  foreign  port  under 
his  seal  of  office,  that  the  ship's 
papers  were  lodged  with  him,  agree- 
ably to  the  requisitions  of  the 
embargo  law,  is  good  evidence  of 
that  fact,  but  not  of  other  facts 
stated  in  it-  U.  S,  v.  Mitchell,  2 
Wash.  478,  26  Fed.   Cas,   No.   15,791. 

Certificate  As  to  Penalty —  The 
certificate  of  a  consul  is  competent 
to  remit  a  penalty  due  (he  United 
States,  but  is  not  evidence  of  acts 
which  arc  not  official  nor  within  his 
personal  knowledge.     Brown  v.  The 


ADMIRALTY. 


287 


bill  uf  lading  is  not  admissible,  though  the  part)'  had  but  one 
original.'' '  An  attested  copy  of  a  bottomry  bond  executed  in  a  for- 
eign country,  is  not  the  best  evidence ;  but  the  court  will  continue 
the  cause  to  allow  the  original  to  be  produced.'"  The  commission 
of  a  vessel  cruising  under  a  foreign  government,  which  was  lost 
with  the  vessel,  may  be  proved  by  oral  evidence. '^  A  verified  cer- 
tificate of  a  foreign  justice  is  not  the  best  evidence  in  favor  of  the 
captors  of  the  vessel,  but  an  authenticated  copy  must  be  produced. '- 
W  here  original  shipping  articles  proved  before  a  commissioner  were 
redelivered  to  the  vessel,  which  proceeded  on  its  voyage,  a  copy 
thereof,  certified  by  the  commissioner,  is  competent  evidence.'-' 

2.  Documents  Pertaining  to  Vessels.  —  A.  Log  Book.  —  The  log 
book  of  a  vessel  is  not  per  sc  proof  of  the  facts  stated  therein, 
except  as  provided  by  statute  ;'^  but  entries  in  a  ship's  log  made 
with  full  knowledge  and  opportunity  of  ascertaining  the  truth,  are 
admissible  proof  thereof,  against  the  party  making  them.'^  A  log 
book  stating  a  desertion  by  seamen  is  not  conclusive  evidence 
thereof.""     The  log  book  of  a  vessel  is  admissible  evidence  of  the 


liulepeiidence,  Crabbe  54,  4  Fed.  Cas. 
Xo.   2014;   The  .\lice,    12   Fed.  923. 

Authority  of  Consul's  Certificate. 
A  consul's  certificate  of  any  fact  is 
not  evidence  between  third  persons 
unless  expressly  or  impliedly  made 
so  by  statute-  Leby  v.  Burley,  2 
Sum.  355',  15  Fed.  Cas.  No.  8300. 

69.  The   Alice,    12   Fed.   923. 

70.  The  Jerusalem,  2  Gall.  191, 
14   Fed.    Cas.    No.    729^ 

71.  The  Eslrella.  4  Wheat.  298. 

72.  Presumptive  Evidence  for 
Claimants. —  The  rule  of  evidence 
which  applies  forcibly  against  the 
captors,  does  not  apply  to  the  claim- 
ants, and  the  sworn  certificate  has 
the  force  of  presumptive  evidence  in 
their  favor.  Miller  z'.  The  Sliip 
Resolution.  2  Dall.  24. 

73.  Henry  v.  Currv,  .\bb.  .\dm. 
43,3.  II  Fed.  Cas.  No.  6381. 

74.  A  Log  Book  Kept  by  the 
Master  is  not  evidence  upon  an  in- 
dictment for  confining  the  master. 
U.  S.  V.  Sharpe,  Pet.  C.  C.  118,  27 
Fed.  Cas.  No.  16,264;  U.  S.  v.  Gil- 
bert, 2  Sum.  19,  25  Fed.  Cas.  No. 
15,204;  Jones  V.  The  Phoenix,  i  Pet. 
.\dm.  201,  13  Fed.  Cas.  No.  7489; 
Worth  V.  Mumford,  i   Hilt,   i. 

75.  Statement  Binding  Upon  Of- 
ficers of  the  Vessel.  —  Tlie  testimony 
r>f  the  officers  of  a  sailing  vessel, 
that  certain  ropes  were  in  good  con- 
dition at  the  time  of  an  accident 
resulting    from    the    parting    of    the 


ropes,  will  not  prevail  over  a  state- 
ment in  the  ship's  log  that  they  were 
in  bad  condition.  The  Lamington, 
87  Fed.   752.^ 

An  entry  in  the  ship's  log  book, 
if  it  tells  against  the  party  making 
il,  must  be  accepted  as  the  truth,  and 
can  no  more  be  denied  than  a  deed. 
The   Newfoundland,  89  Fed.   510. 

76.  Log  Book  Not  Conclusive. 
If  the  log  book  states  a  desertion,  it 
may  be  repelled  by  proof  of  the 
falsity  of  the  entry,  or  its  being  made 
by  mistake.  Orne  v.  Townsend,  4 
Mason  541,  18  Fed.  Cas.  No.  10,583. 

The  entry  in  the  log  book  is  not 
conclusive  evidence,  and  is  to  be 
admitted  in  support  of  no  circum- 
stances, but  those  stated  in  Act  April 
23,  1800  (2  Stat.  48)  which  makes  it 
legal  evidence  in  proof  of  desertion. 
Jones  V.  The  Phoenix,  i  Pet.  Adm. 
201,   13   Fed.   Cas.   No.  7489. 

In  order  that  a  ship's  log  book 
may  be  admissible  in  evidence  in  a 
proceeding  for  the  statutory  forfeit- 
ure of  a  seaman's  wages  for  deser- 
tion, under  Act  Cong.,  July  20,  1790 
(i  Story  Laws,  p.  102,  §§2,  6),  pro- 
viding that  absence  without  leave  of 
master  or  officer  commanding  the 
ship,  for  48  hours,  if  the  fact  is 
entered  on  the  log  book  on  the  day 
when  the  seaman  leaves,  is  a  forfeit- 
ure of  wages,  the  entry  on  the  log 
liook  must  be  in  strict  compliance 
with  the  statute :  and  an  entry  that 
Vol.  I 


288 


ADMIRALTY. 


time  of  her  arrival  at  and  departure  from  a  port.' '  Written  entries 
by  the  captain  in  a  memorandum  book,  made  a  month  later  from 
alleged  original  entries  in  pencil,  erased,  are  not  entitled  as  evidence 
to  be  considered  as  a  log  book  properly  kept."  A  log  book  to  be 
admissible  in  evidence  must  be  sufficiently  identified.^''  A  clause 
in  the  British  Shipping  Act  making  certain  entries  in  the  official 
log  book  competent  evidence  in  all  courts  does  not  make  them  such 
in  the  courts  of  this  country.**" 

B.  Pkotusts.  —  The  protest  of  the  master  of  a  vessel  may  be 
given  in  evidence  to  corroborate*'  or  contradict  his  testimony;*'' 
but  where  the  protest  is  a  mere  narration  of  bad  weather  met 
with,  it  cannot  be  received  as  evidence  for  himself  or  his  owners.*' 
A  protest  is  not  evidence  to  show  that  the  captain  is  not  charge- 
able with  the  loss  of  cargo.**     The  protest  of  a  charterer  against 


the  men  abandoned  the  ship,  is  not 
sufficient,  since  the  fact  that  the  men 
left  the  vessel  without  leave  must 
be  entered  distinctly.  Worth  z: 
jMumford,  i   Hilt.   i. 

To  prove  the  absence  of  a  seaman 
for  48  hours  without  leave  as  evi- 
dence of  desertion  under  the  stat- 
ute, a  proper  entry  in  the  log  book 
is  indispensable,  though  not  conclu- 
sive evidence.  The  entry,  to  support 
the  statutory  forfeiture,  must  be  made 
the  day  the  absence  takes  place ;  and 
it  must  state  the  name  of  the  seaman 
against  whom  the  forfeiture  is  pro- 
posed to  be  enforced.  The  Rovena, 
I  Ware  313,  20  Fed.  Cas.  No.  12,090. 

An  entry  of  desertion  in  a  ship's 
log  book  is  not  admissible  in  evi- 
dence to  show  a  general  maritime 
desertion. 

77.  Sniallwood  v.  Mitchell,  2 
Hayw.  145. 

78.  Original  Entries.  —  Such 
written  entries  are  not  entitled  to  be 
considered  as  evidence  of  the  con- 
temporaneous original  entries.  Brink 
J'.    Lyons.    18   Fed.   805. 

79.  Proof  of  Log  Book.  —  If  a  log 
book  be  oflfered  in  evidence,  it  should 
be  proved  to  be  the  book  report 
kept  on  the  voyage.  It  is  not  suffi- 
cient to  prove  the  handwriting  of  the 
mate  as  to  some  of  the  entries  in  it. 
U.  S.  V.  Mitchell.  2  Wash.  C.  C. 
478,  26  Fed.  Cas.  No.   15,791. 

In  debt  on  an  embargo  bond,  the 
log  book  is  admissible,  where  it  has 
been  identified  by  a  witness,  though 
he  does  not  recollect  seeing  the  mate 
make    regular    entries    in    it;    it   also 

Vol.  I 


appearing  that  every  exertion  has 
been  made  to  procure  the  attendance 
of  the  mate.  U.  S.  v.  Mitchell.  ^ 
Wash.  C.  C.  95,  26  Fed.  Cas.  No. 
15,792. 

80.  law  of  Forum.  — The  ad- 
missibility or  competency  of  evi- 
dence in  a  legal  proceeding  pertains 
to  the  remedy,  and  is  governed  by 
the  lex  fori,  and  therefore  a  clause 
of  the  British  Shipping  Act  of  1854. 
making  certain  entries  in  the  official 
log  book  competent  entries  in  all 
courts,  docs  not  make  them  so  in  the 
courts  of  any  other  country.  The 
City  of  Carlisle,  39  Fed.  807.  5  L.  R. 
A.  52. 

81.  Sampson  7:  Johnson.  2  Cranch 
107,  21   Fed.  Cas.  No.   12,281. 

82.  V.  S.  V.  Sharpe.  Pet.  C.  C. 
118,  27  Fed.  Cas.   No.   16.264. 

Use  of  Protest  as  Evidence. — The 
protest  of  the  master  of  a  vessel 
is  not  evidence  per  se.  It  can  only 
be  used  to  impeach  the  testimony 
of  the  master  himself,  or  as  inci- 
dently  corroborative  of  the  log  book. 
Straffin  v.  Newell.  T.  U.  P.  Charlt. 
172;  Lamalere  v.  Caze,  i  Wash.  413, 
14  Fed.   Cas.   No.   8002. 

The  protest  of  some  of  the  crew 
taken  abroad  may  be  read  to  in- 
validate their  evidence  taken  under  a 
commission.  Winthrop  r.  Union  Ins. 
Co.,  2  Wash.  7,  30  Fed.  Cas.  No. 
17.901. 

83.  Merriman  <■.  The  May  Queen, 
Ncwb.  464,  17  Fed.  Cas.  No.  9481. 

84.  Cunningham  v.  Butler.  2 
Hayw.   392. 


ADMIRALTY. 


289 


the  action  of  the  vessel  in  a  foreign  port,  and  ex  parte  depositions 
in  support  of  the  facts  therein  alleged,  are  not  admissible  to  estab- 
lish a  controverted  fact.*""  The  protest  of  one  of  the  crew  of  a 
captured  vessel  made  at  the  first  port  arrived  at  in  the  United 
States,  and  left  with  the  brokers  of  insurers  to  fix  the  date  of  loss, 
is  admissible  for  that  purpose,  but  is  not  evidence  of  any  fact  con- 
tained in  it.'*'' 

C.  Shipi'Ing  Articles.  —  a.  Admissibility.  —  Shipping  articles, 
being  the  proper  and  usual  documents  for  the  ship  for  the  voyage, 
are,  in  the  admiralty,  always  admitted  as  evidence  of  the  terms  of 
hire,*^  though  the  evidence  is  not  ordinarily  conclusive,**  and  the 
shipping  articles  are  not  the  sole  evidence  of  the  rights  of  the  sea- 
men,*" unless  the  seamen  have,  with  full  understanding  of  its  stipu- 
lations, signed  the  shipping  articles,'"'  or  have  stipulated  for  shares 


85.  Otis  Mfg.  Co.  V.  The  Ira  B. 
Ellems,  48  Fed.  591. 

86.  Ruan  v.  Gardner,  i  Wash. 
145,  21  Fed.  Cas.  No.  12,100. 

87.  Willard  v.  Dorr,  3  Mas.  161, 
29  Fed.  Cas.  No.  17,680;  Ketland  v. 
Libering,  i  Wash.  20,  14  Fed.  Cas. 
No.  7744;  The  Atlantic,  i  Abb.  Adni. 
451,  2  Fed.  Cas.  No.  620;  The  Exile, 
20  Fed.  878;  Veacock  -c'.  McCall,  i 
Gil.  329,  28  Fed.  Cas.   Wo.   16,904. 

88.  The  Elvine,  19  Fed.  528 ;  Wil- 
lard V.  Dorr,  3  Mas.  161,  29  Fed. 
Cas.  No.  17,680;  The  Samuel  E. 
Spring,  27  Fed.  764;  The  Samuel 
Ober,  15  Fed.  621 ;  The  Lola,  6  Ben. 
142,  15  Fed.  Cas.  No.  8468;  The 
Cypress,  i  Blatchf.  &  H.  83,  6  Fed. 
Cas.  No.  3530;  The  Ringleader,  6 
Ben.  400,  20  Fed.  Cas.  No.  11,850; 
Wickham  v.  Blight,  i  Gil.  452,  29 
Fed.  Cas.  No.  17,611;  The  Rocham- 
beau,  3  Ware  304,  20  Fed.  Cas.  No. 
11.973;  The  Australia,  3  Ware  240, 
2  Fed.  Cas.  No.  667. 

89.  The  Trial,  i  Blatchf.  &  H. 
Adm.  94,  24  Fed.  Cas.  No.  14,170; 
Patten  v.  Park,  Anthon  32 ;  Wick- 
ham f.  Blight,  I  Gil.  4=2,  29  Fed. 
Cas.  No.  17,611;  Sheffield  v.  Page, 
I  Spr.  28s,  21  Fed.  Cas.  No.  12,743; 
Page  V.  Sheffield,  2  Curt.  377,  18 
Fed.    Cas.    No.    10,667. 

Agreement  With  Shipping  Agent. 
The  shipping  articles  are  not  the  sole 
evidence  of  the  seamen's  rights.  Ef- 
fect must  be  given  to  an  agreement 
made  by  the  shipping  agent  at  the 
time  when  the  articles  were  signed 
and  relied  upon  by  the  seamen  as 
forming  part  of  the  contract,  where 
such  an  agreement  is  clearly  proved. 

19 


Statements,  representations,  and 
agreements  made  to  the  seamen  by 
shipping  notaries,  when  the  articles 
are  signed,  bind  the  ship,  and  that 
without  reference  to  the  instructions 
which  the  captain  has  given  the 
notary.  When  the  ship-owner  al- 
lows a  shipping  agent  to  employ  a 
crew  for  him  he  holds  out  to  the 
seamen,  that  the  shipping  agent  has 
authority  to  bind  the  ship  by  the  con- 
tract whicli  he  makes.  The  actual 
bargain  inade  between  the  shipping 
agent,  and  the  seaman,  at  the  time 
of  the  shipment,  binds  the  ship.  The 
Lola,  6  Ben.  142,  15  Fed.  Cas.  No. 
8468. 

Other  Evidence. —  A  seaman  is 
not  obliged  to  call  for  the  shipping 
articles  on  the  trial  of  his  action 
for  wages,  in  order  to  establish 
presumptive  right  to  recover.  His 
right  depends,  not  upon  the  articles, 
but  upon  tlie  service,  and  this  he 
may  prove  by  other  evidence ;  e.  g., 
the  testimony  of  the  master.  The 
Trial,  i  Blatchf.  &  H.  94,  24  Fed.  Cas. 
No.   14,170. 

90.  The  Quintero,  i  Low.  38,  20 
Fed.  Cas.  No.   11,517. 

Explanation  of  Contract.  —  A 
contract  signed  by  seamen  which  was 
fully  explained  to  them  before  they 
signed  it,  is  conclusive  upon  them. 
A  sailor  who  has  signed  shipping 
articles  in  the  presence  of  a  consul 
speaking  the  same  language  as  him- 
self, shall  not  absolve  himself  from 
duty  thereunder  by  alleging  that  he 
did  not  understand  what  he  agreed 
to   do.      The   Exile,   20   Fed.   878. 

Officers   Bound   by   Shipping  Arti- 

Vol.  I 


290 


ADMIRALTY. 


of  the  vessel's  earnings.'" 

b.  Validity  and  Effect.  —  Any  stipulations  in  shipping  articles 
which  derogate  from  the  legal  rights,  or  just  compensation  of  the 
seamen,'-  or  any  stipulations,   the  nature  and   operation  of  which 


cles The  mate  of  a  vessel  is  con- 
cluded by  the  shipping  articles  speci- 
fying his  compensation,  and,  in  the 
absence  of  fraud,  the  master  of  a 
whaling  ship  is  concluded  by  the 
terms  of  his  contract  with  the 
owners  for  compensation.  Slocum 
V.  Swift,  2  Low.  212,  22  Fed.  Cas. 
No.  12,954;  Veacock  i:  AlcCall,  Gilp. 
329,  28  Fed.  Cas.  No.  16,904;  The 
Lakme,  93  Fed.  230. 

Stipulation  as  to  Suit A  stip- 
ulation in  shipping  articles  that  sea- 
men shall  not  sue  until  the  vessel  is 
unladen,  is  binding  upon  them,  if 
fairly  made.  Granon  i'.  Hartshorne, 
i^  Blatchf.  &  H,  454,  10  Fed.  Cas. 
No.  5689. 

91.'  Shipping  Articles  for  Whal- 
ing Voyage.  —  Where  shipping  ar- 
ticles were  entered  into  for  a  whaling 
voyage  which  contemplated  the  pay- 
ment of  the  officers  and  crew  by 
shares  of  the  vessel's  earnings,  a 
stipulation  therein  that  any  one  of 
them  who  might  be  prevented  from 
performing  his  duty  during  the  whole 
of  the  voyage,  should  receive  a  share 
only  in  proportion  to  the  time  served 
by  him,  is  binding  upon  all  the  offi- 
cers and  crew  without  evidence  that 
special  explanation  of  it  was  made 
to  the  seamen.  In  general,  seamen 
are  bound  by  their  contract  for 
wages  of  a  specified  rate,  or  where 
the  mode  of  compensation  is  by 
proportional  division  of  the  earnings 
of  the  vessel  among  the  owners,  offi- 
cers and  crew.  The  Atlantic,  Abb. 
Adm.  451,  2  Fed.   Cas.   No.  Ojo. 

Unexplained  New  Provision.  — 
Where  shipping  articles  were  in  the 
usual  printed  form  for  whaling 
voyages,  with  an  additional  clause  in 
writing,  containing  novel  conditions 
as  to  the  mode  of  computing  the 
shares  of  the  seamen,  a  seaman  to 
whom  such  new  provisions  were  not 
made  known  at  the  time  of  the  ship- 
ment is  not  bound  by  such  pro- 
visions. Mayshew  v.  Terrv.  i  Spr. 
584.   16  Fed.   Cas.   No.   9361. 

Shares  Treated  as  Wages .^g^ee- 

ments   in  shipping  articles  by  which 

Vol.  I 


the  seamen  are  to  receive  a  share  of 
the  profits  of  the  voyage,  are  con- 
tracts of  hiring  and  the  shares  may 
be  recovered  as  wages.  Reed  v. 
Hussey,  i  Blatchf.  &  H.  525,  20  Fed. 
Cas.   No.   11,646. 

92.  Brown  v.  Lull,  2  Sum.  443, 
4  Fed.  Cas.  No.  2018;  iMatern  v. 
Gibbs,  I  Spr.  158,  16  Fed.  Cas.  No. 
9273- 

Unjust  Agreements All  agree- 
ments and  arrangements  with  sailors 
are  subject  to  examination  in  the 
court  of  admiralty  and  if  unjust  will 
be  set  aside  and  disregarded.  Waling 
V.  The  Christina,  Deady  49,  28  Fed. 
Cas.  No.  17,059 ;  The  Almatia, 
Deady  473,  i  Fed.  Cas.  No.  254;  The 
Ringleader,  6  Ben.  400,  20  Fed.  Cas. 
No.  11,850;  The  Mermaid,  104  Fed. 
301  ;    The   Occidental^    101    Fed.   997. 

A  stipulation  in  shipping  articles 
that  if  the  seaman,  having  absented 
himself  from  his  vessel,  afterwards 
returns  to  his  duty,  his  return  shall 
not  relieve  him  from  a  forfeiture  of 
his  wages,  is  void.  Freeman  v. 
Baker,  i  Blatchf.  &  H.  372,  9  Fed. 
Cas.   No.   5084. 

Illegal  Stipulations —  So  far  as 
shipping  articles  provide  for  a  for- 
feiture of  wages  in  excess  of  that 
provided  by  statute,  they  are  contrary 
to  law.  A  general  coasting  and 
trading  voyage,  in  which  the  vessel 
is  trading  at  ports  in  different  states, 
is  within  the  act  of  Congress  of 
July  20,  1790,  requiring  the  contract 
with  the  seamen  to  be  in  writing, 
and  a  verbal  contract  is  illegal  and 
not  binding.  The  Crusader,  i  Ware 
448,  6   Fed.   Cas.   No.   3456. 

The  court  will  not  countenance 
an  evasion  of  U.  S.  act  of 
June  26.  1884,  prohibiting  the 
payment  of  advance  wages  to  sea- 
men, and  declaring  that  such  ad- 
vance payment  shall  constitute  no 
defense  to  an  action  for  recovery  of 
full  wages — an  evasion,  for  instance, 
where  the  rate  of  wages  stated  in  the 
shipping  articles  is  less  than  that 
agreed  on  by  parol,  the  difference 
being  paid  in  advance.     The  Samuel 


ADMIRALTY. 


291 


were  not  fiill_v  explained  to  the  seamen,  will  be  held  void.'-'^  Ship- 
ping articles  are  void  wdiich  do  not  sufficiently  describe  or  state  the 
nature  of  the  voyage,"''  and  where  the  voyage  is  properly  described 


E.  Spring,  2y  Fed.  764;  The  San 
.Marccis,    J/    Fed.    567. 

Exceptions  to  Void  Articles U. 

S.  Rev.  St.  §  4523,  making  void  ship- 
ments of  seamen  made  contrary  to 
statute,  etc.,  has  no  application  to 
contracts  whereby  fishermen  ship  for 
shares  in  the  catch.  The  Corneha 
2vl.   Kingsland,  25   Fed.  856. 

The  acts  of  Congress  of  1790  and 
1840,  entitling  seamen  shipped  with- 
out written  articles,  to  demand  the 
highest  rate  of  wages,  etc.,  do  not 
apply  to  fishing  vessels.  Seamen 
shipped  on  these,  by  parol  agree- 
ments, can  recover  only  the  wages 
agreed  for.  The  lanthe,  3  Ware 
126,   12   Fed.   Cas.   No.   6992. 

Compare  The  Australia,  3  Ware 
240,  2  Fed.  Cas.  No.  667. 

93.  The  Almatia,  Deady  473,  I 
Fed.  Cas.  No.  254;  The  Rocham- 
beau,  3  Ware  304,  20  Fed.  Cas.  No. 
11)973;  Brown  v.  Lull,  2  Sum.  443, 
4  Fed.  Cas.  No.  2018;  Harden  v. 
Gordon,  2  Mason  541,  11  Fed.  Cas. 
No.  6047 ;  Sarah  Jane,  i  Blatchf.  & 
H.  401,  21  Fed.  Cas.  No.  12,348; 
The  Cyprus,  i  Blatchf.  &  H.  83,  6 
Fed.  Cas.  No.  3530;  Heard  v. 
Rogers,  I  Spr.  556,  II  Fed.  Cas.  No. 
6298;  Matern  v.  Gibbs,  i  Spr.  158, 
16  Fed.  Cas.  No.  9273 ;  Mayshew  v. 
Terry,  i  Spr.  584,  16  Fed.  Cas.  No. 
9361 ;  The  Disco,  2  Sawy.  474,  7  Fed. 
Cas.   No.   3922. 

Reduction  of  Wages An  unusual 

clause  in  shipping  articles  inserted  in 
an  unusual  place  in  the  article,  re- 
ducing the  wages  of  the  seamen  upon 
a  returning  voyage  from  Hong 
Kong  to  San  Francisco  will  be  set 
aside  and  disregarded  as  unjust  in 
admiralty  unless  the  ship  owner 
gives  clear  proof  that  the  sailors 
were  clearly  informed  of  and  agreed 
to  it.  and  in  the  absence  of  such 
evidence  the  seamen  were  entitled 
to  recover  full  wages  for  the  voyage, 
notwithstanding  they  had  signed 
releases  in  full  under  protest  of 
their  ignorance  of  the  clause  in- 
serted. The  Ringleader,  6  Ben.  400, 
20  Fed.  Cas.  No.   11,850. 

Forfeiture  of  Wages A  court  of 


admiralty  will  avoid  a  clause  in 
shipping  articles  which  was  not 
clearly  explained  to  the  seamen,  and 
which  undertook  to  forfeit  all  their 
wages  and  property  if  they  should 
be  absent  from  the  ship  for  48  hours 
without  the  express  permission  of 
the  master.  The  Quintcro,  i  Low. 
38,  20  Fed.  Cas.  No.   11,517. 

New  Stipulations  Not  Explained. 
Any  new  or  unusual  stipulations  in 
the  shipping  articles  which  derogate 
from  the  rights  or  privileges  of  a 
seaman  under  general  maritime  law 
will  be  held  void  in  admiralty  unless 
it  appears  that  they  were  fully  and 
fairly  explained  to  the  seamen,  and 
that  an  additional  compensation  was 
allowed,  adequate  to  the  new  restric- 
tions. The  Australia,  3  Ware  240, 
2  Fed.  Cas.   No.  667. 

Ambiguity  in  Shipping  Articles. 
Any  ambiguity  in  the  shipping  ar- 
ticles should  be  resolved  in  favor  of 
the  seaman,  it  being  the  duty  of 
the  master  or  owner  of  the  vessel  to 
have  the  shipping  articles  couched  in 
plain  language  which  the  seamen 
cannot  misunderstand.  Wope  v. 
Hemenway,  i  Spr.  300,  36  Fed.  Cas. 
No.  18,042 ;  Jansen  v.  The  Theodor 
Heinrich,  Crabbe  226,  13  Fed.  Cas. 
No.  7215;  The  Disco,  2  Saw.  474, 
7    Fed.    Cas.    No.    3922. 

94.     Rights    of    Seamen If    the 

shipping  articles  do  not  sufficiently 
describe  the  voyage,  the  seaman  may 
leave  at  any  time;  and  if  the  master 
imprison  him  because  he  refuses  to 
remain  and  do  duty  on  board,  this 
is  a  tort.  Snow  v.  Wope,  2  Curt. 
302,  22  Fed.  Cas.  No.  I3,i49- 

Where  a  crew  was  shipped  on  an 
indefinite  voyage,  the  destination  of 
which  was  concealed  from  the  sea- 
men, the  seamen  are  not  bound  to 
work  in  loading  a  cargo  at  the  com- 
pensation fixed  by  the  shipping  ar- 
ticles, at  such  concealed  destination. 
The  Brookline,  i  Spr.  104,  4  Fed. 
Cas.   No.   1937. 

A  shipping  contract  which  does 
not  specify  the  duration  or  place  of 
termination  of  a  voyage  is  not  bind- 
ing    on     the     seamen.       Walling    v. 

Vol.  I 


292 


ADMIRALTY. 


therein,  it  cannot  be  varied  by  proof,"^  and  if  departed  from,  the 
seamen  are  not  bovrnd,^**  and  if  broken  up  without  cause  the  seamen 
may  claim  full  wages  for  the  voyage,  less  earnings  meanwhile.''' 

c.  Best  Evidence.  —  In  a  suit  upon  shipping  articles  by  a  seaman 
to  recover  wages  for  the  voyage,  if  the  articles  are  not  produced 
bv  the  master  or  owner  at  the  trial,  after  due  requirement,  his  state- 


The  Christina,  Deady  49,  28  Fed. 
Cas.    No.    17,059. 

But  a  defect  in  shipping  articles 
in  not  specifying  the  terminus  of 
the  voyagej  will  not  justify  the  mas- 
ter in  discharging  the  seamen 
abroad.  The  presumption  is,  that 
a  return  to  the  United  States  was 
intended.  Burke  v.  Buttman,  i 
Low.  191,  4  Fed.  Cas.  No.  2160. 

A  seaman  cannot  be  bound  for 
service  on  a  ship  during  a  particular 
voyage  or  for  a  definite  period  of 
time,  so  as  to  be  chargealile  with 
desertion,  which  will  forfeit  his 
wages,  because  he  leaves  the  ship 
before  the  completion  of  the  voyage 
or  the  expiration  of  such  time,  un- 
less he  signs  shipping  articles,  as 
prescribed  by  Rev.  St.  §4511,  which 
definitely  state  the  nature  of  the 
voyage.     The  Mermaid,  104  Fed.  301. 

illegal  Articles — Shipping  articles 
which  provide  for  a  voyage  to  or 
from  ports  to  be  determined  by  tlie 
master,  or  fixed  at  his  option,  do 
not  definitely  statd  the  nature  of  the 
voyage  as  required  by  the  Revised 
Statutes,  and  are  illegal  and  void. 
Tlie  Occidental,  loi  Fed.  997 ;  The 
Mermaid,    104   Fed.   301. 

95.  Voyage  Described  Conclusive 
Upon  Owner — The  voyage  described 
in  the  shipping  articles  is  conclusive 
upon  the  ship  owner  in  an  action 
in  rem  by  the  seamen  for  their 
wages.  The  Triton,  i  Blatchf.  &  H. 
Adm.  282,  24  Fed.  Cas.  No.  14,181. 

It  cannot  be  shown  that  it  was  un- 
derstood that  the  vessel  was  not  to 
complete  the  voyage  described  in  the 
shipping  articles.  Thompson  v.  Tlic 
Oakland,  23   Fed.   Cas.   No.   I3.97i- 

Effect  Upon  Seamen.  —  Where 
the  shipping  articles,  describing  the 
voyage,  were  fully  explained  to  the 
seamen  before  they  signed  it,  they 
are  concluded  thereby.  The  Quin- 
tero,    I    Low.   38,   20   Fed.    Cas.    No. 

11.517- 

But  where  two  voyages  were  ex- 
pressly  agreed    upon,    one    of   which 

Vol.  I 


was  described  in  the  articles  and 
the  other  was  not  and  both  were  per- 
formed, the  mariner  may  prove  the 
oral  agreement  and  recover  accord- 
ingly. Page  V.  Sheffield,  2  Curt.  377, 
18  Fed.  Cas.  No.  10,667;  Sheftield 
V.  Page,  I  Spr.  285,  21  Fed.  Cas. 
No.   12,743. 

96.  The  William  Jarvis,  I  Spr. 
485,  30  Fed.  Cas.  No.  17,697;  The 
Gem.  I  Low.  180,  10  Fed.  Cas.  No. 
5304 ;  Potter  v.  Allin,  2  Root  63 ; 
The  Laura  Madsen,  84  Fed.  362. 

97.  The  Maria,  i  Blatchf.  &  H. 
Adm.  331,  16  Fed.  Cas.  No.  9074; 
Campbell  v.  The  Steamer  Uncle 
Sam,  I  McAU.  77,  4  Fed.  Cas.  No. 
2372. 

Death  of  Seamen  During  Voyage. 
Where  seamen  shipped  for  a  whole 
voyage  and  died  before  the  return 
of  the  vessel,  their  administrators 
may  recover  full  wages.  Walton  v. 
The  Neptune,  I  Pet.  Adm.  142,  29 
Fed.  Cas.  No.  I7,I3S- 

Seamen  Forced  From  Vessel. 
Where  seamen  were  forced  from  the 
vessel,  who  had  shipped  for  the 
voyage,  they  are  entitled  to  wages 
to  the  time  of  its  completion,  de- 
ducting earnings  meanwhile.  Sing- 
strom  V.  The  Hazard,  2  Pet.  Adm. 
384,  22  Fed.   Cas.   No.   12,905. 

Where  seamen  have  been  lurncd 
oflf  from  an  armed  vessel  without 
their  consent,  and  without  lawful 
cause,  they  are  entitled  to  their 
shares  of  prizes  taken  during  the 
voyage  for  which  they  are  shipped. 
The  Heroe,  21  Fed.  525. 

Where  the  crew  of  a  fishing  vessel 
were  not  allowed  to  participate  in 
the  fishing  by  the  owners  of  the 
vessel,  as  provided  for  in  the  ship- 
ping articles,  they  are  justified  in 
leaving  the  vessel,  and  are  entitled 
to  be  paid  their  full  share  of  the 
catch.  Goodrich  r.  The  Domingo. 
I  Saw.  182,  10  Fed.  Cas.  No.  5543; 
The  Hibcrnia,  T  Spr.  78,  12  Fed. 
Cas.   No.  6455. 


ADMIRALTY. 


293 


ment  of  the  contents  thereof,  when  disputed,  will  be  prima  facie 
evidence  of  the  same.'-"*  In  an  action  grounded  upon  shipping  arti- 
cles, seamen  are  not  bound  to  produce  them,  even  when  they  are 
on  the  records  of  an  admiralty  court,  in  consequence  of  the  vessel's 
capture,  and  after  a  notice  to  the  defemlant  to  produce  them,  they 
may  prove  their  contents  by  oral  evidence.""  Original  shipping 
articles  proved  before  a  commissioner,  and  given  up  to  the  vessel 
which  has  departed,  may  be  proved  by  a  copy  certified  by  the  com- 
missioner.' Charges  made  on  shipping  papers  of  advances  to  the 
seamen  in  the  course  of  the  voyage,  are  not  evidence  until  verified 
by  the  suppletory  oath  of  the  master.- 

D.  Bills  of  Lading.  —  a.  Effect  As  Evidence.  — A  bill  of  lading 
in  the  usual  form,  is  a  receipt  for  goods,  which  is  not  conclusive 
evidence  in  relation  to  any  contract,"  or  of  an  express  agreement 
as  to  the  price  of  freight,*  or  of  the  amount  of  cargo  upon  which 
the  freight  is  to  be  estimated,"*  or  of  the  condition  of  goods  when 
laden  on  board,  as  between  the  original  jjarties,"  but  is  conclusive 
as  against  assignees  of  the  cargo  for  a  valuable  consideration.' 
Unless  fraud  or  mistake  is  shown  the  bill  of  lading  is  conclusive 
evidence  of  the  articles  shipped.* 

b.  Legal  Effect.  —  The  prima  facie  legal  effect  of  a  bill  of  lading, 
is  to  vest  the  ownership  of  the  goods  in  the  consignee."     Usage 


98.  The  O.sccola,  01c.  450,  18 
Fed.  Cas.  No.  10,602. 

99.  Patten   v.    Park,   Anthony  46. 

1.  Henry  v.  Curry,  Abh.  Adm. 
4,^,^.   II   Fed.   Cas,   No.  6,vSi. 

2.  The  David  Pratt,  i  Ware  509, 
7   Fed.    Cas.    No.   35'97. 

3.  Knox  V.  Ninctta.  Crabbe  534, 
14   Fed.   Cas.   No.   7912. 

4.  Simmes  z:  Marine  Ins.  Co.,  2 
Cranch  C.  C.  618,  21  Fed.  Cas.  No. 
12,862. 

5.  The  Henry,  i  Blatchf.  &  H. 
465,   II   Fed.   Cas.   No.  6372. 

6.  Bradstreet  v.  Heran,  i  Abb. 
Adm.  2og,  3  Fed.  Cas.  No.  1792; 
Baxter  v.  Leland,  i  Abb.  .Adm.  348, 
2  Fed.  Cas.  No.  1124;  The  Martha, 
Olc.  140.  16  Fed.  Cas.  No.  9145; 
Nelson  ;■.  Woodruff,   i   Black.   156. 

7.  Bradstreet  v.  Heran,  i  Abb. 
Adm.   209,   3    Fed.    Cas.    No.    1792. 

8.  Backus  v.  The  Marengo,  6  Mc- 
Lean 487,   2  Fed.   Cas.   No.   712. 

False  Bills  of  lading.  —  The 
owner  of  a  vessel  may  deny  the 
validity  of  bills  of  lading  fraudu- 
lently signed  by  the  master  of  the 
vessel,  as  against  the  lyoiia  fide 
owners  of  the  bills  of  ladine.  where 
the  master  had  no  authority  to  ex- 
ecute them  so  as  to  bind  the  owner's 


interest  in  the  vessel,  and  his  sig- 
nature of  the  bills  of  lading  was 
obtained  by  fraud  and  represented  no 
goods  actually  delivered  upon  the 
vessel,  and  were  negotiated  solely 
for  obtaining  money  upon  them. 
The  Freeman  v.  Buckingham,  18 
How.  182;  Pollard  i'.  Vinton,  ic; 
U.  S.  7. 

Neither  the  master  of  a  vessel  nor 
the  shipping  agent  of  steamboats 
upon  rivers,  has  authority  to  bind 
the  vessel  or  its  owners  by  a  false 
bill  of  lading  for  goods  or  cargo 
not  received  for  shipment,  and  such 
bills  of  lading,  being  outside  of  the 
power  conferred  upon  the  master  is 
void  in  the  hands  of  a  person,  who 
may  have  afterwards,  in  good  faith, 
laken  it  and  advanced  money  on  it. 
Pollard  V.  Vinton.  105  U.  S.  7. 

9.  Consignment  for  TTse  of  Third 
Party The  effect  of  a  consign- 
ment of  goods,  generally  is  to  vest 
the  property  in  the  consignee ;  but 
if  the  bill  of  lading  is  special  to 
deliver  the  goods  to  A  for  the  use 
of  B,  the  property  vests  in  B,  and 
the  action  must  be  brought  in  his 
name  in  case  of  loss  or  damage. 
Grove  T.   Bryan,  8  How.  429. 

Presumptive    Title    of    Consignee. 

Vol.  I 


294 


ADMIRALTY. 


may  be  shown  to  qualify  the  effect  of  a  bill  of  lading."  A  bill  of 
lading  signed  after  damage  to  the  cargo  will  not  have  the  effect 
to  increase  the  liability  of  the  vessel."  A  through  bill  of  lading 
does  not  import  joint  liability  of  the  separate  vessels  upon  which 
the  goods  were  shipped. '- 

c.  Transfer.  —  The  endorsement  of  a  bill  of  lading  has  the  effect 
to  transfer  all   right  in  the  consigned  property  to  the  assignee. ^^ 


A  bill  of  lading  is  presumed  to  vest 
the  title  in  the  consignee,  unless  the 
contrary  is  shown  by  thd  bill  of  lad- 
ing itself,  or  by  e.xtrinsic  evidence. 
The  Sally  Alagee.  .?  Wall.  451:  I^aw- 
rencc  ■:■.    Minterii.   17   How.    100. 

Bill  of  Lading  to  Shipper's  Order. 
A  bill  of  lading  taken,  deliverable 
to  the  shipper's  own  order,  is  in- 
consistent with  an  intention  to  pass 
the  ownership  of  the  cargo  to  the 
person  for  whom  they  were  pur- 
chased, even  if  the  shipment  was 
made  in  the  purchaser's  own  vessel, 
where  the  consignment  was  to  a 
bank  as  security  for  payment  of 
drafts  drawn  by  the  shipper  upon 
the  consignee.  Dowes  z:  National 
Exchange  Bank,  gi   U.  S.  618. 

10.  Broadwell  v.  Butler,  6  Mc- 
Lean 296,  4  Fed.  Cas.  No.  1901 ; 
Andrews  7:  Roach,  3  Ala.  190. 

Usages  Part  of  Contract Parties 

who  contract  on  a  subject-matter 
concerning  which  known  usages  pre- 
vail, incorporate  such  usages  by 
implication  into  their  agreements,  if 
nothing  is  said  to  the  contrary;  and 
a  usage  of  the  trade  for  a  vessel 
to  touch  and  stay  at  a  port  out  of 
its  course,  established  as  a  general 
usage,  forms  part  of  the  contract  of 
carriage,  created  by  the  bill  of  lad- 
ing, even  if  the  general  usage  be  not 
known  to  the  particular  shipper. 
Hostetter  r.  Park,  137  U.  S.  30; 
Thatcher  v.  JMcCnlloh,  OIc.  365,  23 
Fed.  Cas.  No.  13,862, 

Delivery  of  Cargo.  —  Where  a 
cargo  is,  by  a  bill  of  lading,  to  be 
delivered  at  a  designated  port  of 
wide  e.xtent,  without  specifying  a 
particular  place,  the  custom  of  the 
port  controls  the  delivery,  and  a 
usage  may  be  shown  for  a  majority 
of  the  consignees  of  the  cargo  of 
a  general  ship  to  name  a  suitable 
place  of  discharge.  Devato  v.  Eight 
Hundred  and  Twenty-Three  Barrels 
Plumbago,  20  Fed.  510. 

Vol.  I 


Specific     Terms     Not     Varied     by 

Usage.  — Where  an  option  is  ex- 
pressly given  to  the  shipper  alone, 
no  usage  can  be  shown  to  authorize 
the  consignee  to  exercise  the  option. 
McGovern  v.  Heissenbuttel,  8  Ben. 
46,  16  Fed.  Cas.  No.  8805. 

The  legal  efifect  of  the  language  of 
bills  of  lading  cannot  be  varied  by 
slight  proof  of  a  custom  which  is  not 
notorious  and  certain,  and  has  not 
been  uniform  in  its  application,  or 
long  established  in  practice.  Gar- 
rison V.  Memphis  Ins.  Co.,  19  How. 
312;  Brittan  -'.  Barnabv,  21  How. 
537- 

A  usage  in  San  Francisco,  however 
general,  cannot  have  the  force  of 
custom  to  release  its  merchants  from 
the  obligation  of  a  bill  of  lading, 
nor  can  any  previous  assent  to  the 
usage  of  any  particular  firm  engaged 
there  in  the  shipping  business,  though 
acquiesced  in  Ijy  one  who  had  had 
other  dealings  with  it,  be  interpreted 
into  an  agreement,  so  as  to  deprive 
him  of  a  right  under  an  ordinary 
bill  of  lading,  subsequently  made. 
Brittan  ?'.  Barnaby,  21  How.  537. 

Evidence  is  not  admissible  to  vary 
the  common  bill  of  lading,  by  show- 
ing a  custom  contrary  to  its  legal 
effect.  The  Reeside,  2  Sum.  567.  20 
Fed.  Cas.  No.  11,657. 

11.  The  Edwin,  i  Spr.  477,  8 
Fed.    Cas.    No.   4300. 

12.  Sumner  ?■.  Walker,  .^o  Fed. 
261. 

13.  Purchase    of    Stolen    Bill    of 

Lading Tlie  purchaser  of  a  stolen 

bill  of  lading,  who  has  reason  to 
believe  that  his  vendor  was  not  the 
owner  of  the  bill,  or  that  it  was 
held  to  secure  the  payment  of  an 
outstanding  draft,  is  not  a  bona  fide 
purchaser,  and  is  not  entitled  to  hold 
the  merchandise  covered  by  the  bill 
against  its  true  owner.  Shaw  v. 
Merchant's  National  Bank,  loi  U.  S. 
557;   Ryberg  i'.    Snell.   2   Wash.   294, 


ADMIRALTY. 


295 


The  assignee  has  a  right  to  have  the  goods  discharged  from  the 
vessel  for  examination  and  comparison  with  the  bill  of  lading,  but 
cannot  require  delivery  without  paying  freight.'*  Under  a  bill  of 
lading  to  order  the  vessel  takes  the  risk  of  delivery  to  the  endorsee.'^ 

d.  Best  Ex'idcncc.  —  A  copy  of  a  bill  of  lading,  with  affidavit  of 
its  correctness,  is  not  the  best  evidence,  and  is  not  admissible  to 
prove  the  original.'"  A  bill  of  lading  is  not  necessary  as  evidence 
where  a  suit  is  not  brought  upon  it.''  A  paper  certified  by  a 
consul  to  be  a  true  copy  of  a  bill  of  lading  is  not  admissible,  though 
the  party  has  but  one  original. '* 

E.  Ch;\kter-Partv.  —  a.  Relation  to  Bills  of  Lading.  —  As 
between  the  shipowner  and  the  owner  of  a  charter-party,  shipping 
his  own  goods,  the  charter-party  controls  the  bill  of  lading  where 
there  is  a  difference  between  them  ;'*'  but  bills  of  lading  are  not,  as 
between  the  shipowners  and  the  charterers,  new  contracts  super- 
seding all  stipulations  contained  in  the  charter-party  in  regard  to 
the  delivery  of  the  goods. ^^  A  parol  charter  will  control  an  incon- 
sistent bill  of  lading  signed  after  the  vessel  is  loaded  and  leaves 
the  port."'  A  clause  of  a  charter-party  providing  that  bills  of 
lading  should  be  signed  by  the  master,  excludes  implied  authority 
in  the  charterers,  to  bind  the  ship  by  bills  of  lading.--     Tf  a  charter- 


21  Fed.  Cas.  No.  12,189;  Walter  v. 
Ross,  2  Wash.  283,  29  Fed.  Cas.  No. 
17,122;  The  Treasurer,  I  Spr.  473,  24 
Fed.  Cas.  No.  14,159;  The  Marv 
Ann  Guest,  OIc.  498,  16  Fed.  Cas. 
No.  9197;  Conard  v.  Atlantic  Ins. 
Co.,  I  Pet.  386;  The  Vaughan  and 
Telegraph,  14  Wall,  258;  The 
Thames,  14  Wall.  98. 

14.  The  Treasurer,  i  Spr.  473,  24 
Fed.    Cas.    No.    14,159. 

15.  The  Thames,  14  Wall.  98. 

16.  Wood  V.  Roach,  2  Dall.  180. 
In  this  case,  Bradford,  Justice,  said : 
"  The  paper  offered  in  evidence  is 
not  a  bill  of  lading;  but  it  is  offered 
as  a  copy,  and  to  prove  that  a  bill 
of  lading,  of  the  same  tenor  and 
date  was  executed.  If  the  instru- 
ment itself  were  produced,  proof  of 
the  signature  would  be  prima  facie 
evidence  that  it  was  given  when  it 
bears  date ;  but  when  the  instrument 
does  not  appear,  it  cannot  be  sup- 
plied by  the  oath  of  the  defendant." 
The  evidence  was  accordingly  re- 
jected. 

17.  Newhall  z:  Ni.xon.  4  Wall. 
572. 

18.  The   .Mice.    12   Fed.    923. 

19.  Ardan  S.  S.  Co.  v.  Theband, 
35  Fed.  620;  The  Chadwicke,  2g  Fed. 
521. 


20.  Stipulations  in  Charter-Party. 

A  clause  of  the  charter-party  saying 
that  "the  charterers'  responsibility 
shall  cease  when  cargo  is  all  on 
board  and  bills  of  lading  signed," 
does  not  terminate  the  responsibility 
of  the  ship  to  the  charterers  upon 
the  charter-party — especially  where 
the  charter  contains  a  provision  that 
the  goods  are  to  be  delivered  accord- 
ing to  the  custom  at  the  port  of  dis- 
charge, and  other  provisions  in 
regard  to  the  appointment  of  steve- 
dores and  designation  of  wharf  for 
unloading.     The  lona,  80  Fed.  933. 

21.  Huron  Barge  Co.  7'.  Turncy, 
71    Fed.    972. 

22.  Bills  of  Lading  Signed  by 
Charterers.  —  Though  a  provision  of 
a  charter-party,  that  the  master  shall 
sign  bills  of  lading  as  presented, 
with  indemnity  from  the  charterers, 
does  not  authorize  the  charterers  to 
sign  bills  of  lading  themselves,  or 
require  the  master  to  give  bills  of 
lading  for  goods  carried  on  deck, 
so  as  to  bind  the  ship  thereby,  where 
the  charter  provides  that  goods  car- 
ried on  deck  shall  be  at  the  char- 
terer's risk;  yet  a  ship  and  its 
master  are  bound  to  third  persons 
under  bills  of  lading  executed  by 
the    charterers    in    his    presence    and 

Vol.  I 


29r> 


ADMIRALTY. 


party  makes  no  mention  of  primage,  none  can  be  allowed,  though 
stipulated  for  in  the  bill  of  lading.-''  Where  a  consignee  of  the 
charterer  has  notice  that  the  freight  must  be  paid  to  the  master 
and  not  to  the  charterer,  it  imposes  the  like  obligation  upon  him 
as  if  expressly  reserved  in  the  bill  of  lading,  and  such  consignee 
must  be  presumed  to  know  the  contents  of  the  charter-party.-* 

b.  Usage.  —  A  charter-party  should  be  construed  conformably  to 
the  usage  of  trade  in  general,  and  to  the  particular  trade  to  which 
it    relates.-^     A    charter-part}-    which    expressly    provides    for    the 


with  his  knowledge  and  concurrence, 
as  if  signed  by  the  master  in  person; 
and  the  ship  cannot  deny  privity 
with  actual  known  shippers  of  cargo, 
under  cover  of  a  single  bill  of  lading 
given  to  the  charterers  as  sole  ship- 
pers, where  to  the  master's  knowl- 
edge, clean  bills  of  lading  were  is- 
sued to  the  actual  shippers  in  his 
presence  by  the  charterers  as  his 
agents.     Tlie  Sprolt,  70  Fed.  327. 

23.  Carr  r.  Austin  etc.  Co.,  14 
Fed.  419. 

24.  Control     of     Vessel When, 

by  the  charter-party,  the  possession 
and  control  of  the  vessel  remains 
with  the  master  and  owner,  the  con- 
signee cannot  deal  with  the  char- 
terer as  owner  for  the  voyage,  and 
a  payment  by  him  to  the  charterer 
by  crediting  debts  due  him  from  the 
charterer  on  the  freight,  will  not 
discharge  his  liability  to  the  master 
who  may  recover  the  freight  from 
him  to  the  amount  due  on  the 
charter-party.  Shaw  v.  Thompson, 
01c.   144,  21   Fed.  Cas.   No.   12,726. 

25.  Balfour  v.  Wilkins,  15  Saw. 
429;  Houge  V.  Woodruff,  19  Fed. 
136;  Gronn  i'.  Woodruff,  19  Fed. 
143 ;  Continental  Coal  Co.  2:  Bird- 
sail,  108  Fed.  8S2,  48  C.  C.  A.  124. 

Construction  of  Charter  -  Party. 
In  Raymond  'i\  Tyson,  17  How.  53, 
the  court  said :  "  First,  it  must  be 
remembered,  tliat  a  charter-party  is 
an  informal  instrument  as  often  as 
otherwise,  having  inaccurate  clauses, 
and  that  on  this  account  they  must 
have  a  liberal  construction,  such  as 
mercantile  contracts  usually  receive, 
in  furtherance  of  the  real  intention 
of  the  parties  and  usage  of  trade. 
So  Lord  Mansfield  said  a  long  time 
since.  Abbott,  in  his  treatise  relative 
to  merchant  ships  and  seamen. 
Story's  edition,  188,  gives  the  nde 
of    construction    very    nnicb    in    the 

Vol.  I 


same  words,  but  perhaps  with  rnore 
precision.  '  The  general  rule  which 
our  courts  of  law  have  adopted,  in 
the  construction  of  this  as  well  as 
other  mercantile  instruments,  is, 
that  the  construction  should  be  lib- 
eral, agreeable  to  the  real  intention 
of  the  parties,  and  conformable  to 
the  usage  of  trade  in  general,  and 
of  the  particular  trade  to  which  this 
contract  relates."  Chancellor  Kent, 
in  his  47th  chapter  on  the  contract 
of  Affreightment,  cites  the  rule  ap- 
provingly. The  late  Mr.  Justice 
Thompson,  of  this  court,  asserts  it  in 
Ruggles  r.  Bucknor,  i  Paine  358. 
Judge  Story  acted  upon  it  ten  years 
afterwards,  in  the  case  of  the 
Volunteer,  i  Sum.  550;  and  again  in 
another  case,  2  Sum.  589.  .  .  . 
The  other  case  mentioned  in  2  Sum. 
5S9.  Certain  Logs  of  Mahogany  v. 
Richardson,  was  one  which  was 
decided  upon  the  inaccurate  and  in- 
consistent stipulations  of  a  charter- 
party  by  a  liberal  construction  of 
them,  in  furtherance  of  the  real  in- 
tention of  the  parties,  and  the  usage 
of   trade." 

Custom  as  to  Stowage.  —  A 
charter-party  for  the  transportation 
of  merchandise  from  Calcutta  to 
Boston,  prescribing  no  mode  of  stow- 
ing, tacitly  refers  to  the  established 
and  known  usage  of  the  trade  for  the 
manner  of  stowing  the  cargo.  Lamb 
r.  Parkman,  i  Spr.  343,  14  Fed.  Cas. 
No.  8020. 

Custom  of  Trade —  .^  custom  of 
trade  in  reference  tb  a  particular  cargo 
which  is  not  excluded  by  the  terms 
of  the  charter-party  is  admissible  in 
evidence  to  qualify  its  terms  as  part 
thereof.  Albion  Pliospbate  M.  Co. 
7'.   Wyllie,   77   Fed.   541. 

Custom  as  to  Navigation —  Under 
a  charter-party  extending  to  the 
close   of   navigation    upon   the   Great 


ADMIRALTY 


297 


usage  and  customs  of  the  place  of  loading  and  discharge  of  cargo, 
binds  the  owner  of  the  vessel  by  the  proved  customs  of  the  port."" 
The  established  usage  of  a  port  for  loading  or  discharging  vessels 
may  be  shown  to  explain  the  meaning  of  uncertain  language  in  the 


Lakes  evidence  is  admissible  to  prove 
the  customary  close  of  the  season 
of  navigation  thereupon.  Eddy  v. 
Northern  S.  S.  Co..  79  Fed.  361. 

Explanation  of  Doubtful  Terms. 
Established  usage  may  lie  shown  to 
e.xplain  the  meaning  and  use  of  du- 
Iiious  and  uncertain  phrases  in  tlie 
charter-party.  Balfour  v.  Wilkins, 
5  Saw.  429,  2  Fed.  Cas.  No.  807. 

Proof  of.  Usage. —  A  custom  or 
usage  of  the  port  in  which  a  char- 
ter was  made,  may  be  shown  in  evi- 
dence in  a  suit  to  determine  the 
rights  of  the  parties  under  the  char- 
ter-party, where  it  is  silent  on  the 
subject  to  which  the  custom  relates 
in  order  to  place  the  court  in  the 
position  of  the  parties  when  the 
charter  was  made ;  but  to  entitle  the 
custom  to  be  read  in  the  charter- 
party,  there  must  be  no  room  in  the 
evidence  to  doubt  of  its  existence, 
and  it  inust  appear  to  be  reasonable, 
certain,  consistent  with  the  language 
of  the  charter-party,  and  not  con- 
trary to  law,  and  so  general  and  long 
established  that  the  parties  are  con- 
clusively presumed  to  have  con- 
tracted with  reference  to  it.  Conti- 
nental Coal  Co.  V.  Birdsall,  108  Fed. 
882. 

A  custom  for  like  vessels  to  tow 
additional  vessels,  is  not  sufficiently 
proved  to  be  construed  into  a  char- 
ter-party, so  as  to  allow  the  char- 
tered vessel  to  cause  delay  by  such 
towage,  where  it  appears  that  such 
vesseh  do  not  always  engage  in  such 
towing.     The  Oregon,  55  Fed.  666. 

Usage,   When   Inapplicable The 

usage  of  a  special  line  of  trade  to 
ship  certain  goods  at  a  particular 
season  of  the  j'ear  cannot  enter  into 
the  construction  of  a  charter-party 
not  naming  the  date  of  shipment  or 
delivery,  though  executed  at  such 
season,  when  from  unavoidable 
causes,  it  was  impracticable  to  carry 
out  the  shipment  at  the  time  in- 
tended. Hall  V.  Hurlbut,  Taney  589, 
ir  Fed.  Cas.  No.  5936.  .\  custom 
created  by  the  charterers  subsequent 
to  the  charter-party,  will  not.  like  a 


general  custom,  be  incorporated  in 
the  charter-party  for  the  purpose  of 
construing  its  obligations.  The 
George  Dumois,  88  Fed.  537. 

Invalid  Custom.  —A  custom  in  the 
Chinese  coolie  traffic,  to  overcrowd 
vessels,  has  no  binding  effect  in  the 
construction  of  a  charter-party,  so  as 
to  require  a  vessel  carrying  Chinese, 
to  carry  such  a  number  of  passen- 
gers as  is  dangerous  to  life  and 
health.  The  Hound,  12  Fed.  Cas. 
No.  6371. 

26.  Customs  Provided  for  in 
Charter-party.  —  The  owner  of  a 
vessel  is  bound  by  the  customs  of  a 
port  to  which  he  contracts  to  carry 
cargo,  where  the  charter  provides 
that  ''  the  cargo  is  to  be  brought 
alongside  the  vessel  and  taken  away 
at  the  expense  and  risk  of  the  char- 
terers, according  to  the  use  and  cus- 
toms of  the  place  of  loading  and 
discharging.  Bertellote  v.  Part  Cargo 
of  Brimstone,  3  Fed.  661.  Where, 
by  the  terms  of  a  charter-party,  the 
vessel  was  to  take  a  cargo  of  coal  to 
be  furnished  by  the  hirer,  and  there 
were  to  be  lay-days,  as  customary 
in  loading,  and  the  cargo  was  to  be 
received  as  customary,  both  parties 
are  bound  to  conform  to  a  peculiar 
custom  shown  to  exist  at  the  port  of 
loading,  as  to  the  mode  of  loading, 
receiving  and  fumishine  the  carg  >. 
Nichols  V.  Tremlett,  i  Spr.  361,  18 
Fed.   Cas.  No.   10,247. 

Seager  v.  N.  Y.  and  C.  Mail 
Steamship  Co.,  55  Fed.  880.  Aff'g. 
55  Fed.  324. 

Delivery    As    Customary Under 

a  charter-party  providing  for  the  dis- 
charge of  a  cargo  of  fruit  at  the 
usual  fruit-berth  as  fast  as  the  ves- 
sel can  deliver  "  as  customary,"  that 
term  relates  to  the  duty  of  the  ves- 
sel, not  of  the  charterers,  and  pro- 
vides for  the  delivery  as  fast  as  the 
custom  of  the  port  will  allow.  Good 
V.  Isaacs,  C.  A.  (1892,)  2  Q.  B.  555. 
Delay  in  Delivery — Under  a 
charter-party,  providing  for  the  dis- 
charge of  the  cargo  "  with  customary 
dispatch,"  a  custom  of  the  port,  au- 

Vol.  I 


298 


ADMIRALTY. 


charter-party  ;-'  but  unambiguous  lano'uage  in  a  charter-party  hav- 
ing a  fixed  and  definite  meaning,  cannot  be  changed  or  limited  by 
evidence  of  local  usage.-*"     "  Customary  cleaning  "  provided  for  in 


thorizing  certain  delays,  cannot  jus- 
tify the  consignee  in  voluntarily  de- 
laying the  discharge  of  the  cargo  in 
violation  of  the  express  terms  of  the 
contract.  "  Customary  dispatch  in 
discharging"  means  discharging  with 
speed,  haste,  expedition,  due  dili- 
gence, according  to  the  lawful,  rea- 
sonable, well-known  customs  of  the 
port  of  discharge,  and  means  the 
same  as  "  usual  customs."  Lindsay 
V.  Cusimano,   lO  Fed.  302. 

27.  A  charter-party  entered  into 
at  Liverpool,  England,  to  load  a  ves- 
sel with  grain  at  Portland.  Oregon, 
which  provided  that  the  charterers 
should  have  thirty  working  days,  not 
counting  "  rainy  days."  in  which  to 
load  the  vessel,  is  in  contemplation 
of  law,  made  at  Portland,  Oregon ; 
and  the  condition  and  the  conven- 
iences of  that  port  for  loading  ves- 
sels with  grain,  and  the  established 
usage  thereof,  upon  that  subject,  may 
be  shown  to  explain  the  meaning  and 
use  of  the  uncertain  phrase  "  rainy 
day,"  which  was  intended  at  that 
port,  to  apply  only  to  the  days  on 
which  the  rainfall  was  such  as  to 
prevent  the  loading  of  the  vessel  with 
safety  and  convenience.  Balfour  v. 
Wilkins,  5  Sawy.  429,  2  i'ed.  Cas.  No. 
807. 

Delay  in  Discharging  Cargo. 
Lender  a  charter-party  providing  for 
demurrage  for  delay  caused  by  the 
charterer,  a  custom  of  the  trade  re- 
quiring the  vessel  to  deliver  the 
cargo  at  different  places  in  the  same 
port,  will  prevent  demurrage  for  de- 
lay, in  going  from  one  place  of  dis- 
charge to  another.  The  Mary  E. 
Taber,  i  Ben.  ic^,  16  Fed.  Cas.  No. 
9208. 

Discharge  of  Cargo  of  Salt One 

who  buys  a  cargo  of  salt  on  board 
a  chartered  vessel  after  her  arrival, 
is  bound  only  to  reasonable  dili- 
gence in  discharging  conformably 
with  the  custom  of  the  port;  and  by 
usage  in  the  salt  trade,  rainy  weather 
is  to  be  deducted  from  the  time  of 
the  discharge.  Houge  v.  Woodruff, 
TQ  Fed,  136;  Gronn  v.  Woodruff,  ig 
Fed.  143. 

Vol.  I 


Custom   As   to   Piling   Cargo A 

custom  of  the  port  of  discharge  re- 
quiring the  vessel  to  pile  its  cargo  of 
hemp  upon  the  dock,  for  one-half  its 
width  and  the  length  of  the  vessel,  is 
not  inconsistent  with  the  printed 
clause  of  the  charter-party,  that 
"  cargo  shall  be  received  and  deliv- 
ered alongside  of  the  vessel  within 
the  reach  of  her  tackles,"  and  the 
vessel  is  not  entitled  to  extra  com- 
pensation for  handling  such  cargo 
according  to  the  custom.  Seager  i'. 
N.  Y.  &  C.  Mail  S.  S.  Co.,  5-5  Fed. 
880,   aftirniing   55    Fed.   324. 

TInforseen     Obstacles There     is 

no  implied  agreement  that  a  char- 
terer will  unload  or  discharge  the 
ship  in  the  customary  time  at  the 
port  of  delivery,  regardless  of  all 
extraordinary  circumstances  and  un- 
forseen  obstacles.  Empire  Transp. 
Co.  I'.  Philadelphia  &  R.  Coal  &  L 
Co..  77  Fed.  919,  35  L.  R.  A.  623. 

28.  Ten  Thousand  and  Eighty-two 
Oak  Ties,  87  Fed.  39^;  The  Gazelle, 
128  U.  S.  474. 

Working  Days.  —The  term  "work- 
ing days."  as  used  in  the  charter- 
party,  is  unambiguous,  and  has  a 
fixed  and  definite  meaning  which 
cannot  be  varied  by  evidence  of  local 
usage.  Pederson  v.  Engsler,  14  Fed. 
422. 

Dispatch  for  Discharge  of  Cargo. 
L'nder  a  charter-party  providing  for 
a  dispatch  for  discharging  cargo  at 
Havana,  the  custom  and  rules  of 
the  port  of  Havana,  cannot  control 
as  to  the  time  for  discharging  cargo 
there,  and  the  risk  of  delay  in  deliv- 
ery of  the  cargo  by  the  rules  of  that 
port  requiring  it  to  be  delivered  only 
at  the  mole,  is  upon  the  charterers 
and  not  upon  the  owners  of  the  ves- 
sel. Sleeper  v.  Puig,  17  Blatchf.  36, 
22  Fed.  Cas.  Nn.   12,941. 

Time  for  Loading In  a  charter- 
party  allowing  "  eighteen  working 
days,  Sundays  excepted,"  for  load- 
ing, evidence  of  custom  cannot  con- 
trol those  words,  and  "  rainy  days  " 
cannot  be  excepted  under  proof  of 
custom  of  the  port.  The  Cyprus,  20 
Fed.  144. 


ADMIRALTY. 


299 


a  charter-party,  is  disproved  by  damage  to  the  cargo  resulting  from 
insufficient  cleaning.-'' 

c.  Other  Questions  of  Proof.  —  Where  the  proof  shows  that  the 
vessel's  service  began  on  the  day  of  a  date  of  a  charter-party,  it  is 
immaterial  that  it  is  proved  to  have  been  executed  stibsequent  to 
its  date.^"  An  unambiguous  charter-party,^^  or  a  written  contract 
therefor,  is  conclusive  evidence  of  its  terms,^-  though  an  ambiguous 
charter-party  may  be  explained  by  evidence.^''  A  sub-charterer 
charging  fraud  of  the  master  in  stowing  cargo  in  violation  of  his 
rights,  is  bound  to  prove  it.'"'  A  charter-party  which  never  became 
a  binding  contract  as  a  whole,  is  evidence  of  an  implied  contract 
in  the  subsequent  use  of  the  vessel,  so  far  as  adopted  without 
objection.'"*  Stipulations  that  the  general  owners  shall  keep  the 
vessel  in  good  condition  during  the  charter,  and  receive  goods  at 
the  request  of  the  charterer,  and  none  without  the  charterer's 
assent,  are  conclusive  evidence  that  the  possession  and  control  of 
the  vessel   are   retained  bv   the  general   owners.-'^''     It  will   not  be 


Safe  Port  for  Discharge Under 

a  clause  in  a  charter-party  by  which 
the  charterers  were  bound  to  order 
the  vessel  "to  a  safe,  direct,  Norwe- 
gian or  Danish  port,  or  as  near 
thereonto  as  she  could  safely  get  and 
always  lay  in  discharge,  afloat,"  the 
charterers  cannot  order  the  vessel  to 
a  port  having  a  bar  across  its  mouth, 
which  it  is  impossible  for  the  vessel 
to  pass  either  in  ballast  or  in  cargo, 
where  the  only  anchorage  outside 
the  bar  is  not  reasonably  safe  for  the 
vessel  to  lie  and  discharge ;  and  evi- 
dence cannot  be  received  of  a  cus- 
tom to  consider  such  a  port  as  safe, 
inasmuch  as  it  would  directly  con- 
tradict the  charter-party.  The  Ga- 
zelle,  128  U.   S.  474. 

29.  Insufficient  Cleaning.  —  A 
charter-party  provided  that  the  ves- 
sel, after  delivering  her  cargo  of  pe- 
troleum CUT  a  voyage  previous  to  that 
under  the  charter,  should  be  "cleaned 
as  customary  previous  to  loading 
homeward  cargo."  Said  homeward 
cargo  consisted  of  fruit  which  was 
impregnated  with  petroleum  and 
otherwise  damaged  thereby.  Held, 
that  the  fact  of  damage  by  petroleum 
must  be  accepted  as  evidence  that 
the  vessel  was  not  cleaned  in  the 
customary  or  proper  manner,  as  re- 
quired by  the  charter.  The  Carlotta. 
9  Ben.  I,  4  Fed.  Cas.  No.  2413. 

30.  Rowlev  V.  U.  S.,  8  Ct.  CI.  189. 

31.  The  Eli  Whitney,  i  Blatchf. 
?6o,  8  Fed.  Cas.  No.  434s:  The  .A.u- 


gustine  Kobbe,  37  Fed.  702 ;  Baker  v. 
Ward,  3  Ben.  499,  2  Fed.   Cas.   No. 

785. 

32.  Galgate  Ship  Co.  v.  Starr,  58 
Fed.  894. 

33.  The  Wanderer,  29  Fed.  260. 

34.  The  Lloyd,  21  Fed.  420. 

35.  Implied  Contract — ■  Where  a 
charter-party  was  signed  by  brokers 
for  both  parties,  subject  to  approval 
by  the  owners  of  two  disputed 
clauses,  which  were  never  agreed  to 
by  the  owners,  the  charter-party  is 
not  a  binding  contract,  and  no  con- 
tract can  be  implied  in  favor  of  the 
owners  as  to  the  disputed  clauses, 
but  the  delivery  of  the  vessel 
by     the     owners     to     the     charterer 

is  an  implied  adoption  of  all  the 
terms  of  the  existing  charter-party, 
and  a  waiver  by  the  owners  of  the 
vessel  of  previous  objections  thereto. 
La  Compania,  etc.  z'.  Spanish-.\meri- 
can  Light  and  Power  Co.,  31  Fed. 
492. 

36.  Charter  -  Party  Containing 
Covenants A  charter-party,  sound- 
ing wholl}'  in  covenants,  and  con- 
taining agreements  that  the  owner 
was  to  fit  the  vessel  for  the  voyage, 
and  that  she  should  take  in  a  cargo 
furnished  by  the  charterer,  reserving 
the  cabin,  and  also  room  for  tlie  crew, 
water,  provisions,  etc.,  and  that  the 
charterer  was  to  pay  a  stipulated 
freight  for  the  cargo,  is  to  be  construed 
under  the  presumption  of  law  against 
the  change  of  ownership,  and,  as  he- 

Vol.  I 


300 


ADMIRALTY. 


presumed  in  the  absence  of  evidence  that  there  was  any  defect  in 
the  chartered  vessel  or  fauh  in  her  management  by  reason  of  deten- 
tion from  injury  caused  by  heavy  seas,  under  a  charter-party  for 
voyages  specified  at  a  rate  per  diein/^'  The  valuation  of  a  yacht 
fixed'  in  the  charter-party  is  conclusive  evidence  of  its  value  as 
between  the  parties,  in  the  absence  of  any  showing  of  fraud  or  mis- 
take.^* The  owners  of  the  vessel  are  bound  to  prove  the  meaning 
of  technical  language  which  they  have  caused  to  be  put  into  the 
charter-party,  and  to  show  a  breach  of  the  charter-party.''"  The 
court  will  not  compel  plaintiff  to  produce  a  charter-]iarty  of  which 
defendant  has  a  counterpart.""' 

F.  Other  Documents.  —  a.  Ship's  Manifest. — The  ship's  mani- 
fest of  cargo,  required  by  law  to  be  recorded  in  the  custom-house, 
may  be  proved  by  a  copy  thereof,  certified  under  the  hands  and 
seal  of  the  custom-house  officers,  and  shown  to  have  been  compared 
with  the  record.'"  On  a  libel  charging  a  vessel  with  violation  of 
the  embargo  act,  the  report  and  manifest  of  her  cargo  are  admissible 
to  be   shown   where   it   was  taken   on.*'-     Upon   a   prosecution   for 


iiig  in  the  light  of  the  acts  of  the 
parties  under  it.  an  affreightment 
for  tlie  voyage,  and  not  a  letting  of 
the  entire  ship.  The  Aberfoyle,  i 
Abb.  Adm.  242,  I  Fed.  Cas.  No.  16; 
Leary  i'.   U.   S.,   14  Wall.  607. 

Presumption.  —  The  presumption 
is,  that  the  owner  does  not  waive  his 
rights  under  the  general  rules  of  law. 
The  Erie,  3  Ware  252,  8  Fed.  Cas. 
No.  45 1  J. 

Demise     of     'Vessel Where     the 

owner  parts  with  all  possession  and 
control  of  the  vessel  to  the  charterer 
the  contract  is  one  of  demise  for  the 
voyage,  with  rent  payable  at  the  end 
of  the  term.  U.  S.  v.  Shea,  152  U.  S. 
.78. 

Inclination   of   Courts The    in- 

cHnation  of  courts  is  to  construe  a 
charter-party  as  a  contract  of  af- 
freightment charging  the  ship-owners 
as  carriers  and  not  as  a  demise  of 
the  vessel,  unless  its  tenor  clearly 
calls  for  the  latter  construction. 
Richardson  v.  Winsor,  3  Clifif.  395, 
20  Fed.   Cas.   No.   11,795,'. 

37.  Burden  Upon  Charterer. 
Where  a  cliarter-party  is  not  for  time 
specified,  but  for  voyages  specified, 
the  rule  is,  that  the  owners  are 
hound  only  to  due  diligence  amid  the 
circumstances  in  which  the  voyages 
are  made,  altliougli  the  compensation 
is  an  allowance  /rr  diem  ;  and  if 
the  charterer  alleges  a   want  of  this 

Vol.  I 


diligence,  the  burden  is  on  him  to 
prove  it.  Bowley  v.  U.  S.,  8  Ct.  CI. 
i8<). 

38.  'Valuation  of  Pleasure  Yacht. 
A  pleasure  yacht  has  no  determin- 
able market  value,  and  where  the 
charterer  of  the  yacht  provided  that 
"  for  the  purpose  of  this  charter  the 
value  of  the  yacht  shall  be  con- 
sidered and  taken  at  the  sum  of 
seventy-five  thousand  dollars.  ($75,- 
000)"  and  that  tlie  liability  of  the 
charterer  should  not  exceed  that 
sum,  such  provision  is  intended 
solely  for  the  purpose  of  fixing  the 
damage  in  the  case  of  loss  or  in- 
jury to  the  yacht.  Upon  her  total 
loss  while  in  possession  of  the 
charterer,  the  owner  was  entitled  to 
recover  the  full  amount  stipulated, 
without  any  deduction  on  account  of 
hire  paid  by  the  charterer.  Moore 
V.  Sun  Printing  &  Publishing  Ass'n., 
95  Fed.  485. 

39.  The  John  H.  Pearson,  14  Fed. 
749- 

Burden    Upon    Libellants Libel- 

lants  are  bound  to  prove  their  inter- 
pretation of  a  charter-party.  The 
Principia,   34   Fed.   667. 

40.  Sampson  v.  Johnson,  2  Cranch 
C.  C.  107,  21  Fed.  Cas.  No.  12,281. 

41.  U.  S.  V.  Johns,  4  Dall.  412. 
48.     U.    S.   V.   The   Little   Charles, 

1  Brock.  347,  j6  Fed.  Cas.  No.  15,- 
612. 


ADMIRALTY.  301 

smuggling,  the  manifest  of  the  steamer  produced  from  the  usual 
place  of  deposit  of  ship's  manifests  in  the  custom-house,  is  ailmissi- 
ble,  where  it  appears  that  no  other  manifest  of  the  voyage  is  on 
file.-"^'- 

b.  Coiiiiucrcial  Documents.  —  Commercial  documents  executed 
abroad  may  be  considered  as  evidence  without  strict  proof,  if  the 
question  arises  unexpectedly  on  the  trial  and  res  gestae  show  their 
authenticity  and  correctness.^'' 

c.  Surz'ey  of  Vessel.  —  The  report  of  a  survey  made  upon  an 
examination  of  a  vessel  to  ascertain  her  situation  after  disaster  in  a 
foreign  port,  is  evidence  that  such  a  survey  was  made,  but  not  of 
the  facts  stated  in  it;*^  but  if  the  surveyors,  in  a  deposition,  refer 
to  their  certificate  of  a  survey  of  the  vessel,  as  containing  all  they 
know,  it  becomes  evidence  of  the  facts  stated  in  it.^"  A  copy  of 
a  survey  of  a  vessel  not  purporting  to  be  made  by  any  one  con- 
nected with  her,  and  not  proved  to  be  correct,  is  not  admissible 
against  her.*' 

d.  Delkrrv  Book  of  Cargo.  —  The  delivery  book  of  cargo,  show- 
ing the  order  in  which  the  goods  were  unladen,  is  better  evidence, 
and  entitled  to  greater  weight  than  the  testimony  of  the  crew.** 

e.  Letters.  —  Where  the  claimant  of  a  cargo  libelled  as  prize, 
relies  upon  letters  to  show  title,  he  must  produce  the  letters  them- 
selves, if  their  absence  is  not  accounted  for,  and  his  affidavit  as  to 
their  contents  will  not  be  received.*"  A  letter  of  instructions  from 
the  owners  to  the  captain  of  the  vessel  at  the  time  of  sailing,  sworn 
to  by  the  captain  to  be  the  only  instructions  he  had,  are  admissible 
to  prove  that  he  had  no  orders  to  buy  the  vessel  on  their  account 
in  case  of  capture. °"  Letters  written  to  parties  by  their  own  agents 
which  were  no  part  of  the  contract  of  shipment,  but  were  mere 
reports  by  the  agents  to  their  principals,  are  not  admissible  for  such 
parties,  or  to  corroborate  the  agents  as  against  third  persons.^' 

f.  Title  of  Vessel.  —  The  statement  of  the  title  of  the  vessel  in 
the  custom-house  documents  is  not  conclusive  evidence  thereof,^' 
and  one  who  holds  the  legal  title  to  a  vessel  may  be  shown  to  be 
a  mortgagee  thereof."^     The  certificate  of  enrollment  of  a   vessel 

43.  The  Missouri,  4  Ben.  410,  17  48.  Llado  v.  Tritone.  i;  Fed. 
Fed.   Cas.    No.   9653;    U.    S.   v.   The       Cas.   No.  8427. 

Missouri,    9    Blatchf.    433,    26    Fed.  49.     The  Sally  Magee,  3  Wall.  451. 

Cas.   No.   15,785.  50.     Story  z:  Strettel.  i  Dall.  I.-?. 

44.  The  Boskenna  Bay,  22  Fed.  51.  Ins.  Co.  v.  Guardiola,  120  U. 
662.  S.    642. 

45.  Watson  v.  Ins.  Co.  of  North  52.  Chickering  v.  Hatch,  i  Story 
America,  2  Wash.  C.  C.  152,  2q  Fed.  516,  5  Fed.  Cas.  No.  2671. 

Cas.   No.    17,284;   U.   S.   V.   Mitchell,  53.     Morgan    v.    Shinn,    15    Wall. 

2  Wash.  C.  C.  478,  26  Fed.  Ca^;.  No.  loq. 

15,791.  Inconclusive     Facts — The     facts 

46.  U.  S.  V.  Mitchell,  2  Wash.  that  the  bill  of  sale  was  recorded: 
C.  C.  478,  26  Fed.  Cas.  No.  15,791.  that  the  vessel  was  re-enrolled  in  the 

47.  The  Vivid,  4  Ben.  319,  28  Fed.  name'  of  the  transferee;  that  a  policy 
Cas.   No.   16,978.  of   insurance    was    taken    out    in    his 

Vol.  I 


302 


ADMIRALTY. 


is  not  prima  facie  evidence  of  ownership  thereof,-'^  but  is,  upon 
incidental  questions,  prima  facie  evidence  of  the  port  to  which  the 
vessel  belongs/^  'i  he  builder's  certificate  and  registry  and  enroll- 
ment are  not  conclusive  evidence  of  ownership.^"  Delivery  of  a 
vessel  to  the  agent  of  the  person  for  whom  it  was  built,  unaccom- 
panied by  any  written  conveyance,  vests  the  title  in  the  owner.'*' 
A  ship  built  in  the  United  States  for  alien  residents  abroad,  becomes 
their  property  without  documentary  proof  of  title.'*'*  By  the  gen- 
eral maritime  law,  a  transfer  of  a  ship  should  be  evidenced  by  a 
bill  of  sale  f'^  but  the  equitable  ownership  of  a  vessel  may  be  shown 
without  a  bill  of  sale  or  registry.""  A  bill  of  sale  of  a  vessel, 
accompanied  by  possession,  is  only  prima  facie  evidence  of  title."' 


name  as  owner,  and  that  no  note 
or  bond  was  taken  by  him,  will  not 
overcome  positive  evidence  that  the 
bill  was  taken  as  a  mere  security 
for  a  loan.  Davidson  v.  Baldwin, 
79  Fed.  95. 

54.  Dudley  v.  The  Superior,  i 
Newb.    Adm.    176,    7    Fed.    Cas.    No. 

4115- 

Evidence    of    Ownership Under 

a  law  which  makes  criminal  certain 
acts  done  on  board  a  vessel  owned 
in  whole  or  in  part  by  a  citizen  of 
the  United  States,  an  American 
registry  is  not  even  pritna  facie  evi- 
dence of  such  ownership ;  though 
such  registry  is  made  by  the  gov- 
ernment only  on  the  presumption 
of  such  ownership,  and  after  oath 
by  one  or  more  persons  of  such 
ownership  by  them.  Nor  is  general 
reputation  of  such  ownership  any 
evidence  of  it.  Ownership,  in  such 
a  case,  is  a  fact  to  be  proved  as  other 
facts.  U.  S.  V.  Brune,  2  Wall.  Jr. 
.264,  24  Fed.   Cas^   No.   14,677. 

The  purchaser  of  a  part  of  a  vessel 
from  one  not  in  possession,  but  who 
claims  to  be  the  owner,  although 
exercising  no  acts  of  ownership,  is 
not  an  innocent  purchaser  without 
notice  of  true  ownership,  no  inquiry 
having  been  made  of  known  part- 
owners  as  to  the  validity  of  the 
seller's  title,  and  no  inference  can  be 
justified  from  the  certificate  of  en- 
rollment, which  afifords  not  e\fen 
prima  facie  evidence  of  ownership. 
The  Nancv  Dell.   14  Fed.  744. 

55.  Rebuttal   of  Evidence The 

enrollment  of  a  vessel,  although  inad- 
missible to  show  title,  yet  on  an 
incidental  question  regarding  liens, 
is  prima  facie  evidence  of  tlie  port 

Vol.  I 


to  which  the  vessel  belongs.  Evi- 
dence of  the  notorious  residence  of 
the  owner,  at  a  place  nearer  to  some 
other  port  than  that  of  enrollment, 
may  be  available  in  contradiction 
thereof.  Dudley  v.  The  Superior, 
I   Newb.  Adm.   176,  7  Fed.  Cas.  No. 

4115- 

56.  Showing     of     Fraud.  —  The 

real  owner  of  a  vessel,  who  claims 
as  builder,  may  prove  his  owner- 
ship, and  show  that  the  builder's 
certificate  and  registry  and  enroll- 
ment have  been  fraudulently  made 
and  issued  in  the  name  of  another. 
Scudder  v.  Calais  Steamboat  Co.,  I 
Cliff.   370,   21    Fed.    Cas.    No.    12,565. 

57.  Subsequent  Bill  of  Sale  to 
Agent Where  there  was  no  origi- 
nal intent  on  the  part  of  the  agent 
to  appropriate  the  vessel  to  his  own 
use,  when  it  was  delivered  to  him  for 
the  owner,  the  subsequent  act  of  the 
agent  in  taking  the  bill  of  sale  to 
himself,  four  months  afterwards, 
would  not  divest  the  owner's  title 
and  vest  it  in  the  agent,  and  the 
purchaser  of  the  vessel  from  one 
holding  it  in  trust  for  the  real  owner 
with  notice  of  the  trust,  can  stand 
in  no  better  situation  than  the  seller. 
Scudder  v.  The  Calais  Steamboat 
Co.,    I    Cliff.   370,   21    Fed.    Cas.    No. 

12,565. 

58.  Passage  of  Title. —  The  pass- 
age of  the  title  of  such  ship  is  the 
same  as  that  of  any  other  chattel. 
The  Active,  Ok.  286,  i  Fed.  Cas. 
No.  34. 

59.  Weston  v.  Penniman,  i  Mason 
306,  29   Fed.   Cas.   No.    17,45  s. 

60.  Hall  V.  Hudson,  2  Spr.  65, 
IT   Fed.  Cas.  No.  5935. 

61.  Full   Title — In   order   to   con- 


ADMIRALTY 


303 


A  bill  of  sale  of  a  ship  need  not  recite  the  certificate  prescribed  by 
the  registry  act.''- 

3.  Judgments  and  Decrees.  —  A.  Concll"Si\exess.  —  A  sentence 
of  condemnation  of  a  vessel  by  a  court  of  competent  jurisdiction 
concludes  the  title,"^  and  a  decree  of  condemnation  or  acquittal  in 
admiralty  is  conclusive  evidence  of  title  in  an  action  for  damages."* 
The  decree  of  a  foreign  court  of  admiralty  condemning  insured 
property  for  a  breach  of  blockade  is  conclusive  evidence  of  the 
breach  of  blockade  in  a  collateral  action  on  a  policy  of  marine 
insurance,"^  and  where  the  property  is  condemned  as  that  of  the 


stitute  a  full  title  under  the  bill  of 
sale,  accompanied  by  possession,  as 
against  the  creditors  of  ihe  vendor, 
the  transfer  should  be  bona  fide  and 
for  a  valuable  consideration.  It  is 
not  necessary  to  the  title  that  the 
vessel  shall  be  enrolled  in  the  custom 
house,  such  enrollment  being  only 
necessary  to  entitle  to  the  character 
and  privileges  of  an  American  vessel. 
Hozey  v.  Buchanan.  i6  Pet.  215. 

62.  D'Wolf  V.  Harris,  4  Mason 
515,  8  Fed.   Cas.   No.  4221. 

63.  Rose  V.  Himley,  4  Cranch  241  ; 
Hudson  V.  Guestier,  4  Cranch  293 ; 
Wheelwright  r.  Depeyster,  i  Johns. 
4-1;  Jenkins  z'.  Putnam,  i  Bay  8; 
Williams  v.  Armroyd.  7  Cranch  424; 
The  Globe,  2  Blatchf.  427,  10  Fed. 
Cas.  No.  5483;  Bradstreet  r.  Nep- 
tune Ins.  Co.,  3  Sum.  600,  3  Fed. 
Cas.  No.  1793;  Armroyd  v.  Williams, 
2  Wash.  508,  I  Fed.  Cas.  No.  538; 
Gushing  z:  U.  S..  ae  Ct.  CI.  i. 

64.  Conclusiveness  in  Trespass. 
In  Gelston  v.  Hoyt,  3  Wheat.  246, 
Story  J.  says :  "  If  a  sentence  of 
condemnation  be  pronounced,  it  is 
conclusive  that  a  forfeiture  is  in- 
curred ;  if  a  sentence  of  acquittal, 
it  is  equally  conclusive  against  the 
forfeiture ;  and  in  either  case,  the  , 
question  cannot  be  litigated  in 
another  forum.  .  .  .  Nothing  can 
be  better  settled  than  that  a  sentence 
of  condemnation  is,  in  an  action  of 
trespass  for  the  property  seized,  con- 
clusive evidence  against  the  title  of 
the  plaintiff."  In  an  action  of  tres- 
pass for  taking  the  plaintiff's  vessel, 
where  the  plaintiff  established  title 
by  a  decree  of  the  district  court  of 
the  United  States,  a  subsequent  judg- 
ment rendered  in  a  state  court,  bear- 
ing on  the  question  of  title  was  of 
no    avail    to    counteract    the    plaint- 


iff's evidence  of  title.  Dennison  j'. 
Hyde,  6  Conn.  508. 

In  trespass  by  the  owner  of  the 
lessel  for  an  illegal  seizure  a 
sentence  of  restitution  of  the  vessel 
without  a  justification  of  the  seizure 
is  conclusive  evidence  of  the  plaint- 
iff's right  to  maintain  the  action. 
Gelston  v.  Hoyt,  3  Wheat.  246;  Hoyt 
J'.  Gelston,  13  Johns.  (N.  Y.)  141; 
affirmed   13   Johns.   561. 

65.  Forfeiture  of  Insurance  Poli- 
cies  The     sentence    of    a     British 

prize  court  condemning  the  vessel 
for  attempting  to  commit  a  breach 
of  blockade,  forfeited  the  marine 
insurance  policy  and  exonerated  the 
underwriters  from  their  liability, 
and  the  sentence  of  condemnation 
for  breach  of  the  blockade,  was  con- 
clusive evidence  of  the  commission 
of  that  offense,  which  vitiated  the 
policy,  and  it  was  error  to  permit 
evidence  to  disprove  that  fact 
Croudson  v.   Leonard,  4  Cranch  434. 

Where  the  sentence  of  a  court  of 
admiralty  condemning  a  vessel  re- 
cited that,  at  the  date  of  the  decree, 
the  port  which  the  vessel  attempted 
to  enter  was  blockaded,,  in  an  action 
on  a  policy  to  recover  for  the  total 
loss  arising  from  the  condemnation, 
evidence  is  inadmissible  to  sustain 
the  policy  to  show  that  at  the  time 
of  her  capture,  the  port  was  not 
blockaded.  Marvland  Ins.  Co.  v. 
Bathurst,  5  Gill    &  J.   (Md.)    159. 

In  an  action  upon  an  insurance 
policy  upon  a  vessel  and  cargo  where 
tlie  defendants  produced  the  sentence 
of  a  court  of  vice-admiralty  of  Gib- 
raltar, condemning  the  vessel  for  a 
breach  of  blockade,  "  by  egress  and 
for  other  sufficient  reasons,"  the 
words,  "  for  other  sufficient  reasons  " 
were  held  matter  of  surplusage  and 

Vol.  I 


304 


ADMIRALTY. 


enemies  of  the  foreign  country,  the  decree  of  a  foreign  court  of 
admiralty  is  conclusive  evidence  in  such  action  of  a  breach  of  the 
warranty  of  neutrality  of  the  insured  property.""  The  decree  of 
restitution  of  a  vessel,  illegally  seized,  is  conclusive  evidence  of  the 
illegality  of  the  seizure."'  A  decree  in  rem  in  admiralty,  is  con- 
clusive evidence  of  facts  stated  therein,  against  all  parties  inter- 
ested."*    A  decree  in  a   former  action  may   be  conclusive  against 


the  decree  was  held  to  be  conclusive 
evidence  of  a  breach  of  blockade 
which  discharged  the  underwriters. 
Baxter  !■.  New  Eng.  Marine  Ins.  Co., 
6  Mason  277 ;  Vandenheuvel  v. 
United  Ins.  Co.,  2  Johns.  Cas.  127; 
Ludlow  V.  Dale.  I  Johns.  Cas.  16; 
Goix  z'.  Low,  I  Johns.  Cas.  341. 

66.  Groning  v.  Union  Ins.  Co., 
I   Nott.  &  AI.  337. 

Prima    Facie    Evidence Li    tlie 

following  cases  it  is  held  under  the 
facts  that  the  sentence  of  a  foreign 
court  of  admiralty,  condemning  prop- 
erty as  that  of  the  enemj',  is  com- 
petent prima  facie  evidence  of  that 
fact,  but  not  conclusive.  Lambert  v. 
Smith,  I  Cranch  C.  C.  361,  Fed.  Cas. 
No.  8028;  Maley  v.  Shattuck.  3 
Cranch  458;  Bourke  v.  Cranberry, 
Gill  (Md.)  16;  Vanderheuvel  v. 
Lhiited  Ins.  Co.,  2  Johns.  Cas.  (N. 
Y.)  127;  Goix  V.  Low,  I  Johns.  Cas. 
(N.  Y.)  341;  New  York  Firemen 
Ins.  Co.  V.  De  Wolf,  2  Cow.  (N.  Y.) 
56. 

67.  The  Appollon,  9  Wheat,  362; 
Magoun  v.  New  Eng.  Marine  Ins. 
Co.,  I  Story  157,  16  Fed.  Cas.  No. 
8961  ;  Hoyt  V.  Gelston,  i  ?  Johns. 
CN.  Y.)  141:  Gelston  v.  Hoyt,  13 
Jolms.   (N.  Y.)   561,  3  Wheat.  246. 

Conclusiveness    of    Acquittal In 

Gelston  "■.  Hoyt.  3  Wheal.  246,  Story 
J.,  says :  "  A  distinction,  however, 
has  been  taken  and  attempted  to  be 
sustained  at  the  bar,  between  the 
effect  of  a  sentence  of  condemnation 
and  of  a  sentence  of  acquittal.  It 
is  admitted  that  the  former  is  con- 
clusive ;  but  it  is  said  that  it  is  other- 
wise as  to  the  latter,  for  it  ascer- 
tains no  fact.  .  .  .  Lord  Chief 
Justice  De  Gray  declares  that  the 
rule  of  evidence  must  be,  as  it  is 
often  declared  to  be,  reciprocal ;  and 
that  in  all  cases  in  which  the  sen- 
tences favorable  to  the  party  are 
to  be  admitted  as  conclusive  evidence 
for   him,    the    sentences,    if   unfavor- 

Vol,  I 


able,  are,  in  like  manner,  conclusive 
evidence  against  him.  .  .  .  .\nd 
upon  principle,  where  is  there  to  be 
found  a  substantial  difference  be- 
tween a  sentence  of  condemnation 
and  of  acquittal  in  rem?  If  the  former 
ascertains  and  fixes  tlie  forfeiture, 
and,  therefore,  is  conclusive,  the 
latter  no  less  ascertains  that  there 
is  no  forfeiture,  and,  therefore 
restores  the  property  to  the  claimant. 
.  .  .  A  sentence  of  acquittal  in 
rem,  does,  therefore,  ascertain  a  fact, 
as  much  as  a  sentence  of  condemna- 
tion ;  it  ascertains  and  fixes  the  fact 
that  the  property  is  not  liable  to  the 
asserted  claim  of  forfeiture.  It 
should,  therefore,  be  conclusive  upon 
all  the  world  of  the  non-e.xistence 
of  the  title  of  forfeiture,  for  the  same 
reason  that  a  sentence  of  condemna- 
tion is  conclusive  of  the  existence  of 
title  of  forfeiture.  It  would  be  strange, 
indeed,  if  when  the  forfeiture  ex 
directo  could  not  be  enforced 
against  the  thing,  but  by  an  acquittal 
was  completely  purged  away,  that 
indirectly  the  forfeiture  might  bs 
enforced  through  the  seizing  offi- 
cers ;  and  that  he  should  be  at  liberty 
to  assert  a  title  for  the  government, 
which  is  judicially  abandoned  by,  or 
conclusively  established  against,  the 
government  itself." 
68.     The   Mary  Anne.   I   Ware  99, 

16  Fed.  Cas.  No.  9195;  Penhallow  v. 
t)oane,  3  Dall.  54;  Otis  v.  The  Rio 
Grande,  I  Woods  279.  18  Fed.  Cas. 
No.  10.613 ;  Blanque  v.  Peytavin,  4 
Mart.  (La.)  458;  Stewart  v.  Warner. 
I  Day  (Conn.)  142;  The  Garland,  16 
Fed.  283 ;  Peters  v.  Warren  Ins.  Co., 
3  Sum.  389.  19  Fed.  Cas.  No.  11,035; 
Cnculla  V.  La.  Ins.  Co.,  5  Mart. 
(La.)  464;  Cuculla  V.  Orleans  Ins. 
Co.,  6  Mart.  (La.)  14:  Mankin  v. 
Chandler.  2  Brock.  125,  16  Fed.  Cas. 
No.  9030;  Bailcv  7'.  Sundberg,  40 
Fed.    483;    The    William    Murtaugh, 

17  Fed.   259;    Andrews  v.   Brown,  3 


ADMIRALTY. 


305 


Cush.  (Mass.)   ijo;  Zeno  v.  La.  Ins. 
Co.,  6  Mart.    (La.)   63. 

Decree  of  Foreign  Court —  The 
decree  of  a  foreign  prize  tribunal  of 
general  jurisdiction,  condemning  a 
vessel  for  a  violation  of  law  is  con- 
clusive that  the  seizure  was  made 
in  conformity  with  law.  To  give 
such  jurisdiction,  the  prize  need  only 
be  seized  and  possessed  by  the 
captor,  in  the  captor's  country  or  in 
a  neutral's.  Cheriot  v.  Foussat,  3 
Binn.  (Pa.)  220. 

To  hold  a  sentence  of  a  foreign 
court  in  rem  conclusive  on  the 
parties,  personal  or  public  notice  to 
the  parties,  and  proper  judicial  pro- 
ceedings, must  appear.  Bradstreet  v. 
Neptune  Ins.  Co.,  3  Sum.  600,  3  Fed. 
Cas.   No.    1793. 

The  sentence  of  acquittal  of  a 
foreign  court  acting  in  rem.  in  cases 
of  revenue  seizure  and  prize,  is  con- 
clusive, except  in  cases  of  fraud. 
Magoun  v.  New  Eng.  Marine  Ins. 
Co.,  I  Story  157,  16  Fed.  Cas.  No. 
8961. 

The  conclusiveness  of  a  decree  of 
the  admiralty  court  of  a  foreign 
country,  condemning  as  prize  an 
American  vessel,  is  not  aflfected  by 
the  fact  that  the  original  owners 
were  deprived  of  an  opportunity  to 
contest  the  right  of  the  captors ;  it 
appearing  that  in  no  event  could  the 
decree  have  been  different  on  the 
facts  admitted.  Whatever  may  be 
done  by  foreign  courts  in  reference 
to  the  established  principles  of  the 
law  of  nations  relative  to  the  con- 
clusiveness of  sentences  of  foreign 
prize  courts,  the  courts  of  the  United 
States  will  not,  for  purposes  of 
retaliation,  depart  from  the  fixed  law 
of  nations,  which  declares  that  they 
are  conclusive.  .■Xrmrovd  i'.  Wil- 
liams, 2  Wash.  C.  C.  508."  I  Fed.  Cas. 
No.  538;  affirmed  in  Williams  v. 
Armroyd,  7   Cranch  423. 

The  doctrine  that  the  sentence  of 
a  foreign  court  of  admiralty  in  a 
prize  case,  is  conclusive  of  any  mat- 
ter of  fact  directly  decided,  rests 
upon  the  propriety  of  leaving  the 
cognizance  of  prize  questions  ex- 
clusively to  prize  jurisdiction;  and 
the  impropriety  of  revising  the  de- 
cisions of  the  maritime  courts  of 
other  nations,  whose  jurisdiction  is 
co-ordinate     throughout     the     world. 

20 


Croudson  v.  Leonard,  4  Cranch  434 ; 
Juando  v.  Taylor,  2  Paine  652,  13 
Fed.  Cas.  No.  7558;  Vandenheuvel 
V.  United  Ins.  Co.,  2  Johns.  Cas.  144; 
Baxter  v.  New  Eng.  Marine  Ins.  Co., 
6  Mass.  277,  7  Mass.  275. 

Decree     in      Federal     Court A 

decree  in  rem  in  a  federal  court  of 
admiralty  is  conclusive  upon  the 
parties  in  any  subsequent  litigation. 
Jenkins  v.  Putnam,  i  Bay  (S.  C.) 
8;  Denison  v.  Hyde,  6  Conn.  508; 
Hoyt  V.  Gelston,  13  Johns.  (N,  Y.) 
141  ;  Gelston  v.  Hoyt.  13  Johns.  561, 
3  Wheat.  246;  Buchanan  f.  Biggs,  2 
Yeates  (Pa.)  232;  Mankin  v. 
Chandler,  2  Brock.  125;  Bailey  v. 
Sundberg,  49  Fed.  583 ;  The  William 
Burtagh,  17  Fed.  259;  The  Navarro, 
Olc.  127,  17  Fed.  Cas.  No.  10.059; 
.\ndrcws  v.   Brown,  3  Cush.   138. 

Decrees  in  Rem —  In  proceedings 
in  rent,  in  the  district  court  of  the 
LInited  States,  for  the  condemnation 
of  a  vessel,  all  persons  having  an 
interest  in  the  subject-matter, 
whether  as  seizing  officers,  or  in- 
formers, or  claimants,  are,  or  may  be 
parties,  so  far  as  their  interest  ex- 
tends ;  and  the  decree  of  the  court 
acts  upon  the  thing  in  controversy, 
and  the  decree  is  binding  upon  all 
the  world  upon  the  points  which  it 
professes  to  decide.  The  seizing  offi- 
cer cannot  be  deemed  a  stranger  to 
the  decree  in  rem,  and  is  bound  by 
a  decree  which  ascertains  the  seizure 
to  be  tortious ;  but  if  he  were  a 
stranger  he  would  still  be  bound  by 
the  decree  of  a  court  of  competent 
jurisdiction  in  rem  as  to  the  points 
directly  in  judgment,  as  being  con- 
clusive upon  the  whole  world.  Gel- 
ston  I'.   Hoyt,   3   Wheat.  306. 

A  decree  of  acquittal  on  a  pro- 
ceeding in  rem,  without  a  probable 
cause  of  seizure,  and  not  appealed 
from  with  effect,  is  conclusive,  in 
every  inquiry  before  any  other  court, 
that  there  was  no  justifiable  cause 
of  seizure.  The  Appollon,  9  Wheat. 
362. 

The  determination  of  an  issue  of 
fact  and  law  against  a  claimant  under 
a  libel  in  rem  is  conclusive  after  an 
appeal  therefrom  is  dismissed,  in  a 
subsequent  suit  in  personam  between 
the  same  parties  in  respect  to  the 
same  matter.  Wager  z:  Providence 
Ins.  Co.,  150  U.  S.  99. 

Vol.  I 


506 


ADMIRALTY. 


a  libel  in  admiralty. ''"     One  admiralty  court  may  carry  into  efifect 


In  an  action  on  a  policy  of  in- 
surance for  loss  occasioned  by  a 
collision  at  sea,  a  libel  and  decree 
against  the  vessel  insured,  in  a  pro- 
ceeding in  rem  in  the  admiralty  court 
for  damage  done  to  the  other  vessel 
by  the  collision,  is  sufficient  evidence 
against  the  insurers,  both  of  the 
collision  and  of  the  negligence  of 
the  master  and  crew  of  the  vessel 
insured.  Street  v.  Augusta  etc.  Co., 
12  Rich.  Law   (S.  C.)   13. 

Where  a  steamboat  had  been 
libelled  and  sold  by  order  of  a  federal 
court  in  one  state,  its  decree  will  be 
held  conclusive  in  another  state,  not- 
withstanding a  suit  had  been  pre- 
viously commenced  in  such  other 
state  on  some  of  the  same  claims  for 
which  the  vessel  was  sold.  Thoitias 
V.   Southard,  2   Dana    (Ky.)   475. 

A  judgment  _of  condemnation  in 
the  United  States  district  court  can- 
not be  examined  in  a  stale  court  in 
an  action  of  trespass  against  the 
officers.  Buchanan  v.  Biggs,  2  Yeates 
(Pa.)    232. 

Where,  on  a  libel  in  rem  for  col- 
lision, the  master  of  the  libellee, 
though  not  a  formal  party,  takes  an 
active  part  in  the  defense,  a  dis- 
missal on  the  merits  renders  the 
question  res  judieata,  as  against  a 
subsequent  libel  in  personam  against 
him.     Bailey    v.    Sundberg,    49    Fed. 

The  owner  of  a  vessel,  in  case  of 
injury  to  the  vessel  and  cargo,  may 
maintain  an  action  for  damage  to 
both  against  another  vessel  causing 
the  injury;  and  after  the  latter  has 
been  once  arrested,  and  given  bail  for 
the  whole  damage,  if  the  owner  of 
the  cargo  afterwards  cause  all  claim 
on  his  account  to  be  withdrawn  from 
the  suit,  he  cannot,  ordinarily,  again 
maintain  an  action  against  the  same 
vessel  ;';(  rem,  and  arrest  her  a  sec- 
ond time  for  the  damage.  The  Wm. 
Murtagh,  17  Fed.  259. 

A  decree  in  admiralty  in  the  dis- 
trict court  of  the  iJnited  States, 
that  the  possession  of  a  certain  ves- 
sel should  be  delivered  to  the  libel- 
lant,  on  the  ground  that  the  libellee 
had  violated  a  contract  for  the  sale 
and  delivery  thereof  by  the  libellant 

Vol.  I 


to  him,  is  a  good  bar  to  a  bill  in 
equity  by  the  libellee  against  the 
libellant,  for  a  specific  performance 
of  the  same  contract ;  provided  such 
violation  was  material  to  the  decision 
of  the  libel,  was  put  in  issue  therein, 
and  was  decided  by  the  court;  but 
if  such  violation  was  not  material, 
or  if  the  case  was  not  decided  on 
that  point,  or  if  it  be  ambiguous, 
or  not  apparent  on  the  face  of  the 
decree,  on  what  ground  the  decision 
was  made,  such  decree  is  not  con- 
clusive evidence  of  the  fact  of  the 
violation  of  the  contract.  Andrews 
V.  Brown,  3  Cush.   (Mass.)   138. 

69.  The  Globe,  2  Blatchf.  427,  10 
Fed.  Cas.  No.  5483;  Ball  v.  Tren- 
holm,  45  Fed.  588;  The  Navarro, 
01c.  127,  17  Fed.  (ias.  No.  10,059; 
Coflfee  V.  U.  S.,  116  Sup.  Ct.  437; 
Faucett  V.  The  L.  W.  Morgan,  6 
Fed.    200. 

Foreign     Judgment A     foreign 

judgment  in  a  suit  at  law  against 
the  vessel's  owner  for  damages  for 
a  collision  is  no  bar  to  a  suit  in  rem 
in  this  country;  but  such  judgment 
is  conclusive  as  to  the  extent  of  the 
damages.  The  East,  9  Ben.  76,  8 
Fed.   Cas.   No.  4251. 

Former  Federal  Judgment.  —  A 
judgment  of  acquittal,  in  a  criminal 
prosecution  for  a  violation  of  the 
internal  revenue  laws,  is  conclusive 
in  favor  of  defendant,  as  claimant 
of  the  property  involved  in  a  sub- 
sequent suit  in  rem,  when,  as  against 
him,  the  existence  of  the  same  act 
or  fact  involved  in  the  criminal 
prosecution  is  in  issue  as  cause  for 
the  forfeiture  of  such  property. 
CofTey  v.  U.  S.,   116  U.   S.  426. 

The  owner  of  a  vessel  which  was 
sunk  by  collision  with  a  steamer, 
brought  a  libel  in  rem,  and  the 
steamer  was  attached,  but  no  notice 
was  given  or  publication  made  as 
required  by  Adm.  Rule  9.  Subse- 
quently, the  steamer  was  released  on 
her  owner's  giving  bond  to  the  libel- 
lant for  less  than  her  value.  A 
decree  dismissing  the  libel  was  bind- 
ing on  the  libellant  only,  and  would 
not  prevent  a  new  libel  by  the  owner 
of  the  cargo.  Bailey  v.  Sundberg, 
49  Fed.  583.  I  C.  C.  A.  387. 


ADMIRALTY 


307 


the  decree  of  another  admiralty  court/" 

1!.  Inconclusiveness.  —  A  foreign  sentence  of  condemnation  of 
a  vessel  merely  as  prize,  is  not  conclusive  evidence  that  the  legal 
title  of  the  vessel  was  not  in  a  subject  of  a  nevUral  nation ;''  and 
its  decree  condemning  a  vessel  as  prize,  if  ambiguous  or  based  upon 
insufficient  reasons,  is  not  conclusive  evidence  of  a  breach  of  a  'war- 
ranty of  neutrality.'-     The  decree  of  a  foreign  court  of  admiralty 


A  verdict  and  judgment  against 
the  owners  of  a  vessel  in  a  suit  to 
charge  them  personally  with  the 
penalties  incurred,  under  §4465  of 
the  Revised  Statutes,  for  carrying  a 
greater  number  of  passengers  than 
was  stated  in  the  certificate  of  in- 
spection, is  not  conclusive  against 
their  vendees  in  a  subsequent  suit 
ill  rem  in  admiralty  to  enforce 
against  the  vessel  the  lien  of  the 
penalties,  under  §  4469,  the  title  of 
the  vessel  not  being  involved  in  the 
former  action  its  owners  not  being 
privies  to  the  suit,  and  they  may 
show  in  the  subsequent  suit  in  rent 
in  admiralty  that  the  number  of 
passengers  illegally  carried  was  less 
than  the  number  found  in  the  first 
suit.     The   Boston,   8   Fed.   628. 

A  cause  of  action  different  from 
a  suit  in  personam  in  which  a  judg- 
ment was  recovered  before  the 
decree  in  an  admiralty  suit  was  en- 
tered cannot  render .  such  former 
judgment  res  adjudicata  in  the  ad- 
miralty suit.  Gray  v.  National  S.  S. 
Co.,  7"  Fed.  273;  The  William  Mur- 
tagh.   17  Fed.  259. 

70.  Penhallow  v.  Doane,  3  Dall. 
54;  The  Centurion,  i  Ware  490.  5 
Fed.   Cas.   No.   2554. 

Conclusiveness   of   Decree Upon 

a  libel  to  carry  into  effect  the  decree 
of  another  admiralty  court,  the 
grounds  of  the  decree,  cannot  be  in- 
quired into,  the  decree  in  rem  being 
conclusive  on  all  the  world.  Pen- 
hallow  T'.   Doane.  3  Dall.   54. 

Decree  of  Foreign  Admiralty 
Court — The  federal  admiralty  courts 
will  carry  into  effect  the  sentences 
and  decrees  of  foreign  admiralty 
courts.  Otis  V.  The  Rio  Grande, 
I  Woods  279,  18  Fed.  Cas.  No.  10,- 
613. 

But  an  admiralty  court  will  not 
carry  into  effect  the  decrees  of 
foreign  admiralty  courts  any  further 
than    a    court    of   common    law    will 


carry  into  effect  the  judgments  of 
other  tribunals.  Bowler  v.  Eldridge, 
18  Conn.  I ;  Pennsylvania  R.  Co.  J'. 
Gilhooley,  9  Fed.  618. 

71.  Bourke  f.  Cranberry,  Gilmer 
(Va.)  16;  Vandenheuvel  v.  United 
Ins.  Co.,  2  Johns.  Cas.  451. 

Limits  of  Conclusiveness —  The 
conclusiveness  of  the  sentence  of  a 
foreign  court  of  admiralty  cannot 
include  more  than  its  own  correct- 
ness, and  does  not  establish  any  par- 
ticular fact,  without  which  the  sen- 
tence tnay  have  been  rightly  pro- 
nounced. The  mere  condemnation  of 
a  vessel  libelled  as  enemy's  property, 
which  may  proceed  upon  any 
ground  not  stated  and  which  might 
merely  forfeit  the  protection  of  the 
neutral  character  of  the  vessel,  is 
not  conclusive  against  the  fact  of  its 
neutral  character  and  that  fact 
remains  open  to  investigation  in 
another  suit.  Maley  v.  Shattuck,  3 
Cranch  458. 

The  condemnation  of  a  vessel  as 
lawful  prize,  affords  no  judicial  in- 
ference of  the  vessel's  being  enemy's 
property,  as  there  may  be  other  just 
causes  of  condemnation.  Goix  Z'. 
Low,  2  Johns.  Cas.  480;  Bailey  v. 
C.  S.  Ins.  Co.,  I  Treadw.  Const.  381. 

Stipulation  of  Proof —  A  stipula- 
tion in  a  policy  warranting  the  prop- 
erty to  be  American,  proof  to  be 
made  here,  is  not  set  aside  by  the 
sentence  of  a  foreign  court  against 
the  neutrality ;  but  the  same  may  be 
vindicated  here,  notwithstanding 
such  sentence.  Sperry  r.  Delaware 
Ins.  Co..  2  Wash.  243,  Fed.  Cas.  No. 
13,236;  Maryland  Ins.  Co.  <■.  Woods, 
6  Cranch  29. 

72.  Uncertainty  in  Decree. 
Where  the  libel  in  a  prize  case 
asserted  in  one  place  that  the  prop- 
erty was  French  and  in  another  that 
it  was  American,  and  where  it  was 
impossible  to  fix  by  the  record  of  a 
foreign  court  whetlier  the  prize  was 

Vol.  I 


308 


ADMIRALTY. 


is  not  prima  facie  evidence  of  facts  rebutted  by  the  record,'^  and  is 
onl_v  prima  facie  evidence  of  the  facts  upon  which  the  condemna- 
tion is  founded,  where  the  inference  from  the  record  is  not  concUi- 
sive.'''     The  judgment  in  a  former  action  is  not  conchisive  evidence 


French  or  American,  evidence  may 
be  received  in  an  action  upon  policies 
of  marine  insurance  to  establish 
American  ownership  within  the  war- 
ranty that  the  property  was  Amer- 
ican.     Vasse    V.    Ball,    2    Dall.    270. 

In  an  action  on  a  policy  of  in- 
surance, a  judgment  of  a  foreign 
court  of  adiniralty  condemning  the 
ship  for  a  breach  of  blockade  is  con- 
clusive only  when  it  states  the 
specific  cause  of  condemnation ;  and 
where  the  decree  stated  that  the  ves- 
sel was  condemned  for  a  rescue  from 
a  belligerent  captor,  or  otherwise, 
the  assured  was  permitted  to  give 
evidence  disproving  the  fact  of  such 
rescue.  Robinson  t'.  Jones,  8  Mass. 
536,  5  -\ni.  Dec.   114. 

Insufficient  Reasons  for  Decree. 
To  constitute  the  breach  of  warranty 
by  the  assured,  against  seizure  or 
detention  of  a  vessel  on  account  of 
illicit  or  prohibited  trade,  there  must 
be  an  illicit  or  prohibited  trade  in 
fact,  existing,  and  it  is  not  sufficient 
that  there  has  been  a  condemnation 
under  a  pretext  of  such  a  trade  in  a 
foreign  court  of  admiralty  where 
the  presumption  of  facts  to  war- 
rant a  condemnation  is  repelled  by  a 
detail  of  the  precise  grounds  upon 
which  the  sentence  was  pronounced. 
Johnson  v.  Ludlow,  2  Johns.  Cas. 
481 ;  Francis  v.  Ocean  Ins.  Co.,  6 
Cow.  404. 

A  decree  of  a  court  in  the  Island 
of  Hayti,  not  founded  on  a  libel, 
and  in  which  no  trial  was  had,  con- 
demning a  vessel  and  cargo  belong- 
ing to  a  citizen  of  the  United  States 
for  an  alleged  breach  of  blockade,  is 
not  conclusive  evidence  of  that  fact. 
Sawyer  z:  Maine  Fire  and  Marine 
Ins.   Co.,   12   Mass.  291. 

Where  a  vessel  was  seizcil  and 
confiscated  by  the  courts  of  Mexico, 
and  il  appeared  by  the  record  of  the 
proceedings  that  there  was  no  suit- 
able allegation  of  the  offense  in  the 
nature  of  a  libel,  and  there  was  no 
statement  of  facts  ex  directo  upon 
which  the  sentence  professed  to  be 
founded,  the  proceedings  and  decree 

Vol.  I 


were  not  conclusive  as  to  the  ex- 
istence of  the  laws  of  Mexico,  the 
jurisdiction  of  the  court,  and  the 
cause  of  seizure  and  condemnation. 
Bradstreet  z'.  Neptune  Ins.  Co.,  3 
Sum.  600,  3  Fed.  Cas.  No.   1793. 

73.  Johnson  v.   Ludlow,  2  Johns. 
Cas.   481. 

74.  Vasee  z'.    Ball,  2   Dall.  270. 
Decree    in    Foreign    Prize    Court. 

Though  the  decree  of  a  foreign  prize 
court  of  admiralty  condemning  as 
prize,  property  libelled  as  enemy's 
property,  is  not  conclusive  against 
the  neutrality  of  the  vessel,  Maley 
V.  Shattuck,  3  Cranch  488;  yet  such 
a  decree  is  competent  prima  facie 
evidence  that  goods  condemned  as 
enemy's  property  were  such,  in  a 
suit  upon  a  policy  of  insurance 
against  the  goods  condemned.  Lam- 
bert v.  Smith,  I  Cranch  C.  C.  361. 

New  York  Cases — The  decisions 
in  New  York  cases  are  contrary  to 
the  decision  of  the  federal  courts 
that  the  decree  of  a  foreign  court  of 
admiralty  is  conclusive  as  to  the 
points  decided  therein,  and  hold  that 
the  decree  of  a  foreign  court  of  ad- 
miralty is  only  prima  facie  evidence 
of  the  facts  stated  in  express  terms 
as  to  the  grounds  of  condemnation. 
In  Ocean  Ins.  Co.  ?'.  Francis.  2 
Wend.  (N.  Y.)  64,  the  chancellor 
said:  "In  all  such  cases,  the  de- 
cisions of  the  court  condemning  a 
vessel  or  cargo  as  a  good  and  lawful 
prize,  is  conclusive  to  change  the 
property,  and  can  never  be  inquired 
into  collaterally  in  any  of  the  courts 
of  the  country  under  whose  juris- 
diction such  condemnation  took 
place.  It  has  also  been  decided  in 
the  supreme  court  of  the  LTnited 
States,  and  in  some  of  our  sister 
states,  as  well  as  in  England,  that 
the  sentence  is  final  and  cnnclusivc 
against  all  the  world,  not  only  to 
change  the  property,  hut  as  to  the 
facts  on  which  tlie  condemnation  was 
founded,  and  that  neither  can  be 
examined  directly  or  collaterally  by 
the  courts  of  any  other  country. 
(Croudson  v.  Leonard,  4  Cranch  434; 


ADMIRALTY. 


309 


of  title  or  right  if  the  court  had  no  jurisdiction  of  the  subject-mat- 
ter/'^ A  foreign  decree  of  damages  for  collision  is  not  evidence 
of   the   collision   or   its   causes   or   consequences,   but   only   of  the 


Dempsey  v.  Ins.  Co.  of  Philadelphia. 
I  Binn.  (Pa.)  209,  note;  Baxter  v. 
New  England  Marine  Ins  Co.,  6 
Mass.  277 ;  Stewart  v.  Warner,  i 
Day  (Conn.)  143.  This  court, 
however,  has  adopted  a  different 
rule,  which  must  now  he  con- 
sidered as  the  settled  law  of  the 
state.  It  is,  that  the  sentence  of 
a  foreign  court  of  admiralty  con- 
demning the  property  as  good  and 
lawful  prize,  according  to  the  laws 
of  nations,  is  conclusive  to  change 
the  property,  but  it  is  only  prima 
facie  evidence  of  the  facts  on  which 
the  condemnation  purports  to  have 
been  founded.  And  in  a  collateral 
action,  such  evidence  may  be  rebutted 
by  showing  that  no  such  facts  did, 
in  reality,  exist.  ( Vandenheuvel  v. 
United  Ins.  Co.,  2  Johns.  Cas.  451  ; 
New  York  Firemen  Ins.  Co.  ;■.  De 
Wolf,  2  Cow.   56.)" 

Disproof  in  Cases  of  Fraud. 
Where  the  sentence  of  a  foreign 
court  of  admiralty  and  prize  in  rem 
was  founded  in  fraud,  it  is  not  con- 
clusive upon  the  parties  and  they 
may  disprove  it  by  evidence.  Brad- 
street  r.  Neptune  Ins.  Co.,  3  Sum. 
600,  3  Fed.  Cas.  No.  1793. 

75.  Rose  'l'.  Himely,  4  Cranch  241  ; 
Bradstreet  i'.  Neptune  Ins.  Co.,  3 
Sum.  600,  3  Fed.  Cas.  No.  1793 ; 
Swift  V.  Myers,  37  Fed.  37;  Cheriot 
V.    Foussat,   3    Binn.    (Pa.)    220. 

While  the  presumption  is  that  a 
foreign  court  which  has  condemned 
a  prize  is  a  legitimate  tribunal, 
yet  where  it  is  shown  that  the  court 
was  constituted  by  a  military  com- 
mander, especially  where  not  shown 
to  be  the  commander-in-chief,  the 
burden  is  on  the  party  supporting 
the  condemnation  to  show  that  the 
court  was  instituted  by  lawful 
authority.  Snell  i".  Fousatt.  3  Binn. 
(Pa.)  239  note,  i  Wash.  271. 

Although  the  decision  of  a  prize 
court  of  competent  jurisdiction  is 
conclusive  as  to  the  ownership  of 
property,  and  a  court  of  common  law 
has  no  jurisdiction  of  prize,  yet  if 
plaintiff  claims  goods  as  his  property, 


which  defendant  denies  on  the 
ground  of  their  having  been  con- 
demned for  prize,  a  court  of  common 
law  may  inquire  whether  the  con- 
demnation was  pronounced  by  a 
court  of  competent  authority.  Wheel- 
wright I'.  Depeyster,  i  Johns.  (N. 
Y.)    471,    3   Am.    Dec.   345. 

The  state  courts  may  decide 
whether  or  not  a  prize  court  had 
jurisdiction  over  the  subject  matter 
and  its  judgment  will  not  be  con- 
clusive evidence  unless  it  had  such 
jurisdiction.  Slocum  z'.  Wheeler,  i 
Conn.  129. 

Jurisdiction  of  State  Court. 
Downs  I'.   Allen,  22   Fed.  805. 

Where  the  proceedings  in  a  state 
court  to  enforce  a  maritime  lien 
were  void  for  want  of  jurisdiction, 
an  incidental  finding  of  the  existence 
of  the  lien  and  of  the  amount  due, 
is  not  conclusive  in  a  subsequent 
proceeding  in  the  federal  court  to 
enforce  the  same  lien.  The  B.  F. 
Woolsey.  7  Fed.   108. 

The  regularity  of  the  judgment  in 
a  state  court  cannot  be  assailed  in 
the  federal  court  in  the  absence  of 
proof  that  there  was  no  jurisdiction 
in  the  state  court.  Barker  v.  Par- 
kenhorn,  2  Wash.  C.  C.  142,  2  Fed. 
Cas.   No.  993. 

Judgment  of  Federal  Court —  The 
jurisdiction  of  a  district  court  of 
the  United  States  is  always  open  to 
inquiry  when  its  judgment  is  relied 
upon  in  a  state  court.  McCauley  v. 
Hargrove,  48  Ga.   50. 

State  courts  have  the  restricted 
right  to  examine  collaterally  into  the 
alleged  defects  of  judgments  ren- 
dered by  United  States  courts,  to 
ascertain  whether  the  court  which 
rendered  the  judgment  had  juris- 
diction, and  whether  it  exercised  that 
jurisdiction  according  to  the  legal 
forms  of  proceeding.  Want  of  juris- 
diction may  be  shown  either  as  to 
the  subject-matter  or  the  person,  or 
in  proceedings  in  rem,  as  to  the 
thing.  Paste  v.  Lewis,  39  La.  Ann. 
5,  I  So.  307;  Gould  V.  Jacobson,  58 
Mich.  288,  25  N.  W.   IQ4. 

Vol.  1 


310 


ADMIRALTY. 


amount  awarded.'"  A  decree  of  restitution  to  the  claimant  in 
admiralty  is  (<rima  facie  evidence  of  ownership.''  In  admiralty, 
if  a  former  judgment  is  relied  upon  as  a  defense,  it  is  not  conclu- 
sive unless  the  record  shows  that  the  matter  in  question  was  actually 
set  up  and  passed  upon."  A  decree  of  a  state  court  not  in  the 
same  right  is  not  a  bar  to  a  proceeding  in  admiralty,'"  and  a  federal 
decree,  likewise,  is  not  res  adjiidicata.^" 


76.  Dunham  v.  New  England 
Muuial  Ins.  Co.,  i  Low.  253,  8  Fed. 
Cas.  No.  4152;  New  England  Mutual 
Ins.  Co.  V.  Dunham,  3  Cliff.  332,  18 
Fed.  Cas.  No.  10,155;  The  East,  g 
Ben.  76,  8  Fed.  Cas.  No.  4251. 

77.  Thompson  v.  Stewart,  3  Conn, 
i-i. 

78.  The  V'incennes,  3  Ware  171, 
28  Fed.  Cas.  No.  16,945.  Compare 
Duncan   v.    Stokes,   47    Ga.    593. 

Claim  in  Reconvention A  claim 

in  reconvention,  though  somewhat 
broader  than  a  counter-claim  ad- 
judicated between  the  parties  in  a 
state  court  is  barred  by  the  former 
judgment  in  the  state  court.  Barras 
V.   Bidwell,  3  Woods  5. 

79.  Personal      Judgment      in      a 

State   Court A  personal  judgment 

in  the  state  court  is  not  a  bar  to  a 
proceeding  in  admiralty  to  enforce 
a  lien  against  the  vessel  if  the  per- 
sonal judgment  remains  unsatisfied. 
Rogers  v.  The  Reliance,  i  Woods 
274,  20  Fed.  Cas.  No.  12,019. 

The  fact  that  judgment  was  re- 
covered in  a  state  court  against  the 
master  for  the  value  of  supplies  fur- 
nished to  the  vessel,  if  unpaid,  is  no 
bar  to  the  enforcement  of  a  lien 
upon  the  vessel  for  such  supplies 
in  admiralty.  The  Brothers  Apap,  34 
Fed.  352. 

Where  seamen  recovered  a  judg- 
ment for  wages  in  a  state  court 
against  a  part  owner  of  a  vessel, 
and  attached  and  sold  his  interest 
therein,  subject  to  a  mortgage,  but 
did  not  attain  full  satisfaction  for 
their  claim  and  the  purchaser  bought 
in  the  mortgage  and  subsequently 
became  sole  owner,  the  proceedings 
in  the  state  court  did  not  operate  as 
a  merger  of  their  cause  of  action,  so 
as  to  prevent  an  enforcement  of 
their  unpaid  lien  in  admiralty  against 
the  vessel  lo  the  extent  of  the  mort- 
gage  and   of  the  interest   not  before 


sold.  Tabor  v.  The  Cerro  Gordo, 
54  Fed.  391. 

80.  Decree  in  Admiralty.  —  A 
decree  in  admiralty  against  a  libel 
for  wages  on  the  ground  of  desertion 
of  the  vessel,  is  not  a  bar  to  a  com- 
mon law  action  in  a  state  court  lo 
recover  the  value  of  the  services 
rendered.  Alurphey  v.  Granger,  32 
Mich.  358.  Compare  Granger  v. 
Judge  of  Wayne  Circuit,  27  Mich. 
406. 

Acquittal  of  Criminal  Assault. 
An  acquittal  of  the  conmianding 
officer  of  a  squadron,  when  tried  for 
assault  and  battery  and  false  im- 
prisonment of  a  seaman,  is  not  ad- 
missible evidence  in  his  favor,  in  a 
civil  suit  by  the  seaman  against  him 
for  the  same  acts.  Wilkes  v.  Dins- 
man,  7  How.  89. 

Upon  the  question  of  penalties, 
compare  Allen  v.  U.  S.,  Taney  42, 
I  Fed.  Cas.  No.  240,  and  the  Boston, 
8  Fed.  628. 

Decree  Dismissing  libel.  —  A  de- 
cree dismissing  a  libel  in  admiralty 
by  the  owner  of  a  vessel  is  no  bar 
to  a  new  libel  against  the  vessel  by 
the  owner  of  the  cargo.  Bailey  v. 
Sundberg,  49   Fed.   583. 

Decree  for  Distinct  Tort.  —  .\ 
judgment  of  a  court  of  admiralty 
upon  a  libel  against  the  master  of  a 
vessel  for  assault  and  battery  and 
imprisonment  on  the  high  seas  is  not 
a  bar  to  a  common  law  action  for  a 
like  offense  committed  by  the  master 
on  shore  in  a  foreign  port  in  the 
course  of  the  voyage.  Adams  z'. 
Haffard.  20  Pick.   127. 

Decree     as     to     Salvage A     libel 

for  damages  against  the  owners  of  a 
vessel  for  depreciation  of  the  cargo 
by  delay  in  towage  is  not  concluded 
by  a  previous  dismissal  of  the  libel- 
lant's  petition  to  participate  in  a  libel 
for  salvage  brought  by  the  defend- 
ants. Schwarzchild  i'.  National  S. 
S.  Co.,  74  Fed.  257. 


Vol.  I 


ADMIRALTY. 


311 


C.  Proof  of  Record  of  Judgment.  —  Unless  under  peculiar  cir- 
cumstances, no  part  of  the  record  of  the  admiralty  court  in  which 
insured  property  was  condemned,  except  the  libel  and  sentence  of 
condemnation,  is  admissible  in  an  action  upon  a  marine  policy  of 
insurance.*'  In  such  action,  a  recital  on  the  record  of  the  proceed- 
ings of  a  foreign  court  of  admiralty,  that  copies  of  documents 
therein  contained  were  copies  of  proved  originals  found  on  board 
the  condenmed  vessel,  is  not  evidence  that  they  were  so  found  ;--  but 
where  such  record  is  read,  without  objection,  it  is  proof  of  admissi- 
ble documents  contained  therein. '^  A  copy  of  the  record  of  a 
foreign  vice-admiralty  court,  under  the  seal  of  the  court,  and  certi- 
fied in'  the  manner  fixed  by  treaty,  is  admissible  in  evidence.** 

D.  Best  Evidence.  —  Record  evidence  of  a  libel  and  condemna- 
tion is  the  best  evidence  thereof,*''  and  the  proceedings  of  a  court  of 


Decree  as  to  Collision.  —  A  decree 
dismissing  a  libel  as  to  collision  for 
failure  to  establish  fault  in  the 
respondents,  cannot  be  held  to  in- 
corporate an  opinion  of  (he  court 
that  the  collision  was  an  inevitable 
accident  in  order  to  enable  the  libel- 
lant  to  plead  it  as  res  adjudicata 
upon  a  libel  pending  against  him  in 
another  court.  Ward  f.  The  Fash- 
ion. 6  McLean  195,  29  Fed.  Cas. 
No.   17,155. 

Acquittal  of  Seaman.  —  The  ac- 
quittal of  a  seaman  uoon  a  criminal 
trial  for  a  larceny  of  part  of  the 
cargo,  is  not  conclusive  to  rebut  a 
charge  of  larceny  when  set  up  as  a 
defense  against  his  suit  for  wages. 
Alexander  Z'.  Galloway,  i  Abb.  .^dm. 
261.    I    Fed.    Cas.    No.    167. 

81.     Mode  of  Proof It  can  never 

be  necessary,  in  order  to  prove  a 
condemnation  in  an  action  upon  a 
policy  of  maritime  insurance,  to 
produce  anything  more  than  the  libel 
and  sentence ;  although  it  is  a 
frequent  but  useless  practice  to  read 
the  proceedings  at  length.  Deposi- 
tions not  read  by  the  nlaintiflf  who 
produced  the  proceedings  in  evi- 
dence, for  no  other  purpose  than  to 
prove  the  libel  and  condemnation, 
cannot  be  used  by  the  defendant. 
Marine  Ins.  Co.  t'.  Hodgson,  6 
C ranch  206. 

Exception  to  Rule A  party  who 

wishes  to  bring  himself  within  ex- 
ceptions to  the  rule  against  intro- 
ducing other  parts  of  the  record, 
must  state  the  purpose  for  which  he 
means  to  read  such'  other  parts,  and 


confine  himself  to  such  parts.  Hour- 
quebie  f.  Girard,  2  Wash.  212,  12 
Fed.  Cas.  No.  6732 ;  Gardere  i'. 
Columbian  Ins.  Co.,  7  Johns.  514; 
Marine  Ins.  Co.  i'.  Hodgson,  6 
Cranch  206 ;  Marshall  v.  Union  Ins. 
Co.,  2  Wash.  C.  C,  452,  16  Fed.  Cas. 
No.   9135. 

82.  ^Iaryland  Ins.  Co.  v.  Bathurst, 
5  Gill    &  J".    (Md.)    159. 

83.  Proof  of  Record  Without  Ob- 
jection. —  Though  a  record  of  a 
court  of  admiralty  is  always  admis- 
sible) proof  of  the  condemnation  of  a 
vessel  and  as  between  the  insurer  and 
insured,  it  is  only  evidence  accord- 
ing to  the  general  rule  to  prove  the 
cause  of  the  condenmation,  yet  where 
the  whole  record  is  read  in  evidence 
without  objection  and  it  contains 
documents  which,  if  produced,  would 
be  evidence  in  the  cause  and  where 
if  objection  had  been  made,  the  op- 
posite party  would  have  had  an  op- 
portunity to  supply  a  proof  of  such 
document  by  other  means,  the  record 
must  be  considered  as  proof  of  them 
in  exception  to  the  general  rule. 
Russel  V.  Union  Ins.  Co.,  4  Dall. 
421. 

84.  Yeaton  v.  Fry.  S  Cranch  335; 
The  Maria,  i  Rob.  296 ;  Thompson  v. 
Stewart,  3  Conn.   171. 

85.  Proof  of  Allegation Where 

the  libel  and  condemnation  of  a  ves- 
sel and  cargo  \vere  pleaded  as  part 
of  the  cause  of  action,  record  evi- 
dence of  such  libel  and  condemna- 
tion was  essential  to  the  plaintiff's 
recovery.  Arnold  f.  Smith.  5  Day 
("Conn.)     150. 

Vol.  I 


312 


ADMIRALTY. 


admiralty  before  which  the  question  of  prize  or  no  prize  was  tried, 
is  the  best  evidence  of  what  was  done  therein.*"'  A  consular  certifi- 
cate is  not  sufficient  to  entitle  the  record  of  the  condemnation  of  a 
vessel  in  a  foreign  court  of  admiralty  to  admission  in  evidence.'*' 
Copies  of  condemnation  proceedings  had  in  San  Domingo,  while 
belonging  to  France,  made  after  the  island  passed  to  England, 
certified  by  the  English  governor  and  his  secretary,  in  the  French 
and  English  language,  were  the  best  evidence  which  the  nature 
of  the  case  afforded.*** 

4.  Official  Documents.  —  A.  Mess.xge;  of  Presidext.  —  Upon  a 
libel  for  violation  of  the  neutrality  laws  in  aiding  a  foreign  belliger- 
ent, an  official  message  of  the  president  showing  that  neither  of  the 
belligerent  factions  was  recognized  by  the  United  States,  is  con- 
clusive evidence  of  that  fact,  in  the  al^sence  of  any  proclamation  or 
certificate  to  the  contrary.*" 

B.  Official  Proclamation.  —  An  official  proclamation  of  the 
president  of  the  United  States  is  a  public  act,  of  which  all  courts 
of  the  United  States  are  bound  to  take  notice,  and  to  which  all 
courts  are  bound  to  give  efifect.""  It  is  conclusively  presumed  that 
a  proclamation  of  the  president  had  a  valid  existence  on  the  day 
of  its  date."'  The  proclamation  of  the  president  dispensing  with 
a  blockade  is  conclusive  evidence  that  it  was  not  before  terminated. "- 


86.  Messonier  v.  Union  Ins.  Co., 
I    Nott.   &   ]\I.   155. 

87.  Proof  of  Foreign  Record. 
The  record  of  the  contlenuiation  of  a 
vessel  in  a  foreign  court  of  admiralty 
is  not  evidence  j)cr  sc.  The  seal 
must  be  proved  by  a  witness  who 
knows  it,  or  the  handwriting  of  the 
judge  or  clerk  must  be  proved,  or  it 
must  be  shown  that  it  is  an  ex- 
amined copy.  Catlett  r.  Pacific  Ins. 
Co.,    I    Paine   594,    5    Fed.    Cas.    No. 

2517- 

A  copy  of  a  foreign  decree  of  ad- 
miralty certified  under  the  seal  of  a 
foreign  minister  of  the  kingdom  in 
which  the  tribunal  exists,  is  not  suflfi- 
cicntly  authenticated  to  be  com- 
petent evidence  without  proof  that 
such  minister  has  the  official  custody 
of  such  proceedings.  Vandervoort 
V.   Smith,  2   Caincs    (N.   Y.)    155. 

Copies  of  the  proceedings  or  de- 
crees of  forei.gn  courts  or  tribunals, 
though  under  the  hands  and  seals 
of  the  officers  of  such  courts,  are  not, 
of  themselves,  evidence,  but  must  be 
proved  like  other  facts.  Delafield  v. 
Hand,  3   Johns.    (N.   Y.)    ."iio. 

The  sentence  of  a  court  of  vice- 
admiralty    is    sufficiently    established 

Vol.  I 


by  a  deposition  annexed  to  it,  stating 
that  the  seal  affixed  thereto  was  the 
seal  of  the  court,  and  proving  the 
signature  and  official  character  of 
the  person  whose  name  was  sub- 
scribed. Gardere  "■.  Columbian  Ins. 
Co..   7   Johns.    514. 

The  proceedings  of  a  foreign  vice- 
admiralty  court  are  sufficiently  veri- 
fied by  the  proof  of  the  handwriting 
of  the  judge  and  of  the  register  of 
the  court  to  a  certified  copy  from 
the  record.  Mumford  v.  Brown, 
Anthon   56. 

Copies  of  documents  relating  to 
the  condemnation  and  sale  of  a  ves- 
sel, certified  by  the  British  consul 
to  be  copies  of  official  documents  on 
file  in  his  office,  and  proved  by 
deposition  before  the  trial,  are  suffi- 
cientlv  authenticated  to  be  admis- 
sible. The  J.  F.  Spencer,  3  Ben. 
,337.   13  Fed.   Cas.   No.   7315. 

88.     Iladfield  r.  Jameson,  2  Munf. 
S3- 

The  Conserva,  38  Fed.  431. 
Armstrong  r.  U.   S.,  13  Wall. 


(Va.) 

89. 

90. 
I.S4- 

91. 

92. 


I^apeyre  v.  U.  S., 
The  Circassian,  ; 


17  Wall.  191. 
Wall.  135- 


ADMIRALTY. 


3L- 


C.  Commission  of  Public  Ship.  —  The  commission  of  a  public 
ship  when  duly  authenticated,  imports  absolute  verity  ;•''■'  but  the 
commission  of  a  new  government  to  a  vessel  employed  thereby 
cannot  be  proved  by  the  seal  of  such  government  if  not  acknowl- 
edged by  the  government  of  the  United  States."* 

D.  Cektificatu  of  Foreign  Governor.  —  The  certificate  of  a 
foreign  governor  possessing  executive  and  superintending  control 
over  the  sale  of  a  vessel  captured  as  prize,  is  admissible  evidence, 
and  he  must  be  presumed  to  have  acted  with  legitimate  authority.'"^ 

5.  Parol  Evidence  in  Halation  to  Documents.  —  A.  Inadmissi- 
bility. —  a.  Contracts.  —  Parol  evidence  is  inadmissible  to  vary  or 
contradict  a  bill  of  lading,  in  so  far  as  it  is  a  contract,""  or  to  vary 
the  terms  of  a  charter-party,  or  of  a  contract  therefor,'"  or  the  terms 
of  a  written  contract  for  a  boiler  of  specified  dimensions,""  or  of  a 


93.  The  Santissiina  Trinidad,  7 
Wheat.  283. 

94.  The    Estrella,    4    Wheat.    298. 

95.  Bingham  i'.  Cabott,  3  Dall.  19. 

96.  The  Lady  Franklin,  75  U.  S. 
8  Wall.  325;  The  Gniding  Star,  62 
Fed.  407 ;  Higgins  v.  U.  S.,  etc.  Co., 
3  Blatchf.  282,  12  Fed.  Cas.  No. 
6469;  McGovern  v.  Heissenbuttel,  8 
Ben.  46,  IS  Fed.  Cas.  No.  8805. 

Conclusiveness     of     Contract A 

hill  of  lading,  in  so  far  as  it  is  evi- 
dence of  a  contract  between  the  par- 
ties to  transport  and  deliver  the 
goods  as  therein  stipulated,  stands 
on  the  footing  of  all  other  contracts 
in  writing  and  cannot  be  contradicted 
or  varied  by  parol  evidence.  If  the 
bill  of  lading  is  silent  as  to  the  mode 
of  stowing  the  goods,  its  legal  im- 
port is  that  the  goods  are  to  be  car- 
ried under  deck,  and  parol  evidence 
is  not  admissible  to  show  that  the 
shipper  agreed  that  the  goods  should 
be  stowed  on  deck.  The  Delaware, 
14  Wall.  579;  The  Waldo.  2  Ware 
162.  Evidence  of  prior  conversa- 
tions is  inadmissible  to  vary  the  pro- 
visions of  a  bill  of  lading.  O'Rourke 
f.  220  Tons  of  Coal,  i  Fed.  619. 
Parol  evidence  cannot  be  used  to 
insert  in  a  bill  of  lading  a  warranty 
for  the  delivery  of  cargo  at  a  par- 
ticular day.  Petrie  i'.  Heller,  35  Fed. 
310.  Parol  evidence  is  not  admissible 
to  explain  the  quantity  and  condition 
of  goods  shipped  under  a  bill  of 
lading  as  against  a  bona  tide  pur- 
chaser of  a  bill  of  lading.  Brad- 
street  V.  Heron,  i  Abb.  Adm.  209,  3 
Fed.   Cas.   No.   1792. 


97.  The  EH  Whitney,  i  Blatchf. 
360,  8  Fed.  Cas.  No.  4345. 

Contract  Between  Ship-Brokers. 
A  letter  from  a  ship-broker  to  pro- 
posed charterers  of  a  vessel,  confirm- 
ing the  charter  on  the  part  of  the 
owner,  and  specifying  the  terms,  and 
a  reply  on  behalf  of  the  charterers 
confirming  the  charter,  are  analo- 
gous to  bought  and  sold  notes  in 
dealings  by  brokers,  and  are  such 
conclusive  evidence  of  the  terms  of 
the  contract  as  to  e.xclude  parol  tes- 
timony in  an  action  brought  upon 
the  formal  charter-party  executed 
thereunder.  Galgate  Ship  Co.  2'. 
Starr,  58  Fed.  894. 

Merger  in  Charter-Party Where 

a  charter-party  recites  the  carrying 
capacity  of  the  vessel,  in  an  action 
thereon,  evidence  of  false  representa- 
tions by  the  owners  as  to  her  carry- 
ing capacity  is  inadmissible,  as  all 
such  representations  are  merged  in 
the  charter-party.  Baker  v.  Ward, 
3  Ben.  499,  2  Fed.  Cas.  No.  785. 
Evidence  of  a  parol  agreement  by 
charterers  to  advance  sums  to  meet 
drafts  made  previous  to  the  execu- 
tion of  the  charter-party  is  inadmis- 
sible to  vary  or  add  to  the  written 
contract,  which  is  held  to  have 
merged  all  previous  agreements. 
The   Augustine   Kobbe,   37   Fed.   696. 

98.  Size  of  Boiler.  —  Where  there 
is  nothing  to  show  that  a  contract 
ordering  a  boiler  of  certain  dimen- 
sions for  a  tug  does  not  express  the 
whole  contract,  evidence  is  not  ad- 
missible to  show  that  the  contractor 
was   to   examine   the   tug   and  ascer- 

Vol.  I 


314 


ADMIRALTY. 


written  contract  for  wages  in  shipping  articles,  if  fairly  muler- 
stood ;""  or  to  vary  a  voyage  descrilDed  in  the  shipping  articles ;'  or 
the  terms  of  a  contract  embodied  in  a  receipt ;-  or  to  impeach  a 
settlement  and  release  of  wages  after  a  libel  therefor,  in  the  absence 
of  any  showing  of  fraud  or  duress  f  or,  in  the  absence  of  fraud,  to 
vary  a  contract  between  the  master  and  the  owners  of  a  vessel  ;*  or 
to  prove  that  part  of  what  purports  to  be.  on  its  face,  an  entire 
contract,  was  omitted  therefrom  f  or  to  prove  prior  conversations 


tain  and  put  in  llie  size  of  the  boiler 
required  by  it.  The  Bertha,  gi  Fed. 
272. 

99.  Promise  of  Extra  Pay Sea- 
men who  have  signed  shipping  arti- 
cles cannot  vary  tlie  contract  by  in- 
troducing parol  evidence  as  to  prom- 
ises of  extra  pay  for  overtime  not 
contained  in  the  articles.  The 
Lakme,  93  Fed.  230.  Where  the 
shipping  articles  specify  the  wages 
of  the  mate  of  a  vessel,  he  cannot 
give  parol  evidence  of  an  agree- 
ment to  allow  him  other  compensa- 
tion. Veacock  v.  JMcCall,  Gilp.  329, 
28  Fed.  Cas.  No.   16,904. 

1.  By    Shipowner Parol    proof 

offered  by  a  shipowner  to  vary  the 
voyage  described  in  the  shipping  ar- 
ticles is  not  admissible  in  an  action 
in  rem  by  the  seamen  for  their 
wages.  The  Triton,  i  Blatchf.  &  H. 
Adm.   282,   24  Fed.    Cas.    No.    14,181. 

By  Seamen.  —  Where  the  contract 
was  fully  explained  to  the  seamen, 
before  they  signed  it,  they  cannot 
vary  the  voyage  by  parol  evidence. 
The  Quintero,  i  Low.  38,  20  Fed. 
Cas.   No.   11,517. 

Termination  of  Voyage.  —  A 
parol  understanding  that  the  vessel 
was  not  to  complete  the  voyage  de- 
scribed in  the  shipping  articles  is  not 
admissible.  Thompson  v.  The  Oak- 
land, 23  Fed.  Cas.  No.  13.971.  A 
contract  between  owners  and  master, 
for  a  whaling  voyage  not  exceeding 
five  years'  duration  does  not  include 
several  voyages  extending  through 
five  years,  but  terminates  when  the 
object  of  the  voyage  is  fulfilled  after 
obtaining  a  full  cargo,  and  parol  evi- 
dence is  not  admissible  to  show  that 
other  voyages  were  included.  The 
doctrine  of  Page  zk  Sheffield,  2  Curt. 
377,  does  not  apply  to  a  contract  for 
a  whaling  voyage.  Slocum  v.  Swift, 
2  Low.  212,  22  Fed.   Cas.   No.   12,954. 

2.  Release  of  Injuries  From  Col- 

Vol.  I 


lision An   instrument   stating  that 

in  consideration  thereof,  the  owner 
of  a  vessel  released  and  forever  dis- 
charged another  vessel  and  her  own- 
ers from  all  claims  whatsoever  on  ac- 
count of  the  injuries  resulting  from  a 
collision,  except  the  claim  made  by  the 
owners  for  loss  of  the  use  of  the 
former  vessel,  is  in  the  nature  of  a 
contract,  and  not  a  mere  receipt,  and 
cannot  be  disputed  or  controlled  by 
parol  evidence  that  a  certain  claim 
was  not  in  the  minds  of  the  parties, 
where  all  the  claims  were  germane 
to  the  transaction.  The  Cayuga,  59 
Fed.  483,  8  C.  C.  A.  188. 

Keceipted    Bill    for    Towage A 

statement  contained  in  a  receipted 
bill  for  towing,  delivered  in  advance 
to  the  owner  of  the  vessel  towed, 
that  the  towing  is  "at  the  risk  of 
the  owner  or  master  of  the  vessel 
towed,"  is  a  contract  in  writing, 
within  the  rule  which  excludes  parol 
evidence  to  vary,  explain,  or  contra- 
dict it.  Milton  7'.  Hudson  R.  Steam- 
boat Co..  4  Lansing  76. 

Receipt  of  Goods  for  Carriage. 
A  receipt  of  goods  for  carriage,  con- 
taining the  terms  of  transportation, 
is  a  written  contract  which  cannot 
be  varied  by  parol  evidence  of  a 
prior  oral  agreement  between  the 
shipper  and  master.  Barber  v.  Brace, 
3  Conn.  9. 

Termination  of  Contract  for 
Wages —  ,\  receipt  of  payment  on 
final  discharge  of  the  cargo,  is  the 
usual  and  sufficient  evidence  of  the 
termination  of  the  contract  for  wages 
for  seamen.  Phillips  v.  The  Thomas 
Scattergood,  I  Gilp.  i,  ig  Fed.  Cas. 
No.  11,106. 

3.  The  Belvedere,  160  Fed.  498. 

4.  Slocum  V.  Swift,  2  Low.  212, 
22  Fed.  Cas.   No.   12,954. 

5.  Warranty  of  Vessel's  Title. 
Where  a  vessel's  title  is  warranted 
in   a    bill    of   sale,   parol    evidence   is 


ADMIRALTY. 


315 


and  statements  preceding  a  contract  by  letter  to  repair  a  vessel  f 
or  to  vary  the  terms  of  a  policy  of  marine  insurance;'  or  to  prove 
usage  varying  the  terms  of  an  unambiguous  contract.** 

b.  Other  Instruments.  —  Parol  evidence  is  inadmissible  to  assail 
the  statements  of  a  log-book  by  the  part}-  making  them  ;'■'  or  to 
countervail  the  official  report  of  the  master  of  a  foreign  vessel  to 
the  consul  of  his  nation,  that  a  seaman  deserted  the  ship  ;'■''  or  to 
contradict  the  express  terms  of  the  sentence  of  a  court  of  admi- 
ralty;" or  to  contradict  the  terms  of  a  bill  of  sale  of  an  interest 
in  a  vessel,  absolute  in  its  terms  and  expressing  a  present  sale,  by 
proof  that  the  title  was  to  vest  at  a  future  period.' - 


inadmissible  to  show  a  warranty  of 
soundness.  Pender  v.  Fobes,  i  Dev. 
&  B.  250;  Sheffield  v.  Page,  i  Spr. 
285,  ii'Fed.  Cas.   No.   12,743. 

6.  Lawrence  v.  Morrisania  Steam- 
boat Co.,  12  Fed.  850. 

7.  Policy  Stating  Value In  an 

action  upon  a  policy  of  marine  in- 
surance, which  stated  the  value  of 
the  vessel  insured,  parol  evidence  of 
a  value  other  than  that  stated  in  the 
policy  is  inadmissible.  Marine  Ins. 
Co.   V.    Hodgson,   6   Cranch   206. 

Prior  Verbal  Agreement — Parol 
evidence  is  inadmissible  to  prove 
that  a  written  policy  executed  after 
loss  of  the  vessel  known  to  the  in- 
sured owner,  and  extending  over 
past  time,  in  renewal  of  a  prior  pol- 
icy as  of  a  date  anterior  to  the  loss, 
was  executed  in  pursuance  of  a  verbal 
agreement  for  renewal  of  the  policy 
then  made ;  and  such  policy  is  viti- 
ated by  failure  of  the  owner  to  make 
known  the  loss,  when  it  was  exe- 
cuted. Merchants'  Mutual  Ins.  Co. 
V.  Lyman,  15  Wall.  664. 

Indorsement  on  Policy An  in- 
dorsement on  the  policy  giving  the 
vessel  liberty  to  deviate  in  a  specified 
manner,  cannot  be  explained  by  parol 
evidence  of  conversation  between  the 
parties  when  the  indorsement  was 
made.  Hearne  v.  New  Eng.  Mutual 
Marine  Ins.  Co.,  20  Wall.  488. 

8.  U  a  r  i  n  e  Insurance  Policy. 
Where  a  policy  of  marine  insurance  is 
on  its  face  susceptible  of  a  reasonable 
construction,  without  resorting  to  ex- 
trinsic evidence,  parol  evidence  of 
usage  cannot  be  admitted  to  contra- 
dict, vary  or  control  it.  Oriental 
Ins.  Co.  V.  Wright,  i  Wall.  456; 
Hearne  v.  Marine  Ins.  Co.,  87  U.  S., 


20  Wall.  488;  Smith  V.  Mobile  Nav. 
etc.   Co.,   30  Ala.    167. 

Blank  Policy.  —  Though  the  per- 
son intended  to  be  insured  under  a 
blank  policy  in  a  specified  vessel 
whose  master  is  named  may  be 
shown,  parol  evidence  is  not  admis- 
sible to  show  a  usage  of  insurance 
companies,  as  to  the  effect  of  such 
policies.  Turner  v.  Burrows,  8 
Wend.  144. 

Bill    of    Lading Parol    evidence 

of  usage  is  not  admissible  to  contra- 
dict the  terms  of  a  contract  embod- 
ied in  a  bill  of  lading.  The  Reeside, 
2  Sum.  568,  20  Fed.  Cas.  No.  11,657: 
Cox  V.  Peterson,  30  Ala.  608 ;  Boone 
V.  The  Belfast,  40  Ala.  184;  McGov- 
ern  v.  Heisenbuttel,  8  Ben.  46,  16 
Fed.   Cas.   No.  8805. 

Charter-party —  The  unambigu- 
ous language  of  a  charter-party  can- 
not be  varied  by  parol  evidence  of 
usage.  The  Gazelle,  128  U.  S.  474; 
Pederson  v.  Engster,  14  Fed.  422 ; 
The  Cyprus,  20  Fed.  144;  Sleeper  v, 
Puig,  17  Blatchf.  36,  22  Fed.  Cas.  No. 
12,941  ;  10,082  Oak  Ties,  87  Fed.  935. 

9.  The  Newfoundland,  89  Fed. 
510;  The  Lamington,  87  Fed.  752; 
Bunge  V.   The  LUopia,   i   Fed.  892. 

10.  Discharge  of  Seamen.  —  Tlie 
master  will  not  be  permitted  to  con- 
tradict such  report  of  desertion  by 
evidence  that  he  discharged  the  sea- 
men in  port.  The  Infanta.  Abb. 
.\dm.  263,   13  Fed.   Cas.   No.   7030. 

11.  Croudson  v.  Leonard,  4 
Cranch  434;  Gelston  v.  Hoyt,  3 
Wheat.  246 ;  Marvland  v.  Bathurst, 
S  Gill  &  J.  (Md.)  159;  Baxter  v. 
New  Eng.   Marine  Ins.   Co.,  6  Mass. 

277- 

12.  Rennell  v.  Kimball,  5  .Allen 
(Mass.)  356. 

Vol.  I 


316 


ADMIRALTY. 


B.  Admissibility. — a.  Contracts.  —  Parol  evidence  is  admissi- 
ble to  show  an  independent  contract  not  embodied  in  a  bill  of 
lading  ;'■'  to  prove  an  independent  oral  contract  in  addition  to  that 
embodied  in  shipping  articles  ;'■*  to  prove  an  amount  of  seamen's 
wages  not  specified  in  the  shipping  articles ;"  to  show  an  oral  agree- 
ment that  the  title  of  a  vessel  was  to  vest  in  the  purchaser  before 
delivery,  where  the  written  contract  for  its  construction  was  silent 
in  relation  thereto  ;"^  and  to  prove  the  particulars  of  an  agreement 
not  included  in  a  contract  for  the  charter  of  a  vessel ;''  and  to  prove 
parts  of  an  incomplete  contract  for  the  supply  of  coal  to  a  vessel,  and 
to  show  the  previous  dealings  of  the  parties  as  bearing  thereupon.'* 
Seamen  may  show  by  parol  evidence  that  shipping  articles  purport- 
ing to  fi.x  their  wages  were  incorrect  or  invalid ;'"  and  that  a  rate 
was   fixed   by   oral   agreement   greater   than    that    specified    in   the 


13.  Knox  V.  The  Nietta,  i  Crabbe 
534.  14  Fed.  Cas.  No.  7912. 

14.  Page  r.  Sheffield,  2  Curt.  377, 

18  Fed.  Cas.  No.  10,667;  Sheffield  v. 

Page,   I    Spr.  28J,  21    Fed.   Cas.   No. 

12.74.1 
Omission      of      Oral      Agreement. 

Where  in  the  original  articles  for  a 
whaling  voyage  the  time  of  its  con- 
tinuance orally  agreed  upon  was  ac- 
cidentally omitted  to  be  written  out, 
parol  evidence  is  admissible  to  sup- 
ply the  defect.  The  Antelope,  i 
Low.  1,50,  I  Fed.  Cas.  No.  484. 

15.  Wickham  v.  Blight,  Gilp.  452, 
29  Fed.  Cas.  No.  17,611;  Page  i'. 
Sheffield.  2  Curl.  377-  iS  Ped.  Cas. 
No.  10,667. 

Absence  of  Shipping  Articles. 
Where  the  master  of  a  vessel  has 
dispensed  with  shipping  articles  in 
order  to  hold  the  seamen  to  less  than 
the  usual  rate,  he  must  make  clear 
proof  of  a  verbal  contract  limiting 
their  wages.  The  Acorn,  15  Fed.  751. 

16.  The    Poconoket,   70   Fed.   640. 

17.  Loud  V.  Campbell,  20  Mich, 
310. 

Particulars  Not  Included Where 

part  of  a  contract  for  the  charter  of 
a  vessel  was  embodied  in  a  letter 
written  by  one  of  the  defendants  to 
an  action  on  the  contract,  and  ad- 
dressed to  defendant's  firm,  which 
was  handed  to  the  master  of  the 
vessel  to  deliver  to  persons  having 
charge  of  the  defendant's  affairs  at 
the  port  of  loading,  the  introduction 
of  such  letter  in  evidence  does  not 
preclude  parol  evidence  as  to  par- 
ticulars   of    the    agreement    not    in- 

Vol.  I 


186. 

173,  I 
Abeel, 


eluded  in  the  letter.  Where  a  writ- 
ten agreement  for  the  chartering  of 
a  steamer  was  silent  as  to  its  ca- 
pacity, parol  evidence  is  admissible 
to  show  that  the  amount  paid  had 
reference  to  a  particular  carrying  ca- 
pacity. Harriman  ?'.  The  First 
Bryan  Baptist  Church,  6?  Ga 

18.  The  Alida,  Abb.  Adm, 
Fed.  Cas.  No.  200;  Fisher  v. 
66  Barb.  (N.  Y.)  .351. 

Incomplete     Contract Where     a 

contract  for  a  supply  of  coal  to  a 
vessel  was  incomplete  in  its  terms 
though  the  contract  is  conclusive  as 
to  the  terms  employed,  parol  evidence 
is  admissible  to  supply  the  terms  of 
the  contract  not  expressed,  and  to 
show  the  dealings  of  the  parties  pre- 
viously as  bearing  upon  their  inten- 
tion as  to  omitted  terms.  The  .\lida, 
Abb.  Adm.  173,  I  Fed.  Cas.  No.  200. 

19.  The  Elvine,  19  Fed.  528;  The 
Samuel  Ober,  15  Fed.  621  ;  The 
Ringleader,  6  Ben.  400.  20  Fed.  Cas. 
No.  ii.Sso;  The  Lola,  6  Ben.  142, 
15  Fed.  Cas.  No.  8468;  Brown  v. 
Lull,  2  Sum.  443,  4  Fed.  Cas.  No. 
2018. 

Clear  Proof  Required Although 

sliipping  articles  may  be  shown  by 
parol  to  be  incorrect  or  invalid,  im- 
less  clearly  so  shown  they  will  con- 
trol as  to  the  amount  of  wages 
agreed  upon.  But  a  clear  showing 
will  be  sufficient  to  vitiate  the  ship- 
ping contract.  The  Samuel  Ober, 
15  Fed.  621  ;  The  Lola.  6  Ben.  142, 
15  Fed.  Cas.  No.  8468;  Brown  v. 
Lull.  2  Sum.  443,  4  Fed.  Cas.  No. 
2018. 


ADMIRALTY. 


317 


articles  ;-"  and  that  a  clause  in  the  shipping  articles  limiting  wages 
was  not  read  nor  explained  to  them  and  was  not  binding.-' 

(1.)  Parties  to  Contracts.  —  Parol  evidence  is  admissible  to  show 
that  other  parties  not  named  in  a  charter-party  were  interested 
therein.--'  Parol  evidence  is  admissible  in  favor  of  seamen  to  show 
that  there  were  other  owners  of  a  vessel  than  those  who  signed 
shipping  articles  for  a  fishing  voyage, -''  and  is  admissible  to  show 
that  the  real  owner  of  a  vessel  was  other  than  the  one  who  obtained 
the  legal  title.-^  Parol  evidence  is  admissible  to  explain  a  mistake 
in  the  names  of  the  shippers  in  a  bill  of  lading.-''  The  owner  of 
a  vessel  being  a  stranger  to  a  bill  of  lading  nnder  a  charter- 
party,  may  contradict  it  by  parol  evidence.-^ 


20.  The  Lola,  6  Ben.  142,  15  Fed. 
Cas.  No.  8468;  The  Ringleader,  6 
Ben.  400,  20  Fed.  Cas.  No.  11,850; 
The  Tarquin,  I  Low.  358,  23  Fed. 
Cas.  No.  13,755;  Mayshew  v.  Terry, 
I  Spr.  584,  16  Fed.  Cas.  No.  9361 ; 
Sweeney  z'.  Cloutman,  2  Cliff.  85,  23 
Fed.    Cas.    No.    13,685. 

21.  The  Samuel  Ober,  15  Fed. 
621  ;  The  Tarquin,  i  Low.  358,  23 
Fed.  Cas.  No,  13,755 ;  Mayshew  v. 
Terry,  i  Spr.  584,  16  Fed.  Cas.  No. 
9361 ;  The  Ringleader,  6  Ben.  400,  20 
Fed.  Cas.  No.  11,850;  Heard  z'.  Rog- 
ers, I  Spr.  556,  II  Fed.  Cas.  No. 
6298;  The  Quintero,  i  Low.  38,  20 
Fed.  Cas.  No.  11,517;  The  Australia, 
3  Ware  240,  2  Fed.  Cas.  No.  667; 
The  Rochanibeau,  3  Ware  304,  20 
Fed.  Cas.  No.  11,973;  Harden  Z'. 
Gordon,  2  Mason  541,  11  Fed.  Cas. 
No.  6047 ;  Brown  z'.  Lull,  2  Sum. 
44.^,  4  Fed.  Cas.  No.  2018;  The  Sa- 
rah Jane,  i  Blatchf.  &  H.  401,  21 
Fed.  Cas.  No.  12,348;  The  Cypress,  i 
Blatchf.  &  H.  83,  6  Fed.  Cas.  No. 
3530;  Sweeney  v.  Cloutman,  2  ClifT. 
85,  23  Fed.  Cas.  No.  13,685;  The  AI- 
matia,   Deady   473,    i    Fed.    Cas.    No. 

254- 

23.  Absence   of  Name   of   Owner. 

Where  no  person  or  corporation  is 
named  as  owner  of  tlie  vessel  in  a 
bill  of  lading,  as  contracting  for  the 
carriage  of  the  goods,  but  only  the 
signature  of  an  agent  appears,  parol 
evidence  is  admissible  to  show  the 
name  of  the  owner  of  the  vessel. 
The  Maryland  Ins.  Co.  f.  Ruden,  6 
Cranch   338. 

24.  Owner  Not  Named  in  Arti- 
cles  The    owner    of    a    vessel    not 

named  in  shipping  articles  is  liable 
for   the    wages    of   the    seamen,    and 


cannot  escape  liability  by  a  sale  of 
the  vessel,  though  made  after  the 
voyage  was  terminated,  and  prior  to 
a  demand  upon  him  by  the  seamen 
for  their  wages.  Bronde  z'.  Haven, 
Gilp.  592,  4  Fed.  Cas.  No.  1924; 
Wait  v.   Gibbs,  4  Pick.  298. 

25.  Parol      Evidence      for      Part 

Owner A   part   owner  of  a   vessel 

suing  for  a  share  of  the  proceeds  of 
her  sale,  may  prove  by  parol  evi- 
dence, the  amount  of  his  interest  in 
the  vessel,  in  contradiction  of  recit- 
als in  the  registry  of  the  vessel  and 
the  bill  of  sale  thereof.  Whiten  v. 
Spring.  74  N.  Y.  169;  Scudder  z'. 
Calais  Steamboat  Co.,  i  Cliff.  370,  21 
Fed.   Cas.   No.    12,565'. 

26.  Lee  v.  Salter  Lalor  Supp.  163. 

27.  Shipment      Under      Charter- 

Party Where  the  shipper,  under  a 

charter-party,  which  gives  the  hirer 
the  full  control  of  the  vessel,  pro- 
ceeded against  the  vessel  for  breach 
of  the  contract  of  carriage,  through 
fault  of  the  master,  the  owner  of  the 
vessel  intervening  as  a  third  party 
for  his  own  interest,  may  contradict 
the  bill  of  lading  by  parol  testimony. 
The  Phebe,  I  Ware  265,  ig  Fed.  Cas. 
No.  11,064. 

Rig-hts    of    Third    Persons The 

rule  excluding  parol  proof  cannot 
affect  third  persons,  who.  if  it  were 
otherwise  might  be  prejudiced  by 
things  recited  on  the  writings  con- 
trary to  the  truth,  through  the  igno- 
rance, carelessness,  or  fraud  of  the 
parties,  and  who,  therefore,  ought 
not  to  bo  precluded  from  proving 
the  truth  however  contradicting  to 
the  written  instruments  of  others, 
and  parol  proof  is  always  admissible 
in  matters  of  contract  to  show  fraud. 


Vol.  I 


318 


ADMIRALTY. 


(2.)  Explanation  of  Contracts.  —  Parol  evidence  is  admissible  to 
show  an  oral  agreement  preceding  an  ambiguous  bill  of  lading  or 
charter-party,  in  explanation  of  its  meaning,-*  the  purpose  for 
\\  liich  a  chartered  vessel  was  hired  ;-^  the  circumstances  under 
wliich  a  charter  was  made,  and  the  conduct  of  the  parties,  in  expla- 
nation of  ambiguous  terms  f  and  the  acts  and  declarations  of  the 
parties  and  their  agents,  and  their  subsequent  conduct  under  the 
terms  of  a  charter-party  referring  to  subsequent  transactions  ;^' 
and  to  show  all  the  circumstances  surrounding  the  parties  to  a 
contract  of  marine  insurance,  in  order  to  explain  the  sense  in  which 
the  parties  understood  it  f^  and  that  a  policy  of  marine  insurance 


and  it  niaj'  be  shown  by  tliird  par- 
ties, where  the  contract  may  operate 
as  a  fraud  upon  them,  however  bona 
fide  it  ma3'  be  as  between  the  parties 
thereto.  Barreda  v.  Silsbee,  21  How. 
146. 

28.  Ambiguous  Bill  of  Lading. 
Where  a  statement  in  a  bill  of  lad- 
ing written  at  the  bottom  thereof 
above  the  master's  signature,  refer- 
ring to  the  charter-party,  causes  am- 
biguity, parol  evidence  is  admissible 
to  show  an  oral  agreement  which 
preceded  the  shipping  of  the  cargo. 
The  Wanderer,  29  Fed.  260. 

Ambiguous  Exception  in  Charter- 

Party Where  defendants  chartered 

for  a  single  voyage  the  whole  ton- 
nage of  plaintiiT's  vessel,  except  so 
much  as  should  be  necessary  for  the 
accommodation  of  the  officers  and 
crew,  and  the  storage  of  provisions, 
and  the  captain  gave  up  the  cabin 
usually  occupied  by  him  and  his  offi- 
cers, and  induced  the  sailors  to  give 
up  quarters  usually  occupied  by 
them,  and  allowed  defendants  to  fill 
those  places  with  freight,  proof  of 
the  conversation  between  the  cap- 
tain and  defendants,  when  in  nego- 
tiation for  the  charter  of  the  vessel, 
in  relation  to  the  parts  of  the  ves- 
sel which  would  be  required  for  the 
use  of  the  captain  and  crew  and  their 
stores,  was  properly  admitted,  in  an 
action  for  extra  compensation  for  the 
space  given  up.  Almgren  t'.  Dutilh. 
5   N.  Y.  28. 

29.  Bradley  v.  The  Washington, 
Alexandria  and  Georgetown  Packet 
Co..   1.1   Pet.  89. 

30.  Practical  Interpretation. 
The  provisions  of  a  charter-parly, 
the  meaning  of  which  is  not  clear, 
are   to   be   construed    in   the   light   of 

Vol.  I 


the  circumstances  surrounding  the 
parties  when  the  contract  was  made, 
and  the  practical  interpretation  which 
they  by  their  conduct  have  given  to 
the  provisions  in  controversy.  Low- 
ber  V.  Bangs,  2  Wall.  728;  Bradley 
V.  The  Washington,  Alexandria  and 
Georgetown  Packet  Co.,  13  Pet.  89. 
Latent  Ambiguity Parol  evi- 
dence is  admissible  to  explain  a 
latent  atnbiguity  in  a  charter-party 
and  to  show  the  circumstances  un- 
der which  it  was  made ;  to  establish 
its  meaning  and  application  to  the 
facts  of  the  case.  Balfour  v.  Wil- 
kins,  s  Saw.  429,  2  Fed.  Cas.  No. 
807. 

31.  Lowber  v.  Bangs,  2  Wall.  743 ; 
Barreda    v.    Sillsbee,    21    How.    146. 

32.  Reed  v.  Merchants'  Mutual 
Ins.  Co.,  95  U.  S.  23. 

Construction  of  Policy — In  the 
case  of  Reed  v.  Ins.  Co.,  95  U.  S.  23, 
it  was  held  that  a  clause  in 
the  policy  of  insurance,  "  the  risk 
to  be  suspeiided  while  vessel  is 
at  Baker's  Island  loading "  was 
to  be  interpreted  in  the  light  of 
extrinsic  parol  evidence  of  all  the 
circumstances,  as  ineaning  while  the 
vessel  is  at  Baker's  Island  for  the 
purpose  of  loading,  and  not  merely 
while  it  was  there  actually  loading. 
The  court  said:  "A  strictly  literal 
construction  would  favor  the  latter 
meaning,  but  a  rigid  adherence  to 
the  letter  often  leads  to  erroneous 
results,  and  misinterprets  the  mean- 
ing of  the  parties.  That  such  was 
not  the  sense  in  which  the  parties  in 
this  case  used  the  words  in  question 
is  manifest,  we  think  from  all  the  cir- 
cumstances of  the  case,  although 
a  written  agreement  cannot  be  va- 
ried   (bv  addition  or  subtraction)   by 


ADMIRALTY. 


319 


made  "  for  the  owners  of  a  vessel  "  was  intended  to  cover  both 
joint  and  separate  property  of  the  owners  f^  and  to  show  the  cir- 
cumstances under  which  an  ambiguous  contract  of  carriage  was 
made  in  explanation  thereof;"''  and  that  a  contract  by  a  vessel  for 
transportation  between  two  points  was  orally  agreed  to  be  tran- 
shipped at  an  intermediate  point  f^  and  to  apply  a  contract  of  car- 
riage to  its  proper  subject."''  Parol  evidence  of  usage  is  admissible 
to  explain  and  qualify  an  ambiguous  maritime  contract."' 


proof  of  the  circumstances  out  of 
which  it  grew  and  which  surrounded 
its  adoption,  yet  such  circumstances 
are  constantly  resorted  to  for  the 
purpose  of  ascertaining  the  subject- 
matter  and  the  standpoint  of  the  par- 
ties in  relation  thereto.  Without 
some  knowledge  derived  from  such 
evidence  it  would  be  impossible  to 
comprehend  the  meaning  of  an  in- 
strument, or  the  effect  to  be  given 
to  the  words  of  which  it  is  composed. 
This  preliminary  knowledge  is  as  in- 
dispensable as  that  of  the  language 
in  which  the  instrument  is  written. 
A  reference  to  the  actual  condition 
of  things  at  the  time,  as  they  ap- 
peared to  the  parties  themselves,  is 
often  necessary  to  prevent  the  court, 
in  construing  their  language,  from 
falling  into  mistakes  and  even  ab- 
surdities." 

Latent  Ambiguity.  —  Where  a 
vessel  sailed  under  two  charters, 
either  of  which  answered  the  call  in 
the  policy,  there  was  a  latent  ambi- 
guity, justifying  parol  evidence  as  to 
which  charter  was  insured.  Melcher 
f.  Ocean  Ins.  Co.,  59  Me.  217. 

33.  Foster  v.  U.  S.  Ins.  Co.,  11 
Pick.  85. 

34.  Reimbursement  for  Advances. 
Under  a  contract  of  shipment  wliere 
it  was  doubtful  whether  the  con- 
signee had  agreed  to  look  only  to 
the  goods  shipped  for  reimburse- 
ments for  advances  on  them,  parol 
evidence  is  admissible,  in  explana- 
tion of  the  contract  to  sliow  the  cir- 
cumstances under  which  it  was  made. 
In  this  case  it  was  said  by  the  judge 
that  if  freight  were  assigned  in  a 
particular  ship,  parol  evidence  might 
be  admitted  to  show  the  circum- 
stances under  which  the  contract  was 
made,  to  ascertain  whether  it  re- 
ferred to  goods  on  board  the  ship, 
or  an'  interest  in  its  earnings.    Peisch 


z'.  Dickson,  i  Mason  911,  19  Fed. 
Cas.  No.  10,911. 

35.  The  Arrow,  6  McLean  470,  4 
Fed.  Cas.  No.  2237. 

36.  Application    to    Subject-Mat- 

ter In   giving   effect   to   a    written 

contract,  by  applying  it  to  its  proper 
subject  matter,  extrinsic  evidence 
may  be  admitted  to  prove  the  cir- 
cumstances under  which  it  was  made, 
whenever,  without  the  aid  of  such 
evidence,  the  application  could  not 
be  made  in  "  the  particular  case. 
Bradley  v.  The  Washington,  Alexan- 
dria and  Georgetown  Packet  Co.,  13 
Pet.  89.  Where  a  bill  of  lading  pro- 
vided for  a  delivery  of  goods  to  be 
shipped  on  a  vessel  at  "  E.  R. 
wharf,"  and  it  appeared  that  the  ''  E. 
R.  Co."  owned  a  wharf  which  was 
inaccessible  to  the  vessel,  and  were 
in  the  use  of  another  accessible 
wharf,  parol  evidence  is  admissible 
to  show  that  the  accessible  wharf 
was  commonly  known  by  the  same 
designation,  in  order  to  apply  the 
contract  to  its  proper  subject.  Sut- 
ton V.  Bowker,  5  Gray  416. 

37.  Livingston  v.  Maryland  Ins. 
Co.,  6  Cranch  506;  Hancocks  v. 
Fishing  Ins.  Co.,  3  Sum.  132,  11  Fed. 
Cas.  No.  6013 ;  Raymond  v.  Tyson, 
17  How.  53;  Hosteter  v.  Park,  137 
U.  S.  30;  Andrews  v.  Roach,  3  Ala. 
190;  823  Barrels  Plumbago,  20  Fed. 
510;  Seager  v.  N.  Y.  &  C.  Mail 
Steamship  Co.,  55  Fed.  880,  55  Fed. 
324;  Phosphate  Ins.  Co.  v.  Willie, 
77  Fed.  541  ;  Eddie  -'.  Northern  S.  S. 
Co.,  79  Fed.  361 ;  Continental  Coal 
Co.  -'.  Birdsafl,  108  Fed.  182;  Bal- 
four V.  Wilkins,  5  Saw.  429,  2  Fed. 
Cas.  i\o.  807;  Thatcher  v.  McCul- 
loh,  Olc.  365',  23  Fed.  Cas.  No.  13,- 
862 ;  Lamb  v.  Parkman,  i  Spr.  343. 
14  Fed.  Cas.  No.  8020;  The  Mary  E. 
Tabor,  I  Ben.  105,  16  Fed.  Cas.  No. 
920;  The  William  Gillum,  2  Low. 
154,   29   Fed.    Cas.    No.    17.693. 

Vol.  I 


320 


ADMIRALTY 


b.  Receipts.  —  Parol  evidence  is  admissible  to  contradict  or  vary 
a  bill  of  lading,  in  so  far  as  it  is  a  receipt  for  the  thing  shipped  f^ 


Usage  Between  Assurers  and  As- 
sured—  Where  goods  arc  shipped 
for  a  voyage,  and  a  pohcy  is  effected 
upon  the  goods  out,  and  upon  the 
proceeds  thereof  at  home,  though 
the  identical  goods  brought  home  do 
not  seem  to  be  covered  by  the  policy, 
the  assured  may  show  by  parol  proof 
that,  by  the  known  usage  of  trade, 
or  by  use  and  practice  as  between 
assured  and  assurers,  the  word 
"  proceeds "  is  understood  by  the 
parties  to  include  the  identical  goods, 
brought  back  in  the  homeward  voy- 
age. Dow  V.  Whetten,  8  Wend.  (N. 
Y.)   l6o. 

Custom   Exempting  Assured The 

assured  in  a  marine  policy  may  prove 
a  custom  exempting  the  assured 
from  providing  a  branch  pilot  in  a 
coasting  trade  in  which  the  vessel 
assured  was  employed.  Cox  v. 
Charleston,  etc.  Co..  ^  Rich.  3.u. 

Usage  As  to  Reshipment  of  Cargo. 
Under  a  contract  of  shipment  with 
the  privilege  of  reshipping,  it  is 
competent  to  show  by  usage  that  it 
was  not  the  duty  of  the  vessel  to  re- 
ship  instead  of  waiting  for  a  rise  of 
water.  Broadwell  v.  Butter.  6 
McLean.  296,  4  Fed.   Cas.   No.   1910. 

Contract  of  Carriage The  words 

"on  the  steamer,"  in  a  bill  of  lading, 
may  be  explained  by  parol  proof  of  a 
general  usage  of  steamboats  to  lade 
their  goods  on  barges.  Steele  v. 
McTyer,  31  Ala.  667.  The  custom 
of  a  river  may  be  shown  to  relieve 
a  vessel  from  the  loss  of  the  goods. 
Hibler  v.  McCartney,  31  Ala.  501 ; 
McClure  ?'.  Cox,  32  Ala.  617.  Proof 
of  usage  to  stow  goods  shipped  for 
transportation  in  a  particular  manner 
will  justify  such  stowage.  The  Wil- 
liam Gillum,  2  Low.  154,  29  Fed.  Cas. 
No.   17.603. 

Hiring  of  Vessel.  —  Upon  a  dis- 
pute in  regard  to  the  hiring  of  a  ves- 
sel, parol  evidence  of  custom  is  ad- 
missible to  explain  the  acts  of  the 
parties.  Perkins  t.  Jordan,  35  Me. 
23.  Where  the  master  of  a  coasting 
vessel  chartered  it  on  shares,  and  was 
authorized  to  turn  it  over  to  the 
mate  on  the  same  terms,  parol  evi- 
dence is  admissible  to  prove  a  usage 

Vol.  I 


at  the  port  where  the  vessel  belonged 
to  let  such  vessels  to  the  master 
upon  shares.  Thompson  v.  Hamil- 
ton, 12  Pick.  (.Mass.)  425.  Parol 
evidence  is  admissible  to  show  a 
general  usage  as  to  the  mode  of  en- 
gaging and  paying  crews  of  fishing 
vessels  in  order  to  show  the  kind  of 
voyage  contemplated.  Elridge  v. 
Smith,  13  Allen   (Mass.)    140. 

38.     The    Delaware,    14   Wall.   579. 

Goods    Not    Shipped A    bill    of 

lading  acknowledging  the  receipt  of 
goods  not  actually  shipped  may  be 
contradicted  by  oral  testimony  that 
it  was  given  by  mistake.  The  Lady 
Franklin,  8  Wall.  325.  Where  no 
cargo  was  actually  shipped  and  bills 
of  lading  were  obtained  by  fraud 
and  transferred  for  value,  the  owner 
of  the  vessel  may  prove  the  facts 
constituting  the  fraud  as  against  a 
bona  fide  purchaser  of  the  bills  of 
lading.  The  Freeman  z:  Bucking- 
ham, 18  How.  192.  A  bill  of  lading, 
as  the  receipt  for  the  thing  shipped, 
may  be  modified  or  contradicted  by 
parol  evidence  that  the  goods  were 
not  actually  shipped  upon  the  par- 
ticular vessel,  and  the  master  and 
part  owners  of  several  steamboats 
constituting  a  line,  have  no  power  to 
bind  all  the  boats  of  the  line  for  each 
shipment  whether  it  carries  the 
freight  or  not,  and  if  one  of  them 
does  not  carry  the  freight,  it  may 
show  that  to  escape  liability.  The 
Guiding  Star,  62  Fed.  407.  That 
part  of  a  bill  of  lading,  which 
acknowledges  that  goods  have  been 
shipped,  may  be  shown  by  parol  evi- 
dence to  have  been  made  by  mistake. 
Sutton  z'.  Kettell,  i  Spr.  309.  23  Fed. 
Cas.  No.  13.647;  The  Tuskar,  i  .Spr. 
71.  24  Fed.  Cas.  No.  14,274.  Parol 
evidence  is  admissible  to  show  that 
cargo  signed  for  by  an  agent  of  the 
steamship  company,  of  which  deliv- 
ery was  acknowledged  had  not 
in  fact  been  delivered,  and  to  explain 
the  circumstances  under  wdiich  he 
had  been  induced  to  sign  bills  of  lad- 
ing. Lazard  ?'.  Merchants'  and 
Miners'  Transp.  Co.,  78  Md.  I.  See 
Hedricks  ?'.  The  Morning  Star.  18 
La.  Ann.  353. 


AUMIKALTY 


321 


or  a  mere  statement  of  the  amount  of  the  cargo  ;^''  or  of  the  owner- 
ship of  the  goods  shipped  ;*"  or  of  the  condition  of  tlie  goods  at  the 
time  of  lading  ;*'  and  to  assail  ordinary  receipts  by  seamen  in  full 
of  all  demands  for  their  wages  ;*-  and  to  explain  receipts  in  full 


39.     Glass   V.    Goldsmith,    22   Wis. 
488. 

Evidence    of    Amount    of    Cargo. 

The  bill  of  lading  is  only  prima  facie 
evidence  of  the  amount  of  the  cargo 
upon  which  freight  is  to  be  esti- 
mated, and  the  true  amount  may  be 
shown.  The  Henry,  Blatchf.  &  H. 
465,  II  Fed.  Gas.  No.  6372.  An  ordi- 
nary bill  of  lading  is  not  conclusive, 
as  between  the  original  parties, 
either  as  to  the  shipment  of  goods 
named  in  it,  or  as  to  the  quantity 
said  to  have  been  received ;  and  any 
mistake  or  fraud  in  the  sliipnient  of 
goods  may  be  shown  on  the  trial. 
Myer  v.  Peck,  28  N.  Y.  590;  Graves 
I'.  Harwood,  g  Barb.  477.  A  vari- 
ance between  the  amount  of  a  cargo 
of  coal  as  stated  in  the  measurer's 
bill  in  lading  it  on  board,  or  in  the 
bill  of  lading,  and  the  amount  of 
such  cargo  as  ascertained  on  delivery 
at  the  port  of  consigmnent,  may  be 
explained  by  showing  that  the  mode 
of  ascertaining  the  quantity  is  such 
that  similar  variations  are  neces- 
sarily of  frequent  occurrence.  Man- 
chester V.  Milne,  I  .^bb.  .^dm.  115, 
16  Fed.  Gas.  No.  gooti ;  Manning  v. 
Hoover,  i  Abb.  Adm.  188,  16  Fed. 
Gas.  No.  9044. 

40.  Error  in  Names  of  Con- 
sig^nees Parol  evidence  is  admissi- 
ble to  show  that  property  consigned 
to  two  persons  belonged  to  only  one 
of  them.  Maryland  Ins.  Go.  v.  Ru- 
den's  Adm'r.,  6  Granch  ,1.^8. 

Mistake  in  Name  of  Shipper. 
Parol  evidence  is  admissible  in  favor 
of  the  owners  of  the  vessel  to  show  a 
mistake  of  the  clerk  who  wrote  a  bill 
of  lading  in  the  name  of  the  shipper. 
Lee  V.   Salter,   Lalor    Supn.    163. 

41.  Glass  V.  Goldsmith,  22  Wis. 
488;   Howard  v.   Wissman,   18  How. 

23.3. 

Parol      Proof     Between      Original 

Parties As    between    the    original 

parties  to  the  bill  of  lading,  its  state- 
ments respecting  the  condition  of  the 
.goods  at  the  lime  they  arc  laden  on 
board,  may  be  explained  or  rectified 
by  parol  proof.     Baxter  7'.  Leland,  i 


Abb.  Adm.  348,  2  Fed.  Gas.  No. 
1124;  Bradstreet  v.  Heron,  i  Abb. 
Adm.  209,  3  Fed.  Gas.  No.  1792;  El- 
lis V.  Willard,  9  N.  Y.  529;  The 
Martha,  01c.  140,  16  Fed.  Gas.  No. 
9145 ;  Nelson  v.  Woodruff,  66  U.  S. 
(I  Black)  156;  Tarbox  v.  Eastern 
Steamboat  Go.,  50  Me.  339;  Hastings 
V.  Pepper,  II  Pick.  43.  In  Ellis  v. 
Willard,  9  N.  Y.  529,  the  court  says : 
"  A  shipowner  may  be  estopped  from 
alleging  a  deficiency  in  the  property 
shipped  as  against  a  consignee  who 
has  advanced  money  upon  the  credit 
of  the  bill  of  lading.  But  receipts 
and  admissions,  as  such,  are  always 
open  as  between  the  parties  to  ex- 
planation, and  are  impeachable  for 
any  mistake,  error  or  false  statement 
contained  in  them.  In  a  word,  they 
may  always  be  contradicted,  varied, 
or  explained  by  parol  testimony.  A 
bill  of  lading  is  not  an  exception  to 
the  rule;  and  that  part  of  the  hill 
which  relates  to  the  receipt  of  the 
goods,  their  quality,  condition  and 
quantity,  is  treated  as  a  receipt,  as 
distinct   from   the  contract." 

Clear  Evidence  Required. 
Though  a  bill  of  lading  acknowledg- 
ing the  goods  to  be  in  good  order 
is  open  to  explanation,  still  its  re- 
cital cannot  be  overthrown  nor  quali- 
fied except  by  very  clear  evidence;  it 
cannot  be  weakened  by  a  conjectural 
showing.  Bond  v.  Frost,  6  La.  Ann, 
801. 

42.  The  Mary  Paulina,  i  Spr.  45, 
16  Fed.  Gas.  No.  0224:  The  Rajah,  i 
Spr.  199,  20  Fed.  Gas.  No.  11,538; 
Jackson  v.  White.  I  Pet.  .A.dm.  179, 
13   Fed.   Gas.   No.   7151. 

Sealed  Receipts Receipts  or  re- 
leases given  by  seamen,  even  with  all 
the  solemnity  of  sealed  instruments, 
will  have  no  effect  in  a  court  of  ad- 
nn'ralty  beyond  the  actual  considera- 
tion fairly  paid. 

Inquiry  Into  Facts.  —  Receipts 
given  by  seamen  in  full  of  all  de- 
mands are  only  prima  facie  evidence, 
and  the  facts  mav  be  examined  into. 
Thorne  7:  White,  T  Pet.  .^dm.  168, 
23   Fed.   Gas.     No.    13.080.      .'\    receipt 

Vol.  I 


322 


ADMIRALTY. 


given  to  insurance  companies  upon  loss  of  a  vessel  by  fire." 


in  full  of  all  demands,  given  by  a 
seaman  to  the  master  or  owners,  is 
open,  in  a  court  of  admiralty,  to  ex- 
planation by  proof  that  at  the  giving 
of  the  receipt  there  existed  a  demand 
in  favor  of  the  seaman  whicli  was 
not  in  fact  satisfied  by  the  payment 
made ;  but,  in  order  to  free  a  demand 
from  the  operation  of  such  receipt, 
the  evidence  of  a  valid  demand  which 
was  not  in  fact  satisfied  by  the  re- 
ceipt, should  be  clear  and  convinc- 
ing. Leak  V.  Isaacson,  i  Abb.  Adm. 
41.  16  Fed.  Cas.  No.  8160. 

Receipt  No  Bar  to  Recovery. 
Where  a  seaman,  being  in  a  strange 
land  and  in  great  need  of  money, 
after  having  repeatedly  asked  for 
his  wages  without  receiving  them, 
agreed  to  take  one-third  tlie  amount 
due  him  in  full  payment  and  release 
the  shipowners,  and  accordingly 
signed  a  receipt  in  full,  the  agree- 
ment to  take  less  than  the  whole 
amount  due  was  nudum  pactum,  and 
the  receipt  was  no  bar  to  the  recov- 
ery of  the  whole  lialance  due.  Savin 
V.  The  Juno.  I  Woods  300.  21  Fed. 
Cas.  No.  12,390.  Contracts  with 
seamen,  upon  a  discharge  before 
completion  of  voyage,  concerning 
wages  already  earned,  will  be  set 
aside  and  disregarded  by  courts  of 
admiralty,  if  equitable.  The  Her- 
mine,  3  Saw.  80,  12  Fed.  Cas.  No. 
6409.  A  receipt  signed  by  a  seaman 
at  the  end  of  an  eight  months'  voy- 
age, acknowledging  the  payment  of 
nine  ($9)  dollars,  in  full  of  all  de- 
mands against  the  ship,  will  not  bar 
his  suit  for  wages  and  short  allow- 
ance, without  proof  of  an  adequate 
compensation  actually  paid  him. 
Piehl  V.  Rlatchen,  OIc.  24,  ig  Fed. 
Cas.  No.  11,137.  Where  a  crew  of 
seamen  signed  articles  for  a  voyage 
in  wdiich  a  clause  in  an  unusual  place 
reduced  their  wages  for  a  return  voy- 
age, and  on  their  arrival  home,  when 
offered  pay  at  the  reduced  rate,  pro- 
tested against  the  reduction  and  pro- 
claimed ignorance  of  such  provision, 
but  finally  took  reduced  pay  and  gave 
releases  in  full,  they  were  tiot  bound 
by  such  provision  in  the  articles  in 
the  absence  of  clear  proof  that  the 
sailors  were  distinctly  informed  of  it 
and    agreed    to    if.    and    such    receipt 

Vol.  I 


and  releases  were  no  bar  to  an  action 
for  the  remainder  for  full  pay  for 
the  return  voyage.  The  Ringleader, 
6  Ben.  400,  20  Fed.   Cas.   No.   11,850. 

Charge  for  Premiuin  on  Gold. 
Where  a  seaman,  on  being  dis- 
charged, was  paid  in  gold  by  the 
owners,  who  rendered  him  an  ac- 
count, charging  him  with  a  premium 
on  gold  over  United  States  currency, 
upon  which  he  wrote,  "Approved, 
correct,  and  satisfactory,"  and  signed 
his  name,  such  account  was  not  bind- 
ing upon  him  in  the  absence  of  an 
express  promise  to  pay  the  premium, 
and  parol  evidence  was  admissible  to 
show  the  circumstances  and  to  sup- 
port an  action  to  recover  the  amount 
of  premium  from  the  owners  of  the 
vessel.  Nelson  v.  Weeks,  in  Mass. 
223. 

43.  Receipts  in  Full  for  Loss  of 
Vessel.  —  Where  plaintifif  had  fire  in- 
surance policies  on  a  vessel  and  it 
took  fire  and  was  scuttled  and  sunk 
to  save  it  and  cargo,  and  was  after- 
wards raised,  and  the  loss  by  fire  was 
appraised  by  an  adjuster  under  an 
agreement,  with  a  memorandum  that 
the  agreement  should  not  apply  to 
any  question  that  might  arise  for 
saving  boat  and  cargo,  and  tlie  ad- 
juster reported  the  amount  of  loss 
with  a  statement  that  plaintiff  would 
make  further  claim  for  expenses  of 
raising  the  vessel,  and  plaintiff  on 
payment  of  adjuster's  appraisal, 
gave  receipts  in  full  of  all  claims 
for  loss  or  damage  by  fire,  containing 
a  clause  that  in  consideration  of  the 
payment  the  policies  were  canceled 
and  surrendered,  one  of  which  pay- 
ments was  by  draft,  stating  that  it 
was  in  full  compromise  and  payment 
of  all  claims  for  loss  and  damage  by 
fire,  parol  testimony  was  adnnssible 
to  vary  and  contradict  such  receipts 
and  drafts,  by  showing  that  they 
were  not  intended  to  be  in  full  of  the 
claim  for  raising  the  vessel.  Fire 
Ins.  Ass'n.  v.  Wickham,  141  U.  S. 
564.  In  this  case  the  court  said : 
"  The  rule  is  well  established  that 
where  the  facts  show  clearly  a  cer- 
tain sum  to  be  due  from  one  person 
to  another,  a  release  of  the  entire 
sum  upon  payment  of  a  part  is  with- 
nut    ciinsideration,    and    the    creditor 


ADMIRALTY 


323 


c.  Otiter  Dociiincnfs.  —  I'arol  evidence  is  admissible  to  show 
falsit\'  or  mistake  in  the  statement  of  a  ship's  log  book  as  to  the 
desertion  of  a  seaman  ;"  to  contradict  a  report  by  marine  survey- 
ors that  a  ship  is  tniseaworthy/^  and  the  enrollment  and  statement 
of  the  title  of  a  vessel  in  the  custom-house ;"  to  show  that  the  one 
who  holds  the  legal  title  to  a  vessel  is  only  a  mortgagee  :*'  to  show 


may  still  sue  and  recover  the  residue. 
If  there  be  a  60)10  fide  dispute  as  to 
the  amount  due,  such  dispute  may  be 
the  subject  of  a  cqjnpromise  and  pay- 
ment of  a  certain  sum  as  a  satisfac- 
tion of  the  entire  claim,  but  where 
the  larger  sum  is  admitted  to  be  due. 
or  the  circumstances  of  the  case 
show  that  there  was  no  good  reason 
to  doubt  that  it  was  due,  the  release 
of  the  whole  upon  payment  of  part 
will  not  be  considered  as  a  compro- 
mise, but  will  be  treated  as  without 
consideration  and  void.  ...  It 
is  a  familiar  doctrine  that  parol  evi- 
dence is  competent  to  show  a  want 
of  consideration.  .  .  .  The  cir- 
cumstances attending  the  execution 
of  a  receipt  in  full  of  all  demands 
may  be  given  in  evidence  to  show 
that  by  mistake  it  was  made  to  ex- 
press more  than  intended,  and  that 
the  creditors  had  in  fact  claims  that 
were  not  included." 

44.  Orne  v.  Townsend,  4  Mason 
.S41.  18  Fed.  Cas.  No.  10,^8.3;  The 
Hercules,  l  Spr.  534,  12  Fed.  Cas. 
No.  6401  ;  Worth  r.  Mumford,  i 
Hilt.  I. 

45.  Rights    of    Crew A    report 

that  a  ship  is  seaworthy,  made  by 
marine  sur\'eyors,  upon  occasion  of 
the  crew's  demanding  to  leave  her  for 
unseaworthiness,  is  not  conclusive 
against  the  crew  in  a  subsequent  ac- 
tion for  wages  after  leaving.  Bucker 
V.  Klorkgeter,  i  Abb.  Adni.  402,  4 
Fed.  Cas.  No.  2083. 

46.  Ring  V.  Franklin,  2  Hall  0; 
Colson  V.  Bonzey,  6  Me.  474 :  Gil- 
more  V.  Brehem,  3  La.  Ann.  32. 

Evidence  in  Suit  for  Wages. 
The  title  of  a  vessel,  as  stated  in  the 
custom-house  documents,  is  not  con- 
clusive of  the  title  of  the  respective 
owners  in  a  suit  for  wages.  What- 
ever may  be  the  case  in  a  contro- 
versy between  the  parties  to  these 
documents,  the  true  title  may  be 
shown  to  be  different  from  that 
stated    therein,    by    a    third    person, 


whenever  his  interest  is  concerned. 
Chickering  z'.  Hatch,  i  Story  516,  5 
Fed.  Cas.  No.  2671. 

Evidence  by  Creditor A  cred- 
itor attaching  a  steamer  may  show  by 
parol  that  his  debtor  holds  the  real 
interest  in  her,  though  she  is  regis- 
tered in  the  name  of  another.  The 
registry  is  intended  to  protect  against 
fraud,  and  not  as  a  shield  to  fraud. 
F.aler  i'.  Freret,   11   La.  Ann.  455. 

Evidence    by    Real    Owner The 

real  owner  of  a  vessel,  who  claims 
as  builder,  may  show  by  parol  evi- 
dence that  his  claim  is  well  founded, 
and  that  the  builder's  certificate  and 
registry  and  enrollment  have  been 
fraudulently  made  and  issued  in  the 
name  of  another.  Scudder  v.  Calais 
Steamboat  Co.,  I  Cliff.  3/0.  21  Fed. 
Cas.  No.  12,565.  A  part  owner  may 
contradict  the  enrollment  and  regis- 
try of  title.  Whiton  v.  Spring.  74 
N.  Y.  l6g.  The  owner  may  contra- 
dict the  enrollment  as  to  his  resi- 
dence. Dudley  v.  The  Superior,  I 
Newb.  176,  7  Fed.  Cas.  No.  41 15. 

47.  Blanchard  v.  Fearing,  4  Allen 
118;  Ring  V.  Franklin,  2  Hall  9;  Col- 
son z>.  Bonzey,  6  Me.  474. 

Absence     of     Note Where     the 

bill  of  sale  of  a  vessel,  absolute  in 
its  terms,  is  positively  shown  by 
parol  evidence  to  be  only  intended 
as  a  mortgage  to  secure  loans  by 
way  of  advances,  the  amount  of 
which  was  not  known  at  the  time 
of  the  bill  of  sale,  the  fact  that 
no  bond  or  note  was  taken,  does 
not  make  the  bill  of  sale  any  the 
less  a  mortgage.  Morgan  t.  Shen, 
15    Wall.    105. 

Registration  of  Vessel The  fact 

that  the  vessel  was  registered  in 
the  name  of  the  mortgagee  cannot 
affect  the  admissibility  of  the  parol 
evidence  or  render  the  mortgagee 
who  is  not  in  possession  of  the  vessel, 
liable  for  supplies  and  repairs,  fur- 
nished to  the  ship.  Davidson  v. 
Baldwin,    70    Fed.    05;     Howard    v. 

Vol.  I 


324 


ADMIRALTY 


fraud  in  the  procurement  of  title  to  a  vessel ;"  antl  that  the  title  is 
in  others  than  those  who  appear  in  the  enrollment  and  bill  of  sale  f-' 
and  to  contradict  the  certificates  of  foreign  notaries  to  written  docu- 
ments ;■''"  and  tlic  protest  of  the  loss  of  a  vessel." 

VIII.  DECLARATIONS  AND  ADMISSIONS. 

1.  Of  Master.  —  The  declarations  and  admissions  of  the  master, 
though  not  strictly  part  of  the  res  gestae,  are  admissible  against  the 
owner  of  the  vessel,  when  made  concerning  the  contract  with  the 
seamen,'^-  or  a  contract  to  save  a  sunken  vessel.^'  The  master, 
when  upon  a  voyage,  is  the  general  agent  of  the  owner,  and  his 
declarations  and  admissions  within  tlie  scope  of  his  authority,  bind 
the   owner,^*    and    are    evidence   against    him    in    a    case   of   colli- 


O'Dill,  I  Allen  85' :  Hesketh  v. 
Stevens,  7  Barb.  488;  Cutler  v. 
Thurlo,  20  Me.  213 :  Lord  v.  Fer- 
guson, g  N.  H.  380;  Cordray  v. 
Mordecai.  2  Rich.  518. 

Proof  Required. —  An  absolute  bill 
of  sale  of  a  vessel,  will  be  construed 
as  a  mortgage  only  upon  the  clearest 
proof  that  it  was  intended  as  secu- 
rity. Purington  ;■.  Aklurst,  74  111. 
490. 

Interest     in     Resale Where     a 

bill  of  sale  for  a  vessel,  absolute  in 
its  terms,  e.\pressed  a  certain  sum  as 
the  consideration,  parol  evidence  is 
admissible  to  show  that  the  purchaser 
was  to  pay  an  additional  sum  in  case 
be  resold  the  vessel  within  six 
months  for  a  greater  sum  than  that 
expressed  in  the  bill  of  sale.  Clark 
V.  Geshon,  66  Mass.  589. 

48.  Scudder  v.  Calais  Steamboat 
Co.,  I  Cliff.  370,  21  Fed.  Cas.  No. 
12,565;  Ealer  v.  Freret,  II  La.  Ann. 

45.S. 

49.  Evidence     by     Part     Owner. 

In  Whiton  v.  Spring,  74  N.  Y.  i6g, 
the  court  said  :  "  There  w.as  no  error 
in  allowing  the  plaintiff,  Crowell, 
to  recover  as  owner  of  one-eighth 
of  the  brig.  It  was  competent  for 
him  to  show,  as  he  did,  that  he 
owned  the  one-eighth,  in  fact,  al- 
though the  registry  of  the  vessel, 
and  the  bill  of  sale  to  conform 
thereto,  showed  that  he  owned  but 
one  thirty-second  part  and  that  the 
other  three  thirty-second  parts  be- 
longed to  other  parties.  The  bill 
of  sale  and  the  regislrv  were  not 
conclusive:  and  I  know  of  no  rule  of 

Vol.  I 


law  that  prohibited  parol  proof  of  the 
actual  truth  as  to  the  ownership.  I 
believe  it  is  the  settled  law  of  this 
country  that  it  may  be  shown  that 
by  a  parol  agreement  or  transfer  the 
title  to  a  vessel  is  actually  in  one 
while  the  ship's  documents  show  it 
to  be  in  another.  Colson  v.  Bonzey. 
6  Me.  474;  Ring  v.  Franklin,  2  Hall 
0. 

50.  U.  S.  V.  The  Jason,  Pet.  C.  C. 
450,  26  Fed.  Cas.   No.  15,470. 

51.  Contradiction  of  Protests. 
Where  the  protest  of  the  loss  of  a 
vessel  is  introduced  in  evidence  on 
the  trial  of  an  accusation  against  the 
insurers,  evidence  of  declarations 
contradicting  the  protest,  made  by 
persons  who  subscribed  it,  is  ad- 
missible to  discredit  the  protest.  The 
objection  that  it  is  hearsay  does  not 
apply.     Church  v.  Teasdale,   i   Brev. 

2.S.';. 

52.  The  Enterprise,  2  Curt.  317, 
8  Fed.  Cas.  No.  4497 ;  The  Napoleon, 
Olc.  208,  17  Fed.  Cas.  No.  10,015. 

53.  Fades  v.  The  H.  D.  Bacon, 
I  Newb.  274,  8  Fed.  Cas.  No.  42-!2. 

54.  Fades  v.  The  H.  D.  Bacon. 
I  Newb.  274.  8  Fed.  Cas.  No.  4232. 

Declarations  As  to  Injury  to 
Goods — In  an  action  against  the 
shipowner,  the  declarations  of  the 
master  in  regard  to  the  injury  to 
the  goods,  made  to  the  agent  of  the 
plaintiff  before  the  goods  were  de- 
livered according  to  the  terms  of 
the  bill  of  lading,  are  admissible  in 
evidence  against  the  defendam.  Price 
7'.   Powell,   3   N.   V.   322. 

Admissions  by  Master  in  Posses- 
sion  In  an  action  against  a  vessel 


.IIUIIRALTY. 


325 


sioii.^^"  A  foreign  master,  wliu  uiulerstands  and  speaks  English  im- 
perfectly, will  not  be  charged  upon  his  declarations  or  admissions  in 
that  language,  without  clear  proof  that  he  well  understood  the  mean- 
ing of  what  was  addressed  to  him,  and  of  the  words  used  by  him  in 
reply. ^"  The  statements  of  the  master,  when  sailing  on  his  own 
responsibility,  under  contract  with  the  owners,  do  not  Innd  the 
owners,""  and  his  statements  are  inachnissible  to  show  the  owner- 


for  collision,  where  the  vessel  was 
in  possession  and  under  control  of 
the  master  and  no  ownership  of  the 
vessel  appears,  the  admission  of  the 
master  in  regard  to  the  collision 
is  competent  evidence  though  made 
subsequently  to  the  collision,  with 
like  effect  as  if  he  were  the  owner, 
the  possession  of  the  property  being 
considered  in  such  case,  prima  facie 
evidence  of  ownership.  Bailey  v. 
The  New  World,  2  Cal.  370. 

Declarations  Without  Authority. 
The  declarations  of  the  master  of 
the  vessel  made  respecting  the  loss 
of  it,  after  the  loss,  and  after  he  has 
ceased  to  be  agent  of  the  owner,  are 
not  admissible  in  evidence  against 
the  owner.  Polleys  v.  Ocean  Ins. 
Co.,   14  Me.   141. 

Where  the  master  of  a  vessel  who 
was  part  owner,  procured  a  marine 
insurance  on  his  interest  with  loss 
payable  to  himself,  and  the  vessel 
was  lost  with  himself  and  all  on 
board,  in  an  action  on  the  policy  by 
a  creditor,  claiming  that  it  was  ob- 
tained for  his  benefit,  to  secure  a 
loan  to  the  master,  the  declaration 
of  the  master  as  to  his  loan  and 
policy  were  not  admissible  as  evi- 
dence in  favor  of  the  creditor  in 
the  absence  of  proof  that  the  master 
was  acting  as  agent  of  the  creditor 
in  effecting  the  insurance.  Sleeper 
V.   L^nion   Ins.   Co.,  61    Me.   267. 

55.  Bailey  v.  The  New  World,  2 
Cal.  370. 

Declaration  of  Master  After  Col- 
lision  Where    a    steamer    collided 

will]  and  sank  a  schooner,  the  dec- 
laration of  the  master  of  the 
schooner,  when  taken  on  board  the 
steamer  after  the  collision,  is  ad- 
missible in  evidence.  Bedwell  v. 
Potomac,   8  Wall.    590. 

In  this  case,  the  court  said  :  "  The 
master  admitted,  as  soon  as  he  was 
taken  on  board  the  steamer  after  the 


disaster,  that  the  colhsion  occurred 
through  his  fault,  and  this  admission 
was  repeated  when  he  noted  his 
protest.  His  statements  on  the  point 
were  full  and  e.xplicit,  and  could  not 
have  been  easily  misunderstood,  but 
if  they  were  not  true,  or  were  mis- 
understood, why  was  he  not  called 
to  contradict  or  e.\plain  them?  The 
legality  of  this  evidence  cannot  be 
questioned,  for  courts  of  admiralty 
have  uniformly  allowed  the  dec- 
laration of  the  master,  in  a  case  of 
collision,  to  be  brought  against  the 
owner,  on  the  ground  that  when  the 
transaction  occurred,  the  master 
represented  the  owner,  and  was  his 
agent  in  navigating  the  vessel.  This 
sort  of  evidence  is  confined  to  the 
confession  of  the  master,  and  cannot 
be  extended  to  any  other  person  in 
the  employment  of  the  boat,  for  in 
no  proper  sense  has  the  owner  in- 
trusted his  authority  to  any  one  but 
the  master.  The  authorities  on  this 
subject  are  collected  in  the  case  of 
The  Enterprise,  2  Curt.  C.  C.  320." 

Where  the  testimony  is  conflicting, 
the  court  will  give  weight  to  the 
fact  that  the  master  of  one  of  the 
colliding  steamers,  in  statements 
made  immediately  afterwards  and  in 
his  official  reports,  deliberately  made 
some  weeks  later,  did  not  attribute 
the  collision  to  any  fault  of  the  other 
steamer  alleged  in  the  libel.  The 
Frostburg.  25  Fed.  4!;i. 

Great  weight  should  be  given  to 
the  admissions  of  the  master  of  a 
colliding  vessel,  though  not  on  deck 
at  the  time  of  collision,  who  states 
to  the  injured  party  that  his  own 
vessel  was  in  fault,  and  promises 
to  pay  the  damages  done  by  her. 
The  Douglass,  l  Brown  Adm.  105,  7 
Fed.  Cas.  No.  4031. 

56.  The  Lotty,  OIc.  329,  15  Fed. 
Cas.    No.   8524. 

57.  Tucker  v.  Stimpson.  12  Gray 
4S7. 

Vol.  I 


:^26 


ADMIRALTY. 


ship  of  the  vessel,  if  i.L't  made  in  the  presence  of  the  person  sued 
as  owner.^* 

2.  Of  Captain.  —  The  statement  of  the  captain  of  a  vessel, 
informing  the  agents  of  the  owners  of  damage  done  to  the  vessel 
recjuiring  repairs,  and  advising  the  purchase  of  coal  to  be  loaded 
during  repairs,  is  admissible  as  part  of  the  res  gestae;'""  and  the 
statements  of  the  captain  made  in  the  discharge  of  his  duty,  while 
the  vessel  was  in  a  sinking  condition,  as  to  the  observed  cause  of  it, 
are  competent  evidence  ;'■"  but  his  statements  are  not  admissible  in 
case  of  loss  or  injury,  unless  shown  to  be  part  of  the  res  gestae;" 
and  if  made  by  way  of  narration,  after  the  occurrence  of  the  injury, 
cannot  be  received  in  evidence  against  the  owners  of  the  vessel. "- 

3.  Of  Other  Members  of  Crew.  —  The  admissions  of  the  pilot 
made  after  the  event,  are  not  competent  against  the  shipowner."'' 
Declarations  of  members  of  the  crew,  made  immediately  after  the 
collision,  become  a  question  of  the  weight  of  evidence.''* 


58.  Chambers  v.  Davis,  3  Whart. 
(Pa.)  40. 

59.  Law  z:  Cross,  i  Black  (U.  S.) 

533. 

60.  Western  Ins.  Co.  v.  Tohm,  32 
Ohio    St.    77- 

61.  Exclusion  of  Declarations. 
It  was  not  error  in  the  court  below 
to  exclude  evidence  of  declarations 
made  by  the  captain  of  tlie  tug 
after  she  had  become  disabled,  in 
regard  to  the  occurrence,  where  it 
was  not  stated  what  was  proposed 
to  be  proved  and  it  was  not  shown 
that  such  declarations  were  a  part 
of  the  res  gestae.  Union  Ins.  Co. 
V.   Smith,   124  U.   S.  405. 

62.  Murphy  -e.  May,  9  Bush  (Ky.) 

33- 

Narrative  As  to  Causes  of  Injury. 

The  declarations  of  the  captain  of  a 
passenger  steamer,  in  reference  to  the 
causes  of  an  injury  sustained  by  a  pas- 
senger in  getting  on  the  boat,  made 
two  days  after  the  accident,  are  not 
admissible  evidence  against  the 
steamer.  Northw.  &  W.  U.  Packet 
Co.  V.  Clough,  20  Wall.  5-28.  In 
this  case,  the  court  said ;  "  A  captain 
of  a  passenger  steamer  is  empowered 
to  receive  passengers  on  board,  but 
it  is  not  necessary  to  tliis  power, 
that  he  be  authorized  to  admit  that 
cither  his  principal,  or  any  servant 
of  his  principal,  has  been  guilty  of 
negligence  in  receiving  passengers. 
There  is  no  necessary  connection  be- 
tween   the    admission    and    the    act. 

Vol.  I 


It  is  not  needful  the  captain  should 
have  such  power  to  enable  him  to 
conduct  the  business  intrusted  to 
him,  to  wit  :  the  reception  of  passen- 
gers ;  and,  hence,  his  possession  of 
the  power  to  make  such  admissions 
affecting  his  principals  is  not  to  be 
inferred  from  his  employment." 
Admissions  made  by  the  captain  of 
a  steamboat  as  to  the  cause  of  a 
collision  are  not  admissible  in  an 
action  against  the  owners  of  the  boat, 
when  the  admissions  were  made 
when  the  captain  went  on  board 
another  vessel,  immediately  after  the 
collision.  Rogers  v.  McCune,  19  Mo. 
557.  Where  a  passenger  on  a  steam- 
ship was  injured  by  the  lurching  of 
a  vessel  in  the  absence  of  a  hand- 
rail, the  declaration  of  the  captain, 
iTiade  after  the  accident,  that  the 
place  was  dangerous  and  he  would 
have  it  remedied,  are  inadmissible 
against  the  steamship  company.     .\m. 


S.    S.    Co.   V.    Landreth,    102   Pa. 


131- 
63. 


The    Fanwood 


St. 
61 


Dents 
Fed.    52,5. 
64.     Weight    of    Declarations    of 

Sailors A   sailor  whose   testimony 

contradicts'  statements  deliberately 
made  by  him  in  writing,  iiumediately 
;  Iter  the  collision,  is  entitled  to  little 
credence  as  a  witness.  The  Douglass, 
I  Brown  ,\dm.  105.  7  Fed.  Cas.  No. 
4031.  But  the  declarations  of  inem- 
I  <'rs  of  the  crew  made  in  loose  con- 
versation directly  after  the  col- 
lision,   will    have    but    slight    weight 


ADMIRAISV.  327 

4.  Of  Owners  of  Vessel.  —  'i he  auiiii^sions  of  one  of  several  pail- 
owners  of  a  vessel  will  not  bind  the  others;'^''  and  the  declarations 
of  one  joint  owner  in  possession  of  the  vessel  are  admissible  for 
other  joint  owners.''''  A  subsequent  report  to  the  owner  of  a  vessel 
by  an  agent  concerning  a  transaction  is  inadmissible  against  the 
owner."' 

5.  Of  Other  Persons.  —  A.  ArroRNiiY.  —  A  statement  by  an  advo- 
cate made  by  authority  of  the  party  represented,  in  open  court,  the 
day  after  the  hearing  of  an  admiralty  cause,  may  be  taken  as  an 
admission  in  contradiction  of  the  evidence  submitted  by  such 
party."' 

JJ.  SiiiPi'iNC  Notaries.  —  Declarations  made  to  seamen  by  ship- 
ping notaries,  at  the  time  of  sailing,  bind  the  ship."'-' 

C.  Admissions  by  Ticnder,  Offer  or  Settlement.  —  A  tender 
by  respondents  upon  a  libel  for  services  is  an  admission  of  owner- 
ship of  the  vessel ;'"  and  an  abandoned  agreement  to  arbitrate, 
after  refusal  of  a  tender  of  damages  for  collision,  is  an  admission 
of  fault. '^     The  settlement  by  a  tug  of  her  tow's  claim  for  damages 


against  their  deliberate  testimony  to 
the  contrary.  The  New  Jersey,  01c. 
415,  18  Fed.  Cas.  No.  io,i6l;  Whit- 
ney V.  The  Empire  State,  I  Ben. 
57,  29  Fed.  Cas.  No.  17,586;  and 
are  entitled  to  little  weight  in  deter- 
mining disputed  questions  of  fact, 
in  reference  to  the  navigation  of  the 
respective  vessels.  The  Hope  and 
The  Freddie  L.   Porter,  4  Fed.  89. 

Declarations  Made  Under  Excite- 
ment  Evidence  of  verbal  state- 
ments made  in  time  of  excitement 
and  peril  should  be  received  with 
great  caution,  and  when  opposed  to 
the  direct  and  concurring  testimony 
of  many  witnesses,  is  entitled  to  but 
little  weight.  The  Masten,  i  Brown. 
Adm.  436,  16  Fed.  Cas.  No.  9266. 

Written    Protest    of    Captain    and 

Crew A  written  protest  made  by  a 

captain  and  crew  on  the  morning 
after  a  collision,  which  corresponds 
with  their  testimony  in  court,  is  com- 
petent evidence  to  sustain  the  tes- 
timony of  the  captain,  when  sought 
to  be  impeached  by  proof  of  con- 
tradictory statements.  Ward  v.  The 
Fashion,  6  McLean  152,  29  Fed.  Cas. 
No.    17,154. 

Beclaration  Without  Weight. 
No  weight  is  to  be  attached  to  evi- 
dence of  a  declaration  made  by  one 
of  the  crew  of  a  steamer,  which  col- 
lided with  a  sailing  vessel,  that  he 
saw    the    light   of   the    sailing   vessel 


in  time  to  have  avoided  the  collision. 
The   Roman,    14   Fed.   61. 

65.  Clark  -•.  Wicks,  106  U.  S.  13- 
Admission     of     Part     Owner A 

statement  made  in  another  suit  by  a 
part  owner  of  a  vessel  injured  by 
collision,  as  to  the  e.vtent  and  value 
oi  her  repairs,  is  not  binding  on  his 
co-owners,  who  were  merely  tenants 
in  common  with  him  and  not  partners 
and  is  not  admissible  as  evidence 
against  them.  \  joint  owner  will 
not  be  bound  by  the  admission  of  his 
co-owner  that  damages  for  injuries 
are  payable  to  an  insurer  instead  of 
the  owners,  made  in  a  proceeding  to 
which  such  joint  owner  is  not  a 
party.     The  Betsy,  2^  Ct.  C.  C.  277. 

66.  Admissions  at  End  of  Voyage. 
The  admissions  of  the  master,  who 
is  a  part  owner  of  the  vessel,  made 
at  the  end  of  the  voyage,  as  to  the 
meaning  of  a  technical  phrase  of  a 
charter-party  do  not  conclude  cither 
him  or  his  co-owners  upon  the 
merits  of  the  case.  The  John  H. 
Pearson,    14    Fed.    749. 

67.  The   Burdett,  9   Pet.  682. 

68.  The  Harry,  9  Ben.  S24,  n 
Fed.  Cas.  No.  6147. 

69.  The  Lola,  6  Ben.  142,  15  Fed. 
Cas.   No.  8468. 

70.  Jones  v.  Crowell.  13  Fed.  Cas. 
No.    7459. 

71.  The   S.   Shaw.  6  Fed.  93. 

Vol.  I 


328 


An  MIR. -I  LTV 


is  evidence  of  an  admission  of  fault  on  her  part,  in  a  subsequent  suit 
against  a  colliding  vessel  for  the  damages  so  paid."  Admissions 
made  in  an  oiifer  of  compromise  voluntarily  proposed,  without 
reservation,  are  competent  evidence.'-' 

IX.  OPINION  EVIDENCE. 

1.  Of  Non-Experts.  —  The  testimony  of  a  seaman  as  to  the  value 
of  the  wardrobe  of  the  wife  and  children  of  the  captain  of  a  vessel, 
lost  by  collision,  has  no  weight  as  evidence.'* 

2.  Of  Experts.  —  A.  Admissibility.  —  a.  Collision.  —  In  cases 
of  collision,  the  testimony  of  experts  is  admissible  to  show  the  bear- 
ing of  a  steamer's  rate  of  speed  upon  her  navigation  ;'■'''  and  to  show 
whether  the  special  circumstances  of  the  case  rendered  a  departure 
from  the  statutory  sailing  rules  necessary ;'"  and  to  prove  the  value 
of  an  injured  vessel.'^     In  such  cases,  the  court  may  refer  nautical 


72.  The  Hattie  M.  Spraker,  29 
Fed.    457. 

73.  Gibbs  v.  Johnson,  10  Fed. 
Cas.   No.    t;384. 

74.  The  Oregon,  89  Fed.  520. 

75.  The  Blackstone,  I  Low.  485, 
3    Fed.    Cas.    No.    1473. 

76.  Special  Usage  of  Navigation. 
In  a  suit  to  recover  damages  caused 
by  the  sinking  of  a  pilot  boat  by  a 
steamer  during  maneuvers  incident 
to  the  transfer  of  the  pilot,  the  evi- 
dence of  e.xperts  is  admissible  to 
show  the  usage  of  navigation  under 
such  circumstances.  The  Alaska,  33 
Fed.  107;  The  Clytie,  10  Ben.  588, 
5  Fed.  Cas.  No.  2913. 

77.  Value  of  Pilot  Boat.  —  In  the 
absence  of  evidence  as  to  the  market 
value  of  the  pilot  boat  injured  in  a 
collision,  resort  may  be  had  to  the 
judgment  as  to  such  value  of  persons 
acquainted  with  the  business  and 
with  her  earnings.  The  Emilie,  4 
Ben.  235.  In  the  absence  of  a  market 
for  the  chartering  of  pilot  boats,  it 
was  proper  to  resort  to  the  judg- 
ment of  persons  acquainted  with 
the  piloting  business,  as  to  the  value 
of  the  time  of  the  vessel,  based  upon 
the  employment  she  was  in,  its 
character  and  its  constancy,  and  its 
then  recent  results.  Such  value 
must  include  only  the  value  of  the 
use  of  the  boat,  as  a  vessel  without 
pilots  and  crew,  or  stores.  The 
Transit,  4  Ben.  I ^8,  24  Fed.  Cas.  No. 

14.1.^8- 
Best    Evidence    of    Market    Value. 

Vol.  I 


In  case  of  a  total  loss  of  a  vessel 
by  collision,  the  best  evidence  of  her 
market  value  is  the  opinion  of  com- 
petent persons  who  knew  tlie  vessel 
shortly  before  she  was  lost,  and  the 
next  best  evidence  is  the  opinions  of 
persons  familiar  with  shipping  and 
the  transfer  of  vessels.  The  Col- 
orado, Brown  Adm.  411,  6  Fed.  Cas. 
No.  3029.  In  ascertaining  the  market 
value  of  a  vessel  sunk  in  a  collision, 
the  commissioner  or  court  is  not 
restricted  to  the  evidence  of  com- 
petent persons  who  knew  the  vessel 
and  testified  as  to  her  market  value, 
though  that  is  in  general  the  best 
single  class  of  evidence.  Leonard  7'. 
Whitwill,    19   Fed.   547. 

Estimates  of  Cost  of  Repairs. 
Estimates  of  the  cost  of  repairs  of 
injury  received  by  the  collision, 
though  competent  in  the  absence  of 
better  evidence,  are  not  so  where  the 
repairs  have  actually  been  made. 
The  Mayflower,  Brown  Adm.  376. 

Place  "of  Proof  of  Value.  —  Where 
a  vessel  is  lost  at  sea,  proof  of  her 
value  at  the  time  and  place  of  her 
loss  may.  in  ordinary  cases,  be  made 
by  evidence  of  her  value  at  the  last 
port  of  departure  or  at  the  place 
of  her  destination.  The  Pennsyl- 
vania. 5  Ben.  253,  19  Fed.  Cas.  No. 
10.948. 

Value  of  Use  of  Ferryboat F..\- 

pcrt  evidence  is  admissible  to  show 
the  value  of  the  use  of  an  injured 
ferryboat.  The  Cayuga.  7  Blatchf. 
3R5,   5   Fed.    Cas.    No.   2537. 


AlUllRAl.TV. 


S2') 


questions  to  experienced  navigators.''"  and  may  call  in  a  navigator 
of  experience  as  nautical  assessor  of  damages.'''  Competent  sea- 
men on  board  of  a  colliding  vessel  may  testify  as  to  whether  she 
was  managed  with  skill  and  prudence.*" 

b.  Transportation.  —  The  testimony  of  experts  is  admissible  to 
prove  the  value  of  goods  damaged  in  transportation  when  the  mar- 
ket value  was  not  ascertainable.*'  The  testimony  of  an  experienced 
navigator  is  admissible  to  show  the  negligence  of  a  tug  in  the  mode 
of  transporting  laden  barges,  one  of  which  was  sunk.'-  Experi- 
enced shipmasters  are  competent  to  show  whether  a  vessel  had  a 
full  cargo.'-' 

c.  Marine  Insurance.  —  In  actions  upon  marine  insurance,  the 
opinion  of  experts,  of  nautical  skill,  is  competent  as  to  the  pru- 
dence of  the  management  of  the  lost  vessel  and  as  to  the  cause  of 


78.  The  Emily,  Olc.  132,  8  Fed. 
Cas.  No.  4453;  Lowrv  j'.  Tlie  Port- 
land,  15   Fed.  Cas.   No.  8583. 

79.  Power  of  Districi  Judge.  — In 
a  collision  case  there  is  no  error 
in  the  district  judge's  calling  to  his 
assistance  a  navigator  of  experience 
as  nautical  assessor.  The  Fountain 
City,  62  Fed.  87,  to  C.  C.  A.  278. 

80.  Opportunities  of  Observation. 
The  testimony  of  competent  sea- 
men on  board  a  vessel,  as  to  whether 
she  was  managed  with  skill  and 
prudence  is  entitled  to  more  weight 
from  their  better  opportunities  to 
observe,  than  the  testimony  of  wit- 
nesses on  board  another  vessel,  who 
had  no  particular  opportunities  to 
judge  of  the  matter.  The  Northern 
Warrior,  i  Hask.  314,  17  Fed.  Cas. 
No.    10,325, 

81.  Bareness  of  Market Where 

it  appears  that  on  the  day  on  which 
the  damaged  goods  should  have  ar- 
rived, there  were  no  sales,  and  the 
market  was  hare,  the  testimony  of 
experts  is  admissible  to  prove  the 
value.  The  Colon,  10  Ben.  366,  6 
Fed,  Cas.  No.  3025, 

82.  Testimony  of  Captain  of  Tug- 
boat  The  captain  of  a  tugboat  who 

had  had  many  year's  experience  and 
was  familiar  with  the  making  up  of 
tows,  was  competent  to  testify  as  to 
whether  it  would  be  safe  or  prudent 
for  a  tugboat  on  a  bay  to  tow  three 
boats  abreast  with  a  high  wind.  The 
court  said :  "  The  witness  was  an 
expert  and  was  called  to  testify  as 
such.  His  knowledge  and  ex- 
perience   fairly   entitled   him    to   that 


position.       It     is     permitted     to    ask 
questions  of  a  witness  of  this  class, 
which    cannot    be    put    to    ordinary 
witnesses.     .     .     .     The  testimony  of 
experienced   navigators   on   questions 
involving   nautical    skill    was    admis- 
sible.    .     .     .     The     books      give     a 
great  variety  of  cases  in  which  evi- 
dence   of    this    character    is    admis- 
sible, and  we  have  no  doubt  of  the 
competency  of  the  evidence  to  which 
this     objection     is     made.       Eastern 
Transp.  Line  v.  Hope,  95  U.  S.  297. 
83.     Covenant    in    Charter-Party. 
Where  a  charter-party  covenanted  for 
a   full  cargo  of  general  merchandise 
without     specifying     any     particular 
amount  to  be  received,  the  question, 
what   was   "  a   full   cargo "  under  all 
the    circumstances    and    whether    the 
ship   could   have   been    safely   loaded 
to   a   greater   depth,    was   a   question 
that    could    be    solved    only    by    ex- 
perienced   ship-masters.      The    court 
said :     "  What   was  a   full  cargo  for 
this   ship   to   carry   with    safety   was 
not    a    fact    which    could    be    settled 
by  any  rule  of  law  or  mathematical 
computation,     and     the     court     must 
necessarily  rely  upon  the  opinions  of 
those  who  have  experience,  skill  and 
judgment  in  such  matters.     .\t  least 
three    competent    witnesses    of    this 
character   testify   that    the    ship   was 
loaded    as    deep    as    prudence    would 
permit   under   all   the   circumstances. 
Both    the    district    and    circuit    court 
were   of   the   same   opinion,   and   we 
do  not  find  in  the  evidence,  anything 
to  convince  us  that  they  have  erred." 
Ogden  V.   Parsons,  23   How,    167. 

Vol.  I 


5.10 


ADMlUAL'rV 


her  loss  ;'■'  and  to  show  thai  an  unusual  method  of  stowing  cargo 
was  a  fact  material  to  the  risk.^'^ 

B.  Inadmissibility.  —  The  opinion  of  navigators  is  not  admissi- 
ble to  show  the  amount  of  earnings  lost  by  a  vessel  damaged  by 
collision  ;*"  or  while  detained  for  repairs.*'  The  practice  of  bring- 
ing in  sea-faring  men  to  assist  the  court  in  cases  of  salvage  has  not 
been  sanctioned  in  this  country.**  The  testimony  of  experts  is  not 
admissible  to  prove  that  a  rule  of  navigation  recognized  by  general 
maritime  law  does  not  exist  in  a  particular  locality.*''  Opinions  of 
experts  are  not  admissible  upon  questions  of  negligence  which 
require  no  expert  knowledge  or  training."" 

C.  WEIGHT  OF  Expert  Evidence.  —  The  opinions  of  experts, 
however  qualified  and  trustworthy,  cannot  bind  the  conscience  of 
the  court,'"  and  though  uncontradicted  as  to  the  value  of  the  use 


84.  Loss  of  Insured  Tug In  an 

action  upon  a  policy  of  marine  in- 
surance upon  a  lost  tug,  the  master, 
the  mate  and  foreman,  of  a  tug, 
who  were  on  board  of  her  at  the 
time  she  was  lost  on  the  lake,  and 
her  owner,  each  of  whom  had  been 
engaged  in  navigation  of  the  lake  for 
many  years,  are  competent  as  expert 
witnesses  in  regard  to  the  loss,  and 
in  regard  to  the  prudence  and  good 
seamanship  of  the  management  of 
the  tug.  Union  Ins.  Co.  v.  Smith, 
124   U.    S.   405. 

85.  Condition  Implied  in  Policy. 
In  M'Lanahan  v.  Universal  Ins.  Co., 
I  Pet.  170,  the  court  considered  the 
question  of  the  materiality  of  the 
risk  at  the  time  of  sailing.  The 
court  said :  "  The  material  ingre- 
dients of  all  such  inquiries,  are  mixed 
up  with  nautical  skill,  information, 
and  experience ;  and  are  to  be  ascer- 
tained in  part,  upon  the  testimony 
of  maritime  persons,  and  are  in  no 
sense  judicially  cognizable  as  matter 
of  law.  The  ultimate  fact  itself, 
which  is  the  test  of  materiality — that 
is,  whether  the  risk  be  increased  so 
as  to  enhance  the  premium — is,  in 
many  cases,  an  inquiry  dependent 
upon  the  judgment  of  underwriters 
and  others,  who  arc  conversant  with 
the    subject    of    insurance." 

86.  Probable     Employment     Too 

Remote In  an  action  for  damages 

resulting  from  collision,  mere  opinion 
as  to  the  probable  employment  of  the 
vessel,  and  the  amount  of  earning  if 
so  employed,  is  too  speculative  and 
contingent    In   be   the    foundation    of 

Vol.  I 


any  rule  of  damages.  The  R.  L. 
Maybey,  4  Blatchf.  439,  20  Fed.  Cas. 
No.  11,871.  See  The  Conqueror,  166 
U.   S.   no. 

87.  Incompetent    Evidence The 

mere  opinion  of  the  master  and  the 
mate  of  a  vessel  is  incompetent  evi- 
dence and  cannot  sustain  an  allow- 
ance for  loss  of  the  earnings  of  a 
vessel  during  her  detention  for  re- 
pairs. The  Isaac  Newton,  4  Blatchf. 
21,  13  Fed.  Cas.  No.  7091.  See  The 
Conqueror,    166    U.    S.    no. 

88.  The  Waterloo,  I  Blatchf.  & 
H.   n4,  29  Fed.  Cas.   No.   17,257. 

89.  The  Clement,  2  Curt.  363,  5 
Fed.  Cas.  No.  2879;  The  Clement, 
I    Spr.  257,  5   Fed.   Cas.   No.   2880. 

90.  Safety  of  Place  for  Wharfin- 
ger  Where  a  wliarfingcr  was  in- 
jured by  a  steamboat  in  landing  and 
was  charged  with  contributory  neg- 
ligence, the  question  whether  the 
place  where  the  wharfinger  stood  on 
the  wharf  was  reasonably  safe  was 
a  question  depending  on  common 
knowledge  and  observation,  and  re- 
quiring no  special  training  or  ex- 
perience to  decide  and  no  opinions  of 
expert  witnesses  thereupon  were  ad- 
missible. Inland  and  Seaboard 
Coasting   Co.   v.    Tolson,    139   U.    S. 

551- 
Prudence  of  High  Rate  of  Speed. 

Experts    are    not    allowed    to    testify 

to    the    prudence    or    propriety    of   a 

steamer's  keeping  up  a  high  rate  of 

speed   in  a   fog.     The   Blackstone,   I 

Low.  485,  3  Fed.   Cas.  No.   1473. 

91.  The  Iberia,  40  Fed.  893. 


ADMIRALTV 


VI I 


of  a  vessel,  cannot  prevcni  ihe  exercise  of  independent  judgment 
on  that  question."-  The  conflicting  opinions  of  experts  as  to  the 
value  of  a  vessel  at  the  time  of  collision  is  of  less  weight  than  a 
sale  of  half  thereof,  then  concluded  for  a  specified  sum."^  The  tes- 
timony of  experts  should  prevail  in  behalf  of  respondents  where 
the  libellant  has  not  procured  the  best  evidence  obtainable."*  The 
facts  of  the  case  will  prevail  over  the  opinions  of  each  ship's  com- 
pany as  to  the  acts  of  the  other,'"*  and  the  clear  testimony  of  eye- 
witnesses will  prevail  over  the  opinions  of  experts.'"' 

X.  RELEVANCE  AND  COMPETENCY  OF  EVIDENCE. 

1.  Admissibility.  —  Facts  which,  if  standing  alone,  would  be 
irrelevant,  are  admissible  in  evidence  upon  the  statement  of  counsel, 
that  they  are  part  of  a  chain  of  evidence  which,  as  a  whole,  would 
be  relevant.'"  Where  the  intention  or  knowledge  of  a  party 
becomes  a  material  fact,  collateral  acts  and  declarations  having  a 
bearing  on  the  issue,  are  admissible  in  evidence."'     In  an  action 


92.  Friendly    Experts Evidence 

of  friendly  experts  as  to  the  value 
of  the  use  of  a  vessel,  without  any 
showing  that  the  vessel  was  profit- 
able, or  that  there  was  a  demand 
for  its  use  in  the  market,  is  not  sulifi- 
cient  to  sustain  damages  for  its  de- 
tention. The  Conqueror,  i66  U.  S. 
no. 

93.  The  Albert  Dumois,  177  U.  S. 
240. 

94.  Absence  of  Best  Evidence. 
On  the  question  of  the  value  of  an 
iron  bark  injured  by  collision,  where 
the  libellant,  instead  of  producing 
evidence  of  value  from  Scotland, 
where  such  barks  are  built  and  sold, 
called  a  New  York  expert,  and 
respondent's  expert  fixed  a  lower 
rate,  the  libellant  not  having  pro- 
duced the  best  evidence  attainable, 
the  testimony  of  respondent  should 
prevail.  The  City  of  New  York,  2.? 
Fed.  616. 

95.  Preference  of  Facts  in  Proof. 
In  determining  the  merits  in  a  case 
of  collision,  the  court  will  look 
chiefly  to  the  facts  in  proof,  and  will 
pay  but  slight  attention  to  the  opin- 
ions and  hypotheses  of  witnesses,  es- 
pecially those  of  each  ship's  com- 
pany, in  respect  to  the  acts  of  the 
other;  and  plans  and  diagrams,  in- 
tended to  exhibit  the  course,  bear- 
ings, and  distances  of  two  vessels 
approaching  each  other,  are  of  no 
value     as     evidence,     when     framed 


merely  upon  the  conjecture  or  opin- 
ion of  witnesses  as  to  speed,  relative 
bearing,  and  distances  of  the  vessel. 
The  Narragansett,  Olc.  246,  17  Fed. 
Cas.  No.  10, log. 

Opinions  of  Slight  Weight.  —  The 
estimate  or  judgment  of  witnesses 
formed  in  the  nighttime,  and  ex- 
pressed orally,  or  exhibited  on. 
charter  or  diagram  on  a  vessel  in 
motion,  are  of  slight  weight  in  de- 
termining the  relative  position  and 
bearing  of  another  vessel,  also  under 
motion.  The  Argus,  Olc.  304,  I  Fed. 
Cas.    No.    521. 

96.  Course  of  Vessel — In  case  of 
a  collision,  the  opinion  of  experts  as 
to  the  vessel's  course,  when  founded 
upon  very  nice  calculation,  will  not 
obtain  as  against  the  clear  testimony 
of  eye  witnesses.  The  D.  P.  Kelly  v. 
Thompson,   i   Low.   124. 

Time  of  Dawn  and  Sunset.  —  Tes- 
timony of  persons  who  have  wit- 
nessed dawn  and  sunset  at  the  place 
and  season  involved  in  the  issue, 
together  with  that  of  eye  witnesses 
to  the  facts  in  dispute,  outweigh  the 
received  opinion  of  geographers  and 
navigators  as  to  the  time  of  such 
phcnonema  and  the  duration  of 
twilight.  Fletcher  v.  The  Cubana,  9 
Fed.  Cas.  No.  4863. 

97.  U.  S.  V.  Flowery,  i  Spr.  log, 
25  Fed.  Cas.   No.   15,122. 

98.  Tobin  V.  Walkinshaw,  I 
McAIl.  186,  2Z  Fed.  Cas.  No.  14,070. 

Vol.  I 


332 


ADMIRALTY. 


rclaliuy  lo  a  vessel  belonging  lo  llic  plainliff,  a  letter  of  instructions 
from  the  plainlitif  to  the  captain  of  the  vessel  is  admissible  in  evi- 
dence for  the  plaintiff/  Agreements  between  the  part-owners  of  a 
vessel,  before  fitting  it  out,  may  be  proved  on  their  part  by  the 
testimony  of  others  to  conversations  heard  between  them.-  The 
cost  of  the  repairs  of  a  vessel  is  competent  evidence  of  the  damage 
caused  by  collision,"  and  in  the  absence  of  proof  of  the  market 
value  of  the  use  of  a  vessel  injured  by  collision,  the  books  of  the 
owner  showing  her  earnings  about  that  time  are  competent  evidence 
of  her  probable  earnings  during  the  time  of  her  detention.*  Entries 
in  books  are  explainable.'^ 

2.  Inadmissibility.  —  Evidence  is  incompetent  to  show  a  custom 
of  vessels  to  run  at  full  speed  in  a  dense  fog  without  a  lookout;" 


1.  JMcClanachan  v.  McCarly,  2 
Dall.  SI. 

2.  Res  Gestae Such  conver- 
sations are  evidence  of  the  contract 
made  between  the  part  owners  which 
was  part  of  the  res  gestae  of  the 
fitting  out  of  the  vessel.  Macy  v. 
De  Wolf,  3  Woodb.  &  M.  193,  16 
Fed.  Cas.  No.  8933. 

3.  Evidence  of  Party  Repairing. 
The  party  repairing  the  injured  ves- 
sel should  show  positively  that  he 
has  only  reinstated  the  vessel  in  the 
condition  in  which  she  was  before 
the  collision.  The  W.  H.  Clark,  5 
Biss.  295,  29  Fed.  Cas.  No.  17,482 ; 
La  Champagne,  53  Fed.  398. 

4.  The  Mayflower,  i  Brown  Adm. 
376,  16  Fed.  Cas.  No.  9345 ;  The 
Transit,  4  Ben.  138,  24  Fed.  Cas. 
No.  14,138;  The  Eniilie,  4  Ben.  235, 
8  Fed.  Cas.  No.  4451 ;  The  Con- 
queror, 166  U.  S.  no. 

5.  Explanation  of  Entries.  — 
Where  coal  was  furnished  to  a  vessel 
in  a  foreign  port  to  enable  her  to 
make  her  voyage,  it  is  to  lie  presumed 
that  credit  was  given  to  the  vessel 
and  not  exclusively  to  the  owner, 
and  entries  of  charges  to  the  owner 
in  the  journal  and  ledger  of  the 
party  furnishing  the  coal  may  be 
explained.  The  court  said  :  ''  If  the 
credit  was  to  the  vessel  there  is  a 
lien,  and  the  burden  of  displacing  it 
is  on  the  claimant.  He  must  show, 
affirmatively,  that  the  credit  was 
given  to  the  company  to  the  ex- 
clusion of  a  credit  to  the  vessel. 
This  he  seeks  to  do  by  tlie  form  of 
charge  in  the  libellant's  journal  and 


ledger.  If  it  be  conceded  that  these 
entries  tend  to  support  this  position, 
they  are  far  froin  being  conclusive 
evidence  on  the  subject.  Entries  in 
books  are  always  explainable,  and 
the  truth  of  transactions  can  be 
shown  independent  of  tlieni.  The 
form  of  charge  in  any  book  of 
original  entries  does  not  appear,  as 
the  day-book  was  not  called  for  by 
the  claimants,  nor  are  the  '  invoices  ' 
which  the  libellant  was  directed  to 
furnish  with  the  coal  produced.  But, 
from  the  form  of  entry  in  the  journal 
itself  (where  the  amount  furnished 
to  each  vessel  is  set  opposite  its 
name),  we  are  lead  to  the  conclusion 
tliat  the  day-book  entries  which  are 
thus  journalized  were  debited  to 
each  steamer  by  name.  If  this  be 
so,  the  journal  entries  are  not  incon- 
sistent with  the  idea  of  the  credit's 
being  given  on  the  security  of  the 
ship.  More  especially  is  this  apparent 
when  it  is  proven  that  the  reason 
why  monthly  accounts  were  made 
out  to  the  steamboat  company  in 
bulk  was  for  the  sake  of  con- 
venience, and  to  save  a  useless  ac- 
cumulation of  bills.  There  is  noth- 
ing besides  this  journal  entry  to 
indicate  that  the  coal  was  furnished 
on  the  personal  credit  of  the  com- 
pany, and,  as  other  facts  in  the  case 
are  in  favor  of  charge  direct  to  the 
steamship,  we  do  not  think  legal  in- 
ference of  credit  to  the  ship  is  re- 
moved." The  Patapsco,  13  Wall.  329. 
6.  Richelieu  &  O.  Nav.  Co.  v. 
The  Boston  M.  Ins.  Co.,  136  U.  S. 
408. 


Vol.  I 


ADMIRALTY. 


333 


or  to  prove  a  local  custom  for  masters  of  U\'^&  to  act  as  wheelmen;'' 
or  a  usage  that  crews  were  not  treated  for  sickness  at  the  ship's 
expense ;"  or   to   prove   what   the   captain   of  a  vessel   intended  to 


convey  by  a  signal. 


XI.  WEIGHT  OF  EVIDENCE. 

(For  Weight  of  Expert  Evidence,  see  "OriNiuN  EviuiCNCE,  IX.  2,  C") 
1.  In  General.  —  Where  the  evidence  is  conflicting  and  e(|uallv 
balanced,  the  libellant  must  fail ;"  but  if  the  libellant  recovers  in 
such  a  case,  the  decree  will  be  affirmed  upon  appeal,  notwithstand- 
ing the  conflict  and  even  balance  of  testimony."  Where  the  evi- 
dence on  both  sides  is  conflicting  and  equally  credible,  the  weight 
of  evidence  is  with  the  greater  number ;'"  or  with  the  most  probable 
theory  of  the  case  in  view  of  the  facts. ^^  More  weight  is  to  be 
given  to  the  testimony  of  witnesses  that  an  occurrence  took  place, 
than  to  that  of  those  who  testify  that  it  did  not  take  place,  unless 


7.  The  Coleman,  i  Brown  456,  6 
Fed.    Cas.    No.   2981. 

8.  Rule    Not    Changeable The 

evidence  of  such  usage  is  incom- 
petent to  vary  the  settled  rule  that 
seamen  are  entitled  to  be  treated 
at  the  ship's  expense.  Knight  Z'. 
Parsons,  I  Spr.  279,  14  Fed.  Cas. 
No,   7886. 

9.  Signal      Tinder     International 

Rnles In  a  collision  case  between 

the  steamers  governed  by  the  inter- 
national rules,  it  is  proper  to  exclude 
a  statement  by  the  captain  of  one 
of  the  vessels  as  to  what  informa- 
tion he  intended  to  convey  by  a 
signal  of  one  whistle,  as  the  mean- 
ing thereof  is  conclusively  deter- 
mined by  the  rule.  The  Eisbonense, 
S3  Fed.  293. 

10.  Failure  of  libellant.  —Where 
the  controversy  turns  wlioUy  on 
questions  of  fact,  depending  upon 
testiiTiony  which  is  so  conflicting  that 
no  safe  opinion  can  he  formed  of 
the  merits,  a  decree  dismissing  the 
libel  will  be  affirmed  on  appeal,  on 
the  ground  that  the  libellants  failed 
to  establish  their  case  by  a  prepon- 
derance of  evidence.  Lowell  ?'.  The 
Joseph  Stickney,  56  Fed.  156,  6  C.  C. 
A.  454 ;  Assante  r.  Charleston  Bridge 
Co.,  40  Fed.  76?.  The  evidence  will 
not  warrant  a  finding  in  favor  of  a 
libellant  where  it  is  evident  that  the 
stories  told  by  the  witnesses  for  both 
parties     are     intentionally     misstated 


and  false.  The  Wionia,  55  Fed.  338. 
Where  there  is  an  irreconcilable  con- 
flict of  evidence  as  to  whether  there 
was  any  collision,  libels  for  the  loss 
will  be  dismissed.  The  .\manda 
Powell,  14  Fed.  486;  The  C.  Van- 
derbilt,  10  Ben.  607,  6  Fed.  Cas.  No. 
3524.  In  a  great  conflict  of  evidence 
as  to  the  courses  and  conduct  of 
colliding  vessels,  damages  will  be 
denied  for  want  of  preponderating 
proof.  The  Summit.  2  Curt.  150,  23 
Fed.   Cas.   No.    13,606. 

Preponderance  of  Evidence.  — 
Where  the  testimony  is  conflicting, 
but  the  preponderance  is  in  favor  of 
the  libellants,  the  decree  will  be  in 
their  favor.  Merchants'  S.  S.  Co. 
V.    The    S.    C.    Trion,   4   Fed.    2?6. 

11.  The  Sampson,  4  Blatchf.  281, 
21    Fed.    Cas.    No.    12,279. 

12.  Clark  7:  The  Ruth.  39  Fed, 
12S;  The  Dale,  46  Fed.  670;  The 
Napoleon.  Olc.  208,  17  Fed.  Cas.  No. 
10,015  '■  The  Dolphin,  6  Ben.  402,  7 
Fed.   Cas.   No.  3972. 

13.  The  Iroquois,  91  Fed.  173: 
The  Vulcan  and  The  Genevieve,  96 
Fed.  850:  The  Qneen  Elizabeth.  100 
Fed.  874;  The  Florence  P.  Hall,  14 
Fed.  408;  Nester  v.  The  City  of 
Cleveland  and  The  John  ^farten,  56 
Fed.  729 ;  The  Hope  and  The 
Freddie  E.  Porter.  4  Fed,  89:  The 
Carroll,  i  Ben.  286,  5  Fed.  Cas,  Co, 
245T  ;  The  Genesee  Chief  7'.  Fitz- 
bugh,  12  How,  443, 

Vol.  I 


334 


ADMIRALTY. 


it   appears   that   the  opportunity   to  know,  and    tlie  attention   were 
e(]ual.'* 

2.  In  Collision  Cases.  —  A.  ( )ccrKRExcES  on  Board.  —  In  cases 
of  collision,  the  testimony  of  jx'rsons  on  board  of  one  of  the  vessels 
respecting  their  own  acts,  will  be  deemed  to  outweigh  the  state- 
ments of  persons  on  the  other  vessel  as  to  such  acts  -^^  and  the  testi- 
mony of  witnesses  on  board  of  a  sailing  vessel  as  to  the  strength 
and  direction  of  the  wind,  is  more  reliable  than  that  of  those  on 
board  a  steamer  with  which  she  came  in  collision;'"  and  the  testi- 
mony of  a  steamer's  ofliccrs  as  to  her  speed,  is  of  more  weight  than 


14.  Dunning  ;■.  Bond,  38  Fed. 
81?;  Tlie  Samniie,  6g  Fed.  847.  13 
C.  C.  A.  686;  The  Lizzie  Henderson, 
20    Fed.    524. 

15.  The  Alexander  Folsom,  52 
Fed.  403,  3  C.  C.  A.  165;  The 
Havana,  54  Fed.  411;  The  Express, 
5S'  Fed.  .340;  Diming;  v.  The  Sam 
Sloan,  65  Fed.  125;  The  Gate  City, 
90  Fed.  314;  The  Isaac  H.  Tillyer, 
loi  Fed.  478;  The  Falcon,  8  Fe<l. 
Cas.  No.  4619:  Aver  v.  The  Glancns, 
4  Cliff.  166,  2  Fed.  Cas.  No.  683 ;  The 
Governor,  Abh.  .\dm.  108,  10  Fed. 
Cas.  No.  5645 ;  The  Neptune.  01c. 
483,  17  Fed.  Cas.  No.  10.120;  The 
Northern  Warrior,  i  Hask.  314,  18 
Fed.  Cas.  No.  10,325 ;  The  Osceola, 
01c.  450,  18  Fed.  Cas.  No.  10,602 ; 
Whitney  v.  The  Empire  State,  i 
Ben.   57,   29   Fed.   Cas.   No.    17.586. 

Testimony  of  Crew  of  Moving 
Vessel.  —  Court?  of  admiralty  are 
generally  inclined  to  accept  the  state- 
ments of  a  crew,  as  to  the  movement 
of  their  own  ship,  rather  than  those 
coming  from  those  on  hoard  another 
vessel.  The  Hope  and  The  Freddie 
L.  Porter,  4  Fed.  89.  In  attempting 
to  gather  the  actual  facts  of  a  col- 
lision from  the  contradictory  testi- 
mony of  witnesses,  the  testimony  of 
the  crew  of  each  vessel,  with  regard 
to  her  course,  and  the  various  orders 
given  to  and  executed  by  the  wheel- 
man and  engineer,  should  be  credited 
in  preference  to  the  testimony  of  an 
equal  number  of  witnesses  upon  an- 
other vessel  relating  to  her  move- 
ments as  thev  appeared  to  them. 
The  Alberta.  23  Fed.  807.  The  evi- 
dence of  witnesses  on  board  of  a 
sailing  vessel  as  to  her  course  and 
maneuvers,  is  entitled  lo  more  weight 
that  that  of  an  equal  nmiibcr  who 
were    not     on    board.      The    Marion 

Vol.  I 


W.  Page  and  The  Missouri,  36  Fed. 
320.  Witnesses  upon  a  vessel  in  mo- 
tion, looking  at  another  also  in  mo- 
tion, cannot  determine  by  the  eye, 
unaided  otherwise,  with  reliable  ex- 
actness, either  her  course,  distance, 
or  speed.  The  Narragansett,  Olc. 
246,  17  Fed.  Cas.  No.  10,019.  The 
testimony  as  to  the  course  and  deflec- 
tions of  a  vessel  of  those  who  hold 
her  helm  is  entitled  to  more  weight 
than  those  on  board  another  moving 
vessel.  McNally  v.  ]\Ieyer,  5  Ben.  239. 
16  Fed.  Cas.  No.  8909.  In  the  ab- 
sence of  impeaching  testimony,  a  ves- 
sel's own  witnesses  as  to  her  maneu- 
vers are  more  trustworthy  than  the 
evidence  of  persons  on  another  mov- 
ing vessel.  The  Philadelphia,  61 
Fed.  862  ;  The  Rita,  88  Fed.  523 ;  Hall 
V.  The  Buffalo,  Newb.  Adm.  115,  11 
Fed.  Cas.  No.  5927;  The  Herbert 
Mantin,  14  Blatchf.  37,  12  Fed.  Cas. 
No.  6399.  The  testimony  of  the  offi- 
cers and  crew  of  each  vessel,  as  to 
the  number  of  whistles  blown  upon 
their  own  vessel,  is  to  be  believed  in 
preference  to  that  of  an  equal  number 
of  witnesses  upon  the  other  vessel. 
The  Alilwaukee,  Brown  Adm.  313,  17 
Fed.  Cas.  No.  9626.  .A  vessel  is  not 
to  be  held  free  from  an  alleged  fault 
whenever  her  officers  and  crew  tes- 
tify that  they  did  not  commit  it;  but 
if  their  evidence  is  direct,  positive, 
consistent,  and  in  accord  with  the 
natural  course  of  events,  it  is  not  to 
be  set  aside  because  not  in  harmony 
with  the  testimony  of  observers  upon 
other  vessels.  The  Gypsum  Prince, 
67  Fed.  612. 

16.  The  Genesee  Chief  v.  Fitz- 
hueh,  12  How.  443;  The  Hammonia, 
4  P.en.  575;  II  Fed.  Cas.  No.  6005; 
The  Hansa.  5  Ben  501.  11  Fed.  Cas. 
No.  6037. 


AUMlKAl.rV.  335 

the  opinions  of  witnesses  on  other  boats.''  The  evidence  of  wit- 
nesses on  board  a  tug  and  tow  as  to  the  actual  shortening  of  the 
tow  Hue  must  prevail  over  the  estimates  of  lookers-on,  as  to  the 
length  of  the  line.'* 

B.  Relative  Position  of  \'essELS.  —  Facts  tending  to  fix  the 
relative  position  of  vessels  proved  by  those  on  board  of  them  are 
allowed  more  weight  than  the  opinion  of  outnumbering  lookers-on.^" 
The  testimony  of  the  master  of  a  vessel,  at  her  wheel,  as  to  the 
relative  positions  of  the  vessels,  is  entitled  to  greater  weight  than 
that  of  seamen  on  the  bow  of  the  other  vessel.-"  Witnesses  u])on 
one  vessel  in  motion  are  not  reliable  as  to  the  relative  position  and 
course  of  an  approaching  vessel.-'  The  testimony  as  to  the  relative 
course  and  deflections  of  a  vessel  of  those  who  hold  her  helm  is 
entitled  to  more  weight  than  the  testimony  of  those  on  board  the 
other  vessel.--  Calculations  based  on  the  assumed  position  of  ves- 
sels, just  before  collision,  must  give  way  to  the  positive  testimony 
of  eye-witnesses.-^  Witnesses  on  a  fleet  of  moored  flatboats  col- 
lided with  have  the  greater  weight  as  to  her  position."* 

C.  Credibility  of  Witnesses.  —  The  general  veracity  of  wit- 
nesses to  a  collision  should  not  be  impeached  because  of  different 
statements  of  attendant  incidents.'-''  A  witness  supported  by  his 
previous  deposition,  though  not  on  file,  will  he  believed  rather  than 
one  whose  previous  deposition  docs  not  support  his  testimony.-" 
Where  there  is  an  irreconcilable  conflict  in  the  evidence  of  the 
crews  of  the  colhding  vessels,  the  testimony  of  disinterested  wit- 
nesses in  a  position  to  see  what  took  place,  should  govern  the 
case."  Evidence  of  disinterested  witnesses  in  favor  of  the  libellant 
is  not  overcome  by  the  testimony  of  an  equal  number  of  interested 
witnesses  for  the  respondent."' 

17.  The     Alexander     Folsom,     52       witnesses  to  give  concurrent  descrip- 
Fed.  403.  tions.      Corks   v.    The    Belle,   6   Fed. 

18.  Towboat   No.    i,   Norfolk  and       Cas.  No.  3231a. 

Western,   74  Fed.  go6,  21    C.   C.   A.  26.     Contradictory       Affidavits.  — 

169.  The  testimony  of  a  witness  who  has 

19.  The     Postboy,     19    Fed.     Cas.  made    contradictory    affidavits,    is    of 
No.   11,303.  loo   little   weight   to  warrant  the   re- 

20.  The  Jeremiah.  10  Ben.  326.  13  opening  of  a  suit  in  rem  for  his  ex- 
Fed.  Cas.  No.  7289.  amination.     The  Newport.     38     Fed. 

21.  The   Argus.   Olc.    304,    1    Fed.  669;     Hall     v.     The  Buffalo,  Newb. 
Cas.    No.    521:    The    Globe.    10   Fed.  Adm.  15.  n  Fed.  Cas.  No.  5927. 
Cas.    No.    5485;    The    Narragansett,  27.     The  Annie  J.  Pardee.  25  Fed. 
Olc.  246,  17  Fed.  Cas.  No.  10,019.  ^55:  The  Pacific,  53  Fed.  501;  Roa- 

22      McNallv    v.    Meyers,    5    Ben.  noke  N.  &  B.  S.  S.  Co.  v.  The  Lucy, 

2^9,  16  Fed.  Cas.  No.  8909.  44  Fed.  938;  The  Ciampa  Emila,  53 

■  23.    The  John  Craig,  66  Fed.  ^96.  Fed.  155.  3  C.  C.  A.  481 ;  The  Charles 

24.  The  Hunter     No.     2,    22  Fed.  H.  Trickev,  66  Fed.  1020.  14  C.  C.  A. 
795.  225:  The  M.  !\[.  Chase,  2  Hask.  270, 

25.  Cause     of     Difference.  —  The  17'Fed.  Cas.  No.  9684 ;  The  Express, 
confusion     and     disturbance     conse-  .S.i  Fed.  .340 ;  Wells  v.  The  Ann  Caro- 
qucnt  on  the  occurrence  would  nat-  line,  29  Fed.  Cas.  No.  I7.389- 
urally  tend   to  prevent  such   distinct  28.     Laing  v.  The  G.  L.  Buckman, 
observation  as  would  enable  the  eye-  14  Fed.   Cas.   No.   7988. 

Vol.  I 


336 


ADMIKALTY. 


a.  Facts  and  Inferences  Relating  to  Credibility.  —  Where  the 
testimony  as  to  the  facts  of  the  colHsion  is  irreconcilable,  the  side 
will  be  preferred  which  is  corroborated  by  the  facts  and  probabili- 
ties of  the  case,-"  and  by  improbabilities  discrediting  the  witnesses 


29.  The  Freddie  L.  Porter,  4  Fed. 
89;  The  Express,  55  Fed.  340;  Nester 
V.  The  City  of  Cleveland  and  The 
John    Marten,    56    Fed.    729. 

Case  Governed  by  Facts  and 
Probabilities.  —  Where  there  is  an 
irreconcilable  conflict  of  testimony 
courts  must  be  governed  chiefly  by  un- 
deniable and  leading  facts,  if  such  ex- 
ist in  the  case.  The  Hope,  4  Fed. 
89:  and  will  dispose  of  the  matter 
rather  by  a  consideration  of  the  con- 
ceded facts  and  the  probabilities  of 
the  situation  than  by  an  attempt  to 
reconcile  the  testimony.  Nester  t. 
The  City  of  Cleveland.  56  Fed.  729. 
And  where  the  theory  of  a  collision  as 
given  by  one  vessel  is  unreasonable 
and  inconsistent,  and  that  of  the 
other  vessel  is  simple  and  consistent, 
the  court  will  adopt  the  latter.  The 
Carroll,  i  Ben.  286,  5  Fed.  Cas.  No. 
2451- 

Conflict   As   to    Weather Where 

the  testimony  of  witnesses  from  the 
two  colliding  vessels  was  in  irrecon- 
cilable conflict  as  to  the  condition  of 
the  weather,  superior  credit  was  due 
to  those  witnesses  who  were  sus- 
tained by  collateral  evidence  concern- 
ing material  subsidiary  points  re- 
specting the  force  of  the  wind  and 
time  of  the  commencement  of  the 
rain,  storm,  and  gale.  The  Florence 
Hall.  14  Fed.  408. 

Probability  and  Improbability. 
If  it  is  impossible  to  accept  the  state- 
ments of  both  crews  and  harmonize 
them,  yet,  where  the  testimony  on  o.ie 
side  seems  to  be  natural  and  carries 
with  it  an  appearance  of  probability, 
while  that  on  the  other  requires  be- 
lief in  the  performance  of  an  act  by 
a  master  who  was  a  trained  seaman 
of  which  he  must  have  known  the 
folly  and  madness,  the  former  testi- 
monv  will  be  accepted.  Peterson  v. 
The'Wayne,  37  Fed.  808.  The  testi- 
mony of  the  crew  of  a  vessel  as  to 
the  collision  with  another  will  be 
overcoine  by  that  of  the  crew  of  the 
l.nlter  and  of  disinterested  witnesses, 


and  by  the  circumstances  and  inher- 
ent probabilities  of  the  case  support- 
ing the  latter.  The  Pacific,  53  Fed. 
501.  Where  the  testimony  is  evenly 
balanced,  that  theory  of  the  case  will 
be  adopted  which  is  most  in  accord- 
ance with  the  probabilities.  The  Iro- 
quois. 91  Fed.  173.  In  such  case  the 
court  will  take  into  consideration  the 
probabilities  and  presumptions  based 
upon  the  skill,  knowledge  and  ability 
of  the  crews  of  the  respective  vessels  ; 
which  was  the  better  manned,  and  the 
less  likely  to  make  a  mistake.  The 
Genevieve,  96  Fed.  859. 

Direction    of    the    Wind Where 

the  recorded  official  observations  of 
the  keepers  of  a  lighthouse  and  a 
lightship  agree  and  fix  with  reason- 
able certainty  the  direction  of  the 
wind  at  the  time  and  place  of  a  col- 
lision, such  evidence  will  be  accepted, 
rather  than  the  testimony  of  the  crew 
of  either  vessel,  when  the  testimony 
of  the  two  crews  conflicts.  The 
Queen  Elizabeth,   too  Fed.  874. 

Lights  on  Opposite  Vessel.  —  In  a 
suit  for  collision  in  the  nighttime, 
where  the  officers  on  watch  on  one 
of  the  vessels  and  her  lookout  testify 
that  no  colored  side  light  was  visible 
on  the  other  vessel  until  immediately 
before  the  collision,  to  indicate  that 
she  was  in  motion,  or  on  her  course, 
and  there  is  nothing  to  indicate  negli- 
gence on  their  part,  and  the  manage- 
ment of  the  vessel  was  consistent 
with  such  fact,  but  directly  contrary 
to  the  navigation  rule  and  the  prac- 
tice of  good  seamanship  if  such  light 
were  seen,  their  testimony  is  entitled 
to  greater  weight  than  of  casual  ob- 
servers who  had  no  interest  in  the 
matter.  The  Lansdowne,  105  Fed. 
436.  The  well-sustained  testimony 
of  two  lookouts  on  a  colliding  vessel 
that  no  light  was  burning  on  the  ves- 
sel with  which  she  collided,  will  pre- 
vail as  against  the  inference  that  a 
light  which  was  burning  in  a  strong 
wind  at  midnight  was  also  burning 
four  hours  later.  The  Horace  B. 
Parker,  71  Fed.  989. 


Vol.  I 


Admiralty. 


337 


Upon  the  other  side;-'"  or  by  the  demeanor  of  the  witnesses,  and 
their  disagreement  on  one  side.'"  The  well-sustained  testimony  of 
witnesses  on  one  side  will  be  preferred  when  only  opposed  by 
inference  drawn  from  facts,  sworn  to  hy  witnesses  on  the  other 
side.''^ 

b.  Caution  As  to  Tcstiinony.  —  Where  all  upon  one  vessel  were 
lost,  the  testimony  of  those  on  the  other,  considering-  the  natural 
bias  of  the  witnesses,  should  be  received  with  caution,  and  not 
adopted  beyond  what  is  consistent,  rational  and  probable."-'  In 
collision  cases,  the  testimony  of  passengers  who  have  no  practical 
knowledge  of  seamanship  should  be  received  with  caution.'" 

c.  Positk'c  and  Ncgalk'c  Testimony.  —  The  testimony  of  wit- 
nesses, so  situated  that  they  cannot  be  mistaken  in  regard  to  a  fact 
connected  with  the  collision,  to  which  they  testify  positively,  is 
entitled  to  greater  weight  than  that  of  witnesses  testifying  to  the 
negative  who  might  be  mistaken. ^° 

(1.  .l.bscncc  of  Testimony.  —  In  a  collision  case,  where  there  is  a 
dispute  about  lights  and  their  bearings,  the  absence  of  the  testimony 
of  a  proper  lookout,  has  very  great  weight  against  the  vessel  not 
producing  it ;""  and  the  failure  of  a  vessel  to  call  a  witness  who  had 
charge  of  its  lights,  the  absence  of  which  is  alleged  as  a  fault, 
warrants  the  inference  that  its  evidence  would  have  weakened  its 
case.'"     \\'here  the  testimon^■   for  the  libellant  and  that  of  officers 


30.  Peterson  v.  The  Waj'iie,  37 
Fed.  808;  The  Carroll,  i  Ben.  286,  5 
Fed.  Cas.  No.  2451  ;  Tlie  Narragan- 
sett,  01c.  246,  17  Fed.  Cas.  No.  io,oig. 

Discredit  of  Libellant's  Witnesses. 
Where  the  testimony  was  in  direct 
and  irreconcilable  contlict,  and  the 
testimony  of  libellant's  witnesses  was 
discredited  because  of  improbabilities 
of  the  case  attempted  to  be  estab- 
lished by  them,  the  libel  was  dis- 
missed.    The  Leverson,   10  Fed.  7S3- 

31.  Dickinson  i'.  The  Gore,  Newb. 
Adm.  45,  7  Fed.  Cas.  No.  389,?. 

32.  inference  From  Circumstan- 
tial Facts.  —  Inference  from  circnm- 
stantial  facts  in  favor  of  the  re- 
spondent will  not  prevail  over  the 
positive  statements  of  the  witnesses 
for  the  libellant  where  their  testimony 
is  not  of  such  a  character  as  to  im- 
pute to  them  willful  false  swearing 
as  to  the  light  upon  their  vessel. 
The  Wenona,  19  Wall.  41.  Mathe- 
matical inferences  from  differing  logs 
made  prior  to  a  collision  were  not 
sufficient  to  break  the  force  of  the  di- 
rect testimony  as  to  the  identity  of 
the  vessel  collided  with  by  a  steamer. 
The  Newport,  36  Fed.  910. 


33.  The  Columbia,  27  P"ed.  704. 

34.  Klots  z:  The  Red  Jacket,  14 
Fed.  Cas.  No.  7871. 

35.  'Weight  of  Positive  and  Neg- 
ative Testimony.  —  Where  eleven 
witnesses  are  so  situated  that  they 
cannot  be  mistaken  in  regard  to  a 
fact  to  which  they  testify,  and  their 
testimony  is  to  a  positive  fact,  the 
weiglit  of  evidence  is  in  favor  of  that 
fact,  although  other  disinterested 
witnesses  contradict  it,  testifying  to 
a  negative  fact,  there  being  ground 
for  believing  that  they  might  have 
been  mistaken.  The  Lizzie  Hender- 
son, 20  Fed.  524.  Testimony  of  per- 
sons on  board  a  vessel  that  they  felt 
a  shock,  and,  going  on  deck,  saw  an- 
other vessel  lying  close  under  her 
counter,  is  sufficient  to  sustain  a  find- 
ing that  a  collision  had  occurred 
when  opposed  only  by  the  negative 
testimony  of  persons  on  the  other 
vessel  that  they  were  watching  and 
saw  no  collision,  and  that  the  vessels 
were  10  or  15  feet  apart  all  the  time. 
The  Sammie,  69  Fed.  847. 

36.  The  Rabboni.  S3  Fed.  952. 

37.  The   Ville   Du   Havre,  7   Ben. 
328,  28  Fed.  Cas.  No.  16,943. 

Vol.  I 


538  AnMIK.lI.rV. 

for  the  libelled  ship  conflict,  the  absence  of  the  testimony  of  one 
of  the  officers  of  the  ship  goes  to  the  discredit  of  the  ship's  officers.'* 
In  an  action  for  collision,  where  the  defense  was  an  alibi,  the  unex- 
cused  absence  of  a  witness  on  the  libellant's  boat,  who  was  known 
to  have  ascertained  by  inspection  the  name  of  the  collidino-  boat, 
warrants  the  presumption  tliat  his  testimony  would  not  sujjport  the 
libellant,  which  will  control  the  case  where  the  testimony  contiicts."" 

3.  In  Cases  of  Seamen.  —  Upon  a  libel  against  a  vessel  for  wages, 
an  affidavit  of  an  agent  of  a  vessel  that  she  is  a  foreign  vessel  will 
not  overcome  the  oath  of  the  libellant  that  she  is  an  American 
vessel,  so  as  to  entitle  the  claimant  to  a  dismissal  of  the  libel.*" 
Upon  a  joint  libel  by  a  ship's  crew,  their  testimony,  each  for  the 
other,  will  be  received  with  great  caution,  and  the  court  will  be 
inclined  to  credit  the  master's  testimony  to  the  contrary  if  he  has 
no  interest  in  the  action.*'  Upon  a  libel  by  seamen  for  damages 
for  short  allowance,  where  discrepancies  exist  in  their  testimony, 
the  testimony  of  the  officers  in  contradiction  thereof,  sustained  by 
the  fact  that  provisions  were  left  at  the  end  of  the  voyage,  is  entitled 
to  greater  weight,  and  will  defeat  the  libel.*-  The  testimony  of  the 
crew  of  the  vessel  as  to  the  order  in  which  goods  were  laden  on 
board  the  vessel  has  less  weight  than  the  delivery  book  of  the  cargo 
showing  a  contrary  order.*''' 

4.  Position  of  Blockading  Vessel.  —  The  testimony  of  the  officers 
of  a  blockading  \cssel  bnarding  it  near  the  blockaded  port,  has  more 
weight  as  to  her  position,  than  that  of  officers  of  the  vessel  boarded, 
who  were  not  well  acquainted  with  the  place.** 

5.  Circumstantial  Evidence.  —  A  vessel  may  be  condemned  for 
violation  of  law  upon  circumstantial  evidence,  where  the  circum- 
stances are  sufficiently  numerous  and  strong,*"  and  its  identity  may 

38.  Tlie  Sandringh.-im,  lo  Fed.  will  sometimes  outweigh  posilive 
556.  testimony.        The    Brig    Striiggk-,    g 

39.  The  Fred  M.  Lawrence,  15  Cranch.  71.  In  this  case  the  conrt 
Fed.  635.  said  :     "Although  mere  suspicion  not 

40.  Armstrong  7'.  The  Rydesdak'.  resting  upon  strong  circumstances 
I  Fed.  Cas.  No.  547.  unexplained,  should  not  be  permitted 

41.  Caution  As  to  Testimony  of  in  outweigh  positive  testimony  in  giv- 
Libellant.  —  The  testimony  of  liliel-  ing  effect  to  a  penal  statute;  yet  it 
lants,  the  one  for  the  other,  in  an  cannot  be  regarded  as  an  oppressive 
action  in  rem,  although  legally  ad-  rule  to  require  of  a  party  who  ha< 
niissibic,  ought  to  be  narrowly  scru-  violated  it  to  make  out  the  vis  major 
tinized  and  received  with  caution.  under  wdiich  he  shelters  himself,  so 
CTraham  v.  Hoskius,  01c.  224,  10  Fed.  as  lo  leave  no  reasonable  doubt  of  his 
Cas.  No.  5669;  The  Sw'allow.  Olc.  innocence;  and  if  in  the  course  of 
334.  23  Fed.  Cas.  No.  I3,66.s.  such  vindication  he  shall  pass  in  si- 

42.  The  Pactolas.  88  Fed.  299.  lence,   or   leave   unexplained   circum- 

43.  Llado  V.  The  Tritone,  15  Fed.  stances  which  militate  strongly 
Cas.  No.  8427.  against  the   integrity  of  tlie  transac- 

44.  The  Newfoundland.  Sg  Fed.  tion,  he  cannot  complain  if  the  court 
510.  shall  lay  hold  of  those  circumstances 

45.  Circumstances  Outweighing  as  reasons  for  adjudging  him  I'li  dc- 
Positive  Testimony.  —  Cirounislanccs      lido."     Tn   Tlie    Robert     Kdwards,    6 

Vol.  I 


ADMIRALTY. 


339 


be  shown  by  strong  cn'cnnisiaiiccs  juslifyiny  the  prcsnmjilion 
thereof.'"'  Circumstances  which  warrant  a  suspicion  of  illegal  con- 
duct are  sufficient  to  show  probable  cause  for  the  capture  of  a 
vessel/'  and  the  illegality  of  a  ship's  voyage  may  be  shown  from 
circumstantial  evidence  raising  a  strong  presumption  thereof.**' 
Upon  a  question  of  collusive  capture,  the  court  will  condemn  to 
the  United  States,  even  against  positive  evidence,  if  the  collusion 
is  evident  from  the  circumstances  ;■*"  but  if  the  circumstances  are 
consistent  with  the  innocence  of  the  captors,  the  condeiunation 
will  go  to  them.'^"  Positive  evidence  adduced  by  the  claimant  upon 
a  libel  for  forfeiture,  may  be  neutralized  by  suspicious  circum- 
stances.^' The  positive  testimony  of  accomplices  in  the  offense  for 
which  a  vessel  is  libelled,  is  to  be  viewed  with  distrust,  and  may  bt 
outweighed  by  circumstances  which  they  have  not  explained. ''- 

XII.  EVIDENCE  UPON  APPEAL. 

1.  In  Circuit  Court.  —  A.  Trial  de  Novo.  —  Admiralty  causes 
are  tried  dc  iiozv  in  the  circuit  court  on  appeal  from  the  district 
court,^'''  and  for  that  reason  the  record  upon  such  appeal  need  not 


Wheat.  187,  the  court  said :  "The 
court  has  been  reminded  that  it 
ought  not,  without  the  most  satisfac- 
tory and  positive  proof,  in  a  case  so 
higlily  penal,  to  decide  that  a  viola- 
tion of  the  law  has  been  committed. 
Although  such  proof  may  generally 
be  desirable,  we  are  not  to  shut  our 
eyes  on  circumstances  which  some- 
times carry  with  them  a  conviction 
which  the  most  positive  testimony 
will  sometimes  fail  to  produce.  And 
if  such  circumstances  cannot  well 
consist  with  the  innocence  of  the 
party,  and  arise  out  of  her  own  con- 
duct, and  remain  unexplained,  she 
cannot  complain  if  she  be  the  victim 
of  them."  Circumstances  altogether 
inconclusive,  if  separately  considered, 
may  by  their  numlier  and  joint  oper- 
ation, especially  when  corroborated 
by  moral  coincidence,  be  sufficient  to 
constitute  conclusive  proof.  Tlie 
Reindeer,  2  Wall.  ^83. 

46.  The  Jane  v.  U.  S.,  7  Cranch 
363. 

47.  The  George,  i  Mas.  24,  10  Fed. 
Cas.  No.  5.328. 

48.  The  Schooner  Adeline  and 
Cargo,  9  Cranch  28^;  The  Cheshire, 
Blatchf.  Pr.  Cas.  151,  5  Fed.  Cas. 
No.  2655;  The  Joseph  H.  Toone, 
Blatchf.,   Pr.   Cas.  223,   13   Fed.   Cas. 


No.  7541  ;  The  Spring  Bok,  Blatchf. 
Pr.  Cas.  434,  22  Fed.  Cas.  No.  13,264; 
The  Stephen  Hart,  Blatchf.,  Pr.  Cas. 
387,  22  Fed.  Cas.  No.  13,364. 

49.  The  George,  2  Wheat.  278. 

50.  The  Bothnea,  2  Wheat.  i6g. 

51.  Nelson  v.  U.  S.,  Pet.  C.  C.  23S, 
17  Fed.  Cas.  No.  10,116. 

52.  The  Brig  Struggle,  9  Cranch 

/I- 

53.  The  Morning  Star,  14  Fed. 
866;  The  Ethel,  31  Fed.  5/6;  The 
Cassius,  41  Fed.  367 ;  The  Saratoga, 
I  Woods  75,  21  Fed.  Cas.  No.  12.3S6; 
The  Hesper,  122  U.  S.  256;  The 
Louisville,  154  U.  S.  657;  250  Barrels 
of  Molasses  v.  U.  S.,  i  Chase  502, 
2.1  Fed.  Cas.  No.  14,293 ;  Ayer  i'.  The 
Glaucus,  4  Cliff.  166,  2  Fed  Cas.  No. 
683 ;  Reppert  1:  Robinson,  Taney  492, 
20  Fed.  Cas.  No.  11,703;  Warren  v. 
Moody,   9   Fed.   673 ;    Anonymous,    i 

Gall.  22,  r  Fed.  Cas.  No.  444; 
Weaver  z:  Thompson,  I  Wall.  Jr. 
343,  29  Fed.  Cas.  No.  17,311;  The 
Charles  Morgan  ?'.  Kouns,  115  U.  S. 
69;  The  City  of  Lincoln,  19  Fed.  460; 
Mason  v.  Ervine,  27  Fed.  240;  The 
Montana,  22  Fed.  730;  The  Thomas 
Melville,  34  Fed.  350;  The  Lucille,  19 
Wall.  73 ;  The  Rover,  2  Gall.  240,  20 
Fed.  Cas.  No.  12,091. 

Vol.  I 


Mo 


ADMIR.U.'l'V. 


contain  the  evidence,  or  an  agreed  statement  of  facts,  in  order  to 
sustain  the  appeal.''^ 

B.  Burden  op  Proof  Upon  Appeal.  —  Tlie  burden  of  proof 
upon  questions  of  fact  is  upon  the  appellant, '^^  and  he  has  the  bur- 
den to  offer  new  and  materially  important  testimony  to  support  new 
allegations  without  contradicting  the  former  evidence.^" 

C.  New  Evidence.  —  a.  Admissibility. — New  evidence  is  admis- 
sible upon  appeal  to  the  circuit  court, ''^  and  time  will  be  given  to 
produce  it,  where  it  ajipears  that  the  appellant  was  not  guilty  of 
laches  in  failing  to  produce  it  in  the  court  below. °* 

b.  Caution  As  to  New  Evidence.  —  The  circuit  court  is  cautious 
in  permitting  new  matter  of  defense  or  allegation  to  be  introduced, 
where  the  facts  are  not  new  or  newly  discovered,  and  were  known 
in  the  district  court ;''"  and  the  appellant  will  not  be  allowed  to 
produce  testimony  which  he  deliberately  withheld  in  the  court 
below.""  New  testimony  upon  appeal,  unless  the  circumstances  are 
peculiar,  is  not  entitled  to  the  same  consideration  as  testimony 
introduced  in  the  first  instance,"'  and  if  the  failure  to  produce  it 
in  the  district  court  is  not  excused,  new  evidence  is  subject  to 
suspicion  in  the  circuit  court. "- 

c.  Nezv  Evidence  After  Default.  —  Where  the  claimants  ])Ut  in 
no  testimony  in  the  district  court,  and  the  case  went  upon  the  plead- 
ings and  the  testimony  of  the  libellant,  the  claimants  will  not  be 
allowed  to  introduce  upon  appeal,  the  evidence  of  witnesses  who 


54.  Practice     Disapproved The 

practice  of  bringing  admiralty  cases 
into  the  circuit  court  by  appeal,  with- 
out the  evidence  upon  ■facts  found 
by  the  district  courts  is  disapproved. 
Gloucester  Ins.  Co.  i'.  Younger,  2 
Curt.  222,  10  Fed.  Cas.  No.  5487; 
The  Ethel,  31   Fed.  576. 

55.  Libellant  As  Actor.  — The  de- 
cree of  the  district  court  being  sus- 
pended by  the  appeal,  and  the  case 
proceeding  de  novo  in  the  circuit 
court,  the  libellant  is  the  actor,  hav- 
ing the  affirmative,  and  must  make 
out  the  allegations  of  his  libel.  The 
Morning  Star,  14  Fed.  866. 

Burden  of  Proof  As  to  Damages. 
On  appeal,  where  damages  are  dis- 
cretionary, the  burden  of  proof  is  on 
the  appellant  to  show  some  clear  mis- 
take or  error  in  the  court  below, 
either  in  awarding  excessive  dam- 
ages, or  in  promulgating  an  incorrect 
rule  of  law.  Cushman  v.  Ryan,  i 
Story  91,  6  Fed.  Cas.  No.  3515. 

56.  Rose  V.  Himely,  Bee  313,  20 
Fed.    Cas.    No.    12,045 ;    Carrigan    v. 

Vol.  I 


The  Charles  Putnam,  Wall.  Jr.  307; 
The  Morning  Star,   14  Fed.  866. 

57.  Testimony  on  Both  Sides. 
Additional  testimony  may  be  taken 
on  both  sides  in  the  circuit  court  and 
the  court  will  protect  the  rights  of 
the  parties  where  amendments  are 
allowed.     The  Ethel,  31  Fed.  576. 

58.  Rose  V.  Himely,  Bee.  313,  20 
Fed.    Cas.    No.    12.045. 

59.  Merits  of  Controversy The 

power  of  the  court,  upon  appeal,  to 
allow  amendments  to  the  pleadings 
so  as  to  let  in  new  evidence  and 
new  grounds  of  defense,  ought  only 
to  be  exercised  to  bring  the  merits 
of  the  controversy  fairly  before  the 
courts.  Reppert  v.  Robinson,  Taney 
492,  20  Fed  Cas.  No.  11,703;  Coffin 
z:  Jenkins,  3  Story  108,  5  Fed.  Cas. 
No.   2948. 

60.  The    Saunders,    23    Fed.    303. 

61.  Taylor  v.  Harwood,  Taney 
437,  23  Fed.  Cas.  No.  13,794- 

62.  The  Busy,  2  Curt.  586,  4  F^'<1- 
Cas.   No.   2232. 


ADMIRALTY. 


341 


were  i^resent  at  the  trial,  but  may  take  the  depositions  of  witnesses 
who  were  not  present,  though  procurable."^ 

D.  Decision  of  District  Court  Upon  Conflicting  Evidence. 
The  decision  of  the  district  court  upon  a  controverted  question  of 
fact  will  not  be  reversed  In-  the  circuit  court  unless  clearlv  contrary 
to  the  preponderance  of  the  evidence,"*  and  where  the  witnesses 
were  examined  in  open  court,  and  the  question  depended  upon  the 
credibility  of  conflicting  witnesses,  the  circuit  court  will  not  inter- 
fere with  the  decision  of  the  district  court.""  The  circuit  court  will 
not  interfere  with  the  amount  of  an  allowance  by  the  district  court 
unless  strikingly  out  of  proportion  to  the  service  or  damage.''" 

E.  Libel  for  Newly  Discovered  Evidence.  —  In  the  absence 
of  any  rule  preventing  it,  a  libel  will  lie  in  the  circuit  court  to  review 
a  decree  in  admiralty  for  newly  discovered  evidence  which  would 
change  the  result."' 

F.  Commission  to  Take  Testimony.  —  A  commission  to  take 
testimony  cannot  be  issued  by  the  circuit  court  after  an  appeal  has 
been  taken  from  its  decree,  until  after  the  supreme  court  has  decided 
the  question  as  to  the  admissibility  of  the  evidence."^ 

G.  Deposition  Not  M.ade  Part  of  Record.  —  A  deposition, 
entitled  in  the  district  court,  but  not  received  by  the  clerk  until  after 
the  trial  there,  and  not  sent  up  as  a  part  of  the  record  of  that  court. 
cannot  be  read  on  appeal  in  the  circuit  court."" 

2.  In  Circuit  Court  of  Appeals,  —  A.  Appe.\ls,  How  Governed. 
Appeals  to  the  circuit  court  of  appeals  from  the  district  court  and 
circuit  court  in  admiraltv  cases  are  not   governed  bv  the  law  of 


63.  The   Stoningtoii,  25'  Fed.  6ji. 

64.  Cooper  v.  The  Saratoga,  40 
Fed.  509;  Duncan  v.  The  Governor 
Francis  T.  Nichols,  44  Fed.  .^02; 
Mentz  V.  The  Samniv,  44  Fed.  624 ; 
The  Albany,  48  Fed.'^^es;  The  Par- 
thian, 48  Fed.  564;  The  .-Mejandro 
V.  Wallace,  56  Fed.  621  ;  Davidson  i\ 
Sealskins,  2  Paine  324,  7  Fed.  Cas. 
No.  3661;  Palmer  v.  Dallet,  t8  Fed. 
Cas.  No.  io,68q:  Taylor  v.  Harwood, 
Taney  4,^7,  23  Fed.  Cas.  No.  13,794 : 
The  Grafton,  t  Blatchf.  173,  —  Fed. 
Cas.  No.  5655 :  The  Sampson,  4 
Blatchf.  28.  21  Fed.  Cas.  No.  12.270; 
The  Simswick.  5  Blatchf.  2S0.  — Fed. 
Cas.  No.  13,62s ;  Gnimarais'  .\ppeal, 
28  Fed.  528:  The  Thomas  Melville. 
T.6  Fed.  708:  Baker  t'.  Smith,  i 
Holmes  8=.  3  Fed.  Cas.  No.  781 ;  The 
Maggie  P.,  25  Fed.  202 ;  Levy  v. 
The  Thomas  Melville.  37  Fed.  271  : 
Hill  V.  The  Emma  Peterson,  12  Fed. 
Cas.  No.  6490;  The  Royal  Arch,  22 
Fed.  457. 


65.  Credibility  of  Witnesses A 

decision  turning  upon  the  credibility 
of  witnesses  will  not  be  disturbed 
though  the  testimony  believed  by  the 
district  judge  may  seem  improbable. 
The  Saratoga,  40  Fed.  509;  The  Al- 
hambra.  2,^  Fed.  7^ :  The  Rockaway, 
25  Fed.  775 ;  Downes  v.  The  E.xcel- 
sior,  40  Fed.  271  ;  Tlie  Wilhelm,  52 
Fed.  602. 

66.  The  Narragansett,  i  Blatchf. 
211,  17  Fed.  Cas.  No.  10,017:  The 
Mayflower,  I  Brown  Adm.  376,  16 
Feci.  Cas.  No.  g.MS :  Scott  v.  44s 
Tons  of  Coal,  40  Fed.  260:  The  .\1- 
bany.  48  Fed.  565 :  Scott  v.  The  City 
iif  Worcester,  45  Fed.  119;  The 
Delaware,  6  Blatchf.  S27,  7  Fed.  Cas. 
No.   3761. 

67.  Jackson  v.  Munks,  58  Fed. 
So6. 

68.  The  Ocean  Queen,  6  Blatchf. 
24,   iS  Fed.  Cas,  No.  T0,4it. 

69.  The  Buckeye  State,  i  Brown 
Adm.  65,  4  Fed.  Cas.  No.  2085, 

Vol.  I 


;^4: 


ADMIRALTY. 


1875,  which  regulates  ajipeals  to  the  suiirenie  court  on  questions  of 
law  alone.'"' 

B.  Tkial  UK  No\().  —  Appeals  from  the  district  cotirt  to  the  cir- 
cuit court  of  appeals  are  governed  by  the  same  principles  as  former 
appeals  to  the  circuit  court,  and  the  case  is  brought  up  for  a  trial 
(/('  iwz'o ;''  upon  every  issue  made  by  the  pleadings,  as  well  those 
against  the  a]3pellant,  as  those  determined  in  his  favor;'-  though  in 
the   Fifth   Circuit   ordinary   appeals   in  admiralty   are   not   tried   dc 

IIOI'O.'''' 

C.  RiccoKi)  Upon  Aitkai,. — The  testimony  taken  in  the  district 
court  nuist  be  returned  with  the  record  to  the  circuit  court  of 
appeals,  notwithstanding  findings  of  fact,  and  if  not  so  returned, 
the  appeal  will  be  dismissed  luiless  error  of  law  otherwise  appears 
upon  the  record.'*  When,  owing  to  the  lack  of  a  rule  or  practice 
in  the  district  court  to  reduce  the  evidence  to  writing,  it  cannot  be 
brought  vip  in  a  proper  manner,  the  cause  will  not  be  tried  de  novo 
in  the  circuit  court  of  appeals.'"  The  record  should  be  so  prepared 
as  to  show  which  witnesses  were  examined  in  the  presence  of  the 
district  judge,  and  which  were  not.""  The  circuit  court  of  appeals 
cannot  be  required  to  review  the  testimony  when  the  recortl  is  not 
made  up  as  required  l)y  the    .\dmiralty   Rule."    Certiorari  will   lie 


70.  Tilt  Havilah,  48  Fed.  684,  i 
C.  C.  .\.  77 ;  The  State  of  California. 
49  Fed.  172,  I  C.  C.  A.  224;  The 
Philadelphia!!,  60  Fed.  423. 

71.  The  M.  M.  Morrill,  83  Fed. 
215,  48  U.  S.  App.  656;  Gilchrist  v. 
Chicago  l!is.  Co.,  104  Fed.  566,  46 
C.  C.  A.  43. 

72.  Gilchrist  v.  Chicago  l!!.s.  Co., 
104  Fed.   566,  46  C.   C.   A.  43- 

73.  Rule  in  Fifth  Circuit.  _  Un- 
der Rule  8  of  the  Circi!it  Court  of 
.\ppeals  for  ihe  Fifth  Ciixuit,  the 
p!'acticc  in  ad!iiiralty  appeals  is  not 
like  that  fori!!erly  e.\istii!g  in  the  cir- 
cuit courts  U!!der  Adm.  Rule  49.  hut 
like  the  supreme  court  practice.  The 
Beeche  Dene,  SS  Fed.  ^26,  5  C.  C.  A. 
208. 

74.  The  :M.  M.  Morrill,  83  Fed. 
215,  48  V.  S.  App.  656. 

75.  Evidence  Not  Supplied.  — 
Where  the  evidei!ce  was  not  pre- 
served, it  could  not  he  included  i!! 
ihe  record ;  a!!d  wl!e!'e  the  proctor 
for  the  appellant  sought  lo  si!pply 
it  by  retaki!!g  ihc  testimony  before 
a  notary  upon  notice,  without  the 
presence  of  the  oilier  pai'ty,  the  judge 
pi'operly  declined  to  certify  the  evi- 
dence so  taken,  and  it  cannot  be  con- 
sidered  upon   the   appeal,   and   under 

Vol.  I 


the  peculiar  circumstances  of  the 
case,  the  cause  was  remanded  with 
instruclions  to  grant  a  new  trial, 
lint  without  regarding  such  proceed- 
ing as  a  precedent.  The  Glide,  72 
Fed.  200. 

Evidence  Required  to  Be  in  Writ- 
ing.— The  .\ct  (if  Congress  of  March 
3,  1803,  as  it  appears  in  U.  S.  Kev. 
Stat.  §698,  requiring  proofs  in  the 
circuit  court,  in  cases  intended  for  a 
review  of  the  facts  of  an  appeal,  to 
he  reduced  to  writing,  applies  to  ap- 
peals to  the  cii'cuit  court  of  appeals; 
l)Ut  in  any  case  in  which  all  the 
pi'oofs  are  not  reduced  lo  writing  in 
the  district  court,  and  no  equivalent 
is  found  in  the  record,  the  circuit 
courts  of  appeal  have  no  power  ex- 
cept to  decline  to  try  the  facts  anew, 
as  they  have  no  power  to  prescribe 
rules  for  the  district  courts.  The 
Philadelphian,  60  Fed.  423,  9  C.  C.  A. 

76.  The  Gypsum  Prince,  67  Fed, 
()I2,   14  C.  C.  A.  573. 

77.  Judge's  Note  of  Testimony. 
Where  the  record  contains  imly  the 
judge's  note  of  testimony,  and  there 
is  no  stipulation  thai  anything  may 
he  nniitled,  tile  leslimonv  will  not 
be  rexiewed.  The  .•Xliiandi'o  ?'.  \\'al- 
lace,  56  Fed.  621,  6  C.   C.   A.  54. 


jiK\i/R.u,ry. 


343 


to  require  tlic  clerk  of  the  district  court  to  include  in  the  record, 
and  properly  certify  documents  which  were  used  in  evidence  but 
have  been  omitted  from  the  record/* 

D.  New  Evidence. — a.  When  Allozvcd.  —  New  evidence  will 
be  admitted  in  the  circuit  court  of  appeals'"  when  it  is  of  the  opin- 
ion that  substantial  justice  requires  it,  although  a  satisfactory 
excuse  is  not  given  for  failure  to  take  the  testimony  below.*" 
Further  proof  will  be  allowed  in  proper  cases  appealed  from  the 
district  court,*'  and  evidence  not  intentionally  withheld  on  the  trial, 
or  omitted  through  gross  negligence,  will  be  admitted. '*- 


78.  The  Margaret  B.  Roper,  io6 
Fed.  740,  45  C.  C.  A.  577- 

79.  The  Philadelphian,  60  Fed. 
423,  9  C.  C.  A.  54;  The  Sirius.  :;4 
Fed.  188,  4  C.  C.  A.  27.3 ;  The  Red 
River  Line  J'.  Cheatham.  60  Fed. 
517,  9  C.  C.  A.  124. 

Rules  Not  Affecting  New  Evi- 
dence  A   rule   of   tlie   circuit   court 

of  appeals  requiring  an  assignment 
of  errors  in  admiralty  cases  does  not 
prevent  the  court  from  permitting 
new  evidence  upon  appeal,  or  new 
pleadings,  in  proper  cases.  Chicago 
Ins.  Co.  V.  Graham  etc.  Transp.  Co.. 
108  Fed.  271.  A  rule  authorizing 
new  proofs  only  on  cause  shown,  will 
not  he  enforced  against  a  party  whoso 
case  was  tried  in  the  district  court 
prior  to  the  rule,  relying  upon  the 
right  to  produce  new  testimony  upon 
appeal  which  was  then  admissihle ; 
and  new  evidence  will  he  allowed 
which  was  not  intentionally  withheld 
in  the  district  court.  The  Venezuela. 
52  Fed.  873. 

New  Evidence  in  Admiralty  and 
Prize  Cases.  — U.  S.  Rev.  Stat.  §69^, 
prohihiting  the  reception  of  new  evi- 
dence in  the  supreme  court  on  ap- 
peal, except  in  admiralty  and  prize 
cases,  applies  to  the  U.  S.  circuit 
courts  of  appeals  and  was  not  re- 
pealed hy  the  .\cl  of  Congress  of 
Fehruary,  1S75.  taking  from  the  su- 
preme court  the  review  of  findings 
of  facts  in  admiralty  appeals  from 
circuit  courts  but  was  left  in  force, 
with  the  e-xception  of  such  appeals; 
and  in  an  admiralty  suit  appealed  to 
the  United  States  circuit  court 
of  appeals  from  a  district  court, 
leave  will  he  granted  to  take  and 
file  further  proof  in  a  proper  case. 

New  Evidence  in  Collision  Cases. 
In     a     collision    ca^e.     involving    the 


conduct  of  a  French  vessel,  the 
records  of  the  French  consulate  were 
admissible  as  new  evidence  upon 
appeal  so  far  as  containing  state- 
ments made  by  the  master  in  the 
course  of  e.xamination  before  the  con- 
sul, a  copy  of  which  has  been  served 
on  the  opposite  party  as  the  master's 
protest ;  but  in  so  far  as  containing 
statements  of  the  crew,  it  was  only 
admissible  in  contradiction  of  tes- 
timonv  given  by  them  at  the  trial, 
to  which  their  attention  was  called 
upon  cross-examination.  The  Lis- 
bonense.  53  Fed.  2g^. 

80.  Evidence  Received  Without 
Objection.  —  It  is  not  a  matter  of 
course  to  allow  evidence  to  be  in- 
troduced upon  appeal  which  was 
available  in  the  district  court,  but 
such  evidence  will  be  received  with- 
out excusing  its  non-production  be- 
low, where  neither  side  has  objected, 
and  wdiere  it  has  been  the  practice 
to  take  it  in  such  case  without  such 
excuse ;  and,  where,  in  view  of  such 
practice,  no  objection  was  interposed 
by  the  appellee  to  the  taking  of  new 
proof,  until  such  taking  was  com- 
pleted, a  motion  thereafter  made  to 
suppress  the  deposition,  will  be 
denied.  Singlehurst  7'.  La  Com- 
pagnie  Generale  Transatlantique,  50 
Fed.   104. 

81.  The  Philadelphian.  60  Fed. 
423.  9  C.    C.   A.   54. 

82.  Illness  of  Claimant Where 

a  claimant  in  an  admiralty  case 
failed  to  appear  and  bring  his  wit- 
ness because  of  illness,  and  his  de- 
fense was  therefore  not  developed, 
the  circuit  court  of  appeals  will  al- 
low his  testimony  to  be  taken  under 
a  ccni'iiission.  The  Glide,  68  Fed. 
7ig;  The  Venezuela,  ^2  Fed.  873,  ■; 
C.  C.  A.  159. 

Vol.  I 


344 


ADMIRALTY. 


b.  When  Not  Allowed.  —  Additional  evidence  of  a  witness  exam- 
ined below  caimot  be  proiluced  in  the  circuit  court  of  appeals  ;'*'' 
and  the  court  will  strike  from  the  files,  depositions  taken  on  appeal 
by  a  party  who  might  easily  have  produced  them  in  the  trial  court, 
and  who  was  then  well  informed  as  to  the  importance  of  the  evi- 
dence.** Where  the  court  is  unable  to  reach  a  satisfactory  conclu- 
sion from  the  evidence,  the  case  may  be  remanded  to  the  district 
court  for  further  proofs. *° 

c.  Mode  of  Taking  Evidence. — Under  rules  conforming  the 
])ractice  to  that  of  the  supreme  court,  a  deposition  de  bene  esse 
cannot  be  taken  as  new  evidence  in  the  circuit  court  of  appeals, 
and  new  evidence  therein  can  only  be  taken  by  commission  issued 
by  order  of  the  court  according  to  rule  12  of  the  supreme  court.*" 

E.  Dr.cisiON  OF  Lower  Coi'RT.  —  The  circuit  court  of  appeals 
has  power  to  re-examine  the  decision  of  the  lower  court  upon  the 
facts,''  and  will  reverse  a  decision  which  is  against  the  preponder- 
ance of  the  evidence.*'     But  the  findings  of  fact  made  bv  the  lower 


83.  Additional    Testimony    of   Li- 

bellant A   deposition  of  the  libel- 

lant  taken  subsequent  to  the  appeal 
will  be  suppressed,  where  he  testi- 
fied concerning  the  matter  referred 
to  therein  on  the  trial  in  the  court 
hclow,  and  no  grounds  are  shown 
for  introducing  additional  proof.  The 
Sirius,  54  Fed.  ]88.  Additional  tes- 
timony of  a  witness  examined  below 
cannot  be  produced  on  an  appeal  in 
admiralty.     The   Venezuela,   s'2  Fed. 

87.r 

84.  Non-Prevention    of   Evidence. 

Where  the  party  who  tnnk  such 
depositions  upon  appeal  was  not  pre- 
vented from  presenting  it  on  the  triar 
below,  except  from  his  own  choice, 
was  informed  as  to  its  materiality, 
and  was  expressl}'  notified,  by  a 
motion  to  dismiss,  that  the  other 
party  contended  that  his  proof  in 
respect  to  the  matter  as  to  which 
such  testimony  was  introduced  was 
insufficient,  the  deposition*;  were 
properly  stricken  from  the  file  upon 
motion.     The   T.urline,    57   Fed.   .^S. 

85.  The  Carlionero.  106  Fed.  329 ; 
Smith  7'.  Elmer  F..  Wood  Transp. 
Co..    10.^   Fed.   685. 

86.  Showing  Required.  —  The 
cnnunissisn  under  rule  T2  of  the 
supreme  cwirl  should  not  issue,  as 
a  luatter  of  course  but  only  when  it 
appears  th;il  the  testimony  is  ma- 
terial, and  nil  commission  will  issue 
but    upon    interrogatories   and   notice 

Vol.  I 


to  the  opposite  party.  The  Beeche 
Dene,  55  Fed.  525;  The  Glide,  68 
Fed.  7ig. 

87,  Cleveland  v.  Chisholm.  ()0 
Fed.  4.31 ;  The  Anaces.  106  Fed. 
742:  The  Natchez,  73  Fed.  267,  ig 
C.  C.  A.  SCO, 

Finding  of  Fact  Not  Conclusive. 
The  circuit  court  of  appeals  is  not 
bound  by  a  finding  of  fact  made  by 
the  court  below  in  an  adrriiralty  case, 
but  it  is  its  duty,  under  the  statute 
giving  the  right  of  appeal,  to  deter- 
mine such  question  in  accordance 
with  the  convictions  formed  from 
the  record  by  the  judges  sitting  on 
the  appeal.    The  Columbian,  100  Fed 

QQI. 

88.  The  Columbian,  100  Feil.  90T, 
41   C.   C.   A.    150. 

Findings  Against  Probabilities  of 

the    Case The    general    rule    that 

findings  of  fact  of  the  district  judge 
in  admiralty  on  conflicting  oral  evi- 
dence given  in  his  presence  will  not 
be  disturbed  on  appeal,  is  not  without 
exception  ;  and  when  he  has  rejected 
the  positive  testimony  of  witnesses 
who  were  in  the  best  position  to 
know  exactly  what  the  truth  was  as 
to  a  disputed  fact,  and  has  accepted 
the  testimony  of  others  whose  oppor- 
tunity to  know  the  truth  was  mani- 
festly not  as  good  upon  the  express 
ground  that  the  testinionv  reiected 
does  not  harmonize  with  some  theory 
as   to  the   movements   of   (he   vessel, 


ADMIRALTY. 


345 


court  will  be  presiimeil  correct,*'  and  the  decision  of  the  trial  court 
upon  conflicting-  evidence  will  be  treated  with  great  respect,""  and 
will  not  be  disturbed  unless  the  court  can  clearly  see  that  the  decis- 
ion was  against  the  weight  of  the  evidence."'  The  general  rule 
that  the  decision  of  the  trial  court  upon  disputed  questions  of  fact, 
where  the  witnesses  were  before  it,  will  be  accepted."-  does  not 
apply  fully  where  the  testimony  was  taken  before  an  examiner."' 

F.  RitiiEAKiNC.  —  A  rehearing  will  not  be  granted  by  the  circuit 
court  of  appeals  upon  newly  discovered  evidence,  in  the  absence 
of  any  showing  of  sufficient  reason  why  the  facts  were  not  ascer- 
tained and  proved  while  the  case  was  regularly  open."* 

3.  In  Supreme  Court.  —  A.  Act  of  1875.  —  Since  the  Act  of  1875 
the  facts  found  in  the  district  and  circuit  courts  are  conclusive 
upon  appeal  to  the  sufireme  court,  and  only  questions  of  law  can 
be  considered. "'^     This  act  applies  to  appeals  to  the  supreme  court 


or  with  the  inherent  probahihties  of 
the  case,  the  appellate  court  may 
review  the  testimony  unembarrassed 
by  tlie  finding  of  such  fact,  since  the 
personal  equation  of  the  witnesses 
does  not  assist  in  determining  the 
probahihties  of  the  case.  The  Al- 
ixiny,   81    Fed.   966. 

Additional  Testimony.  —  The  de- 
cision will  be  reversed  where  addi- 
tional testimony  upon  appeal  changes 
the  weight  of  the  evidence.  The 
Colorado,   59   Fed.   300. 

89.  The'  Coquitlam.  77  Fed.  744, 
23  C.  C.  A.  438:  The  Anaces,  106 
Fed.  742,  45  C.  C.  A.  596. 

90.  The  Anaces.  106  Fed.  742,  4=; 
C.  C.  A.  596. 

91.  The  Phoenix.  58  Fed.  027.  7 
C.  C.  A.  S72;  The  Aliiandro,  s6  Fed. 
621.  6  C.  C.  A.  54;  The  Wilhelm.  59 
Fed.  169.  8  C.  C.  A.  72;  .A.ktieselska- 
bet  Banan  7'.  Hoadley,  60  Fed.  447, 
9  C.  C.  A.  61  ;  The  Joseph  Sticknev, 
56  Fed.  156,  5  C.  C.  A.  4^7;  The 
Mary  Lenahan,  63  Fed.  88v.  The 
Mont  Clair,  67  Fed.  156;  The  P.  T. 
Nevius,  67  Fed.  is8,  14  C.  C.  A. 
355;  The  Fair  Wind,  64  Fed.  806,  12 
C.  C.  A.  611;  The  Empire,  6q  Fed. 
lOi,  16  C.  C.  A.  161;  The  Robert 
Graham  Dun,  70  Fed.  270,  17  C.  C. 
A.  90;  The  Relle  of  the  Coast,  6g 
Fed.  112,  15-  C.  C.  A.  699:  The  City 
of  Naples,  6g  Fed.  794,  16  C.  C.  A. 
421  ;  Brown  7'.  Prince  Steam  Ship- 
ping Co.,  79  Fed.  990,  24  C.  C.  A. 
678;  The  Mayflower,  80  Fed  943; 
The  E.  Lukenhack.  93  Fed.  84T.  35 
C.  C.  A.  628;  Cleveland  r.  ChishohV. 


90  Fed.  431,  33  C.  C.  A.  157;  Elphick 
V.  White  Line  Towing  Co.,  106  Fed. 
945,  46  C.  C.  A.  56:  The  Newport 
News,  105  Fed.  .389,  44  C.  C.  A.  541 ; 
Whitney  v.  Olson,  108  Fed.  292,  47 
C.  C.  A.  31- 

Decree  Dismissing  Libel A  de- 
cree dismissing  a  libel  for  collision 
will  be  affirmed  where  the  libellants 
did  not  establish  their  case  by  a 
preponderance  of  evidence  though 
the  judge  rejected  the  theories  of 
both  parties  and  the  court  of  appeals 
does  not  fully  concur  in  its  con- 
clusions. The  Joseph  Stickney,  56 
Fed.   156. 

92.  The  Wilhelm,  59  Fed.  169.  8 
C.  C.  A.  72 ;  La  Normandie,  58  Fed. 
427,  7  C.  C.  A.  285 :  The  Warrior,  54 
Fed.  534,  4  C.  C.  A.  498 ;  The  Charles 
Hebard,  56  Fed.  3i.S-  .S  C.  C.  A. 
■;i6:  The  Royal,  54  Fed.  204,  4  C. 
C.  A.  285;  The  Jersey  City,  51  Fed. 
527.  2  C.  C.  A.  .365:  The  Express, 
52  Fed.  890.  3  C.  C.  A.  .•^42:  The 
Nannie  Lambcrton,  8s  Fed.  983,  29 
C.  C.  A.  519;  Cleveland  v.  Chis- 
holm,  90  Fed.  431,  3  C.  C.  .A..  157: 
Whitney  v.  Olson,  to8  Fed.  292,  47 
C.  C.  A.  31:  The  Anaces,  T06  Fed. 
742.  /";  C.  C.  A.  596. 

93.  The  Joseph  R.  Thomas.  86 
Fed.   658.   ,30  C.    C.    A.   3.rT 

94.  Wineman  7'.  The  Iron  Chief. 
61  Fed.  289.  II  C.  C.  A.  196. 

95.  The  Citv  of  New  York.  147 
U.  S.  72;  The  Abbotsford.  98  U.  S. 
440:  The  Clara.  102  U.  S.  200:  The 
I'.enefactor.  I02  LT.  S.  214:  The  Annie 
Lindslcy,    104  U.    S.    185:   Collins  v. 

Vol.  I 


^^4(. 


ADMIRALTY. 


from  the  district  court  of  Alaska  sitting  in  admiralty.''" 

B.  Prior  Decisions.  —  a.  Trial  dc  Novo.  ■ —  An  admiralty  cause 
in  the  supreme  court  was  heard  dc  novo,  as  if  no  sentence  of  con- 
demnation had  been  pronounced  in  the  circuit  court."' 

b.  Ncxi'  Evidence.  —  Prior  to  the  Act  of  1875  the  supreme  court 
would  hear  new  evidence  upon  appeal  in  admiralty  cases,  and 
award  commissions  to  take  such  evidence,"*  but  would  not  allow 
further  evidence  without  a  showing  of  satisfactory  excuse  for  not 
examining  the  witnesses  in  the  court  below.""  Prize  causes  were 
heard  in  the  supreme  court  in  the  first  instance  on  the  evidence 
transmitted    from    the    circuit    court,    upon    which    it    determined 


Riley,  104  U.  S.  322;  Sun  Mul.  Ins. 
Co.  V.  Ocean  Ins.  Co.,  107  U.  S. 
485;  Watts  V.  Camors,  115  U.  S. 
353;  The  Maggie  J.  Smith,  123  U.  S 
349;  The  Gazelle,  128  U.  S.  .4.74;  T,ie 
Francis  Wright,  105  U.  S.  381  ;  Mer- 
chants' Milt.  Ins.  Co.  I'.  Allen,  121 
U.  S.  67 ;  The  John  H.  Pearson,  121 
U.  S.  469;  The  E.  A.  Packer,  140 
U.  S.  360;  The  Conqneror,  166  U.  S. 
no,  17  Sup.  Ct.  510;  Campaina  de 
Navigacion  la  Floecha  v.  Brauer,  168 
U.  S.  104,  18  Sup.  Ct.  12;  Wupper- 
nian  v.  The  Carili  Prince,  170  U.  S. 
655,  18  Sup.  Ct.  753- 

96.  //(  re  Cooper,  143  U.  S.  472. 

97.  Hearing  De  Nove.  —  Sus- 
t'ciision  of  Sentence. — Chief  Justice 
Marshall  said:  "The  majority  of 
the  court  is  clearly  of  the  opin- 
ion, that  in  admiralty  cases  an 
appeal  suspends  the  sentence  al- 
together; and  that  it  is  not  res 
adjudicata  until  the  final  sentence  of 
the  appellate  court  be  pronoimced. 
The  cause  in  the  appellate  court  is 
to  be  heard  de  nove.  as  if  no  sen- 
tence had  been  passed.  This  has 
been  the  uniform  practice  not  only 
in  cases  of  appeal  from  the  district 
to  the  circuit  courts  of  the  United 
States,  but  in  this  court  also.  In 
prize  causes  the  principle  has  never 
been  disputed :  and  in  the  instance 
court,  it  is  stated  in  2  Browne's 
Civil  Law,  that  in  cases  of  appeal 
it  is  lawful  to  allege  what  has  not 
before  been  proved.  The  court  is, 
therefore,  of  the  opinion  that  this 
cause  is  to  be  considered  as  if  no 
sentence  had  been  pronoimced." 
Veaton  v.  V.  S..  =;  Cr.Mu-h  281. 

98.  Waiver  of  Objection   to   Rec- 


ord of  Order Where  a  commission 

10  take  new  evidence  was  issued  in 
the  usual  form,  and  both  parties 
joined  in  taking  the  evidence,  neither 
can  object  to  the  evidence,  because 
the  record  does  not  show  that  the 
court  ordered  the  commission  to  is- 
sue. Rich  V.  Lambert,  12  How.  347 ; 
The  James  Wells  v.  U.  S.,  7  Cranch 
22 ;  The  Clarissa  Claiborne  i'.  U.  S., 
7  Cranch  107 ;  The  Western  Metrop- 
olis, 12  Wall.  389;  The  Argo,  2 
Wheat.  287;  The  London  Packet,  2 
Wheat.  371  ;  The  Samuel,  3  Wheat. 
77;  Yeaton  v.  IT.  S.,  5  Cranch  281. 

99.  Amendments  of  Pleadings. 
No  substantial  amendments  to  sup- 
port further  proofs  would  be  al- 
lowed in  the  supreme  court,  but  if 
the  pleadings  or  evidence  were  de- 
fective and  the  case  appeared  to 
hn>-e  merits,  the  court  would  reverse 
the  decree  and  remand  the  case 
with  directions  to  permit  amend- 
ments and  further  proof.  The 
Mabcy,  10  Wall.  419;  The  Caroline, 
7  Cranch  496;  The  Mary  .\nn.  8 
Wheat.  ,380. 

Insufficient  Excuse The   excuse 

that  the  party  agreed  that  he  would 
not  introduce  any  testimony  in  the 
c<  urt  below,  and  therefore  did  not, 
is  sufficient  to  justify  a  commission 
to  take  testimony  in  the  supreme 
court,  which  is  never  allowed  as 
of  course.  The  Mabev,  1 1  Wall. 
73?- 

Excuse  Necessary No  order  for 

commission  can  be  granted  upon 
application  unless  a  sufficient  excuse 
was  shown  for  not  taking  the  evi- 
dence the  usual  way  before  the  courts 
below.     The  Juanita,  gi  U.  S.  366. 


Vol.  I 


ADMIRALTY. 


347 


whether  further  proof  should  be  allowed/  and  would  order  furtlier 
proof  where  necessary  to  decide  upon  the  validity  of  a  capture,^ 
but  would  not  allow  further  proof  where  the  concealment  of  mate- 
rial papers  appeared.' 

c.  Dcf^ositioiis  Taken  in  Circuit  Court.  —  Depositions  taken 
under  contmission  from  the  circuit  court  in  admiralt}',  pending'  an 
appeal  to  the  supreme  court,  were  not  admitted  as  part  of  the 
record  upon  appeal  to  the  supreme  court  where  no  sufficient  excuse 
was  shown  for  not  taking  them  in  the  usual  way  in  the  courts 
below,  and  no  further  proof  had  been  ordered  in  the  supreme 
court.'' 

4.  In  Other  Courts. — A.  Appe.xl  Fkom  Tkkuitori.vl  Court. 
An  appeal  from  a  territorial  court  sitting  in  admiralty  is  regulated 
by  the  rules  of  admiralty,  and  not  by  the  territorial  statutes.-' 

I).  New  EviDEN'Civ.  —  New  evidence  was  not  received  upon  an 
appeal  in  admiralty  in  Oregon  f  but  in  Washington  Territory,  new 
evidence  was  allowed  to  be  introduced  upon  an  appeal  in  admi- 
ralty from  the  territorial  district  court  to  the  territorial  supreme 
court.' 


1.  The  London   Packet,  2  Wheat. 

2.  The  Grotiiis,  8  Cranch  4i6 ;  The 
Sir  Williarn  Peel,  5  Wall.  517;  The 
Venu.s,  I  Wheat.  112;  The  Friend- 
schaft,  3  Wheat.  14;  The  Fortiuia, 
2   Wheat.    161. 

3.  The  Fortnna.  3   Wheat.   236. 

4.  Similar  Showing  Required  As 
TTpon  Application  in  Supreme  Court. 
The  supreiTie  court  cannot  admit 
depositions  taken  under  a  comrnission 
issued  from  the  circuit  court  except 
upon  a  similar  showing  of  suffi- 
cient   excuse    to    that    which    is    re- 


quired upon  an  application  for  a 
commission  to  take  testimony  in  the 
supreme  court.  Leave  was  granted 
in  this  case  to  renew  a  motion  to 
make  the  depositions  taken  in  the 
circuit  court  pending  the  appeal  a 
part  of  the  record  in  case  the  defect 
of  a  want  of  a  sufficient  excuse  could 
he  supplied.  The  Juanita,  91  U.  S. 
366. 

Braithwaite  v.  Jordan,  5  N.  D. 


S. 

196. 
6. 
7. 


Cutler  V.  Columbus,   i  Or.   loi. 
Phelps  V.  The  City  of  Panama, 


I   Wash.  Ty.  615. 


ADMISSIBILITY.— See  Competency;  Relevency. 


Vol.   I 


ADMISSIONS. 

By  John   1).  Works. 

I.  DEFINITION  AND  NATURE  OF,  ^^=,y 
II.  DIFFERENT  KINDS,  339 

1.  Direct  or  Express,  360 

2.  Incidental,  360 

3.  By  Implication,  361 

A.  Generally,  361 

B.  Fra;«  Assumed  Cliaracler,  3()i 

C.  From  Conduct,  362 

D.  From  Silence  and  Acquiescence,  3O7 

4.  Self-Serving  Statements,  383 

5.  Partial  and  Plenary,  390 

6.  Documentary,  390 

7.  Oto/  Statements,  396 

8.  Judicial,  397 

A.  Defined,  397 

B.  Made  in  Pleadiui^s,  398 

a.  Express  Admissions.  398 

b.  Bv  Failure  to  Deny  Allegations  in  Pleadings  in  Ac- 

tion on  Trial,  401 

c.  /;!  Ot/icr  Actions  Betii.'een  Same  Parties.  424 

d.  /«  Other  Actions  Where  Parties  Sot  the  Same.  425 

e.  By  Demurrer,  436 

f.  Pleading  Not  Filed.  437 

fj.  Pleading  Superseded  by  Amended  Pleading.  437 

li.  Pleadings  .Stricken  Out,  441 
!.   IFithdraZi'n  or  Abandoned  Pleadings.  442 
j.  Averments  on  Information  and  Belief.  442 

k.  Common  Laiv  Pleadings.  443 
C  Pleadings  in  Suits  in  Equity,  443 

a.  Geuerallx,  443 

b.  The  Bill'.  443 

(i.)   Signed  by  Attorney  Xol  Ei'ideuce  of  .Id- 
mission,  443 
(2.)    Otiierivise  if  Signed  or  I'erified  by  Party, 

444 
(3.)    irhere    Mailer    Ihrected    by    Jliin     lo    Be 

Inserted,  444 
(4.)   Antliorities  Holding  il  Competent,  444 

c.  Ans7ver,  445 

(I.)   Generally.  445 

(2.)    Is  CompelenI  livideuce  Against  the  Pefend- 
anl.  445 

Vol.  I 


AD.]J!SSI()i\'S.  349 

(3.)   And  .igaiiisl  His  Successors,  446 
(4.)  Bill  Need  Not  Be  Offered  —  Exception,  446 
(5.)   Evidence  of  l-'erbal  Admissions,  When  Suf- 
ficient to  Overcome,  446 
(6.)   Must  Be  Taken  As  a  Whole,  447 
(7.)    Conclusive  on  the  Defendant.  44S 
(8.)   Need  Not  Be  S-a'orn  to  To  Render  Compe- 
tent Ai;ainst  Pleader.  449 
(9.)    0)1  Information  and  Belief,  449 
(10.)    ll'ithdraicn  or  Otherzcise  Superseded  Com- 
petent as  Adnrission.  449 
(11.)   Not   Tiled    Competent    Ai::;ainst   Defendant, 

449 
(12.)   May  Amount  to  Declaration  of  Trust,  449 
(13.)   Not    Competent    Against    Co-Defendant  — 

Exceptions,  450 
(14.)   Not  Competent  in  Another  Action  .igainst 

Keprescntati'-re,  451 
(15.)   Tailure  of  One  Defendant  to  Anszirr  Not 

Competent  Against  Anotlicr,  451 
(16.)   Admissions  in  the  Ansiver,  452 
(17.)    Where    the    .Insiver   Neither   Admits    Nor 

Denies,  454 
(18.)   Alleging  Want  of  Knozi'ledgc,  456 
(19.)  Need  Not  Be  Specific,  456 
(20.)   Matters  Cliarged  to  Be  Within  Defendant's 

Knoivledge,  456 
(21.)  By  failure  to  Anszver,  459 

(A.)  53'  Failure  to  File  Replication,  459 
(B.)    The  Filing  of  Necessary  Pleading  May 

Be  I'l'aiz'ed,  460 
(C.)   Refusal  to  Anszi'cr,  460 
(D.)   Adiuissions  Against  Infants,  460 
(22.)    Guardian  Ad  Litem  Cannot  Bind  By,  460 

D.  In  Divorce  Cases,  461 

a.  Case  Not  Made  Out  by  Admissions  in  Pleadings. 

461 

b.  Verbal  Admissions  or  Confessions  Insufficient.  462 

(I.)   Held  Not  to  Be  Competent  Evidence,  462 
(2.)    Otiier  Cases  Hold  Them  Competent.  462 
(3.)   -Ind  Others  That  Diz'orce  May  Be  Granted 
on  Alone,  463 

c.  Cannot  Be  Granted  on  Stipulation,  463 

d.  Necessary   Allegations   Not    Ground   for   Divorce. 

Effect  of  Admissions,  463 

E.  In  Open  Court,  463 

a.  Generally,  463 

b.  When  L<;sues  Are  Changed,  464 

c.  For  the  Purpose  of  the  Trial.  4^4 

Vol.  I 


350  ADMISSIONS. 

d.  When  Xut  Umitcd,  465 

e.  By  an  Attorney  Mnst  Be  Distinet  and  Fonnul.  466 

f.  Admissions  in  O/^ening  Statement  Not  Binding,  469 

g.  Ho7c  Must  Be  Made.  470 

F.  By  Stipulation.  470 

a.  Generally.  470 

b.  Made  for  Purposes  of  tlie  Trial.  471 

c.  Made  Wit/tout  Limitation.  471 

(1.  H01V  Mnst  Be  Made  or  Proved.  472 
e.  Change  of  Issues  Immaterial.  472 

G.  Agreed  Case,  472 

a.  Generally,  472 

b.  Is  Conelusizr,  472 

c.  Made    for    Purposes   of    Case    Not    Competent    in 

Another  Case.  472 
H.  Agreed  Statement,  473 
I.  Bdls  of  Exeeptions,  475 
J.  Petitions  and  Affidavits.  47() 

a.  Generally.  476 

b.  Affidati't    of    Third    Party    Proeured    h\   Party    to 

Suit,  478 

c.  Made  by  an  Agent,  479 

(1.  Made  by  One  Not  Having  Authority,  479 

e.  Not  Admissible  As  Seeondary  Evidence,  When,  479 
f.  Must  Be  Offered  in  Evidence,  479 

g.  Whole  Must  Be  Read,  480 
K.  To  Az'oid  Continuance,  That  Absent  Witness  Will  Tes- 
tify to  Certain  Facts,  480 
L.  In  Testimony  Giz'cn  As  a  Witness.  481 

a.  Generally.  481 

b.  Offer  of  Letter  Admission  of  Its  Correctness,  482 

c.  To  Prove  Omission  to  Make  Claim,  483 

(1.   That  Party  IVas  Compelled  tn  Testify  Immaterial. 

483 
c.  Hoiv  Proved.  484 

f.  Ei'idencc  Improperly  Taken  i'onipelent.  485 

g.  Party  Need  Not  Be  Called  to  Testify.  485 

li.   Testimony  of  Third  Party  Not  Competent.  485 
i.  Exceptions,  486 
j.  For  Purpose  of  Impeacliment,  486 
k.   Testimony  on   Trial  Not  an  .  Idmissiou.  4S6 
^[.   /)(  Depositions,  487 
a.  Generally.  487 

1).   When  Deposition  Incompetent  As  Such,  488 
c.   Where  Party  in  Court,  488 
(1.  Not  Conclusive,  489 

e.  JVhole  Must  Be  Read,  489 

f.  Exceptions  to  the  Rule,  489 

g.  Party  Need  Not  Be  Called.  489 

Vol.  I 


.  IPMISSIONS.  .v=^l 

N.  Aiisiccrs  to  Iiitcrrugalorics,  489 

O.  Bills  of  Particulars,  4()o 

P.  By  Default.  490 

Q.  Offer  to  Confess  Jinli^iiicnt  or  Siitfcr  Default,  5(X) 

R.  Confession  of  Judgment,  501 

S.  Paxnient  of  Money  Dito  Court.  302 

III.  TO  WHOM  MAY  BE  MADE,  503 

1.  Generally.  503 

2.  Po  Adverse  Party  or  His  Agent.  503 

3.  Po  Attorney  or  Agent,  503 

4.  Po  Third  Party,  503 

IV.  BY  WHOM  MAY  BE  MADE,  504 

1.  Parties  to  the  Record.  504 

A.  Generally,  504 

a.  By  One  of  'Ai'o  or  More,  507 

b.  Other  Declarations   to   B-vf^laiu    Piadniissible,   507 

B.  Proper  Parties,   508 

C.  Of  Nominal  Parties,  508 

a.  Generallv  Incompetent.   508 

b.  Of  Record  Held  Competent.  509 

2.  Of  Persons  Interested  in   Result,  but  Not  Parties  Compe- 

tent, 510 

3.  B\  Party  in  Possession  Affecting  Title.  510 

A.  Generally,  510 

B.  Grantors,  Former  OzK^icrs.  and  Priiics.  510 

a.  Of  Grantor  Admissible  Against  Hint  and  Claimants 

Under  Hint,  510 

b.  Aitd  Agaiitst  Straitgers,  513 

c.  Agaiitst  Whom  Not  Adntissible,  313 

(I.)   Prior  Grantees.  313 

(2.)    Or  Subsequent  Grantee  if  Made  .Ifter  the 

Grant,  514 
(3.)    By   Testator  After  Exectition   of  Jl'ill,   316 
(4.)    Of  Ancestor  as  Between  His  Heirs.  317 
(5.)   By  Tenant  in  Possession.  317 
(1.   To  Shoiv  Character  of  Possession.  317 

e.  Not  Cotitpetent  to  Disproz'c  Record  Title.  318 

f.  To  Establish  Fraud  itt  Coitveyaitce.  320 
.e:.  .l/)(.\-/  Be  Made  When  in  Possession.  322 

(I.)    Ofherz^'ise   As   .tgaiitst   Heirs   or  Devisees. 

523 
h.  Must  Be  Against  Interest,  524 
i.   Of  Fidticiary  in  Possessioit,  324 
j.  lit  One's  Oiini  Interest  Wlien  Admissible,  324 
k.   /;■/)//('  in  Possession  of  Personal  Property,  323 
(i.)   Generally,  523 
(2.)   As  Against  the  Vendee.  326 
(3.)   Bv  Donor  Agaiitst  Donee.  328 
(4.)    To  Shozv  Fraud  in  the  Transfer.  528 

Vol.  I 


332  .IDMISSIOMS'. 

C.  Assignors  and  .Issignccs,  ^t,2 

a.  Of  Assignor  Before  Assignment  Admissible,  53^ 

(i.)   Execption  —  Negotiable  Paper,  '^2,2 

b.  To  Shozv  Fraud  in  the  Transfer,  k,t,^ 

c.  By  Assignor  After  Assignment  Iuad]nissible,  535 
(1.  By  Assignor  in  Bankniptey,  537 

4.  Bv  Agents  or  Other  Representati'^rs,  538 

A.  Generally,  538 

B.  Agents  and  Employees,  539 

'   a.  Must  Be  While  Acting  As  Such  and  Within  Au- 
thority, 540 

b.  JVhat  Is  Part  of  Res  Gestae,  541 

c.  Agency  and  Authority  Must  Be  Proved,  544 

(i.)   Cannot  Be  Proved  by  Admissions  of  Agent. 

546 
(2.)   Proof  of  Agency  for  the  Court,  547 
(3.)   Degree  of  Proof  Required,  54S 

d.  Proof  of  Ratification  Sufficient,  548 

C.  General  Agents,  548 

D.  Special  Agents,  549 

E.  Public  Officers  or  Agents,  S4') 

a.  Generally,  549 

b.  Admissible  Only   While   Within   Authority,  550 

c.  Must  Be  About' the  Act  Done,  550 

d.  Of  Deputy  Against  His  Principal,  551 

e.  By  Party  to  Action  Against  Sheriff,  551 

F.  Officers  and  Employees  of  Prii'afe  Corporations,  351 

a.  Generally,  551 

b.  Narrations  of  Past  Transactions  I)iadmissibU\  352 

c.  Reports  Made  by  Superior  Otficers,  536 

d.  Must  Be  Acting  As  Agent,  536 

G.  Attorneys  at  Laiv,  557 

a.  Are  Agents  of  Clients,  337 

b.  Admissions  Competent   Only   When    Within   Then- 

Authority,  339 

c.  Not  Competent  to  Prove  That  He  Was  Attorney, 

560 

d.  By  General  Attorney,  360 

c.  Oral  Admissions  Out  of  Court.  560 

f.  Made  in  One  Ca^^e  Inadmissible  in  Another — Ex- 

ception, 560 

g.  Must  Be  Distinct  and  formal,  3(11 
h.  Generally  Not  Conclusive,  $(n 

i.  ]\Iade  to  Attorney,  561 
H.  Persons  Referred  to  for  Information,  361 

a.  Generally,  561 

b.  Must  Be  Such  Reference  As  to  Make  Referee  an 

Agent,  362 

c.  Must  Be  JVithi)!  Autliority  Given,  562 
I.  Husband  and  Wife,  362 

Vol.  I 


.■1D}[ISSfONS.  353 

a.  Generally,  562 

b.  Must  Be  Othcncisc  Competent,  5G3 

c.  Does  Competeney  as  IVifiiess  Affect  the  Oitestioii, 

564 

d.  As  Agents  for  Each  Other,  565 

(I.)   Must  Be  Within  Scope  of  Authority.  565 

e.  Confidential  Communications  Inadmissible.  566 
J.   Trustees  and  Beneficiaries,  566 

a.  Of  Trustee  U'lieu  Admi.'\sihle  Against  Cestui  One 

Trust,  566 

b.  Of  Trustee  Without  Beneficial  Interest,  566 

c.  Miist  Be  Part  of  Res  Gestae.  567 

d.  As  to  Past  Transactions  Inadmissible.  567 

e.  When  Party  to  Record.  567 

f.  By  Party  Creating  Trust.  568 
(t.)    'To  Establish  Trust.  568 
g.  By  Cestui  Que  Trust.  568 
K.  Guardians,  5O8 

a.  Against  Themselves.  568 

b.  Against  the  Ward  Not  Admissible.  5O8 

(i.)   Exception — Res  Gestae,  561; 

c.  When  Party  to  the  Record,  569 

d.  Affecting  fl'ard's  Title  to  Land  Iiunlinissible,  569 
L.  Guardians  Ad  Litem,  569 

M.  Personal  Representatiirs,  569 

a.  Of  Executors   and   Administrators,    When   Admis- 

sible, 569 

b.  Must    Be   Made    When    transacting    Business   of 

Estate,  570 

c.  Respecting  Claims  Against  Estates,  570 

d.  Aff'ecting  Title  to  Land,  570 

e.  By  One  of  Several  Admissible,  570 

(i. )    Of  Executor  Against  Co-Executor  Held  In- 
admissible, 571 
(2.)    Must    Be   About    Their   Joint    Interest    and 
Within  Authority,  571 
f.  By  Former  Administrator,  571 

g.  As  Against  Heirs  and  De^'isees  Inadmissible,  571 
b.  By  Testator  or  Intestate,  571 
N.  Insured  and  Beneficiary.  572 

a.  Of  Insured  Against  Beneficiary.  572 

b.  Exception — Jl'herc    Insured    May    Charge    Bene- 

ficiary, 573 

c.  Made  Before  Insurance  is  .Iffccted.  373 

d.  By  Beneficiary,  373 
5.  By  Strangers,  573 

A.  Generallv  Inadmissible.  373 
U.  Exception  to  Rule.  574 

a.  Deceased  Persons,  374 

b.  One  Wlw  Can  Not  Be  Compelled  to  Testify,  374 

Vol.  1 


354  ADMLSSIOXS. 

c.  Interest  Must  Be  Pecuniary,  574 

6.  Persons  Jointly  Interested,  574 

A.  Generally,  574 

B.  By  One  of  Sez'eral  Owners  Inadmissible,  576 

a.  By  Stockholders  of  a  Corporation,  577 

C.  To  Take  Debt  Out  of  Stati/te  of  Limitations,  577 

D.  Partners,  578 

a.  Admissible  Against  the  firm,  578 

(I.)   Mnst  Be  Acting  as  a  Partner,  579 
(2.)   By  Partner  Since  Deceased,  580 

h.  Made  After  Dissolution  Inadmissible,  580 
(I.)    Contrary  Rule  Declared,  581 

(A.)   Admissible  .-It^ainsi  the  Part\  Making 

If.  583 
(B.)   Must  Relate  to  Past  Business.  583 
(2.)    Where  Partner  Made  Agent   to   Close    Up 

Business,  583 
(T,.)    IVIiere  Has  Assigned  to  Co-Partner,  583 
{4.)   Not  to  Create  New  Obligation,  583 
c.  Partnership  Must  Be  Proied.  584 

(1.)    Cannot  Be  Proved   by  .  Idmissinns  of  One 
Alleged  Partner,  584 
(A.)   Admissible  ^■ii:;ainsf  Parl\  Making  It, 

(2.)    Question  of  Partnership  One  jor  the  Court, 
586 

E.  Principal  and  Surety,  586 

a.  Of  Principal  Against  Surety.  58() 

(I.)   Must  Be  Made  at  'Time  of  Transaction,  587 
(2.)   /;(  Case  of  Bond  of  Officer  After  Term  Ex- 
pires. 588 
(3.)    iriicn  Conclusiz'C.  589 
(  4. )    Confession  of  Judgment  by  Principal,  589 

b.  Of  Surety  Against  Principal.  589 

c.  Of  One  Surety  Against  Another.  589 

d.  Guarantor  and  Guarantee.  589 

F.  Co-Conspirators,  589 

a.  /;(  Furtherance  of  Conspiracv  .Idiiiissible,  589 
I1.  Conspiracy  Must  Be  Shozcn.  590 

(I.)    Cannot  Be  Proved  bv  Admissions  of  One 
Conspirator.  5(^2 

(2.)    Of  Each  .Idmissible  .Igainst  Him.  592 

(3.)    Order  of  Proof,  593 

c.  Question  of  Conspiracy  One  for  the  Court,  593 

d.  Made  Before  or  After  Conspiracy.  Inadmissible.  593 

e.  Must  Be  in  Purtlterance  of  Conspiracy,  594 

7.  Persons  Under  Disability  or  Restraint.  504 

A.  Generally,  594 

B.  Infants.  51:4 

a.  Generally.  3ij4 
Vol.  I 


.-IDMISSIONS.  355 

b.  /;;  .Ictioiis  for  Injuries  Ccmsiiig  His  Death.  594 

C.  Under  Guardianship,  595 

D.  Non  Compos,  595 

E.  Married  IV omen,  595 

a.  Generally,  595 

b.  For  What  Purposes  Inadmissible,  595 

F.  Under  Duress,  595 

a.   When  .himissihle.  395 

V.  WHAT  ADMISSIONS  NOT  RECEIVABLE,  396 

1.  Generally,  5i;6 

2.  Admissions  of  Law,  596 

3.  For  Sake  of  Compromise,  596 

A.  Generally,  596 

B.  7v';(/i'  Does  Not  ^-Ipply  to  Criminal  Cases,  598 

C.  Must  Be  Made  to  Purehase  Peace,  599 

D.  Question  for  the  Court,  599 

E.  Admission  of  Facts  Competent,  599 

4.  State  Secrets.  Coo 

5.  Jury  Secrets,  600 

6.  Privileged  Cominunications.  Coo 

7.  Parol  .Idmissions  in  Pais,  (>oo 

A.  Generally,  600 

B.  .■:/j-  Evidence  of  Contents  of  Written  Instruments,  600 

C.  To  Prove  Fact  of  Which  Instrument  Is  Evidence,  601 

D.  Distinction  Between  Admission  of  Law  and  of  Fact,  602 

E.  Cases  Holding  Such  Admissions  Competent,  602 

F.  As  a  Substitute  for  Written  Evidence,  603 

G.  Competent  to  Prove  Existence  and  Execution   of  In- 

strument, 603 
H.  As  Secondary  Evidence,  (3o3 
I.  To  Vary  Terms  of  Written  lustrunient.  603 

8.  Must  Be  Material  to  the  Issue,  603 

9.  Made  on  Previous  Trial  of  Same  Action.  604 

VI.  MODE  OF  MAKING  AS  AFFECTING  ADMISSIBILITY.  C04 

1.  Generally.  ("104 

2.  Through  an  Interpreter,  604 

A.  Designated  by  the  Party  Himself,  604 

B.  Appointed  by  the  Court,  604 

3.  Through  the  Telephone,  604 

A.  Speaking  Directly,  604 
11.   Tliroui:,h  an  Operator,  603 

VII.  HOW  PROVED,  fio5 

1.  Generally,  605 

A.  Exceptions,  605 

a.  Husband  or  Wife  Competent  to  Prove,  603 

b.  Persons  DisqualiHed  to  Testify.  605 

c.  When  Admission  is  Confidential,  606 

2.  Bv  Sleuograplier's  Notes.  606 

3.  Particularity  Required,  606 

Vol.  1 


356  ADMfSSIOXS. 

A.  Generally,  606 

B.  Party  M'aking  Must  Be  Identitied,  t;o6 

C.  Substance  May  Be  Given,  606 

4.  Explanation  by  Party  Making,  606 

A.  All  That  Was  Said  at  the  Time  May  Be  Proved,  606 

B.  Not  What  Was  Said  at  Another  Time,  608 

C.  Or  Occurring  at  the  Time  if  Not  Relevant,  609 

D.  Contained  in   H'ritten  Instnnnent  All  Must  Be  Read, 

609 

E.  Tn  Correspondence  Wliole  May  Be  Required,  610 

5.  By  Party  Foundation  For  Inipeachnient  Need  Not  Be  Laid, 

610 

6.  /;/  Pleading  Must  Be  Read  in  Fz-idence.  610 

VIII.  WEIGHT  TO  BE  GIVEN  TO  EVIDENCE  OF,  610 

I.  Generally,  610 

A.  Should  Be  Received  With  Caution,  611 

B.  Strong  Evidence  When  Satisfactorily  Pro-^-ed,  611 

C.  IVeiglit  To  Be  Determined  by  Jury,  612 

IX.  EFFECT  OF  WHEN  PROVED,  612 

1.  When  Conclusive,  f)i2 

A.  Generally  Not  Conclusive,  612 

a.  Mad'c  Under  Oath,  613 

B.  Exception  to  the  Rule.  613 

a.  Generally,  613 

b.  Judicial  Admissions,  613 

(I.)   .is  .S'ubstitute  for  Eiidence,  ()13 
(2.)   In  Pleadings,  613 

(A.)    But  Not  When  Offered  in  Another  Ac- 
tion, 614 
(3.)   Confession  of  Judgment,  614 
(4.)    To  Avoid  Continuance,  Effect  Of,  614 
(5.)   Made  by  Mistake,  614 
(6.)   Procured  by  Fraud,  614 

c.  When  Acted  Upon,  614 

C.  In  Deeds,  613 

D.  In  Other  Writings,  615 

E.  Containing  Hearsay.  (115 

F.  Parol  Admissions  in  Pais,  615 

2.  Effect  for  the  Jury.  ('115 

CROSS-REFERENCES. 

Adverse  Possession;  .Affidavits;  Answer;  .\ttorne\-  and  Client; 

Best  and  Secondary  Evidence; 

Confessions ; 

Declarations:  Deeds;  Depositions;  Docnnientary  I'.videncc  ;  Duress; 

Dying'  Declarations  ; 
Tnterjjreters ; 
T^irol    Evidence;     rartner^liip ;    1 'leadings ;    I'rincipal    ami    .Vgent ; 

Principal  and  Sin-ct\  ;  I'rixilegcd  Conininnications ; 
Res  Gestae. 
Vol.  I 


JDMISSIONS. 


357 


I.  DEFINITION  AND  NATURE  OF  ADMISSIONS. 

Definition.  — An  adniission,  competent  as  evidence  in  a  judicial 
action  or  proceeding,  is  a  voluntary  acknowledgment  in  express 
terms,  or  by  implication,  by  a  party  in  interest,  or  by  another  by 
whose  statement  he  is  legally  bound,  against  his  interest,  of  the 
existence  or  truth  of  a  fact  in  dispute  material  to  the  issue.' 

Distinguished  from  Confessions. — The  term  admission  is  distinguish- 
able from  that  of  confession.  The  former  is  applied  to  civil  trans- 
actions and  to  matters  of  fact  in  criminal  cases  not  involving 
criminal  intent,  the  latter  to  acknowledgments  of  guilt  in  criminal 
cases. - 

Must  Be  Voluntary.  —  '  )ne  of  the  elements  of  a  Ijinding  admission, 
as  above  defined,  is  that  it  must  be  voluntarily  made.  Therefore, 
if  it  is  made  under  duress,  or  coercion  of  any  kind,  as  where  one  is 
called  as  a  witness  and  required  to  testify,  there  is  a  material  dilTer- 
ence  between  civil  and  criminal  cases  in  respect  of  the  right  to  prove 
admissions  so  made.  In  the  former,  there  is  no  valid  reason  why 
the  statement  made  under  oath,  as  a  witness,  should  not  be  provable 
against  a  party,  the  same  as  if  made  voluntarily,  in  the  strict  sense. 
But  if  attempted  to  be  used  to  criminate  himself  in  a  criminal  case, 
the  rule  is  different.  Such  statements  cannot  be  used  to  incriminate 
the  party  making  them  on  the  same  principle  and  for  the  same 
reason  that  he  could  not  be  compelled  to  answer  a  question  on  the 
witness  stand  if  his  answer  would  tend  to  incriminate  him.-' 


1.  Definitions — Admissions  are 
"concessions  or  volnntary  acknowl- 
edgments, made  by  a  party  of  the 
existence  or  trnth  of  certain  facts." 
Bouvier's   Law  Die. 

"Recognition  as  fact  or  truth ; 
acknowledgment,  concession ;  also 
the  e.xpression  in  which  such  assent 
is  conveyed."     Anderson's  Law   Die. 

"In  the  law  of  pleading  and 
evidence  an  admission  is  an  ac- 
knowledgement that  an  allegation  is 
true."  Rapelje  &  Lawrence  Law 
Die. 

"\  statement,  oral  or  written,  sug- 
gesting any  inference  as  to  any  fact 
in  issue,  relevant,  or  deemed  to  be 
relevant,  to  any  such  fact,  made  by 
or  an  behalf  of  any  party  to  any  pro- 
ceeding."    Stephens'  Dig.  of  Ev..  39. 

a.  Greenl.  Ev.,  §  170 ;  Stephens' 
Dig.  of  Ev.,  39.  52;  Notara  v.  De 
Kanialaris,  22  Misc.  337,  49  N.  Y. 
Supp.  216 ;  Chamberlayne's  Best  on 
Ev.,  §  523. 

3.  Cannot  be  used  to  Criminate. 
I  Greenl.  Ev.,  §193:  Collett  v. 
Lord    Keith.    4    Esp.    212;     State    v. 


Senn,  32  S.  C.  403,  11  S.  E.  292; 
iMc(jahan  v.  Crawford,  47  S.  C.  566, 
Car.  566.  25  S.  E.  Rep.  123 ;  Collins 
J'.  Wilson.  18  Kv.  Law  1049,  39 
S.  W.  x^- 

In  State  r.  Senn.  32  S.  C.  403.  1 1 
S.  E.  292,  the  question  was  as 
to  whether  testimony  given  by  de- 
fendant in  a  criminal  action  before 
the  coroner's  jury,  at  a  time  when  he 
was  not  charged  with  the  crime, 
could  be  given  against  him  upon  the 
trial  of  the  case.  In  speaking  to  the 
question,  the  court  said :  "  To  be 
admitted  in  evidence,  confessions,  or 
declarations  in  the  nature  of  confes- 
sions, must  be  voluntary ;  and  there- 
fore, when  made  under  the  charge 
of  crime,  they  are  not,  as  a  rule,  re- 
garded vohnitary.  Rut  it  has  never 
been  doubted  that  declarations  made 
by  one  not  a  party,  but  in  a  prose- 
cution against  another,  are  deemed 
voluntary,  and,  as  such,  may  be  sub- 
sequently used  against  him,  as  in  the 
case  of  State  v.  Jones,  29  S.  C.  201, 
7  S.  E.  296.  where  the  only 
question   was   whether,   in   the  matter 

Vol.  I 


358 


ADMISSIONS. 


So  a  statement  made  by  one  while  in  the  custody  of  an  officer 
that  would  be  excluded  in  a  criminal  case  against  him,  mav  be 
competent  in  a  civil  action.* 


of  contradicting  a  witness,  his  writ- 
ten statement  before  the  coroner  was 
admissible  against  him,  and  it  was 
rightly  ruled  that  it  was  admissible 
for  that  purpose.  This  being  the 
law,  the  inquiry  was  soon  made  as 
to  what  would  be  the  rule  when  the 
statement  was  made  by  one  not  a  party 
at  the  time,  but  made  so  afterwards ; 
the  test  being  whether  the  statement 
was  voluntary  at  the  time  it  was 
made.  The  difference  would  seem  to 
be  small  between  a  case  where  the 
charge  was  against  another  and 
where  there  was  no  charge  at  all. 
The  earlier  cases,  however,  seem  to 
have  taken  the  other  view,  and  to 
have  held  that  the  subsequent  charge 
and  arrest  operated  retrospectively, 
and  made  the  prior  statement  invol- 
untary, and  therefore  inadmissible. 
But  the  later  cases  seem  to  have 
considered  the  matter  differently, 
and  to  have  corrected  the  '  variance ' 
pointed  out  by  Mr.  Greenleaf.  and 
have,  as  we  think,  in  accordance  with 
principle  and  all  the  analogies,  set- 
tled the  law  otherwise."  Conse- 
quently it  was  held  in  that  case,  that 
the  testimony  given  by  the  defend- 
ant, before  the  coroner's  jury,  and 
before  he  was  actually  charged  with 
the  commission  of  the  crime,  was 
admissible  against  him,  for  the  rea- 
son that  it  was  voluntary  at  the  time 
it  was  made. 

Testimony  Taken  De  Bene  Esse. 
In  McGahan  v.  Crawford,  47  S.  C. 
566,  25  S.  E.  123,  the  question 
was  as  to  the  admissibility  of  a  dec- 
laration against  interest,  made  by 
one  whose  testimony  was  taken  de 
bene  esse.  The  declaration  was  held 
to  be  competent  evidence,  based  upon 
the  ground  that  the  declaration  of  a 
party,  made  under  oath,  in  a  civil 
action,  is  not  involuntary.  In  that 
case  it  appeared  that  it  was  not 
shown  that  the  person  before  whom 
the  deposition  was  taken  was  an  offi- 
cer authorized  to  take  depositions ; 
but  the  rule  is  stated  to  be  the 
s.une.  whether  the  officer  had  such 
iiithority  or  not. 

Made   Before   Grand   Jnry  Not   in 


Session — Again  in  Collins  v.  Wil- 
SLin,  18  Ky.  Law  1049,  39  S.  W. 
33,  the  admission  sought  to  be 
proved  was  made  in  the  presence  of 
the  grand  jury  in  their  room,  the 
grand  jury  not  being  in  session,  and 
the  party  not  having  been  sent  for, 
or  called  as  a  witness.  The  state- 
ment was  made  in  the  presence  of 
the  jury,  after  the  party  had  been 
cautioned  that  it  might  be  used 
against  him.  It  was  held  that  the 
admission  was  entirely  voluntary, 
and  competent  to  be  proved  against 
him,  notwithstanding  the  fact  that  it 
was  made  in  the  grand-jury  room, 
and  in  the  presence  of  the  jury. 

4.     Statement    When    in    Custody 

Competent    in    Civil    Case Co.x    v. 

People,  So  N.  Y.  500. 

In  Notara  v.  DeKamalaris,  22 
Misc.  337,  49  N.  Y.  Supp.  216, 
a  civil  action  for  the  recovery  of 
damages  for  conversion,  it  appeared 
that,  prior  to  bringing  the  suit,  the 
plaintiff  had  caused  the  defendant's 
arrest,  on  the  charge  of  misappropri- 
ating the  proceeds  of  the  sales  made, 
and  it  was  offered  to  prove  that  the 
defendant,  while  so  under  arrest,  had 
made  admissions  concerning  the 
nature  of  his  transactions,  which 
they  deemed  material  to  establish 
their  cause  of  action.  It  appeared 
that  the  admissions  were  made  while 
the  defendant  was  in  the  custody  of 
the  officer,  and  while  under  arraign- 
ment in  the  United   States  Court. 

In  ruling  upon  the  questions,  as  to 
the  admissibility  of  this  evidence,  the 
court  said  :  "  But  it  is  claimed  by  the 
defendant  that  different  rules  apply 
when  the  statements  are  made  by  a 
person  while  in  the  custodv  of  an  of- 
ficer under  a  criminal  charge,  or 
while  being  arraigned  in  a  criminal 
court.  There  is  no  warrant  for 
such  claim.  The  term  '  admission  ' 
is  usually  applied  to  civil  actions, 
and  '  confession  '  to  acknowledg- 
ments of  guilt  in  criminal  prosecu- 
tions. Where  statements  made  by  a 
defendant  to  an  officer,  involve  him 
civilly,  they  may  be  received  as  an 
a<lmission     against        interest,     even 


Vol.  I 


ADMISSIONS. 


,^59 


II.  DIFFERENT  KINDS. 

General  Classification.  —  Admissions  ma}'  be  classified  as  direct,  or 
express,  and  incidental,  the  former  being  such  as  are  made  of  the 
very  fact  or  matter  in  issue,  and  in  express  and  direct  terms ;  the 
latter  such  as  are  made  in  some  other  connection,  or  of  some  other 
fact,  indirectly  involving  an  admission  of  the  fact  in   isSue.^ 

There  are  also  admissions  arising  by  way  of  inference  from  the 
conduct  of  the  party,  or  his  silence  or  acquiescence  when  called 
upon  to  deny  a  fact  asserted  by  another,  and  denominated  admissions 
by  implication." 

These  usually  arise  from  assumed  character,'  or  from  conduct,' 
or  from  silence  or  acquiescence." 


though  they  might  be  rejected  as  a 
confession  in  a  criminal  court. 
.  .  .  The  circumstances  under 
which  the  confession  is  made  may 
affect  the  value  to  be  given  to  the 
evidence,  but  do  not  affect  its  com- 
petency when  offered  as  an  admis- 
sion against  interest  in  a  purely  civil 
proceeding.  It  did  not  appear  thgt 
the  admission  was  made  under  the 
influence  of  fear  produced  by  threats, 
or  by  promises  or  deception ;  and  it 
would  have  been  admissible  even  in 
a  criminal  prosecution. 

"Prima  facie,  as  a  matter  of  course 
a  confession  by  the  prisoner  is  ad- 
missible as  evidence  against  him, 
and  it  is  for  him  to  show  legal 
ground  for  excluding  it.  And  it  is 
not  sufficient  to  exclude  a  confession 
by  a  prisoner  that  he  was  under  ar- 
rest at  the  time,  or  that  it  was  made 
to  the  officer  in  whose  custody  he 
was,  or  in  answer  to  questions  put 
by  him,  or  that  it  was  made  under 
hope  or  promise  of  a  benefit  of  a 
collateral  nature." 

5.  Classification i    Greenl.   Ev., 

§  194;  Town  of  Dover  z\  Win- 
chester. 70  Vt.  418,  41  Atl.  445 ;  Har- 
rington %■.  Gable,  8r   Pa.   St.  406. 

The  question  as  to  whether  the 
admission  is  direct  or  incidental  is 
not  material  with  respect  to  its  com- 
petency, as  held  in  the  case  of  Har- 
rington V.  Gable,  8i  Pa.  St.  406,  411. 
in  which  it  was  said :  "  There  is  no 
difference  as  to  the  admissibility  of 
this  kind  of  evidence,  between  direct 
and    incidental   admissions." 

6.  May  v.  Hewitt,  Norton  &  Co., 
T,^  Ala.  161. 


7.  Admissions  Arising  from  As- 
sumed Character.  —  Cummin  v. 
Smith,  2  S.  &  R.  (Pa.)  440;  Rex  v. 
Gardner,  2  Camp.  513,  11  Rev.  Rep. 
784 ;  Trowbridge  v.  Baker,  i  Cow. 
(N.  Y.)   251. 

In  Trowbridge  v.  Baker,  i  Cow. 
251,  there  was  no  evidence  of  the 
official  capacity  of  the  party,  alleged 
to  be  the  toll-gatherer,  except  that 
lie  demanded  toll,  and,  connected 
with  other  circumstances  in  the 
case,  it  was  held  that  this  was  suffi- 
cient prima  facie  evidence  of  the 
fact   that   he   was   such   toll-gatherer. 

8.  Snell  V.  Bray,  56  Wis.  157,  14 
N.  W.  14;  Wharton  on  Ev., 
§§1081,  1151;  People  V.  Mer- 
chants Ins.  Co.,  3  Mason  27,  ig  Fed. 
Cas.  No.  10,905 ;  Bacon  v.  Inhab- 
itants of  Charlton,  7  Cush.  581 ; 
Broschart  v.  Tuttle,  59  Conn,  i,  11 
L.  R.  A.  33,  21  Atl.  925. 

9.  From   What   Implied May   v. 

Hewitt.   Norton   &   Co.,  33   Ala.   161. 

"  We  return  therefore  to  the  more 
important  and  difficult  subject  of 
self -harming  evidence.  This  may  be 
supplied  by  zvords.  writing,  signs,  or 
silence.  '  A'on  rcfcrt  an  quis  inten- 
tionem  suam  declaret  verbis,  an  rebus 
ipsis  vel  factis.'  Words  addressed  to 
others,  and  writing,  are  no  doubt 
the  most  useful  forms,  but  words 
uttered  in  soliloquy  seem  equally 
receivable;  while  of  signs  it  has 
justly  been  said,  'Acta  exteriora  in- 
dicant interiora  secreta.'  Thus  a 
deaf  and  dumb  person  may  be  called 
on  to  plead,  or  to  advocate  his  cause, 
through  the  medium  of  an  inter- 
preter who  can  explain  his  i^igns  to 
the   court   and   jury.      So   of   silence. 

Vol.  I 


360 


ADMISSIONS. 


Again,  admissions  are  divided  into  partial  and  plenary,'"  and 
into  oral  and  written  or  documentary  statements  out  of  court,  and 
judicial  or  solemn  admissions  luade  in  open  court,  or  as  a  part  of 
the  proceedings  in  a  cause  pending.  The  latter  may  be  b\-  express 
allegations  or  admissions  in  the  pleadings,  or  by  a  failure  to  deny 
allegations  in  the  pleadings  of  the  opposing  party,  by  statements  or 
admissions  made  in  open  court,  by  stipulation  or  agreement  made  in 
open  court,  or  in  writing  out  of  court  and  filed,  or  m  some  way 
made  a  part  of  the  proceedings  in  the  cause,  by  an  agreed  case,  or 
an  agreed  statement  of  facts  as  a  substitute  in  whole  or  in  part  for 
evidence  of  such  facts,  by  petitions  or  affitlavits  in  the  cause,  by 
testimony  given  as  a  witness  therein,  either  orally,  in  open  court, 
or  by  deposition,  by  answers  to  interrogatories,  by  default,  by  con- 
fession of  judgment,  and  by  demurrer  for  the  purpose  of  such 
demurrer  only.     These  will  be  considered  separately. 

1.  Direct  or  Express  Admissions.  —  Direct  admissions  are  some- 
times denominated  express  admissions.  They  are  such  as  are  made 
in  express  terms  and  of  the  very  fact  in  issue  or  dispute. ^^  They 
may  be  oral  or  written,  and  either  the  ordinarx-  admissions  made 
out  of  court,  or  judicial  or  solemn  admissions  as  above  defined. 

2.  Indirect  or  Incidental  Admissions.  —  Indirect  or  incidental 
admissions  are  such  as  are  made  in  some  other  coimection  or  of 
some  other  fact  or  other  act  done  involving  an  admission  of  the 
fact  in  issue.'-     These  often  result  from  the  conduct  of  the  party. 


'  Qui  facet,  conseiitirc  videtur,' — a 
maxim  which  must  be  taken  with 
considerable  Umitation.  A  far  more 
correct  exposition  of  the  principle 
contained  in  it  is  the  following : 
'  Qui  facet,  non  utique  fiifcfur:  sed 
famen  vcrum  est,  etuin  non  negare; ' 
and  one  of  our  old  authorities  tells 
us  with  truth,  ' Le  nient  dedire  nest 
cy  fort  commc  le  confession  est.' 
which  seems  fully  recognized  in 
modern  times.  The  maxim  is  also 
found  guarded  in  this  way,  '  Qui 
facet  conscntire  videtur.  uhi  tractatur 
de  ejus  commodo.'  "  Chaniberlayne's 
Best  on  Ev..  §  521. 

10.  Partial  and  Plenary. — Andet- 
son's  Law   1  >u:. 

11.  Express    Admissions Greenl 

Ev.,  §  194 ;  .Anderson's  Law  Die, 
Hodges  V.  Tarrant.  M  S.  C.  608.  9 
S.  E.   10,^8. 

12.  Indirect  or  Incidental. 
England.  —  Stow  j'.  Scott.  6  Car.  & 
P.  241  ;  Peacock  v.  Harris,  10  East, 
104. 

.Ihihaina.  —  Harmon  i'.  Goetter,  87 
.\la.  .125,  6  So.  9,3. 

Vol.  I 


Connecticut. — Rroschart  v.  Tuttle, 
59  Conn.  I,  II  L.  R.  A.  2i,  21  Atl. 
925- 

Illinois. — Day  v.  Gregory,  60  111. 
App.   34. 

AVzc  )'V;-^.— Smith  -.•.  Hill.  22 
Barb.  656 ;  Hurd  v.  Pendrigh,  2 
Hill  502.    ds  N.  Y.  Com.  Law  501.) 

Pennsylvania.  —  Harrington  v. 
Gable,  81  Pa.  St.  406;  Reed  v.  Reed, 
12  Pa.  St.  117;  Cromelien  v.  >rau- 
ger,   17  Pa.   St.   i6g. 

South  Carolina. — Lynn  v.  Thomp- 
son. I"  S.  C.  129. 

Indirect  Admissions Li   Hurd  v. 

Pendrigh,  2  Hill  302,  the  action  was 
on  the  case  for  the  value  of  goods, 
lost  by  a  common  carrier,  and  the 
plaintiff  was  permitted  to  prove  that, 
after  the  commencement  of  the  suit, 
the  defendant  agreed  that,  if  the 
plaintiff  would  swear  to  the  bill  of 
the  articles  lost,  he  would  pay  for 
them,  and  was  also  permitted,  in 
connection  with  this  testimony,  to  in- 
troduce in  evidence  his  affidavit, 
showing  such  amount,  on  the  ground 


ADMISSIONS. 


361 


the  effect  ol  which  will  be  considered  under  the  head  of  admissions 
implied  from  conduct.  But  it  may  be  by  the  admission  or  statement 
of  some  collateral  fact  that  involves  or  assumes  as  true  the  fact  in 
issue;  and  a  mere  inquiry  may,  under  some  circumstances,  amount 
to  an  admission. '■• 

3.  Admissions  by  Implication.  —  A.  Genek.m-i.v. — As  we  have 
seen,  an  admission  of  a  fact  may  be  implied  from  the  assumption 
of  a  character,  which  is  itself  an  admission,  by  conduct,  or  by  silence 
or  acquiescence.  An  admission  may  be  made  by  acts  or  conduct 
or  bv  the  failure  to  deny  or  speak,  when  called  upon  to  do  so  by  any 
statement  made  by  another. 

li.  Fro.m  AssiMED  Ch.\k.\cti;k.  —  With  respect  to  the  first  of 
these,  the  assumption  of  character,  it  arises  most  frequently  where 
one  is  charged  in  some  official  character,  or  the  like,  and  the  proof 
shows  that  he  has  acted  as  such.  This  is  generally  held  to  be 
sufficient  prima  facie  evidence  that  he  was  the  officer  he  assumed 


that  taking  the  whole  together,  it 
amounted  to  an  admission  that  the 
plaintiff  was  entitled  to  recover  the 
value  of  the  goods  so  sworn  to. 

So  it  was  held  in  Reed  v.  Reed,  12 
Pa.  St.  117,  that  the  declaration  oi 
a  vendor,  by  parol  contract,  that  he 
would  not  make  a  deed  until  his 
vendee  had  paid  a  specified  balance 
of  purchase-money,  in  the  absence  of 
precise  evidence  of  the  terms  of  the 
contract,  was  competent  evidence  to 
show  how  much  was  due  to  the 
vendor. 

Again,  in  Cromelien  v.  Mauger, 
17  Pa.  St.  169,  where  one  person  was 
indebted  to  another,  in  a  book  ac- 
count, and  gave  to  his  creditor  a 
promissory  note,  payable  to  himself, 
and  indorsed  as  collateral  security, 
it  was  held  that  the  promise  to  pay 
the  account,  subsequently  made  by 
the  debtor  to  the  holder  of  the  note, 
the  account  being  produced  at  the 
same  time,  was  evidence  from  which 
the  jury  might  infer  an  admission 
that  the  holder  of  the  note  was  the 
owner  of  the  claim. 

So  in  Smith  v.  Hill,  22  Barb,  656, 
it  was  held  that  where  a  party  for- 
bids the  sale  of  personal  property  on 
execution,  upon  the  sole  ground  that 
the  property  is  exempt  from  sale, 
this  will  be  considered  a  virtual  ad- 
mission that  the  execution  and  sale 
are  in  otiicr  rcsl^ccfs  legal  and  valid. 


13.  Wise  V.  Adair,  50  Iowa  104; 
Broschart  v.  Tuttle,  59  Conn,  i,  11 
L.  R.  A.  33,  21  Atl.  925 ;  Day  v. 
Gregory,  60  111.  App.  34. 

Indirect  Admissions In  Bros- 
chart V.  Tutllo.  50  Conn.  i.  11  L. 
R.  A.  33.  21  Atl.  925,  an  action 
to  recover  damages  for  the  killing 
of  a  horse,  by  the  alleged  negligence 
of  the  defendant,  it  was  held  that  a 
statement  of  the  party,  to  the  effect 
that  he  was  a  lawyer,  and  could 
carry  on  the  suit  at  one-sixth  the 
expense  of  the  other;  that  he  knew 
every  juryman  in  the  county;  and 
that  twelve  men  could  not  be  got 
together  that  would  decide  against 
him.  might  be  proved  against  him  as 
an  indirect  admission,  which,  in  the 
absence  of  explanation,  would  tend 
in  some  degree,  to  evince  a  con- 
sciousness of  liabilty  upon  the 
claim. 

In  Day  v.  Gregory,  60  111.  App.  34. 
a  similar  case  in  which  the  plaintiff 
was  permitted  to  prove  that  the 
defendant  said  to  three  or  four  of 
the  witnesses,  on  different  occasions, 
that  it  would  be  easy  to  beat  ap- 
pellee in  a  law  suit  because  he  kept 
no  account,  it  was  held  that  the  tes- 
timony complained  of  in  connection 
with  other  circumstances  in  proof, 
might  have  tended  to  impeach  the 
reliability  of  his  account,  and  was 
therefore  admissible. 

Vol.  I 


362 


ADMISSIONS. 


to  be,  and  avoiils  the  necessity  of  establishing,  by  direct  evidence, 
his  official  capacity.'* 

But  the  doctrine  is  not  confined  to  admissions  of  official  character, 
but  extends  to  the  assumption  of  any  character  consistent  with  the 
truth  of  the  fact  sought  to  be  established  and  inconsistent  with  its 
falsity. 

C.  From  Conduct.  —  Similar  rules  are  applicable  to  admissions 
by  conduct.^"  Admissions  implied  from  conduct  are  usually 
indirect,  or  incidental,  and  belong  to  that  class  as  above  defined. 
They  result  from  the  conduct  of  a  party  consistent  with  a  state  of 
facts  against  his  interests  and  inconsistent  with  some  claim  made 
by  him  in  the  controversy  in  which  his  conduct  is  sought  to  be 
proved.  For  examples,  the  payment  in  part  of  a  claim  now 
disputed,  or  the  payment  of  a  like  claim  matle  by  another,'"  or  the 
omission  from  an  inventory  or  schedule  required  by  law  to  be  made, 
of  property  owned  by  him,  of  the  property  now  claimed  and   in 


14.  Implied  from  Assumed  Char- 
acter— Cummin  v.  Smidi,  2  S.  &  R. 
(Pa.)  440;  Rex  V.  Gardner,  2  Camp. 
513,  II  Rev.  Rep.  784;  Trowbridge 
V.  Baker.  I  Cow.  (N.  Y.)  249; 
Pritchard  v.  Walker,  3  Car.  &  P. 
212;  Chapman  v.  Beard,  3  Austr.  942, 
4  Rev.  Rep.  875. 

15.  Sears  v.  Kings  County  El. 
Ry.  Co.,  152  Mass.  151.  25  N.  E. 
98,  9  L.  R.  A.  117;  Springer 
V.  City  of  Chicago,  135  111.  552.  26 
N.  E.  Rep.  514;  12  L.  R.  A.  609; 
Huntington  v.  American  Bank,  6 
Pick.  340 ;  Readman  v.  Conway,  126 
Mass.  374;  St.  Louis  &  S.  F.  Ry. 
Co.  V.  Weaver,  35  Kan.  412;  11  Pac. 
408,  57  Am.  Rep.  176. 

From  Conduct In  Sears  v.  Kings 

County  HI.  Ry.  Co.,  152  Mass.  151, 
25  N.  E.  98.  9  L.  R.  A.  117,  an 
action  brought  by  the  treasurer  of 
the  corporation  to  recover  for  salary, 
it  was  held  competent  to  show  that 
he,  as  such  treasurer,  prepared  a 
statement  of  its  lialiilities.  in  which 
he  did  not  inchide  any  claim  of  his 
own  for  salary ;  and  that  he  after- 
wards assented  to,  as  correct,  the 
statement  of  said  habilities,  which 
did  not  include  his  claim. 

In  Huntington  %>.  American  Bank, 
6  Pick.  340,  it  was  held  that  paying 
money  into  court,  upon  a  quan- 
tum meruit  count,  is  an  admission 
of  the  contract  as  alleged. 

.\nd  in  Springer  v.  City  of  Chi- 
cago.  735  HI.  552.  26  N.  E.  514, 

Vol.  I 


12  L.  R.  \.  609,  it  was  held  that  an 
offer  to  sell  property  at  a  certain 
price  may  be  proved  against  the 
owner  as  an  admission  of  its  value, 
at  or  near  the  time  of  the  offer. 

In  Readman  v.  Conway,  126  Mass. 
374,  it  was  held  that  on  the  issue  of 
fact  whether  a  landlord  or  his  ten- 
ant was  to  keep  in  repair  a  platform 
in  front  of  a  shop,  evidence  that  for 
an  injury  caused  by  a  defect  in  the 
platform  the  landlord  repaired  it,  is 
competent  as  an  admission  that  it 
was  his  duty  to  keep  the  platform  in 
repair.  The  court  saying  that  "  these 
acts  of  the  defendants  were  in  the 
nature  of  admissions  that  it  was 
their  duty  to  keep  the  platform  in 
repair,  and  were  therefore  com- 
petent. 

16.  Galveston  H.  &  S.  A.  Ry  Co. 
f.  Hertzig,  3  Tex.  Civ.  .'Vpp.  296,  22 
S.  W.  1013;  Howland  v.  Bart- 
lett.  86  Ga.  669,  12  S.  E.  1068; 
but  see  Slingerland  t'.  Norton.  35 
N.  Y.  St.  426,  12  N.  Y.  Supp. 
647. 

Payment  to  Third  Party  of  Like 
Claim. — The  case  nf  Howland  v. 
r.artlclt,  86  Ga.  669.  12  S.  E. 
1068,  was  one  in  which  an  attorney, 
having  collected  a  fund  in  which 
three  clients  were  jointly  and  equally 
interested,  upon  a  rule  brought 
against  him  by  two  of  them,  and, 
it  was  held  that  evidence  was  ad- 
missible in  their  favor,  that  he  pay 
to    the    third    party    a    sum    almost 


ADMISSIONS. 


363 


controversy/'  or  the  giving  in  of  property  for  assessment  for  taxes, 
or  omitting  from  the  tax  hst  the  property  in  (Hspnte,  or  giving  it  in 
in  the  name  of  another/'*  or  the  attempt  to  snborn  witnesses  or 


equal  to  that  claimed  of  him  by  each 
of  the  other  two,  and  that,  yielding 
to  the  demand  of  the  client,  to  avoid 
being  ruled  for  the  money,  did  not 
make  the  transaction  incompetent 
evidence  as  an  admission  made  by 
constraint,  or  with  a  view  to  the 
promise. 

Galveston  H.  &  S.  A.  Ry.  Co.  v. 
Hertzig,  3  Tex.  Civ.  App.  296,  22  S. 
W.  1013,  was  an  action  against 
a  railroad  company  for  damages, 
resulting  from  a  fire  alleged  to  have 
been  caused  by  negligence.  The  fire 
in  question  had  spread  from  the 
land  of  the  plaintiff  to  that  of 
another  party,  and  it  was  held  com- 
petent to  prove  that  the  defendant 
had  paid  the  parties  to  whose  lands 
the  fires  from  plaintiff's  lands  had 
spread,  for  the  damages  to  their 
lands  resulting  from  the  same  fire. 

A  different  rule  was  declared  in 
Slingerland  v.  Norton,  35  N.  Y.  St, 
426,  12  N.  Y.  Supp.  647,  but  upon 
the  ground  that  negotiations  or  prop- 
ositions looking  to  the  settlement  of 
the  controversy,  would  not  be  re- 
ceived in  evidence  as  admission  of 
liability. 

17.  Hendricks  w.  Huffmeyer  (Tex. 
Civ.  App.),  27  S.  W.  777;-  Ran- 
kin V.  Busby  (Tex.  Civ.  App."),  25 
S.  W.  Rep.  678;  Judkins  -.'.  Wood- 
man. 81  Me.  351,  17  Atl.  298; 
Lvon  r.  Phillips.  T06  Pa.  St.  57: 
Fullam  V.  Rose.  t6o  Pa.  St.  47,  28 
Atl.  497 ;  Morrill  v.  Foster.  33  N.  H. 
.■^79- 

Inventory  Omitting  Land. — Tn 
Hendricks  z'.  Huffmeyer  (Tex.  Civ. 
.\pp.),  27  S.  W.  777,  where  the 
object  was  to  establish  a  partition 
and  allotment  of  land  and  that  it  was 
not  the  property  of  the  decedent,  the 
inventory  filed  by  the  administrator 
of  such  decedent  was  held  to  be  ad- 
missible to  show  that  the  land  was 
not  included  therein,  and  as  a  cir- 
cumstance tending  to  show  that  the 
land   did  not  belong  to  the  decedent. 

Same,  Schedule  of  Bankrupt — So 
it  was  held  in  Rankin  r.  Rusby 
(Tex.    Civ.    App.),    25    S.    W.    678, 


that  the  schedule  in  bankruptcy,  made 
by  the  alleged  owner,  not  including 
the  land  in  question  was  competent 
as  to  the  question  whether  a  bank- 
rupt had  or  had  not  sold  the  land. 
It  was  said  by  the  court  that  he  was 
not  estopped  by  his  failure  to  in- 
ventory land,  but  it  was  a  fact  com- 
petent to  go  to  the  jury  with  refer- 
ence to  the  claim  of  the  defendant 
that  Rankin  had  resold  one-half  of 
the  certificate  to   Powell. 

Schedule  of  Property. — In  Judkins 
V.  Woodman,  81  Me.  351..  i7  Atl. 
298.  where  title  to  certain  wood 
was  in  question,  it  was  said  by  the 
court,  "  Objection  was  made  to  the 
admission  in  evidence  of  a  paper 
said  to  be  a  schedule  of  articles, 
claimed  by  the  mortgagee,  and  on 
which  the  wood  in  question  does  not 
appear.  It  was  objected  to  on  the 
ground  of  irrelevancy.  We  think  it 
was  admissible.  It  was  prepared  by 
the  defendants,  and  was  admissible 
upon  the  same  ground  that  any  dec- 
laration of  a  party,  written  or  oral, 
is  admissible." 

A  like  rule  was  declared  in  the 
case  of  Lyon  v.  Phillips,  106  Pa.  St. 
!;7,  with  respect  to  the  omission 
from  a  schedule  of  assets,  filed  by  a 
bankrupt,  of  certain  judgments, 
claimed  to  be  owned  by  him. 

In  Fullam  v.  Rose,  160  Pa.  St.  4". 
28  Atl.  497,  the  rule  was  applied 
against  an  executor,  seeking  to  re- 
cover monev  deposited  by  testator 
with  defendant  for  safe  keeping.  It 
being  held  that  a  certified  copy  of 
the  adjudication  of  the  executor's  ac- 
count IS  competent  to  show  that  the 
claim  in  suit  was  taken  therefrom. 

18,  Whitfield  V.  Whitfield,  40 
Miss.  352;  Lefever  v.  Johnson,  79 
Ind  =;^4;  Steed  v.  Knowles,  97  Ala. 
:;7  3  "12  So.  75;  Richardson  v. 
Hitchcock,  28  Vt.  7S7;  Jo"es  v.  Cum- 
mins, T7  Tex.  Civ.  App.  661,  43,  S.  W. 

8.=;4. 

Assessed  in  the  Name  of  Another, 

In  Whitfield  v.  Whitfield,  40  Miss. 
-!52,  where  the  contest  was  between 
the  father  and  representatives  of  the 

Vol.  I 


3()4 


ADMISSIONS. 


prevent    their    attendance, '"    or    corrupt    jurors,    or    officers    of   the 
court,    in   his   interest,-"   such   con(hict   bein"-  inconsistent    with   the 


son,  as  to  the  title  of  personal  prop- 
erty, it  was  held  to  be  competent  to 
show  by  the  assessor's  books  that 
during  the  time  that  the  property 
was  in  the  possession  of  the  son,  it 
was  assessed,  not  as  the  property  of 
the  son,  l)ut  of  the  father. 

Tax   List    Omitting    Property So 

in  Lefever  v.  Johnson,  yg  Ind.  554,  a 
suit  for  the  recovery  of  personal 
property,  it  was  held  that  the  tax 
list,  sworn  to  by  a  party  showing  no 
claim  to  the  property  in  controversy 
was  admissible  in  evidence  against 
him.  The  court  saying:  "The  list 
was  a  statement  in  writing,  signed 
in  a  firm  name  and  sworn  to  by  ap- 
jjcllants ;  it  was  made  out  under  the 
direction  of  a  public  officer,  in  pur- 
suance of  a  duty  enjoined  by  law, 
and  is  competent  evidence,  tending 
to  show  the  amount  and  kind  of 
property  owned  by  the  assessed  at 
that   time." 

Property  Assessed  Jointly. — In 
Steed  V.  Knowles,  97  Ala.  57,?,  12 
So.  75,  it  was  held  competent  to 
show  that  the  party  had  had  the 
land  in  question  assessed  as  belong- 
ing to  certain  parties,  one-half  to 
each,  as  tending  to  show  the  owner- 
ship of  the  parties  in  and  to  tlie  land 
at  that   time. 

Assessment  Lists,  and  Rolls,  When 
Competent. — In  Jones  i'.  Cininiiins, 
17  Tex.  Civ.  App.  661,  43  S.  W. 
854,  it  was  held,  generally,  that 
original  assessment  lists  are  admis- 
sible in  evidence  against  the  parlies 
making  them,  the  court  saying : 
"The  statements  of  parties  to  the 
suit,  when  pertinent,  are  always  ad- 
iiiissible  against  them ;  and  we  see 
no  difiference  between  assessment 
lists,  when  signed  by  the  parties,  and 
other  statements.  It  has  been  held 
that  tax  rolls  are  not  admissible  as 
declarations  against  a  party."  In 
this  case  a  distinction  is  made  be- 
tween the  tax  rolls  made  up  by  the 
assessor,  or  by  his  direction,  and  the 
original  assessment  lists,  the  former 
being  mere  copies  of  the  original 
lists,  and  not  ))inding  upon  the 
party. 


19.  Cruik-,hank  v.  Gordon,  15  N. 
V.  St.  897,  I  N.  V.  Supp.  443 :  Egan 
V.   Bowker,  5  Allen  449. 

Procuring  Absence  of  Witness. 
The  case  of  Cruik^hank  z\  Gordon, 
15  N.  Y.  St.  897,  I  N.  Y.  Supp.  443, 
was  an  action  for  slander,  and  it 
was  held  competent  to  show  against 
the  defendant  that,  after  the  papers 
in  the  action  were  served,  he  offered 
the  witness  a  thousand  dollars  to  go 
to  Canada,  to  avoid  testifying  on  the 
trial.  The  court,  in  passing  upon 
the  action  said:  "It  is  difficult  to 
conceive  of  a  case  wdiere  an  offer  to 
suppress  a  witness  is  inadmissible.  It 
was  a  virtual  admission  of  the  speak- 
ing of  the   slanderous   words." 

Suborning       Witness       to     Swear 

Falsely So   in    Egan   r'.    Bowker.   5 

.Mien  449.  proof  was  offered  to  show 
that  one  of  the  parties  to  the  action 
liad  suborned  a  witness  to  swear 
falsely  in  a  deposition  taken  in  con- 
nection with  the  case,  although  the 
deposition  was  not  put  in  evidence 
by  either  party  at  the  time,  the 
court  saying  :  "  The  evidence  offered 
for  the  purpose  of  showing  that  the 
plaintiff  had  suborned  a  witness  to 
testify  falsely  in  support  of  his 
claim  against  the  defendants,  and.  in 
connection  therewith,  that  in  procur- 
ing such  false  testimony  he  had 
acted  under  an  assumed  name,  was 
clearly  competent  and  ought  to  have 
been  admitted.  These  facts  were  in 
the  nature  of  admissions  implied 
from  the  conduct  of  the  party  that 
his  claim  against  the  defendant  was 
false  and  unjust.  The  inference  is 
a  reasonable  and  proper  one,  that  a 
person  having  an  honest  and  fan- 
debt  which  he  claims  to  be  due  will 
not  endeavor  to  support  it  by  false- 
hood and  frau.l:  and  the  fact  that 
he  resorts  to  such  means  of  proof 
has  a  tendency  to  show  that  he 
knows  he  cannot  maintain  his  suit 
by  evidence  derived  from  pure  and 
Iticnrrupt    source;.' 

20.  Corrupting  Jurors — Hastings 
V.  Stetson.  130  Mass.  76:  Kidd  v. 
Ward.  91    Iowa   371.   59   N.   'W.   279- 


Vol.  I 


.■U>MJSSJUXS. 


M>o 


justice  of  his  claim  or  suit,  or  the  performaucc  of  an\  act  required 
of  him  by  the  terms  of  a  contract  or  oljhgation,  the  vaUditv  of  which 
is  in  dispute,^^  or  the  offer  to  sell  property  at  a  given  price  as 
evidence  of  its  value,--  or  acting  as  agent  of  another  for  property 
that  he  now  claims  to  have  owned  at  the  time,'-'  or  standing  by  and 
allowing  property  that  he  now  claims  as  his  own  to  be  sold  to 
another,  without  making  his  title  known,-*  or  the  acceptance  by 
him  of  the  benefits  of  a  contract  or  transaction  the  validity  of  which 
he  is  attacking,  and  any  other  acts  inconsistent  with  the  claim  he 
makes. ^^ 


21.  Floyd  Cn.  ■:•.  .Morrison.  40  Iowa 
188 ;  Town  of  Sliaron  v.  Town  of 
Salisbury,  29  Coini.  113;  Harpswell 
V.  Phibsburg,  29  Ale.  313;  Browncll 
V.  Town  of  Greenwich,  44  Hun  611, 
4  L.  R.  A.  685,  114  N.  V.  518,  22  N. 
E.  24. 

Settlement  of  Account In  Town 

of  Sharon  i\  Town  of  Sahsbury,  29 
Conn.  113,  it  was  held  that  the  select- 
men of  a  town  liad  full  power,  by 
virtue  of  their  office,  to  settle  an 
account  presented  by  another  town 
for  supplies  furnished  for  a  pauper 
belonging  to  their  town,  and  that  the 
payment  of  sucli  an  account  con- 
stituted an  implied  admission  that 
the  pauper  was  a  settled  inhabitant 
of  the  town,  and  that,  therefore,  evi- 
dence of  such  settlement  and  pay- 
ment was  competeiU  evidence  of  such 
admission. 

22.  Springer  v.  City  of  Chicago, 
i.?5  111.  552,  26  N.  E.  514.  12  L. 
R.  A.  609. 

23.  Duncan  i\  Duncan,  26  La. 
Ann.  532^ 

24.  Wisdom  ?'.,  Reeves,  no  Ala. 
418,  18  So.  13  ;  Cox  z:  Buck.  5  Strob. 
(S.  C.)  367;  Hatch  V.  Kimball,  16 
Ale.  146;  Traun  v.  KeifTer,  31  Ala. 
(N.  S. )  136;  Wendell  ^^  Rensselaer, 
I   Johns.   Ch.  344. 

Seeing     Expenditures       Made     on 

Land  Without  Asserting  Claim In 

Wendell  z:  Rensselaer,  i  Johns.  Ch. 
344-355,  the  rule  is  thus  stated ; 
"  There  is  no  principle  better  estab- 
lished in  this  court,  nor  one  founded 
on  more  solid  considerations  of 
equity  and  public  utility,  than  that 
which  declares  that  if  one  man 
knowingly,  though  he  does  it  pas- 
sively, by  looking  on,  suffers  another 
to  purchase  and  e.xpend  money  on 
land  under  an   erroneous  opinion   of 


title,  without  making  known  his 
claim,  he  shall  not  afterwards  be 
permitted  to  e.xercisc  his  legal  right 
against  such  person.  It  would  be  an 
act  of  fraud  and  injustice,  and  his 
conscience  is  bound  by  this  equitable 
estoppel." 

Delivery  of  Property  to  Sheriff 
Under  Process.— But  in  Traun  r. 
Keiffer,  31  Ala.  (N.  S.)  136,  while 
it  was  held  that  if  a  person 
offers  another,  in  his  presence,  to 
purchase  from  a  third  person  prop- 
erty to  which  he  has  a  title,  of  which 
title  the  purchaser  is  ignorant,  his 
failure  to  assert  his  title  will  estop 
him  from  afterwards  setting  it  up 
against  such  purchaser,  it  is  also  held 
that  the  delivery  of  property  to  the 
sheriff  or  the  payment  of  its  as- 
sessed value  in  money,  under  proc- 
ess in  his  hands  issued  upon  a  judg- 
ment which  is  afterwards  reversed, 
is  no  admission  or  ackuowdedgment 
of  the  plaintiff's  title;  and  that 
where  property  is  appraised  as  a  part 
of  an  estate,  in  the  plaintiff's 
presence,  who  has  asserted  no  title, 
it  is  competent  to  rebut  this  evidence 
)iy  the  proof  of  the  private  asser- 
tions of  the  title  by  the  plaintiff,  to 
one  of  the  appraisers,  before  the 
completion    of    the    appraisement. 

It  is  further  held  in  this  case  that 
an  involuntary  or  compulsory  sur- 
render cannot  be  evidence  of  an 
admission   of  title   in   another. 

25.  Alabama. — Sheppard  v.  Bu- 
ford,  7  Ala.  (N.  S.)  90;  Lewis  v. 
Robertson,  too  Ala.  246,  14  So.  166; 
Turreutine  v.  Grigsby,  118  Ala.  380, 
2},  So.  666. 

Califoniia. — Arnold  ?■.  Skaggs,  35 
Cal.  684. 

Coiiiiccficut. — Davidson  v.  Bor- 
ough   of     Bridgeport,    8    Coim.    472: 

Vol.  I 


3()() 


.-iDMISSIONS. 


It  is  held  that  claiming  the  privilege  of  refusing  to  testify  by  a 
party  on  the  ground  that  his  testimou)-  will  tend  to  criminate  him, 
may  be  proved  in  a  civil  action  as  an   implied  admission  of  his 


Page    V.    Merwin,    54    Conn,    426,    8 
Atl.   675. 
Illinois. — Burt     V.    Freiicli,     70    111. 

254- 

Massacliusctts. — Elliott  v.  Hay- 
den,  104  Mass,  180;  Readman  v. 
Conway,  126  Mass.  374;  Hathaway 
V.   Spooner,  9   Pick.  23. 

Mississipf'- — Southern  Ex.  Co.  v. 
Thornton,  41    Miss.   216. 

M issojtri. — The  State  v.  Baldwin 
31  Mo.  561  ;  North  St.  Louis  and  C. 
Church  V.   McGowan,  62  Mo.   279. 

New  Hainj>s!urc. — Moore  v.  Dunn, 
42  N.  H.  471. 

Nczv  York. — Lobach  v.  Hotchkiss, 
17  Abb.  Pr.  88;  Sheldon  v.  Sheldon, 
65  N.  Y.  St.  693,  ^2  N.  Y.  Supp.  419; 
Smith  V.  Hill,  22  Barb.  656. 

Oregon, — Heneky  v.  Smith,  10 
Or.  349,  45  Am.  Rep.   143. 

Pennsylvania. — Phillips  v.  Phil- 
lips, 8  Watts,  195;  Lobb  v.  Lobb,  26 
Pa.   St.  327. 

Texas. — Georgia  Home  Ins.  Co.  v. 
O'Neal,  14  Te.x.  Civ.  App.  516,  38 
S.   W.    62. 

Inconsistent  Facts.  —  The  case 
of  Arnold  v.  Skaggs,  35  Cal.  684,  was 
on  an  account  for  goods,  alleged 
to  have  been  sold  and  delivered 
to  the  defendant.  The  liability 
of  the  defendant  turned  upon 
the  question  as  to  whether  he  or 
one  Ingles  was  the  owner  of  a  cer- 
tain livery  stable.  It  was  proposed 
to  show  in  the  action  that  Ingles, 
who  was  in  the  actual  possession  of 
the  stable,  furnished  to  the  assessor 
the  tax  list  for  the  purpose  of  taxa- 
tion of  the  property  and  business  of 
said  stables,  as  the  property  of 
the  defendant,  and  that  subsequently 
the  latter  appeared  with  said  Ingles 
before  the  board  of  equalization  of 
the  county,  for  the  purpose  of  pro- 
curing a  reduction  of  the  amount  of 
said  assessment,  and  in  connection 
with  these  facts,  the  tax  list  was 
offered  in  evidence.  The  court  held 
that  both  the  tax  list  and  the  act  of 
Ingles  professing  to  act  as  agent  of 
the  defendant  in  giving  in  the  prop- 
erty for  taxation,  in  the  defendant's 
name,  and  the  su1)scqnent  conduct  of 

Vol.  I 


the  defendant  himself,  in  asking  for 
the  reduction  of  the  assessment, 
were  competent  as  admissions  by 
conduct  that  the  defendant  was 
owner   of   the   property. 

In  Smith  v.  Hill,  22  Barb.  656,  it 
was  held  that  where  a  party  forbids 
a  sale  of  personal  property  upon 
e.xecution,  upon  the  sole  ground  that 
the  property  is  exempt  from  sale,  this 
will  be  considered  as  a  virtual  ad- 
mission that  the  execution  and  sale 
are  in  other  respects  legal  and  valid. 

Heneky  v.  Smith,  10  Or.  349, 
45  .\m.  Rep.  143,  was  to  recover 
damages  for  wrongfully  and  mali- 
ciously shooting  plaintiff.  The  court 
Ijclow,  as  tending  to  establish 
the  defendant's  liability,  admitted 
in  evidence  a  deed,  shown  to 
have  been  executed  by  him  and  his 
wife,  to  a  third  party,  of  some 
twenty-five  different  lots  or  parcels 
of  land,  amounting  in  the  aggregate 
to  over  four  hundred  acres,  for  the 
expressed  consideration  of  $I2C0,00. 
The  deed  having  been  executed 
fourteen  days  after  the  shooting  and 
sixteen  days  after  the  action  was 
commenced,  and  the  summons 
served.  The  court  said  :  "  In  view 
of  its  character  and  the  circum- 
stances under  which  it  was  exe- 
cuted, we  think  it  was  properly  ad- 
mitted. The  jury  might  reasonably 
infer  from  this  act  of  the  appellant, 
in  view  of  all  of"  its  surroundings, 
that  it  was  prompted  by  a  conscious- 
ness on  his  part,  that  the  shooting 
of  the  respondent  was  unjustifiable, 
and  that  he  was  legally  liable  for  the 
damages  occasioned  by  it.  In  this 
view,  it  would  operate  like  an  ad- 
mission of  liability,  and  be  equally 
competent.  .-Vdmissions  may  be  by 
acts,   as   well  as  by  words." 

In  the  case  of  Georgia  Home  In- 
surance Co.  V.  O'Neal,  14  Tex.  Civ. 
.\pp.  516,  38  S.  W.  62,  an  action 
upon  a  policy  of  fire  insurance, 
it  was  contended  by  the  defendant 
that  the  plaintiff  forfeited  the  policy 
by  his  failure  to  comply  with  the 
clause  referred  to,  nevertheless  sub- 
jected  the    insured    thereafter   to   ex- 


ADMISSIONS. 


367 


guilt,  where,  at  the  time  his  conduct  in  this  respect  is  attempted  to 
be  proved,  any  prosecution  for  the  offense  is  barred  by  the  statute 
of  hmitations.-" 

D.  From  SiLHXCb;  and  Aculmicscicxce.  — So  the  silence  of  a  party 
when  a  statement  is  made  in  his  presence,  against  his  interest,  and 
is  heard  and  understood  by  him.  and  is  made  in  such  way  as  to  call 
upon  him  to  deny  it,  if  untrue,  and  the  facts  are  within  his 
knowledge,  and  the  statement  is  made  under  such  circumstances  as 
naturally  to  call  for  a  reply,  amounts  to  an  admission  of  the  truth  of 
the  statement  made,  and  may  be  sufficient  to  establish  the  fact  as 
against  him.'-' 


amination  under  oath,  as  authorized 
hy  tlie  terms  of  the  pohcy.  It  was 
held  that  the  action  of  the  insurance 
company,  through  its  adjuster,  who 
had  authority  to  represent  it.  in  re- 
quiring the  insured  to  suhmit  to  a 
sworn  examination,  under  the  stip- 
ulations in  the  policy,  clearly  recog- 
ni.-ed  the  validity  of  the  policy,  and 
it  could  not  thereafter  be  heard  to 
assert  its  invalidity  upon  the  ground 
of  forfeiture  known  then  to  exist. 

In  Readman  v.  Conway,  126  Mass. 
'374.  it  was  held  that  on  an  issue 
of  fact,  whether  a  landlord  or  his 
tenant  was  to  keep  in  repair  a  plat- 
form in  front  of  a  shop,  evidence 
that  after  an  injury,  caused  by  a 
defect  in  the  platform,  the  landlord 
repaired  it,  was  competent  as  an 
admission  that  it  was  his  duty  to 
keep  the  platform  in  repair,  the 
court  holding  that  the  acts  referred 
to  were  in  the  nature  of  admissions 
that  it  was  the  duty  of  the  landlord 
to  keep   the  platform   in   repair. 

So  in  Hathaway  v.  Spooner,  9 
Pick.  2.^,  it  was  held  that  where  a 
person  living  upon  land,  to  which 
he  afterwards  acquires  a  title,  takes 
a  deed  of  part  of  a  tract  described 
as  bounding  on  such  land,  this  is 
evidence  against  him.  in  the  nature 
of  a  confession  that  the  said  land 
does  not  cover  any  part  of  the  tract 
so  described. 

26.  Childs  r.  Merrill.  fi6  \'t.  ,102, 
29  Atl.  532. 

27.  From  Silence  and  Acquies- 
cence  England.  —  Doe    z'.    Forster, 

1 3  East.  405 ;  Gaskill  v.  Skene.  14 
Ad.  &  E.  (N.  S.)  664:  Neile  v.  Jakle, 
2  C.  &  K.  709.  61  Eng.  C.  L.  708; 
Havslep  v.  Gymer,  i  Ad.  &  E.  162, 
28  Eng.  C.  L.  96. 


United  States. — Morris  v.  Xorton, 
75  Fed.  912,  21  C.  C.  A.  553, 
43  U.  S.  App.  739;  Cross  Lake  Log- 
ging Co.  %'.  Joyce,  83  Fed.  989,  28 
C.  C.  A.  250,  55  U.  S.  App.  221. 

Alabama. — McCulloch  v.  Judd,  20 
Ala.  703;  May  v.  HewLtt.  2>i  Ala, 
161  ;   Hicks  v.  Lawson,  39  .Ala.  90. 

Georgia. — Block  v.  Hicks.  27  Ga. 
522;  ;\Iorris  t'.  Stokes,  21  Ga.  552. 

Indiana. — Pierce  v.  Goldsberr\-,  35 
Ind.  317;  Puett  V.  Beard,  86  Ind. 
104;  Ewing  V.  Bass,  149  Ind.  i,  48 
N.   E.  241. 

Kentucky. — Milton  v.  Hiniter,  13 
Bush.    163. 

Louisiana. — Olivier  v.  Louisville  & 
N.    R.    Co..   43   La.    -\nn,   804.   9   So. 

4.31- 

.Maine. — Blanchard  v.  Hodgkins, 
62  ^le.  1 19 :  Johnson  v.  Day,  78  Me. 
224.  3  Atl.  647. 

Massaetiusetts. — Sears  v.  Kings 
County  El.  Rv.  Co.,  152  Mass,  151, 
25  N.  E.  98,  9  L.  R.  A.  117; 
Boston  &  Worcester  R.  Co.  v.  Dana, 
I  Gray  83 ;  President  etc.  of  Green- 
field Bank  v.  Crafts,  2  .Allen  269; 
Dutton  T.  Woodman,  9  Cush.  255, 
51  Am.  Dec.  46;  Simonds  v. 
Patridge,  154  Mass.  500.  28  N.  E. 
901. 

Mississipl^i. — The  State  t'.  Parish, 
23  Miss.  483. 

Missouri. — Higgins  v.  Dellinger, 
I  Jones,  397;  Ball  f.  City  of  Inde- 
pendence. 41    Mo.   .\pp.  469. 

.V,-Ti'  /f(7»i/'.s/ii;v.— Morrill  v.  Rich- 
ey.  18  N.  H.,  29s;  Wallace  :■.  Good- 
ell,  18  N.  H.  439;  Corser  v.  Paul.  41 
N.  H.  24,  77  -Am.  Dec.  753. 

A'rtc  York.— W'rtght  v.  Maseras, 
56  Barb.  521 ;  Morse  v.  Bogert,  4 
benio  T08.  17  N.  Y.  Com.  Law  514; 
Jewett  V.  Banning,  21  N.  Y.  27. 

Vol.  I 


."68 


APMISSIOXS. 


Objection    on    One    Ground    Admits    Non-Existence    of    Other    Grounds. 

So  where  a  jiarty  objects  to  the  doing  of  an  act  b_\-  another,  or  the 
valicUty  or  elifect  of  any  document,  on  certain  specific  grounds,  this 
will  l)c  taken  as  an  admission  that  no  other  grotmds  of  oljjection 


Xdfth  Carolina.  —  Tredwell  v. 
Graham,  88  N.  Car.  208;  Radford  v. 
Rice,  2  Dcv.  &  Batt.  39. 

North  Dakota. — Paulson  Mercan- 
tile Co.  v.  Scaver,  8  N.  D.  215,  77 
X.  \V.  1 00 1. 

Pi'iiiisvlt'ania. — .McClenkan  v.  Wc- 
.Millan,  6  Pa.  St.  366;  Coe  v.  Hut- 
un.  I  Serg.  &  R.  398;  Orner  v. 
Ilollnian,  4  Whar.  45. 

South  Carolina. — Hendrickson  v. 
.Miller.  I  S.  Car.  Const.  295;  Cole- 
man I'.  Frazier,  4  Rich.  146,  53  Am. 
Dec.  727. 

Tennessee. — Qnecncr  v.  Morrow,  i 
Cold.  123. 

Te.vas.  —  Simonds  v.  Fireman's 
Fund  Ins.  Co.,  35  S.  W.  300. 

I'ermont. — Fenno  v.  Weston,  31 
Vt.  345. 

W  isconsin. — Kimball  v.  Post.  44 
Wis.  471  :  Hinton  v.  Wells,  45  Wis. 

Rule  Stated — In  .Morris  v.  Nor- 
ton, ■/i  Fed.  912-924,  21  C.  C.  A. 
553,  the  rnle  is  stated  as  follows : 
"  The  rnle  is  well  settled  that  con- 
versations between  parlies  to  a  con- 
troversy in  which  one  makes  a  state- 
ment of  fart  of  which  hoth  have  per- 
sonal knowledge,  and  which  natnraUy 
calls  for  a  denial  hy  the  other'  if 
the  statement  is  untrue,  are  com- 
pct'.-nt  against  the  silent  parly,  as 
admissions,  by  acquiescence,  of  the 
truth  of  the  statement.  The  weight 
of  the  admissions  varies  with  the 
circumstances  of  the  case  and  the 
stri-ngth  of  the  probability  that  the 
statement,  if  true,  would  have  evoked 
a  denial,  and  is  always  for  the  jury, 
guided  by  a  proper  cautiim  of  the 
cor.rt,  as  to  the  theory  upon  which 
such    conversations    are   admitted." 

Statement  to  Officer  of  Corpor- 
ation, and  TJndisputed — The  case 
of  Cross  Lake  I.o.gging  Co.  •:'.  Joyce, 
83  Fed.  989,  28  C.  C.  A.  250, 
was  to  recover  damages  from 
injury  resulting  from  alleged  neg- 
ligence, growing  out  of  the  in- 
competency of  a  fellow  employee  of 
the  plaintiff.  Immediately  after  the 
accident    occurred,    a    statement    was 


made  to  the  superintendent  of  the 
logging  company,  by  the  plaintiff, 
that  he,  the  plaintiff,  had  notified  the 
superintendent  of  the  incompetency 
of  his  fellow  employee,  and  threat- 
ened to  quit  work  at  once  unless  he 
was  replaced.  At  the  trial  the 
plaintiff  was  allowed  to  testify  over 
the  objection  of  the  defendant  that 
when  Holin,  the  superintendent,  came 
to  his  assistance,  immediately  after 
the  accident  occurred,  he,  the  plain- 
tiff, exclaimed,  "Frank,  I  wouldn't 
have  lost  my  leg  if  you  had  done  as 
you  agreed  to,  and  put  another  man 
in  his  place;"  and  that  Bolin  said 
nothing  in  reply  to  this  remark. 
The  Circuit  Court  of  Appeals  held 
llie  testimony  to  have  been  com- 
])etent  on  the  ground  that  the  dec- 
laration was  a  part  of  the  res  gestae, 
and  said  further:  "".Moreover,  the 
fact  that  Bolin,  though  charged  by 
ihe  plaintiff  with  being  at  fault,  did 
not  deny  the  accusation,  may  be 
regarded  as  in  the  nature  of  an  ad- 
mission on  the  part  of  Bolin  that  the 
charge   was   true." 

Statement  by  Third  Party. —  In 
Olivier  I'.  Louisville  &  N.  R.  Co.,  43 
l.a.  .Xnn.  804.  9  So.  Rep.  431,  where 
the  action  was  for  damages  for  an 
injury,  alleged  to  have  been  caused 
by  the  negligence  of  the  defendant, 
it  was  held  that  the  statements  of 
a  companion  of  the  plaintiff,  relating 
to  the  cause  of  the  accident,  and  made 
in  his  presence  and  not  denied  by 
him.  had  like  force  with  his  own 
admissions. 

Testimony  at  Trial  Undisputed,. 
.And  so  it  is  held  competent  to  prove 
that,  at  a  former  trial,  witnesses 
were  introduced  against  a  party 
tending  to  establish  a  bargain  with 
him  of  a  particular  character,  and 
that,  at  the  time,  though  offering 
himself  as  a  witness  in  bis  own 
behalf,  he  did  not  contradict  such 
testimony.  Blanchard  v.  Ilodgkins. 
62  Me.   119. 

Made  by  Son  in  Presence  of 
Father.— .\nd  that  evidence  of  a  dec- 
laration   of    the    son    of    one    of    the 


Vol.  I 


.11 'MISSIONS. 


369 


parlies,  made  in  the  presence  and 
hearing  of  his  father,  who  remained 
silent,  was  competent  evidence  of  an 
admission  hy  him.  The  conrt  said : 
"  We  think  the  evidence  was  admis- 
sible. True  it  does  not  prove  that  the 
defendant  made  anj^  reply,  but  silence 
may  sometimes  be  regarded  as  an 
admission.  Whether  it  should  he  so 
regarded  in  this  case,  is  a  cpiestion 
for  the  jury  to  decide."  Johnson  v. 
Day,  78  Ale.  224,  3  Atl.  647. 

Statement  Made  by  Witness. — In 
Boston  Ry.  Co.  v.  Dana,  i  Gray  83, 
104,  objection  was  made  to  proof  of 
the  statements  of  a  witness  made  in 
the  presence  of  the  defendant.  With 
respect  to  this  objection,  the  court 
thus  declared  the  rule :  "  But  it  ap- 
pears to  us  that,  on  the  facts  stated 
in  the  report,  they  were  competent, 
as  tending  to  prove  admissions  by 
the  defendant.  They  stand  on  the 
familiar  principle,  that  what  was 
said  to  a  party,  together  with  liis 
replies  thereto,  or  his  silent  acquies- 
cence in  statements,  afifecling  his  own 
interest,  to  which  he  has  opportunity 
of  replying,  are  admissible  in  evi- 
dence against  him." 

In  a  Letter — So  it  is  held  that  a 
letter,  written  to  one  alleged  to  he  a 
member  of  a  copartnership,  stating 
that  the  writer  had  been  informed 
that  a  copartnership  liad  been  formed 
between  said  party  and  the  other  al- 
leged copartner,  and  the  failure  of 
the  party  to  whom  the  letter  was 
written  to  deny  the  facts  so  stated, 
is  competent  as  tending  to  show  an 
admission  of  the  existence  of  such 
partnership.  Dutton  v.  Woodman,  9 
Cnsh.  255. 

Made  to  Authorized  Agent. 
.\gain,  il  is  held  that  tlie  statement 
of  a  complainant,  addressed  to  the 
authorized  agent  of  the  defendant, 
in  reference  to  the  matters  of  fact 
in  controversy  in  the  suit  and  not 
disputed  or  denied  by  the  agent,  are 
evidence  for  the  complainant  on  the 
ground  that  the  silence  of  the  agent 
must  be  regarded  as  an  implied  a<l- 
mission  of  their  truth.  State  v. 
Farrish.  23  Miss.  483. 

Demand  for  Payment  of  Note. 
And  that  the  silence  of  an  alleged 
signer  of  a  note,  when  it  was  shown 
to  him,  and  payment  demanded,  is 
competent  evidence,  tending  to  show 


24 


the  genuineness  of  his  signature,  and 
if  not  genuine,  of  his  assent  to  be 
bound  by  it,  the  court  saying :  "  No 
principle  is  better  settled  than  that  a 
man's  silence  upon  an  occasion 
where  he  is  at  liberty  to  speak,  and 
the  circumstances  naturally  call  upon 
liim  to  do  so,  may  be  properly  con- 
sidered by  the  jury  as  tacit  admis- 
sions of  the  statements  made  in  his 
presence,  or  of  tlie  claims  then  made 
upon  him.  The  rule  and  its  qual- 
ifications are  well  stated  in  i  Greenl. 
Ev.  230,  232,  §§  197,  198.  Ad- 
missions may  be  implied  from  the 
acquiescence  of  the  party ;  but  where 
it  is  acquiescence  in  the  conduct  or 
language  of  others,  it  must  appear 
that  such  conduct  was  fully  known, 
or  the  language  full}-  understood  by 
the  party,  before  any  inference  can 
he  drawn  from  his  passiveness,  or 
silence.  The  circumstances  must  not 
only  he  such  as  afford  an  oppor- 
tunity to  act,  or  speak,  but  properly 
and  naturally  called  for  some  action, 
or  reply,  from  men  similarly  sit- 
uated. This  kind  of  evidence  should 
always  be  received  with  caution,  and 
never,  unless  the  evidence  is  of  direct 
declarations  of  that  kind  which 
naturally  call  for  contradiction,  or 
some  assertion  made  to  the  party  or 
others  with  respect  to  his  right, 
wnich  by  his  silence  he  acquiesces 
in.  lUit  the  silence  of  the  parly, 
even  where  the  declarations  are  ad- 
dressed to  himself,  is  worth  very 
little  as  evidence,  unless  where  he 
had  the  means  of  knowing  the  truth 
or  falsehood  of  the  statement."  Cor- 
scr   r.    Taul.   41    N.    II.    24,    77    .\m. 

I3ec.  753-  .   .       , 

Statement     Once     Denied — bo     it 

was  held  in  Jewctt  v.  Banning,  21  N. 
Y.  27,  that  where  the  plaintiff  in  the 
action  charged  the  defendant  with 
having  committed  the  assault  com- 
plained of,  and  the  defendant  had 
denied  it,  it  was  still  competent  to 
show  that  at  the  same  place  and  in 
the  presence  of  additional  witnesses, 
shortly  afterwards,  the  plaintiff  again 
charged  the  defendant  with  having 
cominitted  the  assault,  and  that  im 
denial  of  it  was  then  made. 

Extends  to  Statements  Made  to 
Officers  of  Corporations — Tin-  rule 
extends  to  declarations  made  in  the 
presence   of    officers   or   agents    of   a 

Vol.  I 


370 


II'MISSIOXS. 


exist,  at  least  within  his  kiiowleilge.-*  And  if  an  interrogator)  is 
put,  which  affords  a  part\'  an  opportunity  to  explain,  or  assert  the 
truth,  his  failure  or  refusal  to  answer  may  be  taken  as  an  admission, 
and  raise  the  presumption  that  the  disclosure  of  the  truth  would  be 
against  him.-"  And  the  failure  to  answer  interrogatories  pro- 
pounded in  the  action  will  be  taken  as  equivalent  to  an  answer 
against  the  party's  interest."' 

It  is  the  fact  that  one  fails  to  act  as  men  ordinarily  would  act 
under   the   circumstances   that    renders   such    e\idence   competent.'" 


corporalion.  who  have  tlic  authority 
to  act  for  and  bind  the  corporation 
with  respect  to  tlie  matter  to  which 
the  statements  made  in  tlieir  presence 
relate.  Patilson  .Mercantile  Co.  ?■. 
Seaver.  8  X.   D.  215,  77   N'.  \V.   looi. 

Statement  of  tlie  General  Rule. 
The  general  rule  on  the  .subject  is 
thus  stated  in  .McClenkan  v.  Mc- 
Millan, 6  Pa.  St.  366:  "The  dec- 
laration of  one  party,  made  in  the 
presence  and  hearing  of  the  other, 
and  to  him,  especially  when,  as  in  the 
case  under  consideration,  they  com- 
posed a  part  of  the  res  gestae,  have 
always  been  received  in  evidence ; 
not  because  they  are  the  declarations 
or  assertions  of  the  party  who  made 
them,  and  in  whose  favor  they 
operate,  but  because  the  silence  of 
the  opponent  gives  rise  to  a  fair 
presumption  that  he  admits  them  to 
be  true.  The  common  sense  of  the 
multitude  is  embraced  in  the  almost 
proverbial  expression  that  silence 
gives  consent;  and  the  law  does  not 
differ  from  the  understanding  of  the 
common  mind." 

28.  Smith  V.  Hill,  22  Barb.  656: 
Nichols  V.  Southern  Pacific  Co.,  2.? 
Or.    123.  ,11    Pac.   2<j6. 

Specific  Objection  to  Ticket  by  In- 
spector— Thus  it  is  held  that  llie 
declaration  of  a  ticket  inspector,  on 
examining  a  ticket,  that  be  rejected 
it  on  the  ground  that  it  was  not 
presented  by  the  original  purchaser, 
is  admissible  against  the  railroad 
company  as  evidence  that,  not  being 
objected  to  otherwise,  it  was  genuine. 
Nichols  7:  S.  P.  Co..  2.^  Or.  12.1,  31 
Pac.   2gri, 

Objection  to  Sale  of  Property  on 
Ground  that  it  is  Exempt. — .Vnd 
that  where  a  party  forbids  a  sale  of 
personal  property  on  execution,  on 
the  sole  ground  that  the  property  is 
exempt    from   sale,  this   will   be   con- 

Vol.  I 


sidcred  a  virtual  admission  that  the 
execution  and  sale  are  in  other 
respects  legal  and  valid.  Smith  7'. 
Hill.  22  Barb,  656. 

29.  Effect  of  Failure  to  Answer 
Specifically. .— Mitchell  z:  .N'apier,  22 
Tex.  120;  Parsons  i'.  .Martin,  11 
Cray   III. 

30.  Knight  i'.   Booth,  ,S5   'lex.    10. 

31.  President  etc.  of  Greenfield 
Bank  t.  Crafts,  2  Allen  269 ;  Fenno  v. 
Weston,  31  Vt.  345;  Waring  j'.  U.  S. 
Tel.  Co.,  44  How.  Pr.  fio ;  \'ail  -<■. 
Strong,    10  Vt.  457. 

When  Failure  to  Deny  Amounts 
to  Admission.  —  In  President  etc.  of 
the  Greenfield  Bank  7'.  Crafts,  2  Allen 
269,  the  question  was  as  to  the  effect 
of  the  presentation  of  a  notice  of 
protest  from  a  notary  public,  and  the 
failure  of  the  party  on  whom  the 
notice  was  served  to  deny  the  gen- 
uineness of  his  signature  to  the  paper 
and  protested  at  the  time.  The  rule 
with  respect  to  the  obligation  of  the 
party  to  deny  as  to  the  genuineness 
of  his  signature,  and  the  eflfect  of 
his  failure  to  do  so,  was  thus  stated: 
"  Notice  of  a  protest  requires  no 
answer  and  calls  for  no  action  on  the 
part  of  the  person  to  whom  it  is 
addressed.  He  has  a  right  to  remain 
silent,  and  to  stand  on  his  legal 
rights  as  to  his  liability  as  a  party 
to  the  note  or  draft  to  which  it 
relates.  No  duty  to  disclaim  or 
repudiate  the  paper  is  thereby  im- 
posed on  him,  and  no  absolute  in- 
ference as  to  his  liability  thereon 
is  to  be  drawn  from  a  mere  omis- 
sion to  disown  or  disavow  the  con- 
tract on  which  he  is  sought  to  be 
charged.  We  do  tiot  mean  to  say  that 
evidence  of  the  neglect  or  omission  of 
the  defendant  to  say  or  do  anything 
concerning  the  paper  bearing  his  name 
which  was  held  by  tlie  plaintiff,  and 


iDMissinxs. 


371 


Effect  of  Statements  of  Husband  and  Wife  in  the  Presence  of  Each  Other. 
A  stalonicnt  niadu  1)\  a  hii^liaiul  iir  wife  in  the  presence  of  the 
other  and  of  a  third  party,  and  not  denied  by  the  other,  stands  upon 
the  same  footing  as  statements  made  by  any  one  else.  Being  made 
in  the  presence  of  a  third  party,  they  are  not  privileged.-'-     P.ut  this 


of  wliicli  liL-  hail  notice  from  the 
notary,  was  iiiadinissihle.  On  the 
contrary,  it  was  adniissihle  as  lead- 
ing to  an  inference  that  he  did  not 
act  as  men  ordinarily  wonld  under 
like  circumstances.  If  tlie  jury  were 
of  opinion  that  a  man  receiving 
direct  notice  that  he  was  to  he  held 
liahle  on  negotiahle  paper  to  which 
his  signature  was  afti.xed  neither  by 
himself  or  by  his  authority,  would 
without  delay  disclaim  and  repudiate 
it,  then  they  were  at  liberty  to  infer 
that  the  conduct  of  the  defendant 
showed  that  he  either  wrote  or  au- 
thorized   the    signatures." 

Failure  to  Answer  a  letter. 
In  the  case  of  Waring  z\  U.  S.  Tel. 
Co.,  44  How.  Pr.  69,  strong  ground 
was  taken  against  the  admissibility 
of  a  letter  and  accompanying  proof 
of  the  fact  that  the  letter  was  not 
answered  by  the  defendant,  the  court 
saying :  "  In  the  present  case  a  party 
having  a  claim  against  a  corporation, 
writes  a  letter  to  its  principal  officer, 
giving  a  detailed  statement  of  .-lU  the 
facts  upon  which  the  claim  is  founded 
that  it  may  be  laid  before  the  board 
of  directors  in  the  expectation  that 
it  will  satisfy  them  of  the  liability  of 
the  corporation  and  that  they  will 
direct  it  to  be  paid,  and  is  officially 
answered  by  the  secretary  of  the 
company,  that  the  subject  of  the 
claim  has  been  referred  to  their  legal 
adviser,  and  after  some  time  has 
intervened,  the  president  transmitting 
the  written  statement  of  the  counsel, 
that  in  his  opinion  the  company  have 
a  good  defense  and  that  he  advises 
against  paying  the  claim.  There  is 
nothing  in  this  that  can  be  regarded 
as  an  admission  of  the  fact  con- 
tained in  the  plaintiff's  letter,  which 
would  entitle  it  to  be  used  as  evi- 
dence to  prove  these  facts.  It  w-ould 
be  preposterous  to  hold  that  all  the 
facts  stated  in  it  were  admitted  by 
the  corporation,  because  the  presi- 
dent, secretary  or  some  officer  of  the 
company  on  an  application  for  com- 
pensation   for    alleged    damages,    did 


not  by  letter  deny  the  truth  of  them. 
Even  admissions  inferred  from  ac- 
quiescence in  verbal  statements  made 
in  a  party's  presence  are  received 
only  when  the  declaration  or  state- 
ment made,  is  of  a  kind  which  calls 
for  inunediate  contradiction,  or  is 
such  as  would  naturally  provoke  or 
lead  to  some  action  or  reply  on  the 
part  of  the  person  to  whom  or  in 
respect  to  wdiom  it  is  made ;  because 
inference  from  a  party  preserving 
silence  is  considered  a  very  danger- 
ous kind  of  evidence,  and  is  to  be 
kept    within    very    strict    limits." 

32.  Statement  of  Husband  or 
Wife  Made  in  Presence  of  the  Other. 
.Ihil'aiini.  —  ("■illespie  v.  P.urleson,  28 
Ala.  551. 

G'corgm.  —  Sindall  i'.  Jones,  57  Ga. 

Ioz<a.  —  Clark  7'.  Evarts,  46  Iowa 
248;  Owen  f.  Christensen.  106  Iowa 
394,  76. N.  \V.   100.?. 

KcittUi-ky.—C;\r\-e\  ?■.  Early,  4  llibb, 
(  Ky. )  270. 

Michigan. — Sanscrainte  1'.  Torongo, 
87  Mich.  60.  49  N.  W.  497".  Evans  v. 
Montgomery,  95  Mich.  497,  55  N.  W. 
362;  Matthews  J'.  Forslund,  112  Mich. 
591,  70  N.   W.   1105. 

jYi-ie  Hampshii-c. — Steer  v.  Little. 
44  N.  H.  613. 

.Vi-ie  Jersey. — Boyles  v.  M'F.owen, 
3  N.  J.  Law,  253. 

New  York. — Lindner  v.  Sahler.  ,;i 
Barb.    322. 

Tennessee. — Allison  v.  Barrow,  3 
Cold.  414.  91  Am.  Dec.  291  ;  Queencr 
J'.  Morrow.  I  Cold.  124. 

Statement  by  Wife  in  Presence  of 

Husband In    Gillespie   T'.    Burleson. 

28  Ala.  531,  it  was  held  that  where 
slaves  were  in  the  possession  of 
husband  and  wife,  the  wife's  as- 
sertions of  title,  when  made  in  the 
presence  of  her  husband  and  ac- 
quiesced in  by  him,  are  competent 
evidence  against  his  administrator,  in 
a  suit  brought  by  the  latter  against 
her    vendee. 

By  Husband  in  Presence  of  Wife. 

Vol.  I 


.lilMISSIONS. 


Si)  in  Clark  v.  Evarts,  46  Iowa  248, 
it  was  Ik'IcI  that  in  an  action  against 
the  administrator  and  heirs  ol  the 
husliand,  the  hnsband's  declarations, 
made  in  the  presence  of  his  deceased 
wife,  and  assented  to,  and  acted  npon 
l)y   her,   are  competent  evidence. 

Again,  in  Owen  v.  Christensen,  106 
Iowa  394,  76  N.  W.  1003,  where 
a  widow  sned  her  hnsband's  ex- 
ecntor  for  property  she  claimed  in 
her  own  right,  and  a  witness  tes- 
tified that  at  the  time  he  drew  her 
husband's  will  she  declared  in  thei.r 
presence  that  the  property  belonged 
to  him,  evidence  of  the  hnsband's 
reply  was  admissible  to  show,  if  he 
also  stated  that  it  was  his,  that  she 
acquiesced,  the  court  saying:  "Ordi- 
narily, the  declarations  of  a  party 
made  in  his  own  interest  are  not 
admissible  to  establish  that  interest, 
but  where  the  declaration  is  made 
in  the  presence  and  hearing  of  his 
adversary,  it  is  admissible,  not  be- 
cause of  what  is  declared,  but  because 
of  the  manner  in  which  the  dec- 
laration is  treated  by  the  adversary. 
If  Mr.  Owen  stated  in  the  hearing 
of  the  plaintiff  that  this  property  was 
his,  and  she  acquiesced  in  this  state- 
ment, it  would  be  evidence  '  against 
her  because  of  her  acquiescence." 
The  court  seems  not  to  have  con- 
sidered directly  the  question  as  to 
whether  the  question  of  the  admis- 
sibility of  the  evidence  was  afTected 
by  the  fact  that  the  parties  making 
the  statements  were  husband  and 
wife. 

Of  'Wife  in  Husband's  Presence. 
In  Carrel  v.  Early.  4  liibb,  (Ky.") 
270,  it  is  said:  "The  declarations  of 
Mrs.  P>ell  were,  upon  the  same  prin- 
ciple, admissible ;  for  being  made  in 
the  presence  of  her  husband,  without 
being  contradicted  by  him,  was  on 
liis  part  a  tacit  admission  of  their 
truth,  and  what  a  person  admits  as 
well  as  what  he  says  is  receivable  in 
evidence  against  liim,  and  conse- 
quently against  any  person  claiming 
under  him." 

In  Hoyles  z\  M'Kowen.  3  N.  J. 
Law  253,  the  court  said:  "As  to  the 
declarations  of  the  wife  of  llie  de- 
fendant below,  it  is  a  general  rule 
that  the  declarations  of  the  wife  shall 
not  be  given  in  evidence  against  lirr 
liusband.    but    there    are    exceptions 

Vol.  I 


to  ibis  rule.  ...  It  is  every 
day's  practice  to  adnnt  in  evidence 
anything  said  in  the  presence  of  the 
party  and  uncontradicted  by  him, 
and  whether  this  is  said  by  a 
stranger,  by  the  wife  of  the  party, 
or  even  by  the  opposite  party  himself 
it   makes  no  difference." 

Husband  Speaking  for  Wife  in 
Her  Presence — In  Lindner  v.  Sahler, 
51  Barb.  S-^i  the  court  said:  "When 
a  married  woman  acts  and  speaks  by 
her  husband,  his  declarations  and 
acts  are  hers,  and  she  must  see  to  it. 
particularly  when  he  assumes  to  act 
and  speak  in  her  presence  for  her, 
that  he  speaks  and  acts  as  the  law 
and  her  duty  would  require  her  to 
speak  and  act  if  she  spoke  herself. 
She  must  in  such  cases  dissent  and 
disapprove  his  acts  and  declarations, 
or  they  should  be  deemed  hers.  Slie 
cannot  stand  by  and  hear  him  as- 
sert rights  for  her  and  in  her  behalf, 
or  do  wrong  for  her  benefit,  or  refuse 
to  do  what  her  legal  duty  requires, 
and  escape  responsibility.  She  must 
be  deemed  to  assent  when  she  docs 
not  dissent  under  such  circum- 
stances." 

Conversations  Between  Husband 
and  Wife — So  it  is  held  that  con- 
versations between  husband  and 
wife,  or  admissions  made  by  either 
to  the  other,  in  the  presence  of  a 
third  person,  do  not  belong  to  the 
class  of  privileged  communications 
between  husband  and  wife,  and  may 
be  given  in  evidence  against  the  Inis- 
band  like  any  other  conversation  in 
which  he  may  have  been  concerned. 
.A.lliscm    V.    Barrow,    3    Cold.    Tenn. 

-414- 

Is    a     Husband     Called     Upon     to 

Deny  Statement  of  Wife. —  In 
Queener  v.  Morrow,  i  Cold.  Tenn. 
123,  128,  the  court  say:  "It  is  as- 
sumed as  a  corollary  from  tlie  rule 
which  excludes  husband  and  wife 
from  being  a  witness  in  a  cause, 
civil  or  criminal,  in  which  the  other 
is  a  party,  that  the  statements  of  the 
wife  were  inadmissible;  and  further, 
that,  from  the  very  nature  of  the 
relation  between  the  parties,  the  hus- 
band was  not  called  upon  to  con- 
tradict, or  even  to  notice,  the  crim- 
inations of  the  wife.  These  dis- 
tinctions. thou,gh  plausibly  main- 
tained    in     the     argument,     are     not 


APM/SSIONS. 


373 


ruk'.  altliough  supported  by  the  weight  of  authorit)',  has  not  gone 
unchallenged.^^ 

The  rule  is  the  same  with  respect  to  statements  made  by,  to,  or  in 
the  presence  of  other  persons,  acting  in  confidential  relations,  third 
parties  being  i^resent.^'' 

Possession  of  Papers.  —  I'nder  some  circumstances,  the  possession 
of  papers  will  be  taken  as  an  implied  admission  of  the  existence  or 
truth  of  the  facts  stated  therein.'"^ 

Failure  to  Object  to  Account  Rendered.  ^ — So  the  failure  to  object  to 
an  account  or  other  claim  made  or  presented  may  be  competent  as 
tendiu"-  to  show  an  admission  of  the  correctness  of  its  items.""     And 


sniuul.  Til  Phillips  on  Ev..  Si,  it  is 
l;iid  down,  correctly,  as  \vi-  think, 
that  a  '  discourse  between  husband 
and  wife,  in  presence  of  a  third 
person,  may  be  given  in  evidence 
a.sainst  the  husband,  like  any  other 
conversation  in  which  he  may  have 
been   concerned.' 

"This  must  necessarily  be  so,  and 
the  .arencral  rule,  which  excludes  the 
wife  from  being  a  witness  asainst 
her  husband,  is  not  infringed  in  its 
spirit,  in  such  case.  The  statements 
of  the  wife  are  not  received,  or 
treated,  as  evidence  against  the  hus- 
band, but  merely  as  uidncemcnt  to 
the  responsive  admissions,  declara- 
tions, or  acts  of  the  husband  at  the 
time.  Except  for  this  purpose,  the 
statements  of  the  wife  are  of  no 
effect." 

33.  Hoffman  v.  Hoffman's  Exr. 
126  Mo.  486,  29  S.  W.  603;  Fourth 
Nat.   Bank  v.   Nichols,  43   Mo.   App. 

Failure  to  Benv  Statement  of  One 
by  the  Other  not  an  Admission. — 
Tn  Hoffman  7'.  Hoffman's  Exr.. 
siihra.   it   is   said: 

"Admissions  or  declarations  by  n 
husband  or  wife  in  the  presence  of 
the  other  stand  unon  an  entirely  dif- 
ferent footing.  Generally  sneaking, 
at  common  law  the  .husband  and 
wife  are  not  competent  to  testify 
asrainst  each  othpr  in  contests  with 
third  persons.  'Much  less  could  mere 
statements  of  one  be  used  as  evidence 
.-la'ainst  thi'  other.  Neither,  there- 
fore, would  one  stand  under  obliga- 
tion to  dispute  a  statement  made 
by  the  other,  unless  the  circumstances 
were  such  as  would  create  an  es- 
(onnel  to  dcnv  it.  Besides,  the  verv 
relation  of  husband  and   wife  is  such 


as  should  deter  one  from  dispuliiig 
in  the  presence  of  strangers,  an  a^ 
sertion   made   by   the   other." 

34.  Springer  v.  Byram.  137  Ind. 
1.;.  36  N.  E.  361 ;  Sharon  v. 
Sharon.  79  Cal.  63.?.  677;  Gallagher 
.7:  Williamson,  23  Cal.  331.  83  Am. 
Dec.  114;  Moffatt  v.  Hardin.  22  S. 
Car.  g:  I\Iobilc  &  C.  Ry.  Co.  v. 
Yeatcs.  67  .Ma.   Tfij. 

Statements  Made    to  Physician  in 

Presence     of     Others The    case    of 

Surinper  v.  Byram.  137  Ind.  t^.  ?6 
N.  E.  361,  was  an  action  for 
nersonal  injuries,  alleged  to  havi> 
been  sustained  by  the  plaintiff  while 
being  transported  in  a  passenger 
elevator  in  a  public  office  bnildine, 
o\vned  by  the  defendants.  Tt  was 
offered  to  prove  by  third  parties  as 
witnesses,  that  immediately  aHi-r  the 
accident,  and  while  in  the  ambulance 
with  the  physician,  the  plaintiff  made 
certain  statements  to  the  nhvsician 
as  to  the  cause  of  the  accident.  The 
evidence  was  objected  to  on  the 
ground  that,  being  made  to  his  nhv- 
sician, the  statements  were  confiden- 
tial and  could  not  be  nroved  asainst 
him,  but  it  was  held  by  the  court 
that  statements,  made  to  the  nhv- 
sician in  the  presence  of  third  par- 
ties, were  not  confidential  within  the 
meaning  of  the  statute  of  T"diana. 
and  that  they  were  admissible  the 
snme  as  if  made  to  some  other  rinrtv. 
The  proof  in  this  case  being  offered 
to  be  made,  not  bv  the  pbvsician 
but  by  others  present  ,-it  the  time  the 
stnlenie'Tf"  wns  made. 

S."?.  Possession  of  Paners  as  Tm- 
nlied  Admission.  —  t  Greenl.  Ev., 
§  loS ;  Commonwealth  ?'.  Jeffries,  7 
Alb-n   ='R.  cfiT.  .S^    \.n,  n-e    -T..'. 

36.     Failure  to  Obieet  to  Account. 

Vol.  I 


u4 


ADMISSIONS. 


Unilcd  Slates.  —  Field  i'.  Moulsoii, 
2  Wash.  C.  C.  155,  g  Fed.  Cas.  No. 

4.770- 

Ahibama. — McCullocli  v.  Jiidd,  20 
Ala.  70,? ;  Perry  v.  Johnston,  59  Ala. 
O48;  Peck  V.  Ryan,  110  .\la.  336,  17 
So.  733- 

Arkansas. — Broun  v.  Brown,  i(j 
.\rk.  202. 

Georgia. — McLcndcn  v.  Shackel- 
ford. 32  Ga.  474. 

Illinois. — Bailey  v.  Benslcy.  87  111. 
556;  McCord  I'.  Manson,  17  111.  App. 
118;  Weigle  V.  Branligani.  74  111. 
.Vpp.  285. 

loiea. — C'.nirchill  ?■.  Fulliani,  8  Iowa 
45 ;  Iowa  City  State  Bank  z\  Novak, 
97  Iowa  270,  66  N.  W.  186. 

Louisiana. — Didicr  v.  Angc,  15  La. 
Ann.  398. 

-Vrii'  Hampshire. — North nmbcrland 
V.  Cobleigh,  59  N.  H.  250. 

Nc'a'  Jersey. — Oram  v.  Bishop.  12 
N.  J.  Law,  153. 

AVic  FoWo.— Terry  v.  McNiel,  58 
Barb.  241  ;  Peck  v.  Richmond.  2  K. 
D.  Eniith  380;  Del  Piano  v.  Cap- 
ronigri,  20  Misc.  541,  46  N.  Y. 
Snpp.  452;  Wilshnsen  i'.  Binns.  19 
Misc.  547,  43  N.  Y.  Snpp.  1085. 

Pennsylvania. — Coe  v.  Hntton,  i 
Serg.  &  R.  398;  Darlington  i'.  Tay- 
lor, 3  Grant's  Cas.  195;  Tams.  v. 
Lewis,  42  Pa.  St.  402. 

South  Carolina.  — >  McBride  t'. 
Walls.   1    McCord.  3S4. 

Invoice  of  Goods  Received  and 
Retained  Without  Objection — In 
Field  I'.  Monlson,  2  Wash.  C.  C.  155. 
9  Fed.  Cas.  No.  4770,  it  was  held  that 
an  invoice  of  goods,  received  by  the 
consignee,  retained  by  him.  and  not 
objected  to,  and  the  truth  of  it  not 
disproved,  is  evidence  that  all  the 
.goods  ennnioratcd  in  it  were  re- 
ceived by  the  consignee. 

Examination    of    Account So    it 

was  luld  in  .\lcCidloch  ?'.  Judd,  20 
.Ma.  703,  that  where  an  acconnt  was 
placed  together  with  a  number  of 
others,  in  the  hands  of  an  attorney 
for  collcclion.  proof  that  the  debtor 
came  several  times  to  his  ofifice,  and 
examined  the  bnndle  of  accounts  in 
which  it  was  filed,  and  made  no  ob- 
jection to  either  the  correctness  or 
justice  of  any  of  them,  is  sufficient 
to  charge  him  with  an  acknowdedg- 
ment  of  the  justice  of  the   demand. 

General    Statement    of    the    Rule. 

Vol.  1 


In  Perry  v.  Johnson,  59  .\la.  648, 
651,  it  was  said:  "The  silence  of  a 
party,  against  whom  a  claim  or  right 
is  asserted,  is  a  fact  which  may  be 
shown  in  an  action  for  the  enforce- 
ment of  such  claim  or  right  from 
which  the  jury  may  infer  an  admis- 
sion of  the  truth  of  the  assertion, 
and  the  rule  is  said  to  rest  'on  that 
instinct  of  our  nature,  which  leads 
us  to  resist  an  unfounded  demand.' 
The  common  sense  of  mankind  is 
expressed  in  the  popular  phrase, 
silence  ^i^ives  consent,  wdiicli  is  but 
another  furm  of  expressing  the 
maxim  of  the  law,  (jni  tacet  con- 
scntirc  videtur.  The  rule  involves 
as  facts  on  wdiich  it  rests,  that  it  is 
the  interest  or  duty  of  the  party  to 
wdiom  the  declaration  or  assertion  is 
made,  to  reply  to  it.  If  it  proceeds 
from  one  having,  or  asserting,  or 
authorized  to  assert,  adverse  in- 
terests or  claims,  it  is  in  the  or- 
dinary course  of  human  conducl,  if 
the  truth  of  the  assertion  is  not  ad- 
mitted, that  dissent  from  it  should 
be  expressed."  But  it  is  ckarly 
pointed  out  in  this  case  that  the 
niere  declarations  of  a  stranger,  or 
the  mere  expression  of  an  opinion, 
and  not  the  statement  of  a  fact,  is 
not  such  a  statement  as  calls  for  a 
response,  and  consetpiently  acquies- 
cence in  il,  is  not  inferrible  from 
silence. 

Failure  to  Object  to  Account. 
In  Brown  v.  Brown,  10  .Ark.  ..02.  il 
was  held  that  where  an  account 
against  a  party  is  delivered  to  him, 
and  on  examining  it  carefully,  he 
makes  no  objection  to  it,  or  anything 
contained  in  it,  it  amounts  to  an  in 
direct  admission  of  the  debt ;  aii<l 
that  accpiie.scence  or  silence,  when 
the  demand  is  made,  is  equivalent 
to  an  admission. 

Monthly    Account    of    Sales    Fur- 
nished  So,    in    15ailey   ':    Bensley, 

87  111.  556,  it  was  held  that  accounts 
of  sales  rendered  monthly  by  a  com- 
mission merchant  to  the  consignor 
for  several  years,  containing  items 
of  charges  for  storage  and  insur- 
ance, unobjected  to  unlil  after  suit 
brought  by  the  former,  for  a  bal- 
;uicc  due  him,  is  prima  facie  evidence 
of  the  Correctness  of  the  account, 
and  of  the  right  lo  make  such 
charges. 


inMissioxs. 


.Its 


if  a  part  of  the  items  are  objected  to  ami  others  not,  this  may  be 
taken  as  an  admission  that  those  not  objected  to  are  correct.""  lint 
if  the  party  denies  all  liability,  his  failure  to  dispute  the  items  of  the 
bill  cannot  be  taken  as  an  admission  of  their  correctness.''* 

Failure  to  Interpose  Defense  in  Previous  Action.  —  A  failure  to 
interpose  a  defense  in  a  jircvious  action  has  been  allowed  to  be 
proved  as  a  circumstance  tendings  to  show  that  the  fact  constitutini,'' 
the  alleged  offense  did  not  exist.-'" 

Declarations  of  Party  That  He  Neither  Admits  nor  Denies.  —  Where 
the  party  declares  that  he  neither  admits  noi'  denies  the  statement 
made,  his  answer  cannot  be  taken  as  an  admission.*"  Rut  what  did 
occur  niay  be  shown  in  connection  with  other  circumstances  tendinfj 
to  establish  the  fact  in  dispute.*' 

-What  Necessary  to  Constitute  an  Admission  by  Silence.  —  But  be- 
fore the  silence  of  a  party  can  be  taken  as  an  admission  of  what  is 


Reports  of  Agent — The  same  rule 
is  declared  wliere  an  agent,  from 
lime  to  time,  renders  to  his  principal 
reports  and  statements  of  the  busi- 
ness of  the  agency,  and  of  the  ac- 
counts between  himself  and  his 
principal,  growing  out  of  it.  and  such 
reports  and  statements  were  re- 
ceived and  retained  by  the  principal 
without  objection. 

McCord  "■.  Manson,  17  111.  .\pp. 
118. 

Books  of  Account Books  of  ac- 
count, not  otherwise  competent  as 
evidence,  may  be  made  so  by  proof 
that  they  were  submitted  to  a  party 
to  the  suit,  and  contained  entries 
against  his  interest,  which  he  did 
not  at  the  time  dispute.  Oram  v. 
Bishop,  12  N.  J.  Law,  is.V.  Terrv  v. 
McNiel,   58   Barb.   241. 

Statement  of  Rent  Derived  from 
Building. — So  the  falsity  of  a  state- 
ment as  to  the  amount  of  rent  de- 
rived from  a  building,  may  be  dis- 
puted by  showing  that  an  account  of 
such  rents,  prepared  by  the  jani- 
tor of  the  building,  were  submit- 
ted to  the  party  making  the  previous 
statements,  and  the  correctness  of 
the  janitor's  statements  of  the  rents 
received  not  denied  by  him.  Del 
Piano  V.  Capronigri,  20  Misc.  Rep. 
541,  46  N.  Y.  Supp.  452. 

Book  Entries  Not  Original. — .\nd 
the  shop  book,  even  though  the  en- 
tries be  not  original,  and  some  of 
the  items  not  the  subject  of  book- 
charge,    is   competent,   if   it   has   been 


shown  to  the  debtor,  withoiit  objec- 
tion on  his  part.  Darlington  i\  Tay- 
lor, ,1  Cirant's  Cas.   195. 

Statement  Made  Before  Arbitra- 
tors— So  in  case  of  an  amicable 
reference  to  settle  the  accounts  of 
parties,  the  statement  of  one  of  thun, 
produced  and  read  before  the  arbi- 
trators, in  the  presence  of  both, 
without  objection  on  the  part  of  the 
other  defendant  as  to  its  correct- 
ness, except  as  to  one  item,  the  pa- 
per containing  the  statement  is  ad- 
missible to  show  the  assent  of  the 
party  to  the  correctness  of  the  ac- 
count. Tams  v.  Lewis,  42  Pa.  St. 
402. 

General  Rule. — ,\nd  the  general 
rule  is  declared  that  where  the  truth 
or  falsehood  of  a  material  fact  is 
known  to  a  party  to  whom  the  fact 
is  asserted  to  exist,  his  omission  to 
deny  its  existence  is  presumptive 
evidence  of  its  truth,  but  that  when 
not  known  his  silence  furnishes  no 
evidence  against  him.  Robinson  7'. 
Blen,  20  Me.  log. 

37.  United  States  ?■.  Kuhn.  4 
Cranch  C.  C.  401,  26  Fed.  Cas.  No, 
15.545;  Low  V.  Griffin  (Tex.  Civ. 
App.L  41    S-  W.  7i- 

38.  Cobb     cV      .Xrundel,      26    Wis. 
Hinton    v.     Coleman.    45    Wis. 


5.5.^ : 
165. 
39. 

40 

41, 


Benson  v.    McFadden.   50   Ind. 

X'ail  -■.   Strong,   10  Vt,  4=;7- 
Dutton  7',   Woodman,  o  Cush. 


255,   57  .'\ni.   Dec,  46, 


Vol.  I 


376 


.IPMISSIONS. 


said,  it  must  appear  that  he  heard  and  understood  the  statement  ;^- 
tliat  lie  was  at  Hberty  to  interpose  a  denial  ;*^  that  the  statement 
was  in  respect  to  some  matter  affecting  his  rights,  or  in  which  he 
was  then  interested, ''•'  and  calling,  naturally,  for  an  answer;*'*  that 


42.  Must  Have  Heard  and  Under- 
stood Statement  Made.  —  Alabama. 
,\\]c\\rum\i\t.-  V.  Alkii.  jc)  Ala.  281 ; 
Spencer  v.  The   State,  20  Ala.  24. 

Indiana. — Pierce  v.   Goldsberry,  35 
Ind.  317. 
Iowa. — Martin   i'.   Caiiilal    Ins.   Co. 

85  Iowa  643,  52  N.  W.  534. 
Maine. — Blanchard     Z'.      llodgkins, 

62  Me.  119. 

Massachusetts. — Tnfts  v.  City  of 
Cliarlcstown.  4  Gray  537 ;  Conimon- 
weallli  V.  Kenney,  12  Met.  235,  46 
Am.  Dec.  672 ;  Commonwealth  z: 
Harvey,  i  Gray  487. 

Michigan. — Barry  v.  Davis,  33 
Mich.  515. 

Missouri. — Fourth  Nat.  Bank  v. 
Nichols,  43   Mo.   App.  385. 

Montana. — Territory  v.  Big  Knot 
on  Head,  6  Mont.  242,  11  Pac.  670. 

Nc'cV  Hampshire. — Steer  v.  Little, 
44  N.  H.  613;  Corser  v.  Paul.  41 
N.  H.  24,  77  Am.  Dec.  753. 

New  York.  —  Wright  v.  ]\Iaseras, 
56  Barb.  521 ;  Yale  v.  Dart,  43  N.  Y. 
St.  789,  17  N.  Y.  Supp.  179. 

Oregon. — Josephi  v.  Furnish,  27 
Or.  260,  41   Pac.  424. 

Tennessee. — Quccner  i'.  Morrow,  i 
Cold.   123. 

43.  And  at  Liberty  to  Interpose 
a  Denial — linghncl.—Mekn  v.  An- 
drews. I  M.  &  M.  336,  22  Eng.  C.  L. 
540;  Child  V.  Grace,  2  Car.  &  P.  193, 
12  Eng.  C.  L.  522. 

Alabama. — Collier  v.  Dick,  11 1 
Ala.   263,    18  So.   522. 

California. — 'W'ilkins  v.  Slidgcr. 
22  Cal.  231.  83    \m.  Dec.  64. 

Georgia. — McRInnnTv     i'.     Turner, 

86  Ga.  215,  12  S.  E.  359. 
/W)i(i(,r.— Slatfcrv    v.    The     People, 

76   111.  217. 

Indiana. — P.roylcs  v.  The  Stale.  47 
Ind.  25T. 

^fassachl(setts.  —  Commonwealth 
V.  Kenney.  12  Met.  235.  46  Am.  Dec. 
672;  Commonwealth  7'.  Harvey,  T 
Gray  487;  Jolmson  r'.  Trinity 
Church  Soc,  tt  Allen   123. 

Michigan. — Barry  v.  Davis,  j.^ 
Mich.  .SIS. 

Vol.  I 


Norlli  Carolina. — Guy  v.  Manuel, 
89  N.  C.  83 ;  Durham  Tobacco  Co. 
V.  McElwee,  96  N.  C.  71,  i  S.  E. 
676. 

Sonth  Carolina. — State  v.  Senii,  32 
S.  C.  392,   II   S.  E.  292. 

Tennessee. — Quecner  1:  Morrow,  1 
Cold.    123. 

44.  Must  Be    Statement  Affecting 

His     Rights Indiana.  —  Pierce     v. 

Gnldshcrrv.   35   Ind.   317. 

Maine.— \X^r<:   v.    Ware,   8   Greenl. 

Massachusetts. — Cnmn'nnM'i'nltli  v. 
Kenney,  12  Met.  235,  46  Am.  Dec. 
672. 

Missouri. — State  v.  Hamilton,  55 
Mo.  520. 

North  Carolina. — Durham  Tobac- 
co Co.  V.  McElwce,  96  N.  Car.  71, 
I   S.  E.  676. 

Pennsylvania. — Moore  v.  Smith.  14 
Serg.  &"R.  388. 

Tennessee. — Queener  ■:'.  Morrow,  i 
Cold.   123. 

Tc.vas. — Bell  v.  Preston.  10  Tex. 
Civ,  .-Vpp.  375.  47  S.  W.  ^7$. 

45.  And  Call  Naturally  for  an 
Answer. — Unglaiid. — I'airlie  v.  Den- 
ton. 3  Car.  &  P.  103.  14  Eng.  C.  L. 
472. 

Alabama. — Lawson  i'.  The  State. 
20  Ala.  6.S,  .s6  Am.  Dec.  182;  Aber- 
crombie  v.  Allen.  29  .'\la.  281  ;  Hicks 
?'.  T,awson,  39  Ala.  90;  Sncncer  v. 
The  State,  20  Ala.  24;  Wlient  v. 
Croom.  7  Ala.  340:  Peck  v  Ryan. 
TTO  .Ma.  336,  17  So.  733;  Jelks  v. 
McRae,  2$  Ala.  440. 

California. — Wilkins  7'.  Stidger.  22 
Cal.  23T.  83   .^m.  Dec.  64. 

Georgia. — Giles  v.  Vandiver.  91 
Ga.  192,  17  S.  E.  IT5. 

Iowa.  —  Churchill  7<.  Fulliam,  8 
Iowa  4$. 

Mas.':achusetts. — TTildreth  7'.  Mar- 
tin. 3  Allen  371:  Whitney  7'.  Hough- 
ton. 127  Mass.  .S27 :  I.arry  v.  Sher- 
borne, 2  Allen  34 :  Drury  7'.  Hcrvcy. 
126  Mass.  .Sio;  Commonwealth  7'. 
Densmore.  12  Allen  .S3.S. 

Missouri. — Phillins  7'.  Tnwlrf.  23 
Mo.  401:  Fourth  Nat.  Bank  7:  Nich- 
ols. 43  Mo.  App.  .38.S. 


ADMISSIONS. 


377 


the  facts  were  within  his  knowledge,'"'  and  that  the  fact  admitted 
or  the  inference  to  be  drawn  from  his  silence  would  be  material 
to  the  issue. ^' 

Some  of  the  cases  go  further,  and  hold  that  the  mere  statement 
of  a  fact  in  one's  presence  and  a  failure  to  deny  or  controvert  it 
raises  no  presumption  of  the  truth  of  the  statement  made,  unless 


New  Hampshire. — Corscr  v.  Paul. 
41  N.  H.  24.  77  Am.  Dec.  75.^. 

New  York. — Waring  v.  U.  S.  Tel. 
Co.  44  How.  Pr.  6g. 

North  Carolina. — ntirhani  To1)ac- 
co  Co.  V.  McElwec,  96  N.  Car.  71.  i 
S.  E.  676;  Francis  v.  Edwards,  77 
N.   C.  271. 

Peniisvh'ania. — Moure  i'.  Smith,  14 
Serg.  &R.  388. 

Vermont. — Vail  v.  Strnne,  10  Vt. 
4=;7;  Pierce  z'.  Pierce,  66  Vt.  36g,  20 
Atl.  Rep.  364;  Brainard  v.  Bnck.  25 
Vt.  573;  Gale  V.  Lincoln,  it  Vt.  152; 
Hersey  7'.  Barton,  23  Vt.  6S4. 

46.  Facts  Must  be  Within  His 
Knowledge — Conimnnwealtb  v.  Ken- 
ney,  12  Met.  23=;.  .16  .^m.  Pec.  672; 
Edwards  v.  Williams,  2  How. 
(■Mis.s.)  846:  Snenccr  v.  The  State, 
20  Ala.  2ji;  Rohinson  7'.  Blon,  20  1\Tp. 
rog:  W:.llace  v.  Goodall.  iS  N.  H, 
43g :  Fourth  Nat.  Bank  v.  Nichols, 
43   Mo.   .\pp.  ,385. 

47.  Must  be  Material  to  the 
Issue — Alabama.— nW]  v.  Bishop.  2 
Ala.    320. 

Indiana. — Zonkrr  v.  Covnn.  Ss 
Tnd.  3g5 ;  Nave.  v.  Flack,  go  Tnd.  205, 
46  Am.  205. 

Massachusetts. — Commonwealth  v. 
Kennev,  T2  ATct,  235,  237,  46  .\m. 
Dec.  672.  673. 

Mirhisan. — Mahloy  v.  Kitlleher- 
ger.  37  Mich.  360. 

Nebraska. — Hooncr  7'.  Browning, 
ig  Neb.  420.  27  N.  W.  4ig. 

Nr7t'  York  — T.vdon  7'  IVTptronoli- 
tnn  El.  Ry.  Co.,  =;7  N.  Y.  St.  7.1  27 
N.  Y.  Snnn.  ^lO:  Stephens  7'.  Vro- 
m.Ti.  t6  N.  Y.  -(Sr. 

.V<ir//i  Carolina. — Croom  7'.  Sn.ep. 
lib  N.  C.  2sg.  14  S.  E.  748. 

Peniisylvania. — T.omhard  &  S.  S. 
Pass.  Ry.  Co.  v  Christian.  124  Pa. 
St.   T14,  16  Atl.  628. 

Te.ras. — Western  Union  Tel,  Co.  7'. 
Thomas,  7  Tex.  Civ.  App.  to.;,  26  S. 
W.  Rep.  117. 

Vermont.  —  ATelrmly    ?■.    ,\nies,    62 


Vt.  14,  20  Atl.  161;  Vail  V.  Strong, 
10  Vt.  4.S7,  464. 

Rule   With   Its  limitations The 

rule  with  its  limitations  is  thus 
slated  :  "  Tf  a  statement  is  made  in 
the  hearing  of  another  in  regard  to 
facts  affecting  his  rights,  and  ho 
makes  a  reply,  wholly  or  nartially 
admitting  their  truth,  then  the  dec- 
laration and  the  reply  are  both  ad- 
missible' the  reply  because  it  is  the 
act  of  the  party,  wdio  will  not  be 
nresnmed  to  admit  anvthing  affecting 
his  own  interest,  or  his  own  riirhts. 
unless  coinpelled  to  it  by  the  force 
of  truth ;  and  the  declaration,  be- 
cTuse  it  may  give  meanine  and  ef- 
fect to  the  reply.  In  some  cases, 
where  a  similar  declaration  is  made 
in  one's  hearing,  and  he  makes  no 
reply,  it  mav  be  a  tacit  admission  of 
the  facts.  But  this  denends  on  two 
facts :  first,  whether  he  hears  and 
understands  the  statement,  and  com- 
nrehends  its  bearine':  and  secondlv, 
whether  the  truth  of  the  facts  em- 
braced in  the  statement  is  within 
his  own  knowledp-e.  or  nor:  whether 
he  !■;  in  such  a  situation  that  he  is  at 
libertv  to  make  any  renlv :  and 
whether  the  statement  is  made  un- 
der such  circumstances,  and  by  such 
nersons.  as  naturallv  to  call  for  a  re- 
nlv. if  he,  did  not  intend  to  admit  it. 
Tf  made  in  the  course  nf  anv  inrli- 
cial  hearinP',  he  could  not  interfere 
and  denv  the  statement:  it  wo\iM  be 
to  charge  the  witness  with  neriurv. 
and  alike  inconsistent  with  decoruin 
.ind  the  rules  of  law.  So,  if  t'^e  mat- 
ter is  of  somethinff  not  within  his 
l.-nowledsre :  if  the  statement  is  made 
bv  a  stranoer.  whom  he  is  not  called 
on  to  notice-  or  if  he  is  restrained 
I,  f.'Tir  bv  dnidit  of  his  rights,  bv  a 
belief  that  his  seruritv  will  be  best 
nromoted  bv  his  silence :  then  no  in- 
ference of  assent  can  be  dra"'n  from 
tlint  silence."  Commonwealth  v. 
Tv'ennev,  T2  l\Tet.  23c.  2-Jr.  a6  Am. 
Dec.  672.  673. 

'  Vol.  I 


378 


lf\]IISSIONS. 


till.'  i)art\    is  uiuler  a  moral  or  honorary  ol^lig-ation  to  discloso,  or 
his  rt-putation  or  interest  is  jeoparded  bv  the  statement." 

Distinction  Between  Written  and  Oral  Statements  As  to  Effect  of  Failure 
to  Deny.  —  A  distinction  is  made,  in  some  of  the  cases,  between  a 
statement  orally  made  in  the  presence  of  a  party,  and  a  letter  or 
other  statement  written  or  exhibited  to  him,  in  respect  of  the 
necessity  of  making  answer,  nnder  penalty  of  having  bis  failure 
to  do  so  taken  as  an  admission  of  the  truth  of  the  statements  made," 
it  being  held  that  the  mere  failure  to  answer  a  letter  or  other 
written  statement  does  not  amount  to  an  admission  of  or  ac(|uies- 
cence  in  the  truth  of  the  facts  contained  in  it.^" 


48.  V;ul  V.  Strong,  lo  Vt.  457; 
Mattocks  V.  Lyman,  16  Vt.  113; 
Perry  i'.  Johnston,  59  Ala.  648;  Mc- 
Cann  i'.   Hallock.  30  Vt.  232. 

Force  and  Effect  of  Silence. 
The  extent  to  which  courts  should 
go  in  the  admission  of  proof  of  mere 
silence  as  the  acknowledgment  of  the 
truth  of  a  statement  and  the  caution 
with  which  such  evidence  sliould  he 
received  is  well  stated  as  follows ; 

"  The  most  important  practical 
question,  by  far,  discussed  in  the 
case,  remains  to  be  determined.  It 
seems  to  have  been  generally  con- 
sidered that  all  conversation  had  in 
the  presence  of  a  party,  in  regard  to 
the  subject  of  litigation,  might  prt)ii- 
erly  be  given  in  evidence  to  the  jury. 
Rut  in  Vail  ■:■.  Strong,  10  Vt.  457, 
and  in  Cale  v.  Lincoln,  11  Vt.  152, 
some  qualification  of  this  rule  is 
established.  It  is  there  held,  that 
imless  a  claim  is  asserted  by  the 
claimant  or  his  agent,  and  distinctly 
made  to  the  party,  and  calling  natur- 
ally for  a  reply,  mere  silence  is  no 
ground  of  inference  against  one. 
.-\nd  we  think  even  in  such  a  case 
that  mere  silence  ought  not  to  con- 
clude a  party,  unless  he  thereby  in- 
duces a  party  to  act  upon  his  silence 
in  a  manner  different  from  what  he 
otherwise  would  have  acted.  There 
are  many  cases  of  this  character 
when  one's  silence  ought  to  conclude 
him.  But  when  the  claiiu  is  made 
for  the  mere  purpose  of  drawing  out 
evidence,  as,  in  the  present  case,  it  is 
obvious  must  have  been  the  fact,  or 
when  it  is  in  the  way  of  altercation, 
or,  in  short,  unless  the  party  assert- 
ing the  claim  docs  it  with  a  view  to 
ascertain  the  claim  of  the  person 
upon  whom  he  makes  the  demand, 
and   in  order  to  know  how  to  regu- 

Vol.  I 


late  his  own  conduct  in  the  matter, 
and  this  is  known  to  the  opposite 
party,  and  he  remains  silent,  and 
thereby  leads  the  adversary  astray, 
mere  silence  is,  and  ought  to  be,  no 
ground  of  inference  against  any  one. 
The  liabilities  to  misapprehension,  or 
misrecollection.  or  misrepresentation 
are  such,  that  this  silence  might  be 
the  only  security.  To  say,  under 
such  a  dilemma,  that  silence  shall 
imply  assent,  would  involve  an  ab- 
surdity little  less  gross  than  some  of 
the  most  extravagant  caricatures  of 
this  caricature-loving  age.  With 
some  men,  perhaps,  silence  would  be 
some  ground  of  inferring  assent,  and 
with  others  none  at  all.  The  testi- 
mony then  would  depend  upon  the 
character  and  habits  of  the  party— 
which  would  lead  to  the  direct  trial 
of  the  parties,  instead  of  the  case." 
Mattocks  f.  Lvman.  16  Vt.  113. 
118. 

49.  Distinction  as  to  Written 
and  Oral  Statements — linglaiid. — 
Farlie  v.  i:)enton,  3  Car.  &  P.  103, 
14  Eng.   C.   L.  472- 

Co/ornrfo.— Lee-Clark,  etc.,  Co.  v. 
Yankee,  9  Colo.  .^pp.  443.  48  Pac. 
1050. 

F;,)ri</.i.— Sullivan  v.  McMillan, 
26  Ha.  S43.  8  So.  450- 

^f(Usal■h iisctts. — Commonwealth  v. 
Eastman,  i  Cush.  189.  48  .\m.  Dec. 
596;  Fearing  v.  Kimball.  4  Allen 
125,  81   .\tn.  Dec.  690. 

Micliimm.  —  Canadian  Rank  z: 
Coumbe,  47  ^I'di-  .^58.  n  N.  W. 
196. 

;Vi'ti'  V'o//^.— Waring  -:  U.  S.  Tel. 
Co..  44  How.  Pr.  69;  Learned  v. 
Tillotson.  97  N.  Y.  I,  49  A'"-  ^^p. 
:;o8;  Rank  of  Rritish  N.  A.  r.  Dela- 
field,     126    N.     Y.    4to.    27     N.     E. 


ADMISSIONS. 


379 


But  in  uthcr  cases,  the  tlistiiiction  is  not  recognized  or  observed  ;■'" 
and  in  others  a  distinction  is  drawn  between  letters  containing  a 
demand  and  those  containing  affirmative  statements  or  declarations 
of  the  writer  as  to  his  version  of  the  controversy  between  him  and 
his  correspondent/''  And  some  draw  a  distinction  between  cases 
where  the  relations  between  the  ])arties  are  such  that  the  writer 
woidd  suffer  by  the  silence  of  the  party  addressed,  or  his  future 
conduct  be  influenced  by  such  silence,  and  ordinar\-  cases. ''- 

If  the  part}-  assents  to  the  statements,  there  can  be  no  question. 
In  that  case,  however,  the  assent  amounts,  in  effect,  to  a  direct  or 
express  admission  of  the  fact.'"' 

Distinction  Between  Statements  Made  by  Strangers  and  Parties  in 
Interest. — So  with  res])ect  to  the  oljligation  of  a  ])artv  to  answer 
and  deny  what  is  said  in  his  presence,  a  distinction  is  made  between 


797;  Talciitt  ;•.  Harris.  93  N.  Y.  567; 
Levisoii  i'.  Scyljold  Alach.  Co.,  22 
Misc.   Ti27.  49  N.  Y.   Supp.   148. 

Pennsylvania. — Fraley  v.  Bisphani, 
10  Pa.  St.  320,  SI  Am.  Dec.  481); 
Dempsey  %'.  Dobson,  174  Pa.  St.  122. 
34  Atl.  459. 

I'crmout. — Hill  -■.  PraU,  29  Vt. 
119. 

Failure  to  Answer  Letter.  In 
Farlic  V.  Denton.  3  Car.  &  P.  103. 
14  Kng.  C.  L.  472.  siifra.  Lord 
Tcntcrden  said  :  '"  What  is  said  to  a 
man  before  bis  face  lie  is  in  some 
degree  called  on  to  contradict  if  be 
does  not  acquiesce  in  it ;  but  the  not 
answering  a  letter  is  quite  different, 
and  it  is  too  much  to  say  that  a 
man,  by  omitting  to  answer  a  letter 
at  all  events,  admits  the  truth  of  the 
statements  that  letter  contains." 

And  again  in  Commonwealtb  '\ 
Eastman,  I  Cush.  189,  48  .Am.  Dec. 
596:-  "Letters  addressed  to  an  in- 
dividual, and  received  by  him.  are 
not  to  have  the  same  effect  as 
verbal  communications.  Silence  in 
the  latter  case  may  authorize  an  in- 
ference of  an  assent  to  the  state- 
ments made,  but  not  equally  so  in  the 
case  of  a  letter  received,  but  never 
answcrcil  nr  acted  u|iiin." 

Failure     to     Answer     Letter In 

Learned  z:  Tillotson.  97  N.  Y.  i.  9. 
49  .\m.  Rep.  508.  in  speaking  of  the 
question  as  to  the  admissibility  of  a 
letter,  and  in  connection  therewith, 
the  fact  that  the  letter  \^■:ls  unan- 
swered, the  court  said:  "The  state- 
ment    was     entirely      c.v    partr.     nut 


made  in  the  presence  of  the  de- 
fendant, and,  therefore,  he  was  not 
in  the  position  of  one  to  whom  a 
conversation  is  addressed,  who  is 
called  upon  at  the  time  to  make  an 
answer  to  the  same,  or  to  suffer  the 
consequences  of  such  inferences  as 
may  be  derived  from  the  fact  of  his 
remaining  silent,  and  thus  acqui- 
escing in  the  correctness  of  the  rep- 
resentations made.  Nor  can  it  be  said, 
we  think,  that  the  statement  con- 
tained in  the  letter  bears  any  analogy 
to  a  case  where  an  injured  party 
makes  a  statement  after  the  trans- 
action, which  is  held,  under  certain 
circumstances  in  some  of  the  aii- 
thiirities,  to  be  competent  testi- 
mony." 

50.  Dcla'Lvaic. — Gricr    v.     Deputy, 
1   Marv.  19,  40  .-^tl.  Rep.  716. 

Indiana. — Hays  v.  Morgan,  87  Ind. 

hnva. — Des   Moines   Sav.  Bank.  v. 
Colfax  Hotel  Co.,  88  la.  4.  55  N.  W. 

67. 

Massacliusctts.   —   Robinson  v. 

Fitchburg.  etc..  R.  R.  Co..  7  Gray  92. 

I'cimont. — Fenno    v.     Weston.     31 

Vt.  345- 

IVashini:ti>n. — Smith  J'. 
I  Wash.  Ter.   (N.  S.)   55- 

Wisconsin. — Murphey  '' 
Wis.  370.  51   N.  W.  573- 

51.  Learned  Z'.  Tillotson.  97  N.  Y. 
I.  AQ  .\m.  Rep.  508. 

52.  Porter  z:  T.edoux,  6  La. 
.?77- 

53.  McCallon     z:     Cohen. 
Civ.  .\pp.).  T,g  S.  W.  973. 


Kemiedy, 
Gates.  81 


.Ann. 

( TCN. 


Vol.  I 


380 


.IPM/SSIONS. 


the  statoincnts  nuule  by  mere  strangers  and  those  made  by  parties 
in  interest.^^ 

Effect  of  Failure  to  Deny  Ex  Parte  Affidavits. — And  it  is  held  that 
where  an  order  is  made  at;ainst  a  jjarty  on  ex  parte  affidavits 
cliarging  fraud,  a  failure  on  his  part  to  interpose  a  motion  to 
vaeate  the  order  does  not  amount  to  an  admission  of  the  truth  of 
the  charge  of  fraud  or  render  such  affidavits  competent  evidence/'''-'' 

"Whether  Party  Must  Act  Knowingly  or  Not.  —  The  question 
whether  the  party  must  act  knowingly  or  not  depends  upon  circum- 
stances. This  branch  of  the  subject  will  be  considered  when  we 
come  to  the  effect  of  admissions  when  proved.  But  it  may  be 
stated,  generally,  in  this  connection,  that  a  party  cannot  be  boinid 
by  admissions  resulting  from  mere  inference  unless  the  act  relied 
upon  was  done  with  knowledge  of  all  the  essential  facts,  in  the 
absence  of  a  showing  that  an  innocent  person  has  acted  thereon 
to  his  injury. "^ 


54.  Statements  Made  by  Str.in- 
gers.  —  Phillips  v.  Fowler,  23  Mo. 
401  ;  Romy  v.  Joliiistoii,  59  Ala.  6 '8: 
Ivec-Clark,  etc..  Co.  t.  Yankee,  g  Col. 
.■\pp.  443,  48   Pac.   1050. 

Failure  to  Answer  Letter  from 
One  Not  a  Party. -—In  Lee-Clark  etc 
Co.  7'.  Yankee.  9  Colo.  .'^pp.  44,^  jS 
Pac.  1050,  it  is  said,  in  speaking 
of  a  letter  addressed  to  the  Hefcndam 
in  the  action,  by  a  third  party : 
"  The  fact  that  defendant  had  re- 
ceived such  a  letter  from  Mr.  Tiidd. 
and  failed  to  reply  to  it,  could  not 
have  bound  defendant  in  any  man- 
ner. Judd  was  not  a  parly  to  this 
suit,  and  not  even  a  creditor  of  the 
firm;  and  hence  the  reasons  of  d.^- 
fendant  for  such  failure  In  reply 
were  even   less  materi;il." 

Verbal  Statement  by  a  Stranger. 
Tn  Phillips  v.  Towler,  23  Mo.  401. 
403,  the  court  said:  "The  court 
erred  also  in  allowing  the  remarks 
of  Robert  Towler,  made  in  the  pres- 
ence of  the  intestate,  to  po  to  the 
iury.  They  were  to  the  effect  that 
'  the  girl  had  burned  plaintiff's  stable, 
and  confessed  it.'  The  intestate,  it 
seems,  made  no  reply,  and  this  was 
received  as  an  admission  of  the  fact 
on  his  part,  implied  from  his  sup- 
posed acquiescence  in  what  was 
thus  said  in  his  hearing.  Tn  retrard 
to  these  admissions  inferred  from 
acf|uiescencc  in  (he  verbal  state- 
meiUs  of  others,  on  the  maxim.  'Oiii 
Unci  ritiisriitirc  Tidrliir.'  if  has  been 
most    justly    remarked,    that    nnlliing 

Vol.  I 


can  be  more  dangerous  than  this 
kind  of  evidence,  and  that  it  ought 
always  to  be  received  with  caution, 
and  never  admitted  at  all  unless  the 
statements  be  of  that  kind  that  nat- 
urally call  for  contradiction — somi- 
assertion  made  to  the  party  with  re- 
spect to  his  rights,  which  by  his 
silence  he  acquiesces  in.  (Moore  1'. 
Smith.  14  S.  &  R.  392).  A  distinc- 
tion is  taken  between  declarations 
made  by  a  party  interested  and  a 
stranger,  and  it  has  been  deter- 
mined, that,  while  what  one  party 
declares  to  the  other,  without  con- 
tradiction, is  adim'ssible  evidence, 
what  is  said  bv  a  third  person  may 
not  be  so.  (Child  Z'.  Grace,  2  Car. 
&  Payne.   193.")" 

55.  Talcott    ;■.    TTarris.   9?    N.    Y. 

56.  Whether  the  Party  Must 
Act  With  Knowledge.  —  F.iv^iand. 
Rankin  v.  Horner,  16  East.  19T. 

Indiana. — Slate  I'.  Sutton,  gg  Tnd. 
30a. 

Maine. — Robinson  v.  Bleu,  :q  Me. 
100. 

Mississifl^i.  —  Kdwards  7'.  Wil- 
liams, 2  How.    (Miss.)   846. 

Mc7i'  York. — Davis  v.  Galkadier. 
124  N.  Y.  487,  26  N.  K.  Rep.  1015. 

Ohio. — Griffith  f.  Zipperwick,  28 
Ohio    St.    388. 

PriDisvlvania. — I  onibnrd  &  S.  S. 
Pass.  Rv.  Co.  V  Christi;ui.  tJ\  Pa 
Si     ii.|.   ifi  All    Ren.  62,8, 

i'cnnont. — Mattocks  7'.  I.ymau.  16 
\"l.    113. 


.IDMrSSlONS. 


381 


Admissions  Based  on  Information  and  Belief.  —  All  admission  may 
be  competent  although  of  a  fact  not  within  the  declarant's  personal 
knowledge.'^'  Admissions  of  a  party  niay  be  used  against  him 
though  made  wholly  upon  information  and  belief."^ 

Admissions  As  to  Facts  That  Party  Is  Bound  to  Know And   without 

actual   knowledge,  one  mav  be  btumd  when  he  has  assumed  rela- 


Statement  to  One  Not  Having 
Knowledge — In  the  case  of  tlie 
claim  of  a  stL-p-son  against  his  step- 
father's estate,  for  services  ren- 
dered and  goods  fnrnished  deceased 
in  his  hfe-time,  the  former,  in  the 
presence  of  the  administrators  of  the 
estate,  stated  the  particulars  of  hie 
claim,  to  which  tlie  admini<:tra'oi 
made  no  objection  except  to  two  or 
three  items.  The  facts  were  not 
within  their  personal  knowledge.  It 
was  said  :  "  The  administrators  were 
engaged  in  trying  to  settle  a  dis- 
puted claim  against  the  estate.  They 
may  therefore  lie  said  to  have  been 
acting  in  their  representative  capa- 
city and  in  the  discharge  of  their 
duty,  but  the  claims  of  plaintiff  un- 
>der  consideration  related  to  past 
transactions  with  their  intestate,  and, 
as  Gallagher  has  testified,  pertaining 
to  matters  not  within  his  personal 
knowledge.  No  admission,  there- 
fore, if  made  by  him,  would  consti- 
tute a  part  of  the  res  gestae.  Con- 
sequently it  was  held  that  the  fail- 
ure of  the  administrators  to  object 
not  being  a  part  of  the  res  gestae 
was  not  admissililc  at  all.  Davis  v. 
Gallagher,  124  N.  Y.  487,  26  N.  E. 
1045- 

Effect     of     Silence Question     of 

kiidZiledge.  —  "To  contradict  an  as- 
sertion, implies  a  knowledge  of  the 
i. ;■  ..;:o.;...i  ul,  bul  to  suiier  a  re- 
mark to  pass  uncontradicted  docs 
not  necessarily  imply  an  admission 
of  its  truth.  This  would  depend 
upon  the  knowledge  of  the  party  to 
whom  the  conversation  was  ad- 
dressed. If  an  individual  were  to 
say  to  another.  I  owe  you  so  much 
and  no  more,  and  that  other  were 
to  permit  the  remark  to  pass  un- 
contradicted, it  would  lie  admissible 
as  evidence  to  show  the  extent  of 
the  debt,  but  it  would  be  so  because 
the  remark  was  made  in  reference 
to   a   matter   which    must   have   been 


known,  or  which  in  all  probability 
was  known  by  the  other  party.  On 
the  other  hand,  if  such  a  remark 
should  be  made  in  reference  to  a 
matter  which  must  necessarily  be 
unknown  to  the  party  addressed,  his 
apparent  acquiescence  would  amount 
to  nothing.  If  the  nature  of  the 
matter  spoken  should  be  such  as 
would  be  likely  to  be  known  to  the 
party  to  whom  the  conversation  was 
addressed,  such  probable  knowledge 
might  be  sufficient  ground  for  ad- 
mitting the  evidence ;  but  when  the 
truth  of  the  statement  could  not  be 
known  by  the  party  addressed,  the 
statement  made  to  him  could  not  be 
evidence,  without  showing  that  the 
truth  of  the  matter  was  within  his 
knowledge."  Edwards  i'.  Williams. 
2  How.   (Miss.)   846,  849. 

57.  Sparr  z:  Wellmau,  11  Mo. 
230;  Chapman  -.'.  Chicago  &  K  W. 
R  \V.  Co..  26  Wis.  295,  7  Am.  Rep. 
81. 

If  admissions  made  by  a  party  arc 
based  upon  the  supposition  that 
certain  information,  given  him  by 
another,  is  correct,  such  admissions 
may,  with  other  evidence,  showing 
the  correctness  of  the  statements 
made  to  the  party,  be  competent  evi- 
dence against  him.  Chapman  v. 
Chicago  N.  W.  Ry.  Co.,  26  Wis. 
295- 

58.  Reed  v.  McCord,  18  .\pp.  Div. 
381.  46  N.  Y.  Supp.  407;  shaddock 
V.    Town    of    Clifton.    2J    Wis.    114. 

When  Statement  Without  Knowl- 
edge Amounts  to  Admission — 
Thus  it  is  held  that  a  statement  of 
an  employer  as  to  tlie  cause  of  an 
accident  by  which  his  employee  was 
killed,  made  at  the  coroner's  in- 
quest, was  competent  in  an  action 
against  him  for  damages,  as  an 
admission,  though  he  had  no  per- 
sonal knowledge  of  the  facts.  Reed 
r.  McCord,  18  App.  Div.  381,  46 
N.   Y.   Supp.  407. 

Vol.  I 


382 


.IDMISSIOXS. 


tioiis   from  wliich  kiiuwludgc  niusl  he  presumed.''' 

'I'lio  anirls  lia\e  uniformly  treated  evidence  of  this  kind  as  dano;er- 
ous  and  inicertain,  and  it  is  received  witli  great  caution."" 

Effect  of  Admission  for  the  Jury.  —  If  an  admission,  direct,  inciden- 
tal, or  by  inference,  tends  to  establish  a  fact  material  to  the  case, 
it  is  competent,  and  whether  it  does,  alone,  or  in  connection  with 
other  facts  proved,  establish  such  fact,  must  be  left  to  the  jury.''' 


59.  Raggett  v.  Musgrave,  2  Car. 
&  P.  556;  Alderson  r.  Clay,  i  Stark 
405.  2  Eng.  C.  L.  157- 

60.  Evidence  of  Kecelved  with 
Caution. —  rnitai  .S'/ii^-.?.— Oaltoii  v. 
United   States,  22   How.  436. 

Georgia. — Carter  i-.  Buclianan,  3 
Kelly     513;    Rolfe    7:    Rolfe.    10    Ga. 

143- 

Iowa. — Clnirchill  t.  Fulliam.  8 
Iowa    45. 

MassacliHsclls. — Wlinncy  !■.  Hoiigli- 
ton,  127  Mass.  527;  Larry  !■.  Shor- 
btirne,  2  Allen  34. 

Missouri. — Pliilltps  v.  Ttnvler.  2,^ 
Mo.   401. 

New  Iliiiiil'shirc. — Corser  7'.  Paul, 
41  N.  H.  24.  77  Am.  Dec.  753. 

I'ermoiit. — Mattocks  v.  I.ynian.  1(1 
Vt.   113. 

Extent  of  the  Rule.— The  jnry 
was  instructed  that  no  act  or  dec- 
laration of  tlie  defendant,  as  a  pay- 
ment niade  or  claimed  to  have  been 
made,  without  disputing  at  the  time 
tlie  correctness  of  the  account,  is  a 
circumstance  which  may  be  con- 
sidered by  the  jury  as  proof  of  and 
tending  to  prove  the  correctness  of 
such  an  account.  This  was  held  to 
be  stating  tlie  proposition  entirely 
too  broadly,  and  it  was  said  :  "  The 
defendant  is  not  called  upon  to  dis- 
pute the  account  on  every  occasion, 
and  care  should  be  exercised  in 
determining  whether  the  circum- 
stance called  for  was  such  a.s  to 
cause  his  admission  tn  have  weight 
against  him."  Chnrclnll  ?■,  luilliani. 
S   Iowa.  45. 

Evidence  Should  be  Received  with 
Great  Caution. —  hi  I.arry  f.  Sher- 
burne, 2  Allen  34,  it  is  said:  "There 
is  therefore  nothing  to  .show  that 
the  evidence  of  the  otter  to  pay 
could  have  any  effect  as  an  admis- 
sion. It  is  true  that  there  are  cases 
where  a  party  may  be  aflfected  in 
his    rights   by   proof   of   a    silent    ac- 

Vol.  I 


quiescence  in  the  verbal  statements 
of  others.  But  such  evidence  is 
always  to  be  received  and  applied 
with  great  caution,  especially  where 
it  appears,  as  in  this  case,  that  the 
statements  are  made,  not  by  a  party 
to  the  controversy,  but  by  a  stranger. 
There  are  many  cases  where  the  in- 
tervention of  a  third  person  may 
properly  be  deemed  unnecessary,  and 
his  statemeiUs  be  regarded  as  im- 
material and  impertinent.  To  them 
no  reply  need  be  made;  and  no  in- 
ference can  be  drawn  from  the  fact 
that   they  are   received   in   silence." 

61-  Hagenbaugh  z'.  Crabtree,  ^^ 
111.   22h. 

When  Failure  to  Deny  Evidence 
of  Admission — In  the  case  cited  u 
is  said;  "That  such  evidence  is 
proper  for  the  consideration  of  a 
jury  is  undeniably  true,  but  it  is 
equally  true  that  such  evidence  is 
not  conclusive.  Nor  is  such  silence 
always  evidence  of  the  truth  of  the 
statement  thus  made.  .^Vud  it  is 
for  the  obvious  reason  that  under  a 
variety  of  circumstances,  it  would 
be  highly  improper  for  a  party  to 
niake  a  denial.  The  proprieties  of 
life  should  not  be  outraged  or  even 
violated  in  making  such  a  denial. 
Nor  would  the  party  be  bound  to  do 
so,  if  it  would  lead  to  violent  alter- 
cation between  the  parties.  '  If  such 
a  denial  would  lead  to  a  breach  of 
the  peace,  or  even  to  an  mdccent 
quarrel  and  abuse,  he  wouUl  not  be 
bound  to  contradict  the  statement. 
Or  if  it  "woidd  be  mdecorous  and 
offensive  to  those  present,  or  if  it 
would  disturb  business,  social  en- 
joyment or  religious  exercises,  it 
would  be  improper  to  make  a  denial. 
If  maile  in  court,  wdiere  it  would  be 
a  contempt  to  make  the  deni;il.  it 
would  be  highly  improjier.  The  ex- 
tent of  the  rule  is,  that  it  is  a  (|ues- 
tion  for  the  jnry,  in  the  light  of  all 
the  circumstances,  to  say  whether  or 
not    it    amounts    to    .-in    admission." 


.■i!).]ffssroxs. 


?.s?< 


4.  Self-Serving-  Statements. —  statements  of  Acts  in  One's  Own  Interest 
Incompetent.  —  It  has  Ijccn  shown  above  that  statements  against 
one's  interest  are  in  the  nature  of  admissions  and,  therefore,  compe- 
tent evidence  against  him.  (hi  the  other  hand,  statements,  declara- 
tions or  acts  of  a  party,  in  his  own  interest,  or  tending  to  establish 
his  theory  of  the  case,  or  any  fact  favoraljje  to  him,  whether  oral 
or  in  writing,  are  as  a  general  rule,  inadmissible  as  evidence  in 
iiis  own  liehalf,''-  except  wlierc  they  are  a  part  of  the  res  gestae  or 


62.  Statements  in  One's  Own 
Interest  Incompetent.  —  Stephens' 
Dig.   of   Ev.   yj. 

linglaud. — Kicliards  z\  Frankiiin. 
9  Car.  &  P.  221,  38  Eng.  C.  L.  13S. 

Aliibaiiui. — Downing  v.  Wooil- 
stock  Iron  Co.,  93  Ala.  262,  9  So. 
177;  Hunt  z'.  Johnson,  96  Ala.  1,30. 
II  So.  ,^87;  Lawson  v.  The  State 
20  Ala.  65,   56   Am.    Dec.    182. 

Arkansas. — Brown  v.  Wright.  17 
Ark.  g. 

Florida. — Snllivan  i'.  McMillan,  2(1 
Fla.  54,3.  8  So.  450. 

Indiana. — Tobin  t'.  Yonng.  124 
Ind.   507,  24  N.   E.   121. 

Massachusclts. — Boston  &  Wor- 
cester R.  R.  Co.  V.  Dana,  i  Gray  8,; : 
Fearing  r.  Kimball,  4  .A.llen  125,  81 
.\m.  Dec.  690. 

Michigan. — Bronson  v.  Leach,  74 
Mich.  713,  42  N.  W.  174;  Bnck'iig- 
ham  I'.  Tvlcr,  74  Mich.  101,  41  X. 
W.  8f.S. 

i\\-w  J'ort.— Artcher  iv  McDnffic, 
5  Barb.  147;  Ogdeii  f.  Peters,  It 
Rarb.  560. 

T.M-(7.f. — Poole  V.  State,  32  Tex. 
Crim.  ."Xpp.  379.  23  S.  \V.  891  ; 
Shiner  v.  Abbie,  77  Tex.  1,  13  S.  W. 
613;  Moody  V.  Gardiner,  42  Tex. 
411;    Atwood   V.    Brooks,    (Tex.)    16 

S.  W.  5,?.=;. 

■When  Not  Admissible — Thns  it 
is  held  that  a  conversation  between 
a  defendant  and  a  stranger  to  the 
cause,  which  plaintiff  did  not  near, 
and  which  did  not  form  a  part  of 
the  res  gestae,  is  inadmissible.  Hunt 
V.  Johnson,  96  .Ma.    130,   11   So.   387. 

If  statements  of  a  party  in  wdiose 
favor  they  are  offered  are  admissible 
in  evidence  it  must  be  upon  tlie 
ground  that  they  formed  a  part  of 
the  res  gestae,  or  statements  made 
to  the  opposite  parly  under  such 
circumstances  as  to  call  for  a  denial, 
and  no  such  denial  was  made,  in 
which  case  they  became  the  ad- 
missions of  the  opposite  party,  and 
competent    for   that    reason,   and   not 


ilu-  mere  statements  or  declarations 
111  the  party  ofifering  them.  Tobin 
;■.  Young,  124  hid.  507,  24  N.  E.  121. 

Not  Competent  to  Relate  State- 
ments  Against   Interest And   even 

where  declarations  made  by  a  party 
against  his  interest  have  been 
proved,  it  is  not  competent  to  in- 
troduce evidence  of  different  declar- 
ations, subsequently  made  by  the 
same  person  (who  died  before  the 
trial)  to  others.  boston  &  Wor- 
cester R.  R.  Co.  I'.  Dana,  i  Grav   83. 

■Where  There  are  a  Series  of  Let- 
ters— In  Fearing  v.  Kimble,  4 
Allen  125,  81  Am.  Dec.  6go,  the 
question  was  as  to  the  admissibility 
of  a  letter,  written  by  one  of  the 
parties  to  the  action,  to  another  in 
reply  to  one  received  by  him.  It 
appeared  that  the  plaintiffs  in  the 
action  had  written  a  letter  to  the 
defendant,  to  which  he  had  replied, 
both  of  which  letters  were  allowed 
in  evidence.  The  plaintiffs  were 
then  allowed,  under  objection,  lr> 
read  a  portion  of  the  second  letter 
written  by  them  to  the  defendant, 
to  which  no  reply  was  received.  In 
holding  the  second  letter  of  the 
plaintiff,  or  the  third  in  the  series, 
to  have  been  inadmissible,  the  court 
said :  "  The  first  letter  unanswered 
would  seem  to  be  obviously  incom- 
petcTit  evidence  to  prove  the  facts 
therein  stated  to  be  true,  against 
the  party  to  whotn  it  was  addressed. 
Why  does  not  the  like  objection 
apply  to  a  second  letter,  reaffirming 
facts  or  stating  additional  ones,  and 
to  which  there  has  been  no  reply? 
.'X  party  may  introduce  the  letter  of 
his  adversary,  and  if  need  be,  for 
the  purpose  of  enabling  the  jury  to 
\mderstand  fully  the  letter  thus  in- 
lro<lnced,  he  may  read  to  the  jurv 
the  letter  to  wdiich  it  was  in 
answer;  but  to  go  further,  and 
hold  that  a  second  letter  of  the 
party,   or   a   third,   or   fourth,   as   the 

Vol.  I 


,vS4 


IDMISSIUA'S'. 


made  in  the  presence  of  the  other  party.     Sec  "  Declarations." 
The  fact  that  the  conversation  took  place  at  the  request  of  the 
opposite  partv  does  not  change  the  rule."^ 

Reason  for  the  Rule. — The  reason  is  obvious.  If  sucli  evidence 
were  held  to  be  competent,  a  party  might  easily  manufacture  evi- 
dence in  his  own  behalf,  that,  while  competent,  would  be  wholly 
unreliable.     It  is   for  this  reason  that  such  statements  or  acts  are 

termed  "  self-serving." 

Exceptions.  In  Connection  with  Failure  of  the  Other  Party  to  Deny, 
Competent    as    Showing    Admission. —  liut  it  docs  not  follow   from  this 


case  may  be,  is  competent  evidence, 
would  be  ill  violation  of  the  rule 
thai  a  party  cannot  make  evidence 
for  himself  by  his  own  declarations, 
and  the  further  rule  that  the  omis- 
sion to  answer  letters  written  to  a 
party  by  a  third  person  docs  not 
show  an  acquiescence  in  the  facts 
there  stated,  as  might  be  authorized 
to  be  inferred  in  the  case  of  silence, 
where  verbal  slalenu'iits  were  made 
(lirecllv   t(i   him." 

When  Not  Part  of  Res  Gestae. 
Poole  V.  State,  32  Tex.  Crim.  App. 
379,  23  S.  VV.  891,  was  a  prosecution 
for  assault  and  battery  on  a  boy. 
The  statements  of  the  boy  to  his 
father,  immediately  after  the  alleged 
assault  and  battery,  upon  coming 
home  wounded  and  crying,  and  also 
■  ..s  subsequent  statements  made  to  a 
witness  sent  for  by  the  father,  were 
admitted  in  evidence  by  the  court 
below.  It  was  held  on  appeal,  that 
the  statements  made  to  the  father 
were  admissible  as  a  part  01  the  ra 
gestae,  but  taat  the  subsequent  state- 
ments made  to  the  tnird  party  were 
incompetent,  and  the  case  was  re- 
versed on   that   ground. 

By  a  Partner — So  it  is  held  that 
in  a  suit  against  a  firm  fpr  the  price 
of  bucks  purchased  by  one  of  the 
partners,  his  declarations,  not  made 
in  the  presence  of  his  partner,  that 
he  had  bought  the  bucks  for  and  on 
account  of  the  firm,  are  not  com- 
petent against  the  partner.  .\twoo(l 
z'.   Brooks    (Tc.x.)    16   S.   \V.   3.15. 

How  Much  Correspondence  Ad- 
missible.— The  case  of  Sullivan  %'. 
McMillan,  26  Fla.  54.?,  8  So.  450,  is 
an  interesting  one  on  this  subject. 
The  action  was  on  a  contract  for  the 
delivery,  in  a  boom,  of  logs  of  certain 
dimensions.  Certain  letters  passed 
between  the  parties,  and  in  speaking 
of  the  effect  of  these  letters  and  (heir 

Vol.  I 


admissibility,  the  court  said :  "There 
is,  however,  in  these  letters  no  ad- 
missions against  tne  interests  of  the 
defendants.  The  statements  are  as- 
sertions or  declarations  in  the  in- 
terest of  defendants,  and  against  that 
of  the  plaintiffs,  and  arc  inadmissible 
of  themselves  as  evidence  of  their 
truth  in  favor  of  the  defendants. 
Smith  ZK  Shoemaker,  17  Wall.  630. 
This  letter,  and  in  fact  the  whole 
correspondence,  constitute  the  dec- 
laration of  the  defendants  to  the 
plaintiffs  that  the  former  would  not 
receive  any  more  logs  under  the 
contract,  including  their  reason  for 
not  doing  so ;  or.  in  other  words, 
their  refusal  to  perform  the  con- 
tract, or  to  permit  plaintiffs  to  per- 
form it.  It  and  nothing  else  is  such 
refusal,  and  not  merely  evidence  of 
it.  To  ascertain  if  there  was  such 
refusal,  the  entire  correspondence  is 
to  be  considered.  The  doctrine  of 
admissions  against  interest  cannot  be 
invoked  to  constitute  these  state- 
ments or  assertions  of  the  defendants 
evidence  of  themselves  against  the 
plaintiffs,  or  in  support  of  the  plea 
under  consideration.  Declarations 
or  statements  made  in  the  presence 
of  a  party  are  received  in  evidence, 
not  as  evidence  in  themselves,  but 
to  understand  what  reply  the  party 
10  be  affected  by  them  should  make. 
If  he  is  silent  when  he  ought  to 
have  denied,  the  presumption  of  ac- 
quiescence arises.  2  VVhart.  Ev.  § 
1136;  Cibncy  v.  Alarchay.  34.  N.  Y. 
^03;  Gebhart  v.  Burkctt,  37  Ind.  378; 
1  Phil.  Ev.  (Cow.  &  H.  Notes,)  191, 
11)2.  Certainly  no  view  more  favor- 
,tble  to  the  person  making  the  state- 
ment can  be  held  where  it  is  made 
by  letter,  and  not  in  the  presence  of 
the    other    person." 

63.     .A  richer.  ;■.   McOufiie.  5  Barb. 
1-I7- 


ADMISSIOXS. 


^85 


rule  tliat  acts  or  declarations  of  a  partN'  in  hi> 


iiwn  favor,  or  tcntlinir 


to  establish  the  truth  of  his  contention,  are  never  competent  to  be 
shown  in  his  behalf.  Un  the  contrar}-,  they  are  often  competent  in 
his  favor,  in  connection  with  other  evidence.  We  have  shown  above 
that  they  may  be  proved  when  made  in  the  presence  of  the  adverse 
party,  if  not  denied  by  him,  as  tending  to  show  an  admission  of  such 
party  that  they  are  true. 

Right  to  Prove  Balance  of  Conversation  or  Writing  When  Part  Offered 
by  Opposite  Party. — So  where  statements,  oral  or  written,  made 
against  interest,  are  proved,  other  acts  or  declarations  made  at  the 
time,  and  as  a  ]jart  of  the  same  conversation,  or  as  a  part  of  the 
same  writing,  favorable  to  the  party  making  the  declarations  ])roved 
against  him,  and  qualifying  or  explaining  what  has  been  so  proved, 
are  competent  in  his  behalf.''^ 


64.  Exception — Pii.<viiig  Bahitce 
uf  Ciinrcrsiilioii  or  Il'riling. — Steph- 
ens' Dig.  of  Ev.,  66;  Cliamber- 
layne's  Best  on  Ev.,  §  520. 

United  Stales. — Insurance  Co.  v. 
Newton,  22  Wall.  ^2. 

Florida. — Snllivan  v.  McMillan, 
26   Fla.   543,  8   So.  450. 

Illinois. — Bailey  v.  Pardridgc,  35 
111.  App.   121. 

Massachusetts. — Trischet  v.  Hamil- 
ton   Mut.    Ins.    Co.,    14   Gray    456. 

Michigan. — Vanneter  v.  Grossman, 
42  Mich.  465,  4  N.  W.  216. 

Neiij  York. — Grattan  v.  Metropol- 
itan Ins  Co.,  92  N.  Y.  274,  44  Am. 
Rep.  372;  Plainer  v.  Plainer,  78  N. 
Y.  90;  Downs  V.  N.  Y.  Central  R. 
R.  Co.,  47  N.  Y.  83;  Rouse  v. 
Whited,  25  N.  Y.   170,  82  Am.  Dec. 

Whole  Letter  Must  be  Considered. 

Thus  it  is  held  in  Bailey  v.  Pard- 
ridge,  35  111.  App.  121,  that  where 
the  plaintiff  introduces  letters  of  the 
defendant  to  prove  certain  facts,  he 
is  bound  to  admit  declarations 
therein  which  make  against  him  as 
well. 

In  an  action  upon  a  policy  of 
insurance,  the  plaintiff,  to  show  a 
bias  and  prejudice  against  him  by  a 
witness  called  by  the  defense,  in- 
troduced two  letters  in  evidence,  ad- 
dressed to  him  by  the  witness,  and 
then  offered  to  prove  the  contents  of 
a  letter  from  the  plaintiff  to  the 
witness,  which  had  been  lost,  and 
to  which  a  second  letter  of  the  wit- 
ness was  a  reply.  The  defense  ob 
jectcd  on  the  ground  that  tlii< 
would  be  permitting  the  plain- 
tiff   to    give     in      evidence    his    own 

2.^ 


declarations  and  statements,  but  the 
court  admitted  the  proijf  uf  the 
contents  of  the  lost  letter,  and  ruled 
"  that  it  was  competent  for  the  con- 
sideration of  the  jury  so  far  only 
ill  behalf  of  the  plaintiff  as  it  tended 
to  qualify,  explain  or  aid  in  the  con- 
sideration of  the  language  of  the 
witness,  in  the  letters  written  by 
him  and  put  into  the  case;"  and  this 
ruling  was  held  to  be  rignt  on  ap- 
peal ;  the  court  saying :  "  Where  a 
letter  is  written  in  answer  to  another, 
it  may  often  be  unintelligible  with- 
out referring  to  the  previous  one. 
By  referring  to  the  letter  to  which 
he  is  replying,  the  writer,  to  that 
extent,  makes  it  a  part  of  his  own 
communication.  Suppose  that  the 
first  letter  contained  a  question ;  and 
the  reply  was  '  to  the  question  con- 
tained in  your  letter  I  answer  Yes.' 
How  could  the  meaning  of  the 
answer  be  ascertained  by  the  jury, 
without  knowing  tUe  question?  Wc 
can  perceive  no  just  distinction  be- 
tween oral  conversation  and  written 
correspondence,  in  this  respect. 
Where  a  statement  is  made  in  the 
course  of  a  conversation  or  corres- 
pondence, which  is  itself  admissible 
in  evidence,  the  rest  of  the  conver- 
sation or  correspondence  must  be 
admitted,  so  far  as  it  is  connected 
with  and  necessary  to  the  full  tmder- 
standing  of  what  follows."  Trischet 
V.  Hamilton  Mut.  Ins.  Co.,  14  Gray 
4,s6. 

Extent  of  Rule  Stated In  Van- 
neter V.  Grossman,  42  Mich  465,  468, 
4  N.  W^  216,  the  rule  is  thus 
deel;ired:  "The  declanitions  of  a 
p.irty   may   be  given   against    his   mvn 

Vol.  I 


.i86 


.H'MJSSJONS. 


Must  be  Part  of  Same  Conversation  or  Writing.  —  Liut  it  nuisl  be  a 
pari  of  the  same  conversation,  or  a  part  of  the  same  document. 
Other  and  different  conversations  or  writings  not  part  of  or  in  some 
wav  comiected  with  the  one  first  offered  in  evidence  cannot  be 
allowed  in  favor  of  the  party  making  the  statements. °^ 


interest,  ami  when  a  part  of  an  entire 
statement  or  conversation  is  so 
given,  he  may  adduce  whatever  has 
been  omitted  which  bears  in  any 
way  upon  the  rest.  But  he  cannot, 
by  collateral  statements  outside. 
make   evidence   for   himself." 

So  in  Grattan  v.  Metropolitan  Ins. 
Co.,  92  N.  Y.  274,  44  Am.  Rep.  372, 
it  is  held  that  the  introduction  by  one 
party  of  part  of  a  conversation  or  a 
writing  renders  admissible  on  the 
other  side  so  much  of  the  remainder 
as  tends  to  explain  or  qualify  what 
has  been  received ;  and  that  is  to  be 
deemed  a  qualification  which  rebuts 
and  destroys  the  inference  to  be 
drawn  from,  or  the  use  to  be  made 
of,   the   portion   put    in    evirlcnce. 

Confined  to  so  Jiiich  as  Qualifies 
or  Explains — But  the  portion  of  a 
conversation  stating  declarations  in 
the  interest  of  the  party  making  them 
must  be  confined  to  such  conver- 
sation as  is  connected  with,  and 
which  tends  in  some  way  to  explain, 
qualify  or  rebut  a  portion  of  the 
conversation  offered  against  him. 
Plainer  v.  Plainer,  78  N.  Y.  90. 

In  the  case  cited  the  court  said : 
"  There  is  a  limit  to  the  extent  to 
which  a  party  may  go  in  calling  out 
what  was  said  by  and  to  him  in  a 
conversation,  parts  of  which  the 
other  party  has  proved:  (Rouse  r. 
Whited,  25  N.  Y.  170').  In  the  case 
just  cited,  the  rule  for  that  limit  is 
adopted  and  followed  which  is  laid 
down  in  Prince  v.  Samo  (y  /\A.  & 
Ell.,  627).  The  rule  is  this:  that 
where  part  of  a  conversation  has 
been  given  in  evidence,  any  other 
or  further  part  of  that  conversation 
niav  be  given  in  evidence  in  reply, 
which  would  in  any  way  explain  or 
qualify  the  part  first  tjiven.  In  the 
case  last  cited,  the  rule  is  applied 
only  to  the  declarations  of  a  party 
to  the  action ;  and  so  far  it  is  ap- 
proved in  Garcy  v.  Nicholson  (24 
Wend.,  .sso).  Piut  even  if  the  con- 
versation held  by  the  plaintiff's  hus- 
band with  her  should  be  deemed 
the  iliclaralioiis  of  a  lliird  person  not 

Vol.  I 


3  party  to  the  action,  the  principle  of 
the  rule  will  apply.  It  is  so  laid 
down  in  i  Phil,  on  Ev.,  415,  but 
without  the  citation  of  English 
authority  directly  in  point.  The 
offer  of  the  plaintiff,  in  the  case  in 
hand,  was  to  show  the  whole  con- 
versation, not  limiting  the  evidence 
to  what  was  said  that  would  ex- 
plain or  qualify  wdiat  had  been 
proved  by  the  defendant.  The  plain- 
tiff made  also  a  specific  offer  to  prove 
that  her  husband  said  that  the  de- 
fendants gave  the  note  in  suit  for 
the  $2,900  note  that  she  owned. 
Clearly  this  did  not  relate  to  any- 
thing which  the  defendants  had 
shown,    as    we   have    stated    it." 

65.  Downs  v.  N.  Y.  Central  R.  R. 
Co.,  47  N.  Y.  83 ;  Johnson  v.  Brock, 
23  Ark.  282 ;  Rouse  v.  Whited,  25 
N.  Y.  170,  82  Am.  Dec.  337;  The 
Queen's  Case.  2  Brod.  &  I?ing.  284, 
297,  6  Eng.  C.  I-.   152. 

Must  Be  Part  of  Same  Conversa- 
tion or  Writing —  The  question 
will  be  found  very  fully  discussed 
and  the  reasons  for  the  rule  and 
its  limitations  stated  in  Rouse  v. 
Whited,  25  N.  Y.  170,  82  Am.  Dec. 
337.  The  discussion  of  the  question 
by  the  court  is  preceded  by  this  gen- 
eral statement:  "It  is  plain  that 
there  must  be  some  limitation  of  the 
ri.ght  of  the  party  whose  statement 
or  admission,  forming  a  part  of  a 
conversation,  has  been  given  in  evi- 
dence against  him  to  prove  further 
or  other  statements  or  declarations 
made  by  him  at  the  same  time  or  as 
a  part  of  the  same  conversation, 
otherwise  the  court  and  the  jury 
might  be  compelled  to  listen  to  a 
long  story  about  matters  not  at  all 
connected  with  any  matter  or  thing 
in  controversy  between  the  parties. 
No  one  will  say  that  a  party  whose 
statement  has  been  given  in  evidence 
against  him  by  his  opponent,  has  a 
right  to  prove  all  that  he  said  at  the 
time  or  in  the  same  conversation, 
solely  because  such  further  or  other 
statements  were  made  at  the  same 
lime    or    in    I  he    s;ime    conversation." 


ADMISSIONS. 


387 


When  Separate  Letters  or  Other  Writings  Competent. — On  the  Other 
hand,  a  separate  writing,  for  example  a  letter,  if  so  connected  with 
the  one  first  introduced  in  evidence  that  it  may  properlv  be  taken 
as  being  equivalent  to  one  continuous  conversation  relating  to  the 
same  subject  as  in  case  of  a  continued  correspondence,  the  whole 
of  the  correspondence  may  become  material  and  important  as  show- 
ing the  meaning  and  intent  of  the  party  and  his  position  with  respect 
to  the  matter  in  dispute.  If  so,  the  introduction  of  one  letter  or  other 
writing  will  entitle  the  other  party  to  bring  in  the  whole  corres- 
pondence on  the  same  principle  that  the  offer  of  a  part  of  a  con- 
versation entitles  the  opposite  party  to  bring  the  balance  of  it  before 
the  court. °° 

Party  Offering  Conversation  Not  Bound  by  Statements  Made  in  the 
Interest  of  His  Adversary. — And  where  a  party  is  forced  by  this 
rule  to  prove,  or  permit  to  be  proved,  the  whole  conversation  in  order 
to  show  stich  admissions  or  declarations  as  make  to  his  advantage, 
he  is  not  thereby  bound  by  such  of  the  statements  or  conversation 
as  make  against  him,  and  in  favor  of  his  adversary,  but  may  dis- 
prove the  same  by  other  evidence.'^" 

How  Much  of  Conversation  Competent. — The  rule  is  that  if  a  ])art 
of  a  conversation  is  proved  against  a  party,  amounting  to  admissions 
or  declarations  against  his  interest,  he  is  entitled  to  prove  the 
balance  of  such  conversation,  relating  to  and  bearing  upon  the  same 
matter,  although  the  matter  offered  by  him  would,  if  ofifered  in- 


And  after  a  review  of  the  author- 
ities, tne  court  concluded  by  saying : 
"  The  question  then  in  this  case  is, 
wlictlicT  tlie  justice,  under  the  rule 
as  hmited  in  Prince  v.  Samo,  7  Ad. 
&  E.  627,  should  have  permitted  the 
defendants  to  show  that  wlicn  the 
defendant  Oliver  Whilod  lold  the 
sheriff,  and  both  the  defendants  told 
Seaman,  that  the  property  levied  on 
was  the  plaintiff's,  they  at  the  same 
time  made  the  further  statement 
that  the  debt  was  the  plaintiff's,  or 
was  his  debt  to  pay.  Most  clearly 
he  should.  The  plaintiff  relied  on 
the  statements  of  the  defendants 
proved  by  him,  to  show  that  the 
property  levied  on  was  his  property, 
and  thus  to  show  that  his  property, 
to  the  amount  of  twenty-seven  dol- 
lars, had  gone  to  pay  the  defend- 
ant's debt.  If  the  property  was 
his,  but  it  had  been  levied  on  and 
sold  to  pay  his  own  debt,  there  was 
an  end  of  his  case.  The  statements, 
then,  of  the  defendants,  that  the 
debt  was  the  plaintiff's,  or  Iielonged 
to  lu'in  to  pay,  if  proved,  would 
completely    destroy    the     force     and 


effect  and  intended  use  of  the  ad- 
missions or  statements  first  given 
in  evidence  by  the  plaintiff,  and 
ought  to  have  prevented  a  recovery." 
In  the  case  of  Prince  v.  Samo, 
7  Ad.  &  E.  627,  referred  to  in  the 
case  just  quoted  from,  the  rule  is 
stated  substantially,  as  follows : 
■■  Where  a  stateiuent  forming  a  part 
of  a  conversation  is  given  in  evi- 
dence, whatever  was  said  by  the 
same  person  in  the  same  conver- 
sation, that  would  in  any  way  qual- 
ify or  explain  that  statement,  is  also 
admissible ;  but  detached  and  inde- 
pendent statements,  and  in  no  way 
connected  with  the  statement  given 
in  evidence,  are  not  admissible,  and 
there  is  no  difference  in  this  respect 
between  statements  made  in  con- 
versation by  a  party  to  the  suit  and 
those  made  by  a  third  party." 

66.  Trischet  v.  Hamilton  Mut. 
Ins.    Co.,    14   Gray  456. 

67.  Mott  V.  Consumers'  Ice  Co., 
7.?  N.  Y.  543 ;  Gildersleeve  v.  Landon, 
-\  N.  Y.  600;  T.-iliui  I'.  Molir,  21 
.\rk,    ^41). 


Vol.  I 


588 


ADMJSSWA'S. 


(Icpendfiilly,  be  incoinpotcnt  on  the  gruiiml  tliat  tlic  stalcnienls  wtTu 
scIf-serNing".''" 

It  has  been  held  that  so  much  of  the  conversation  as  relates  to  the 
subject  matter  of  the  action  may  be  brought  out  where  a  ])art  of 
such  conversation  has  been  proved  by  the  opposite  party.""' 

But  this  states  the  rule  altogether  too  broadly.  It  must  Ije  con- 
fined to  .so  much  of  the  conversation  as  relates,  in  some  way,  to  that 
part  of  the  conversation  already  brought  out.'" 

Declarations  Proved  for  Purpose  of  impeachment.  Other  Statements 
Competent. — And  it  is  held  in  some  states  that  where  statements  of  a 
witness,  whether  a  party  or  not,  contradictory  of  his  testimony,  are 
proved  for  the  purposes  of  impeachment  only,  other  statements  made 
by  such  witness  consistent  with  his  testimony  ma\  be  proved  in  his 
support."' 


68.  How  Much  of  Conversation 
Competent — i  Green  Ev.  §  201  ; 
Steph.  Dig.  of  Kv.  39;  Insurance 
Co.  V.  Newton,  22  Wall.  32 :  Farley 
V.  Rodocanachi,  100  Alass.  427 ;  Gil- 
dersleeve  v.  Landon,  73  N.  Y.  609; 
Rouse  V.  Whited,  25  N.  Y.  170,  82 
.•\in.  Dec.  337. 

69.  What  Competent  on  Re-Ex- 
amination— The  Queen's  Case,  2 
Brod.  &  Bing.  284,  297,  6  Eng.  C.  L. 
152. 

In  the  case  cited,  Abbott.  C.  J., 
said :  "  My  lords,  I  agree  with  the 
other  judges  in  considering  the  two 
questions  proposed  to  us  by  your 
lordships  to  be,  with  reference  to 
the  point  on  which  our  opinion  has 
been  asked,  substantially  one,  and 
that  question,  as  proposed  by  the 
house,  contains  these  words,  '  the 
witness,  being  re-e.xaniined,  had 
stated  what  induced  him  to  mention 
to  C.  D.  what  he  bad  so  told  liim  ;  ' 
by  which.  I  understand  that  the 
witness  had  fully  explained  his 
whole  motive  and  inducement  to  in- 
form C.  D.  that  he  was  to  be  one 
of  the  witnesses ;  and  so  understand- 
ing the  matter,  and  there  being  no 
ambiguity  in  the  words,  '  T  am  to  be 
one  of  the  witnesses,'  I  think  tin  • 
is  no  distinction  to  be  made  between 
the  previous  and  subsequent  parts 
of  the  conversation,  and  I  think 
myself  bound  to  answer  vour  lord- 
shin's    (|uestion    in    the    negative. 

"  I  think  the  counsel  has  a  right, 
upon  re-examination,  to  ask  all  ques- 
tions, which  may  be  proper  to  draw 
forth  an  explanation  of  the  sense 
and  meaning  of  the  expressions  used 
by  Ibt'  witness  on  cross-examination. 

Vol.  I 


if  they  be  in  themselves  doubtful, 
and,  also,  of  the  motive,  by  which 
the  witness  was  induced  to  use 
those  expressions;  but,  1  think,  he 
has  no  right  to  go  further,  and  to 
introduce  matter  new  in  itself,  and 
not  suited  to  the  purpose  of  ex- 
plaining either  the  expressions  or 
tlie  mcjtives  of  the  witness.  And,  as 
many  things  may  pass  in  one  and 
the  same  conversation  relating  to  the 
subject  of  the  conversation,  (as  in 
the  case  put  by  your  lordships,  the 
declaration  of  a  witness  that  he  was 
to  be  a  witness  in  a  cause  or  pros- 
ecution,) which  do  not  relate  to  his 
motive  or  to  the  meaning  of  his 
expressions,  1  think,  the  counsel  is 
not  entitled  to  re-examine  as  to  the 
conversation  to  the  extent  to  which 
such  conversation  may  relate  to  his 
being  one  of  the  witnesses,  which  is 
tile  point  proposed  in  your  lordship's 
(|Uoslii)ii    tn    the    judge-." 

70.  Limitation  of  the  Rule. 
Prince  v.  Sams,  7  Ad.  &  E.  627,  34 
Eng.  C.  L.  333 :  Rouse  i:  Whited, 
2S  N.  Y.  170.  82  Am.  Dec.  337;  i 
Phil.  Ev.,  (4th  Am.  Ed.  from  10 
Eng    Ed.)    416. 

71.  Queener  v.  .Mornnv.  i  Cold. 
(Tenn.)  124;  Daily  v.  The  State,  28 
Tnd.  28s;  Brookbank  v.  The  State, 
.^^  Ind.  160;  Bnllow  v.  State.  (Tex. 
Crim.    .Vi)]).  ),   58   S.   W.    1023. 

Rule  not  Uniform But  there  are 

cises  lioliling  directly  to  the  con- 
trary, 2  Rice  on  Ev.  620;  Stephen's 
Dig.  of  Ev. :  People  v.  Doyell,  48 
Cal.  85;  Decbert  7'.  Mimicipal  Elec. 
Co.  39  .Xpp.  Div.  490,  57  N.  \  .  Siipp. 

22s. 

How  Far  Confirmatory  Statements 


.IPMISSIONS. 


389 


When   Part  of  the  Res  Gestae.  — Ami    the   declarations   of   a    parlv 


Competent — In  Qucoiier  v.  Monuw, 
I  Cold.  (Tenn.)  124,  after  review- 
ing some  of  the  English  cases  and 
their  authorities,  in  which  the  ground 
was  taken  that  former  consistent 
statements  of  a  witness  to  rebut 
dircctcr  statements  by  him  were  not 
competent  evidence,  and  the  court 
said:  "The  reason  for  rejecting 
confirmatory  evidence  of  former 
declarations,  accordmg  to  some  of 
the  English  authorities,  is  the  seem- 
ing incongruity  of  holding,  that  a 
representation  ■n.'ithout  oath,  can  be 
any  confirmation  of  a  statement 
upon  oath.  But  there  would  seem 
to  be  some  show  of  reason  in  the 
doctrine,  that  where  it  was  attempted 
to  establish  that  the  statement  on 
oath  is  a  fabrication  of  recent  date, 
or  where  a  design  to  misrepresent. 
from  some  motive,  is  imputed  to  the 
witness ;  or  wdiere  it  is  sought  to 
destroy  his  credit,  by  proof  of  con- 
tradictory representations;  evidence 
of  his  having  given  the  same  ac- 
count of  the  matter,  at  a  time  when 
no  motive  or  interest  exist,  and 
no  influence  had  been  brought  to 
operate  upon  hun  to  misrepresent 
the  facts,  ought  to  be  received,  be- 
cause it  naturally  tends  to  inspire 
increased  confidence  in  the  truth  of 
the  sworn  statement.  To  this  ex- 
tent, we  think,  the  principle  is 
reasonable  and  just.  But  to  allow 
consistent  statements,  for  the  pur- 
pose of  giving  support  to  the  credit 
of  the  witness,  made  after  the  con- 
tradictory representations  by  which 
it  is  sought  to  impeach  him,  would 
be  to  put  it  in  the  power  of  every 
unprincipled  witness  to  bolster  his 
credit,  and,  perhaps,  escape  the  just 
consequences  of  his  own  falsehood 
and  tergiversation ;  and  it  would  be 
still  worse  to  hold  that  the  state- 
ment of  an  arraigned  felon  in  vin- 
culum, offered,  perhaps  as  a  bribe. 
to  procure  his  discharge,  and  made 
after  the  contradictory  statement 
proved  against  him,  and  at  a  time 
when  he  was  laboring  under  the 
strongest  possible  motives  to  mis- 
represent the  facts,  might  be  re- 
ceived. This  cannot  be  allowed,  be- 
cause of  its  direct  tendency  to  cor- 
rupt the  administration  of  justice. 
as  well  as  the  inherent  absurdity  of 
such    a   practice." 


It  is  said  in  People  v.  Doyell,  48 
Cal.  85,  go:  "There  are  cases  which 
sustain  the  proposition  of  defend- 
ant's counsel,  that  when  an  attempt 
is  made  to  impeach  a  witness  by 
proving  former  contradictory  state- 
ments, he  may  be  supported  by  evi- 
dence that  he  has  made  to  other 
persons,  declarations  consistent  with 
his  testimony.  Such  is  the  law  of 
Indiana  and  perhaps  of  Penn.sy!- 
vania  and  North  Carolina.  In  New 
York,  as  in  England,  after  much  un- 
certainty, the  rule  seems  now  to  be 
settled  that  such  evidence  is  ordi- 
narily inadmissible;  and  in  others  of 
the  State  it  is  rejected.  The  best 
elementary  writers  reach  the  con- 
clusion that  the  evidence  is  to  be 
received  only  in  exceptional  cases. 
The  witness  cannot  be  confirmed  by 
proof  that  he  has  given  the  same 
account  before,  for  his  mere  dec- 
laration is  not  evidence.  His  hav- 
ing given  a  different  account,  al- 
though not  upon  oath,  necessarily 
impeaches  either  his  veracity  or  his 
memory ;  but  his  having  asserted  the 
same  thing  does  not  in  general  carry 
his  credibility  further  than,  nor  so 
far   as.   his   oath." 

Statement  of  the  Rule The  rule 

is  thus  cited  in  a  note  in  Stephen's 
Digest  of  the  Law  of  Evidence,  p. 
225,  note  3; 

"  It  is  not  in  general  permissible 
to  support  a  witness  by  evidence  that 
he  has  made  former  statements  sim- 
ilar to  his  testimony.  Or.  Ev.  i, 
§  469 ;  Powers  v.  Gary,  64  Me. 
10 ;  Reed  v.  Spaulding,  42  N.  H.  114; 
Conrad  v.  Griffey,  11  How.  (U.  S.) 
480 ;  Robb  V.  Hackley,  2,s  Wend.  50 ; 
and  cases  infra.  But  when  his  tes- 
timony is  charged  to  have  been  given 
under  the  influence  of  some  improper 
or  interested  motive,  or  to  be  a 
recent  fabrication,  and  in  other  like 
cases,  it  may  be  shown  that  he  made 
other  similar  statements  before  the 
motive  existed,  or  before  there  could 
have  been  any  inducement  to  fab- 
ricate. Herrick  ik  Smith,  13  Hun 
446;  Stolp  V.  Blair,  68  111.  541;  Hes- 
ter V.  Com.,  85  Pa.  St.  139;  Com. 
V.  Jenkins,  10  Gray  485 ;  People  n. 
Doyell,  48  Cal.  85;  ^tate  i'.  Hend- 
ricks, 32  Kan.  559;  see  State  v. 
Dennin,  32  Vt.   158.     In  some  states 

Vol.  I 


390 


.■IDMfSSlONS. 


in  his  own   intirest  arc  competent   where  tlic)-   form  a  jiart  of  the 
I'cs  ^cslac.'- 

To  Prove  Notice  or  Demand  Competent. — So  a  letter  written,  contain- 
ing a  demand  or  notice,  ma}-  be  competent  to  prove  such  demand  or 
notice,  but  it  can  not  be  used  by  the  party  writing  it  to  estabhsh 
the  truth  of  any  fact  it  contains,  although  it  is  held  in  some  of  the 
cases,  as  shown  above,  that  a  letter  unanswered  may  be  used  in  con- 
nection with  evidence  that  it  was  unanswered,  as  tending  to  show  an 
admission."'' 

5.  Partial  and  Plenary.  —  Admissions  are  also  divided  into 
partial  and  plenary.  It  is  a  distinction  recognized,  chiefly,  in 
equity  practice.  A  partial  admission  is  defined  as  one  delivered 
in  terms  of  uncertainty  with  explanation  or  qualification,  and  a 
plenary  admission  as  one  without  any  qualification.'''' 

6.  Documentary.  —  As  here  considered,  a  documentary  admission 
is  one  contained  in  some  writing.     See  "  Documentary  EvinKNCT,." 

Not  Necessary  that  it  be  Executed. — But  it  is  not  necessary  that  it 
be  a  valid  subsisting  document  for  the  purpose  for  which  it  was 
intended,  in  order  to  constitute  it  competent  as  evidence  of  an 
admission.  For  example,  it  may  be  necessary  to  the  binding  efTect 
of  a  document  that  it  be  delivered.  But  if  not  delivered,  if  it  is 
signed  by  the  party,  it  is  competent  evidence  as  against  him  of  tlie 
truth  of  anv  facts  stated  therein. ■'•■'' 


such  evidence  seems  to  be  received 
•wlienever  it  is  attempted  to  discredit 
a  witness  by  proof  of  his  inconsis- 
tent statements.  Dodd  v.  Moore,  92 
Ind.  397;  State  v.  Grant,  79  Mo.  113; 
see  Carter  r.  Carter,  79  Ind.  466. 

72.  'When  Part  of  Res  Gestae. 
I  Green  Ev.  §  108 ;  Ogdcn  v. 
Peters,  15  Barb.  560;  Hayslep  v. 
Gymer,  i  Ad.  &  E.  162,  28  Eng.  C. 
L.  96;  Piiett  V.  Beard,  86  Ind.  104: 
Hoyden  v.  Moore,  11  Pick.  362;  Cor- 
nelius V.  The  State.  12  Ark.  782; 
Moore  v.  Hamilton,  48  Barb.  120. 

73.  Richards  v.  Frankiini,  o  Car, 
&  P.  221,  38  Eng.  C.  L.   1,^8. 

74.  Partial  and  Plenary  Ad- 
missions.—.\ndcrson's  Die,  Bouv. 
Die. 

"  In  Eq'uity — Partial  admissions 
arc  those  which  are  delivered  in 
terms  of  uncertainty,  mixed  up  with 
explanatory  or  rjualifying  circum- 
stances. 

"  Plenary  admissions  arc  those 
wliich  admit  the  Irutli  of  the  matter 
witliout  qualification,  wliether  it  be 
asserted  as  from  information  and 
belief  or  as   from  actual   knowledge. 

"  Self-harming    statements    are    di- 

Vol.  I 


visible  into  '  plenary  '  and  '  not  plen- 
ary.' A  '  plenary  '  coiTfession  is  when 
a  self-disserving  statement  is  such 
as,  if  believed,  to  be  conclusive 
against  the  person  making  it,  at 
least  on  the  physical  facts  of  the 
matter  to  which  it  relates ;  as  where 
a  party  accused  of  murder  says,  '  I 
murdered,'  or  '  I  killed,'  the  deceased. 
In  such  cases  the  proof  is  in  the 
nature  of  direct  evidence,  and  the 
maxim  is,  '  Hobcmus  opiimiim  tes- 
tem,  conAtcntcm  renin.'  .\  confession 
'  not  plenary '  is,  where  the  truth 
of  the  self-disserving  statement  is  not 
absolutely  inconsistent  with  the  exis- 
tence of  a  state  of  facts  different 
from  that  which  it  indicates ;  but 
only  gives  rise  to  a  presumptive  in- 
ference of  their  truth,  and  is  there- 
fore in  the  nature  of  circumstantial 
(".  idencc."  Ch.'inilicrlaync's  Best  on 
Ev.  §  524. 

"  Partial     Admission In     equity 

practice,  dehvcrcd  in  terms  of  uncer- 
tainty, with  explanation  or  qii.ilifica- 
tion.  Plenary  admission.  Witliout 
any    qualification."      .Anderson's    Die. 

75.     Admissions       in      Documents. 
Snyder  r.  Reno,  38  Inwa    329;  Cook 


.IPMfSS/ONS. 


m 


Void  May  be  Competent  as  Evidence  of  Admission. — So  where  the  in- 
striinient  is  void,  or  inoperative  for  tlic  purpose  for  wliicli  it  was 
intended,  it  may  still  be  competent  evidence  of  an  admission  by  the 
party  executing-  it,  of  the  truth  of  the  facts  stated  in  it.'" 


V.  .Anderson,  20  Ind.  15.  But  see 
Robinson  v.   Cuslinian.  2  Denio    149. 

Unsigned  Paper  Competent.  — 
Snyder  v.  Reno,  ,^8  Iowa  329,  was 
an  action  upon  the  assignment  of 
notes.  The  plaintiff  claimed  that  the 
defendant  had  transferred  notes  to 
him  in  part  payment  for  certain 
goods  sold  and  delivered,  while  the 
defendant  insisted  that  he  had  noth- 
ing to  do  with  the  notes,  and  that 
they  were  transferred  by  another 
party.  The  plaintiff  offered  in  evi- 
dence a  paper,  unsigned,  in  which 
it  was  recited  that  the  defendant  did, 
on  the  day  named  therein,  sell  to 
the  plaintiff  certain  described  notes. 
The  plaintiff  testified  that  the  paper 
contained  a  list  of  the  notes  taken, 
except  two,  and  that  it  was  handed 
to  plaintiff  by  the  defendant  on  the 
day  the  trade  was  effected,  and  that 
the  plaintiff  refused  to  accept  it. 
The  defendant  objected  to  the  intro- 
duction of  the  paper  in  evidence,  on 
the  ground  that  it  was  not  e.xecuted 
or  accepted  and  was  immaterial.  The 
objection  was  overruled,  and  the 
paper  admitted.  The  court  say : 
"We  think  it  was  properly  admitted 
that  it  was  not  signed  by  defendant, 
and  is  not  proved  to  be  in  his  hand- 
writing, yet.  if  he  offered  it  to  the 
plaintiff,  he  made  thereby  an  admis- 
sion inconsistent  with  his  present 
claim  that  he  had  nothing  to  do 
w  ith  the  notes,  and  that  they  were 
tiansferred   by   Norton." 

Where  Signed  bnt  Not  Delivered. 
In  Robinson  v.  Cushman,  2  Denio 
149,  the  case  seems  to  turn 
upon  the  fact  that  the  instrument 
was  never  delivered,  but  retained  in 
the  possession  of  the  party.  The 
court  say:  "It  is  of  no  value  as  an 
obligation,  for  the  reason  that  it  was 
never  delivered.  And  for  the  same 
reason,  I  think  it  of  little  or  no  value 
as  an  admission.  In  point  of  form, 
the  instrument  contained  both  an  ex- 
press undertaking  to  pay  a  sum  of 
money,  and  an  admission  that  the 
money  was  justly  due  for  services 
rendered.     Rut  by  carefully  retaining 


the  paper  in  his  own  possession,  the 
intestate  virtually  declared  that  it 
was  neither  to  bind  him  as  an  obli- 
gation, nor  aft'ect  him  as  an  admis- 
sion. I  will  not  saj'  that  such  a 
paper  must,  under  all  possible  cir- 
cumstances, be  laid  entirely  out  of 
view.  But  while  it  confessedly  has 
no  force  as  a  contract,  it  cannot  be 
right  to  give  it,  under  the  name  of 
an  admission,  all  the  effect  of  a 
binding   obligation." 

76.  Void  Instrument  Competent 
to  Prove  Admission.  —  .■llahaiiuu 
Steed  V.  Knowles,  97  Ala.  573,  12  So. 

75- 

Maine. — Ross  v.  Gould,  5  Greenl. 
204. 

Michigan. — Hickey  v.  Hinsdale,  12 
Mich.   99. 

Nc-,v  York. — Fort  z'.  Gooding,  9 
Barb.  371  ;  Morrell  v.  Cawley,  i" 
-■\l)b.  Pr.  76. 

Uhio. — Reis  v.  Hellman,  25  Ohio 
St.    180. 

Sciittli  Carolina. — Colgan  v.  Phil- 
lips, 7  Rich.  Law  Rep.  359. 

Tc.i-as. — Huffman  v.  Cartwright. 
44  Tex.  296. 

Deed      of      Married      Woman In 

Stead  -'.  Knowles,  97  .-Ma.  573,  12 
So.  75,  a  deed  made  by  a  married 
woman  was  ineffectual  to  prove  the 
title  because  of  the  fact  that  the 
husband  did  not  join  therein,  but  it 
was  further  held  that  the  instrument, 
though  not  effective  as  a  legal  con- 
veyance or  muniment  of  title,  never- 
theless fully  recognized  and  admitted 
the  interest  of  another  in  the  land, 
and  tended  to  show  that  she  onlv 
claimed  a  half  interest  in  the  land, 
and  that  proof  of  her  voluntary  sig- 
nature of  the  instruinent  would  be 
sufficient  to  let  in  the  recitals  in  the 
instrument  against  her  as  her  admis- 
sion. 

Deed     Imperfectly     Executed     by 

Attorney So     a     deed     imperfectly 

executed  by  an  attorney  as  the  deed 
of  his  principal,  is  nevertheless  ad- 
missible in  evidence,  in  aid  of  the 
grantee's   entry,   to   show   the   extent 

Vol.  I 


392 


IDMISSIONS. 


Proposed  Contract  not  Accepted. — W  here  the  ilocuinent  is  proposed 
as  a  contract  by  one  of  the  parties,  bnt  not  agreed  to  by  the  other, 
and  a  different  agreement  is  actually  made,  it  may  still  be  proved  as 
an  admission.'^ 

And  the  written  memoranilnm  oi  a  parol  contract,  althougli  not  a 
contract  itself,  or  admissible  in  evidence  as  such,  is  competent  evi- 
dence against  the  party  making  it,  as  an  admission,  if  against  his 
interest.'* 

What  Writings  Competent. — The  character  of  the  writing  is  not 
material.  The  effect,  so  far  as  the  competency  of  the  evidence  is 
concerned,  is  the  same  whether  the  admission  or  statement  relied 
upon    is    found    in    an    account    stated,^''    a    receipt,*"    a    letter,"' 


of  liis  claim  of  title.  Ross  v.  Gould, 
5  Grcenl.  J04. 

Invalid    Contract In     Hitkey    v. 

Hinsdale.  12  Mich,  gc),  it  was  held 
that  a  paper  signed  hy  a  ji.dgment 
debtor,  and  delivered  to  an  :  ttorney 
for  his  creditors,  making  certain 
promises,  was  not  valid  as  a  :ontract 
and  could  not  operate  by  use  of 
estoppel  against  the  delitor,  where  it 
appeared  that  the  creditors  had  given 
the  attorney  no  authority  to  receive 
such  a  paper,  was  admissible  in  evi- 
dence against  him  as  a  parol  admis- 
sion of  the  facts  recited  in  it  and  open 
to  e.\planation  and  contradiction  as 
such. 

Sealed    Instrument     Executed    by 

Agent     Approved     by     Parol So. 

where  a  sealed  instrument  executed 
hy  an  agent  who  has  only  a  parol 
authority,  is  not  binding  as  a  con- 
tract, and  will  not  sustain  an  action 
against  the  principal,  yet  admissions 
contained  in  it  are  competent  evi- 
dence against  him.  Morrell  v.  Caw- 
ley.  17  Abb.  Pr.  76. 

Contract   Not    Stamped The    rule 

is  the  same  where  a  contract  is  not 
competent  as  evidence  for  other  pur- 
poses by  reason  of  the  fact  that  it  is 
not  stamped  as  reepiired  by  an  act  of 
congress.  It  is  nevertheless  com- 
petent as  an  admission.  Rcis  t.  Hell- 
man.  25  Ohio  St.  180. 

77.  Statement  in  Proposed  Con- 
tract   Not    Executed In     Reckman 

V.  Fletcher.  48  Mich.  555,  12  N.  W. 
849,  it  was  said :  "  HtU  a  paper  re- 
jected as  a  contract  may  nevertheless 
contain  important  admissions;  and 
these  in  respect  to  disputed  facts  may 
be  very  convincing  tliough  in  making 

Vol.  I 


them  the  party  may  have  had  in  view 
an  object  which  was  not  accom- 
plished. If  they  were  plainly  made 
as  admissions  of  fact,  they  may  be 
given  such  weight  as  they  appear  to 
deserve;  and  the  circumstances  at- 
tending them  will  be  examined  for 
any  light  they  may  throw  on  the 
deliberation  with  which  the  admis- 
sions were  made.  A  statement  in  an 
abortive  contract  may  be  as  con- 
vincing of  a  fact  as  any  other;  and 
there  is  no  reason  why  it  should  not 
be  if  it  was  intelligently  and  deliber- 
ately made.  If  it  was  made  by  way 
of  concession  and  compromise,  it  may 
on  the  other  hand  be  entitled  to  no 
weight  whatever." 

78.  Standard    v.     Snnth,    40    Vt. 

513- 

79.  What     Writings     Competent. 

a. — Account  Stated. — Wharton's  Ev. 
§  113,3;  Burrows  v.  Estate  of 
Stevens,  ig  Vt.  •578;  Lockwood  v. 
Thorne.  iS  N.  Y.  2S5. 

80.  Receipts.  —  Wharton's  Ev.. 
§  1 130. 

81.  Letters.  _  ( 'nilcd  States.  — 
Zachrv  i'.  Nolan.  66  Fed.  467.  14 
C.  C.  A.  253,  30  U.  S.  App.  244- 

Cabfornia. — Moore  v.  Campbell,  72 
Cal.  251,  13  Pac.  689. 

Georgia. — .-Vdams  v.  Eatherlv,  78 
Ga.  485.  3  S.  E.  4.30. 

Illinois. — Ilolley  f.  Knapp,  45  III. 
App.  372;  Grain  v.  First  Nat.  Bank, 
114  111.  516,  2  N.  E.  486;  Bailey  v. 
Pardridge,  35  111.  App.  121. 

Indiana. — Huston  7'.  Stewart.  64 
Ind.  388;  Peffley  v.  Noland,  80  Ind. 
164;  Furry  i'.  O'Connor,  i  Ind.  App. 
.^73.  28  N.  E.  103. 

/(KCfl. — Winebreuner  1:  Rrunswick- 
Balke  etc.   Co.,  82  Iowa    741,  47  N. 


.^IDMISSfONS. 


393 


a     promissory     note,* 


tax     list,^''     entries     in     books     of     ac- 


W.     1089;     Williams    v.    Souther,    7 
Iowa  (.Clarke)  435. 

Massachusetts. — Wiggin  v.  Boston 
&  Albany  Ry.  Co..  120  Mass.  201  ; 
Stone  V.  Sanborn,  104  Mass.  319,  6 
Am.  Rep.  238. 

Micliigaii. — Kelly  '^-  McKenna,  18 
Mich.  381. 

Missouri. — Higgins  v.  Dellinger,  22 
Mo.  397- 

North  Carolina. — Michael  f.  Foil, 
100  N.  Car.  178,  6  S.  E.  264. 

Pennsylvania. — Holler  t'.  Weiner, 
IS  Pa.  St.  242. 

Texas. — Wills  Point  Bank  v.  Bates, 
72  Tex.  137,  10  S.  W.  348. 

Vermont. — Wilkins  v.  Burton,  5 
Vt.   76;   Little  V.   Kcycs,  24  Vt.   118. 

Letters  Written  After  com- 
mencement   of    Suit In    Holler    v. 

Weiner,  15  Pa.  St.  242,  it  was  said: 
"  That  the  evidence  was  properly  ad- 
mitted, cannot  be  doubted.  The  let- 
ters, although  written  after  the  com- 
mencement of  the  suit,  are  evidence, 
because  they  were  responded  to  by 
the  defendants.  The  letters  were  ad- 
mitted as  a  connected  whole;  no  ob- 
jection being  made  to  any  particular 
part  of  the  correspondence.  Had  the 
defendants  taken  no  notice  of  the 
plaintiff's  letter,  which  no  doubt 
would  have  been  the  case  had  his 
present  counsel  been  at  his  elbow, 
the  exception  would  avail  here.  But 
allegations  made  in  a  letter,  res- 
ponded to  by  the  other  party,  are 
considered  in  the  light  of  declarations 
or  conversations  between  the  parties. 
and  as  such  properly  admissible  in 
evidence.  The  weight  to  be  given 
to  the  testimony  is  for  the  jury  to 
determine;  who  consider,  under  all 
the  circumstances,  how  much  of  the 
whole  statement  they  deem  worthy  of 
belief,  including  as  well  the  facts 
asserted  by  the  party  in  his  own 
favor  as  those  making  against  him. 
It  is  a  matter  of  no  sort  of  con- 
sequence whether  letters  or  conver- 
sations, as  to  their  competency,  are 
before  or  after  suit  brought." 

By  One  Who  Has  Ceased  to  be  a 
member  of  Copartnership. — So  it 
was  held  in  Wills  Point  Bank  v. 
Bates,  72  Tex.  137,  10  S.  W.  348.  that 
testimony  as  to  the  contents  of  a 
letter,   written  by  one  member  of  a 


firm  to  another,  showing  the  purpose 
for  which  a  pretended  purchase  from 
a  failing  debtor  was  made,  is,  in  a 
contest  between  the  firm  and  other 
creditors  as  to  the  validity  of  such 
purchase,  competent  as  an  admission, 
though  at  the  time  of  giving  the  tes- 
timony, the  witness  to  whom  the 
letter  was  written,  has  ceased  to  be 
a  member  of  the  finn,  the  court  say- 
ing :  "  The  letter  was  an  admission, 
made  by  one  member  of  the  firm, 
shown  to  have  been  present  at  the 
time  the  transaction  with  Gugenheim 

6  Co.  was  consummated,  tending  to 
show  what  its  real  nature  was,  and 
in  reference  to  which  either  partner 
could  he  compelled  to  testify.  Such 
declarations  or  admissions,  made  by 
one  partner  to  another,  have  never 
been  recognized  as  privileged  com- 
munications. The  fact  of  partnership 
being  shown  to  have  existed  at  the 
time  the  letter  was  written,  and  at 
the  time  the  transaction  to  which  it 
referred  occurred,  the  writing  of  the 
letter  and  its  contents  might  be 
proved  by  any  person  having  knowl- 
edge of  those  facts.  The  fact  that 
Williams  testified  after  the  dissolution 
of  the  partnership  does  not  affect  the 
admissibility  of  the  evidence,  show- 
ing an  admission  or  declaration  made 
by  one  member  of  the  firm  prior 
to  dissolution." 

82.  Promissory  Notes Bowers  v. 

Hurd.  10  Mass.  426. 

83.  Tax  Lists.  —  Ante.  p.  362. 
Ahihama. — Steed    r.     Knowles,    97 

Ala.  573,  12  So.  75 ;  Wright  v.  Mer- 
riwether,  51  Ala.  183;  Birmingham 
Mineral  K"  Co.  v.  Smith,  89  Ala.  305, 

7  So.  634. 

Arkansas. — Texas  &  St.  Louis  Ry. 
Co,  I'.  Eddy,  42  Ark.  527. 

California. — San  Jose  etc.  A.  R.  Co- 
V.  Mayne.  83  Cal.  566,  23  Pac.  522. 

Indiana. — Painter  v.  Hall.  75  Ind. 
208;  Lefever  f.  Johnson,  79  Ind.  554; 
Kirkpatrick  v.   Pearce.   107   Ind.   520, 

8  N.  E.  573;  German  Mut.  Ins.  Co.  v. 
Nieweddc,  11  Ind.  ,A.pp.  624,  39  N.  E. 
534;  Comstock  V.  Grindle,  121  Ind. 
450.  23  N.  E  494 ;  Sherman  v.  Hog- 
land.  7T,  Ind.  475. 

^fassachusetts.  —  Randidge  v.  Ly- 
man. 124  Mass.  361  ;  Brown  v.  Prov. 
etc.  R.  R.  Co.,  5  Gray  35. 

Vol.  I 


394 


ADMISSIONS. 


Nevada. — Virginia  &  Truckcc  K.  K. 
Co.   V.   Henry,  8   Nev.    165. 

Pennsylvania. — Hanover  Water  Co. 
V.  Ashland  Iron  Co.,  84  Pa.  St.  279. 

I'exas. — Railway  v.  Kell,  16  S.  W. 
936;  Jones  V.  Cummins,  17  Tex.  Civ. 
App.  661,  43  S.  \V.  854. 

I'crmont.  —  Richardson  v.  Hitch- 
cock, 28  Vt.  757 ;  Hubbard  v.  Moore, 
67  Vt.  532,  32  Atl.  465. 

Seeming  Conflict  in  the  Cases. 
There  is  a  seeming  conflict  in  the 
decided  cases,  however,  as  to  the 
purpose  for  which  a  tax  list, 
or  return,  is  adinissible.  In  some 
of  the  cases  it  is  held  that  it 
is  competent  to  prove  the  value  of 
the  property  given  in  for  taxation. 
Birmingham  Mineral  R.  Co.  v.  Smith, 
89  Ala.  305,  7  So.  634;  Beckwith  v. 
Talbott,  2  Colo.  639;  Vernon  Shell- 
Road  V.  Mayor  etc.  of  Savannah,  95 
Ga.  387,  22  S.  E.  625;  President  etc. 
V.  Juniata  County,  144  Pa.  St.  365, 
22  Atl.  896. 

While  in  others  the  contrary  is 
maintained;  but  it  is  held  that  they 
are  competent  to  show  whether  the 
particular  property  in  controversy 
was  claimed  or  owned  by  the  party 
giving  in  the  property  at  the  time 
the  list  was  made. 

Cases  Not  Necessarily  in  Conflict. 
But  the  cases  are  not  necessarily 
in  conflict.  In  some  of  the  states  the 
property  owner  is  required  to  give 
the  value  of  the  property  as  well  as 
its  description  in  his  tax  list.  If  he 
is,  his  statement  is  competent  evi- 
dence against  him  as  to  the  value  of 
the  property  given  in.  In  other  states, 
the  property  owner  is  only  required 
to  furnish  a  list  of  property  owned 
by  him,  leaving  the  assessor  or  other 
designated  officer  to  place  a  value 
upon  it.  In  such  case,  the  maker  of 
the  list  has  not  stated  the  value  of 
the  property,  and  therefore  the  list 
IS  not  competent  evidence  against 
him  as  an  admission.  Hubbard  v. 
Moore,  67  Vt.  532;  32  Atl.  465. 

Of  course,  when  it  becomes  a  pub- 
lic record,  it  may,  as  such,  be  com- 
petent for  other  purposes.  It  is  the 
assessor's  valuation,  ijiowevcr,  and 
not  that  of  the  property  owner. 
Brown  v.  Providence  R.  R.  Co., 
-  Gray  ?,$. 

Statement  in  Can  be  Used  Only  for 
Special  Purpose — But  even  where  a 

Vol.  I 


lax  list  is  made  by  the  lister  in- 
cluding a  valuation  of  the  property, 
it  is  held  that  the  value  thus  fixed 
is  for  a  special  purpose  and  can  not 
be  used  as  evidence  for  another  pur- 
pose, a  proposition  that  may  well  be 
tloubted. 

"  Such  lists  are,  however,  not  com- 
petent, either  for  or  against  the  lister, 
as  original,  substantive  evidence,  to 
establish  the  value  of  a  particular  ar- 
ticle of  property  for  purposes  other 
than  taxation.  Such  valuations  are 
to  be  regarded  as  having  been  made 
for  a  special  purpose,  and  like  ad- 
missions made  for  a  like  purpose, 
they  are  not  competent  as  original 
evidence  of  value  for  any  other  than 
the  purpose  for  which  they  were 
made,  or  in  a  case  involving  the 
question  of  valuation  for  ta.\ation." 
Cincinnati  H.  &  I.  R.  Co.  v.  Mc- 
Dougall,  108  Ind.  179,  182,  8  N.  E. 
571 ;  German  Mut.  Ins.  Co.  v.  Nie- 
wedde,    11    Ind.   App.   624,   39   N.   E. 

534- 

"That  statements  were  evidently 
those  required  under  sections  3629  to 
3633  of  the  Political  Code.  Nowhere 
in  them,  or  in  any  other  sections  of 
that  code  which  have  been  called  to 
our  attention,  is  there  any  provision 
which  requires  the  person  whose 
property  is  to  be  assessed  to  fix  the 
value  thereof.  The  record  here 
shows  that  such  fixing  of  value,  if 
made,  was  by  the  assessor,  and  not 
by  the  defendant.  We  cannot,  there- 
fore, perceive  what  relevancy  the 
statements  had  to  the  question  of 
value  of  the  land  to  be  taken.  They 
were  not,  in  any  way,  declarations 
by  the  defendant  as  to  the  value  of 
his  land ;  and  even  if  they  have  the 
same  force  and  effect  as  an  assess- 
ment roll  made  by  the  proper  officer, 
they  are   inadmissible. 

"  '  The  assessment  of  property  for 
taxation  being  made  for  another  pur- 
pose, and  not  at  the  instance  of 
either  party,  and  not  usually  at  the 
market  value  of  the  property,  is  not 
admissible  as  evidence  of  value  in 
condemnation  proceedings.'  (Lewis 
on  Eminent  Domain,  §  448  :  Texas 
etc.  R'y  Co.  v.  Eddy,  42  Ark.  527; 
Brown  v.  Providence  etc.  R.  R.  Co., 
5  Grav,  35) '■  San  Jose  etc.  R.  R.  Co. 
V.  Mayne.  83  Cal.  566,  57°,  23  Pac. 
522,  523. 


APhUSSlONS. 


395 


count,'*  bank  Jjooks  as  against  a  liank,"^  reports  of  L-\ecutors  or 
administrators,*"  a  dced,^'  a  l)ill  of  hiding,'*'*  or  anv  other  writing 
signed  or  assented  to  hy  the  party.**'' 

Need  not  be  Signed. — It  is  not  even  necessary  that  the  doctunent 
be  signed.  It  may  be  competent,  in  the  absence  of  the  signature  of 
the  party,  in  connection  with  other  evidence  showing  his  knowk'dge 
of  its  contents  and  assent  to  tlie  instrument.'"' 


Statement     of     Owner     and     the 

Records    Distinguished The    return 

of  the  prciperty  owner,  which  is  liis 
own  statement,  and  the  tax-rolls  or 
other  records  or  papers  made  by  the 
assessor  or  other  officer,  shonid  he 
carefully  distingnishcd.  Tnckwood  v. 
Hawthorne,  67  Wis.  326,  30  N.  W. 
70s ;  Swain  v.  Swain,  134  Ind.  596, 
33  N.  E.  792 ;  Hennershotz  v.  Gal- 
lagher, 124  Pa.  St.  I,  16  Atl.  518. 

84.     Book     Entries j     \\  narton's 

Ev.,  §  1132. 

Colorado.— Denver  &  R.  G.  R.  Co. 
V.  Wilson,  4  Colo.  App.  355,  -^6  Pac. 
67. 

/oK'd. — White  V.  Tucker,  9  Iowa 
100 ;  State  of  Iowa  v.  Wooderd,  20 
Iowa  541. 

Massiuliusctts. — Topliff  v.  Jackson, 
12  Gray,  565. 

Mississi/^pi. — Forniquet  v.  West 
Feliciana  R.  Co.,  6  How.  116. 

New  York. — Caldwell  v.  Leiher,  7 
Paige,   483. 

O/iio.— Halleck  v.  State  of  Ohio, 
II  Ohio,  400;  Goodin  v.  .Armstrong, 
ig  Ohio,  44. 

]'crmo}if. — Chase    v.    Smith,    5    Vt. 

85.  Bank  Books. — President  etc. 
Manhattan  Co.  v.  Lydig,  4  Johns,  ^yy, 
4  Am.  Dec.  280 ;  2  Wharton's  Ev. 
§  1131;  President  etc.  of  Union 
Rank  zk  Knapp.  3  Pick.  96,  1$  Am. 
Dec.   iSi. 

86.  Reports  of  Executors,  Etc. 
Pieal  V.  The  State,  77  Ind.  231. 

87.  Deeds.— Dunn  v.  Eaton,  92 
Tenn.  743,  23  S.  W.  163 ;  Ross  v. 
Gould.  5  Greenl.  204;  Steed  i'. 
Fvnowlcs,  97  Ala.  573,   12   So.  75. 

88.  Bills  of  Lading.  —  Emery's 
Sons  V.  Irving  National  Bank,  25 
Ohio  St.  ,360,  18  .Am.  Rep.  299. 

89.  Other  Writings.  —  Viilird 
States.— Mulhz]]  V.  Kccnan,  18  Wall. 
.342 ;  Zachry  v.  Nolan,  66  Fed.  467, 
14  C.  C.  A.  253,  30  U.  S.  App.  244. 


Alabama. — Colgan  v.  Tlie  State 
Rank,  11  .Ma.   (N.  b.)  222. 

California. — Gradwohl  7'.  Harris, 
29  Cal.   150. 

Colorado. — Wilson  v.  Morris.  4 
Colo.   App.  242,  36   Pac.  248. 

Illinois. — Springer  v.  City  of  Chi- 
cago, 37  III.  App.  206. 

Indiana. — Indianapolis  Chair  Mfg. 
Co.  V.  Wilcox,  59  Ind,  429, 

Maine. — Rlackington  v.  City  of 
Rockland,  66  Me.  332. 

Alassacliusctts.  —  Wadsworth  v. 
Ruggles,  6  Pick.  62;  McKim  v. 
Rlake,  1,^9  Mass.  593,  2  N.  E.  157; 
Putnam  v.  Gunning,  162  Mass.  552, 
39  N.  E.  347;  Tripp  V.  New  .Metallic 
P.ncking  Co.,    137   Mass.   499. 

Michigan. — Butler  z:  Iron  Cliffs 
Co.,  y6  Mich.  70,  55  N.  W.  670. 

Nczi'  York. — Rawson  z'.  Adams,  17 
Johns.  130;  Bayliss  v.  Cockcroft,  81 
i^-  Y.  363 ;  Travis  v.  Bargcr,  24  Barb. 
614:  Edwards  z\  City  of  Watertown, 
59  Hun    620,  13  N.  Y.  Supp.  309. 

North  Carolina. — Hughes  ^'.  Boone, 
102  N.  Car.  137,  9  S.  E.  286. 

Pennsylvania. — Brown  v.  Bank  of 
Chambersburg,  ^  Pa.  St.  187;  Ege  z'. 
Medlar,  82  Pa.  St.  86. 

Texas. — Western  Wool  Co.  v.  Hart, 
20  S.  W.  131 ;  House  z>.  Cessna,  6 
Tex.  Civ.  App.  7,  24  S.  W.  962 ; 
Robertson  v.   Ephraim,   18  Tex.    118. 

J'ernwnt. — Smith  Z'.  Holister,  32 
Vt.  695- 

Wisconsin. — Klatt  t'.  Foster  Lum- 
ber Co.,  92  Wis.  622,  66  N.  W.  791. 

90.  Not  Necessary  that  it  be 
Signed — 2  Wharton's  Ev..  §  1 129, 

United  Stales. — Kirk  z'.  Williams, 
24   Fed.   437. 

Illinois. — Henkle  v.  Smith,  2!  Til. 
237. 

Indiana. — Cook  7'.  Anderson,  20 
Ind.    i.S. 

lozca. — Snyder  7'.  Reno,  3.8  low.T, 
320. 

;1/(7/»r-.— Bartlett   7'.    ATavo,    s^   iMe. 

.=;is. 

Vol.  I 


■>'»'  .IDMISSIONS. 

Competency  Subject  to  General  Rules  as  to  Admissibility  of  Admissions. 
Us  competency  is  subject,  liuwcvcr,  to  the  rules  heretofore  stated 
relative  to  the  admissibihty  of  statements  or  declarations  of  a  party, 
and  is  adniissilile  on  the  same  principle.'"  The  fact  that  the  state- 
ment or  declaration  is  in  writing  in  no  way  changes  the  general 
rules  relating  to  the  competency  of  such  evidence.  The  rule  that 
self-serving  declarations  can  not  be  proved  is  applicable  in  all  its 
force  to  book  entries  and  other  writings,  subject  to  certain  exceptions 
rendering  such  evidence  competent  under  some  circumstances  which 
will  be  more  fully  considered  when  we  come  to  treat  of  the  com- 
petency, generally,  of  book  entries  and  like  evidence. ''- 

And  so  with  respect  to  all  other  limitations  as  to  the  extent  and 
admissibility  of  the  admissions  and  the  power  and  authority  of  one 
person  to  bind  another  by  declarations  or  admissions  made."'' 

Not  Conclusive. — An  admission  in  a  writing  is  not,  as  a  general 
rule,  conclusive  any  more  than  if  orally  made.  And  therefore  the 
party  making  it  may  prove  the  contrary,  or  show  that  the  admission 
was  made  liy  mistake.''"" 

7.  Oral  Statements.  —  Oral  statements  may  be  either  tlirect  or 
incidental  admissions,  as  above  defined ;  that  is  to  say,  they  may  be 
direct  acknowledgments  of  the  truth  of  the  matter  in  dispute,  or  of 
some  other  fact  indirectly  involving  an  admission  of  the  fact  in 
issue.  Whether  they  are  the  one  or  the  other  is  immaterial  in 
respect  of  their  competency  as  evidence,  but  may  be  quite  important 
as  to  the  eflfect  or  weight  to  be  given  to  them  when  proved,  which 
will  be  considered  further  along.     See  "  Dh;cl.\R.aTions." 

Admissible  Against  Party  Making  Them.  —  No  extended  notice  of 
oral  admissions  is  necessary  in  this  connection.  The  general  and 
well  settled  rule  of  law  is  that  the  admissions  of  a  party  in  interest 
are  always  competent  evidence  against  him."''' 

Upon  'What  Grounds  Admissible.  — The  authorities  are  not  agreed 
as  to  the  grounds  upon  which  acts  or  statements  of  a  i^arty  amount- 
ing to  admissions,  are  competent  evidence.  It  is  said  that  such  evi- 
dence is  more  properly  admissible  as  a  substitute  for  the  ordinary 
or  legal  proof  either  in  virtue  of  the  direct  consent  or  waiver  of  th 
party,  as  in  the  case  of  explicit  and  solemn  admissions:  or  01 
grounds  of  ]Hiblic  policy  and  convenience,  as  in  case  of  those  iniplici 


e 

on 


Massachusetts.— Knowhonv.  Most-  506;  Tiirnipseed  v.  Gooilwin.  9  Ala. 

ly.    105    Mass.    136;    Tripp    v.    New  (N.  S.)  .372. 

Mctalfic  Packing  Co.,  137  Mass.  4Q0.  93.     Benford    v.     Sanncr.    .40     Pa. 

O/i/o.— Mallcck    V.    State    of    Ohio,  .St.   g,   80   Am.   Dec.   545. 

II   Oliio  400.  9*-     ^o*    Conclusive.  —  Gradwolil 

r,-;i»,)»/— Hosford  v.  Footc,  3  Vt.  r.  Harris,  .'9  Cal.  150. 

,191  95.     Oral     Admissions. —  i     Grcenl. 

91.  Competency  Subject  to  Gen-  jTy  5^,..  i6g;  Tciimy  r.  Evans.  14 
eral  Rules  Affecting  Proof  of  Ad-  ^  h.  .34,1.  40  .\ni.  Dec.  194;  Davis  v 
missions — Cook  v.  P.arr,  44  N.  \.  Calvert. '5  Gill  &  Johns.  (Md.)  269. 
15^.  25  Am.  Dec.  282;   I   Phil.  Ev.  .339:   T 

92.  .Adams  t.  Fimk.  53  Til.  219:  Am.  &  Eng.  Enc.  of  Law,  (2  E<n 
iinmnin  7'.  Force.  12  B.   Mon.   (Ky.")  678. 

Vol.  I  " 


.IDMISSJONS. 


3'J7 


from  assumed  character,  acquiescence  or  conduct,  and  not  because, 
being  against  interest,  they  are  probably  true."" 

But  certainly  this  is  not  the  generally  understood  reason  for  the 
admission  of  declarations  against  interest.  They  are  generally 
received  because,  being  against  interest,  they  may  be  regarded  as 
probabl}-  true.''' 

8.  Judicial.  —  A.  Definicu.  —  A  judicial  admission  is  one  so 
made  in  pleadings  filed  or  in  the  progress  of  a  trial  as  to  dispense 
with  the  introduction  of  evidence  otherwise  necessary  or  to  dispense 
with  some  rule  of  ])ractice  otherwise  necessary  to  be  observed  and 
com])!ied  with.'"* 


96.  On  What  (jrounds  Admissi- 
ble— Under  the  head  of  e.xceptioiis  lo 
the  rule  rejecting  hearsay  evidence, 
it  has  been  usual  to  treat  of  admis- 
sions and  confessions  by  the  party, 
considering  them  as  declaratior.s 
against  his  interest,  and  therefore 
probably  true.  But  in  regard  to 
many  admissions,  and  especially  those 
implied  from  conduct,  and  assumed 
character,  it  cannot  be  supposed  that 
the  party,  at  the  time  of  the  principal 
declaration  or  act  done,  believed  him- 
self to  be  speaking  or  acting  against 
his  own  interest ;  but  often  the  con 
trary.  Such  evidence  seems,  there- 
fore, more  properly  admissible  as  a 
substilutc  for  the  ordinary  and  legal 
proof,  either  in  virtue  of  the  direct 
consent  and  waiver  of  the  party,  as 
in  the  case  of  explicit  and  solemn  ad- 
missions ;  or  on  grounds  of  public 
policy  and  convenience,  as  in  the  case 
of  those  implied  from  assumed  char- 
acters, acquiescence  or  conduct."  i 
Grcenl.    I{v.   §    l6g. 

97.  Principles  Upon  Which  are 
Received — "  The  principle  on  which 
they  are  received  is  founded,  chiefly, 
on  the  reasonable  presumption  in 
favor  of  the  truth  of  a  statement 
when  it  is  against  the  interest  of  the 
person  who  makes  it."  i  Phil,  Ev, 
.3.iO. 

"  If  a  statemcnl  is  made  in  the 
hearing  of  another,  in  regard  to 
facts  affecting  his  rights,  and  he 
makes  a  reply  wholly  or  partially 
admitting  their  truth,  then  the  dec- 
laration and  reply  are  both  admis- 
sible; the  reply,  because  it  is  tin- 
act  of  tJie  l^arty  H'lm  ivill  not  be 
presntned  to  admit  anytliin^  affecting 
his  (!?('»  interest  or  liis  own  rif^lits 
unless   eontl^elled    to    it    l>y    tlie   force 


of  truth  ;  and  ihc  declaration  because 
it  may  give  meaning  and  effect  to 
the  reply."  Connnonwealth  v.  Ken- 
ney,  12  Met.  (Mass.)  235,  237,  46  Am. 
Dec.  672,  673. 

"  Whatever  a  party  voluntarily  ad- 
mits to  be  true,  though  the  adniissio;i 
be  contrary  to  his  interest,  may 
reasonably  be  taken  for  the  truth. 
The  same  rule,  it  will  be  seen,  applies 
to  admissions  by  those  who  are  so 
identified  in  situation  and  interest 
with  a  party  that  their  declarations 
may  be  considered  to  have  been  made 
liy  himself.  As  to  such  evidence,  the 
ordinary  tests  of  truth  are  properly 
dispensed  with  ;  they  are  inapplicable  : 
an  oath  is  administered  to  a  witness 
in  order  to  impose  an  additional 
obligation  on  his  conscience,  and  so 
to  add  weight  to  his  testimony;  and 
he  is  cross-examined  to  ascertain  bis 
means  of  knowledge,  as  well  as  his 
intention  to  speak  the  truth.  P.ul 
where  a  man  vohmtarily  admits  a 
debt  or  confesses  a  crime,  there  is 
little  occasion  for  confirmation ;  the 
ordinary  motives  of  human  conduct 
are  sufficient  warrants  for  belief." 
Starkie  Ev.  (Sharswood's  Notes)  p. 
=0 

98.  Definitions.  —  .\nderson's 
Diet.,  Bouv.  Diet. ;  i  Oreenl.  Ev. 
§§27,  205. 

"  Ks  to  the  different  kinds  of  self- 
harming  statements.  In  tlie  first 
place  they  are  cither  '  judicial  '  or 
'extra-judicial' — i)i  judicio  or  extra 
judiciam  —  according  as  they  are 
made  in  the  course  of  a  judicial  pro- 
ceeding, or  under  any  other  circum- 
stances." Chamberlaviie's  Best  Ev.. 
§=22. 

"  So  plainly  made  in  pleadings  filed, 
or    in    the    progress    of   a    trial    .as    to 

Vol.  I 


398 


ADMISSIONS. 


All  admissions  made  in  court,  and  as  a  part  of  the  proceeding's 
in  a  cause  pending,  or  made  out  of  court  but  to  be  filed  in  the 
cause,  as  part  of  the  proceedings  therein,  and  express  admissions 
in  the  pleadings  as  well  as  those  resulting  from  a  failure  to  deny 
the  material  allegations  contained  in  the  pleadings  of  the  adversary 
party,  are  usually  classed  as  juilicial  admissions.'''' 

Rut  the  most  important  distinction  between  judicial  and  other 
admissions,  is,  as  we  shall  see  \vhen  wc  come  to  consider  the  effect 
of  admissions,  that  strictly  judicial  admissions  are  conclusive  ui)on 
the  part}-  making  them,  while  other  admissions  are,  as  a  rule  and 
where  the  elements  of  estoppel  are  not  present,  disputable/ 

B.  Made  in  Pleadings.  —  An  admission  in  a  pleading  may  be 
by  an  express  acknowledgment  of  some  fact  or  facts  set  forth  in 
the  pleading  of  the  o])posite  party,  or  by  a  failure  to  deny  or  other- 
wise controvert  the  truth  of  such  fact  or  facts. 

a.  Express  Adinissions.  —  It  is  quite  common  practice  in  plead- 
ing to  confess  and  avoid  a  fact  or  facts  alleged  by  the  adversary 
party,  because  the  facts  alleged  cannot  be  truthfully  denied  but  may 
be  avoided  by  the  allegation  and  ])roof  of  other  facts. - 

This  relieves  the  party  having  the  burden  of  establishing  the 
truth  of  stich  facts,  of  the  necessity  of  offering  any  evidence  in  their 
su])port."  and  casts  u])on  tlic  other  party  the  biu"den  of  proving  the 


dispense  with  the  stringency  of  some 
rule   of   practice."     Anderson's    Diet. 

99.  I  Greenl.  Ev..  §§  27,  205 ;  Cook 
7'.  Guirkin.  iig  N.  C.  13.  25  S.  E. 
71.=;. 

"Judicial  admissions,  or  tliose 
made  in  court  by  the  party's  altoruey. 
generally  appear  either  of  record,  as 
in  pleading,  or  in  the  solemn  admis- 
sion of  the  attorney,  made  for  the 
pm-pose  of  being  used  as  a  substitute 
for  the  regular  legal  evidence  of  the 
fact  at  the  trial,  or  in  a  ease  stated 
for  the  opinion^  of  the  court.  There 
is  still  anollicr  class  of  judicial  ad- 
missions made  by  the  paynneut  of 
money  into  court."  I  Greenl,  Ev.. 
§205. 

"  .'\n  admission  in  judicio  niav  be 
made  by  a  party  to  an  action  either 
expressly  by  a  notice  or  pleading,  or 
impliedly  by  a  failure  to  deliver  a 
pleading  or  to  traverse  an  allegation 
made  by  his  opponent;  sometimis  th  ■ 
parties  agree  to  make  admissions  of 
facts  or  documents  in  order  to  save 
the  expense  of  proving  them."  Rap. 
&  T.aw  Diet. 

1.  I'.arber  -■.  P.i-nnrtt.  60  \'t.  66j. 
i;   .\ll.  4^8.   I    I,.   R.   A.  224. 

2.  \.v..ll   :■.   Ooty,  33  N.   Y.   83; 

Vol.  I 


Becker  %•.  Sweetzer,  15  Minn.  42"; 
Nash  V.  City  of  St.  Paul,  n  Minn. 
174;  Lipscomb  V.  Lipscomb.  32  S.  C. 
243.  10  S.  E.  929;  Murray  v.  New 
York  L.  Tns.  Co.,  S.s'  N.  Y.  236. 

3.  California.  —  Hellman  v.  How- 
ard, 44  Cal.  too;  Hanson  v.  Fricker, 
79  Cal.  283.  21   Pac.  751. 

Connecticut. — Connecticut  Hospital 
I'.  Town  of  Bridgewater.  69  Conn. 
I.  36  .^tl.   1017. 

Indiana.  —  Bondurant  r.  Bladen,  19 
Ind.   160, 

Missouri.  —  Hnunons  v.  Gordon 
(Mo.),  24  S.  W,  146, 

New  Fo)7,-,  —  Paige  v.  Willel.  ?8 
N.  Y.  28;  Murray  v.  New  York  L, 
Tns,  Co,.  85  N,  Y.  236:  White  v. 
Smith,  46  N,  Y.  418. 

Oregon.  —  Bush  iv  Cartwright.  7 
Or,   320, 

Admission  Conclusive.  —  In  Hell- 
man  T.  Howard.  44  Cal.  too,  it  was 
admitted  by  the  pleadings  lliat  the 
promissory  note  in  suit  was  assigned 
by  the  ixiyee  to  the  plaintiffs,  and  if 
was  held  that  such  admission  being 
made,  no  rpieslion  conl  1  be  raised  on 
I  he  trial  whelher  nr  not  (be  assign- 
ment was  made  in  such  form  as  to 
p.Lss  the  interest  of  a  married  woman. 


.IDM/SSIONS. 


:•>')<) 


nialtcrs  alleged  in  avoidance  of  them/ 

So  it  is  not  unusual  for  a  party  to  admit,  or  fail  to  deny,  the 
truth  of  a  part  of  the  facts  alleged,  and  to  traverse  a  part,  which 
has  the  same  eflfect  as  to  the  part  confessed.^ 


Failure   to   Deny So,   where  the 

contention  between  the  parties  was 
with  respect  to  the  findings  of  the 
court,  that  the  appellant  paid  for  the 
property  fifteen  hundred  dollars,  and 
not  five  hundred  dollars,  as  found 
by  the  court.  It  was  said :  "  But 
no  such  defense  was  set  up.  or  even 
hinted  at  in  the  answer.  It  cannot, 
therefore,  be  raised  here  for  the  first 
time.  The  case  was  properly  tried 
upon  the  issues  presented  by  tlie 
pleadings,  and  upon  all  of  thoe  issues 
there  was  ample  evidence  to  justify 
the  findings."  Hanson  z>.  Pricker,  79 
Cal.  283,  21  Pac.  751. 

Admission  of  One  Fact  From 
Which  Another  Inferred.  —  In  Con- 
necticut Hospital  V.  Town  of  Bridge- 
water,  69  Conn.  I.  36  Atl.  1017,  the 
question  was  as  to  the  effect  of  an 
admission  in  the  answer,  that  the 
defendant,  the  Town  of  Bridgewater, 
had  paid  for  one  year's  support  of  a 
pauper  in  the  hospital.  The  action 
being  one  of  the  hospital  against  the 
town  to  complete  payment  for  the 
support  of  the  pauper,  it  was 
held  that  the  answer  not  only 
amounted  to  an  admission  of  the 
fact  of  the  payment,  but  carried  with 
it  also  an  admission  of  liability,  the 
court  saying :  *'  It  was.  however,  ad- 
mitted by  the  answer  that^  this  town 
had  paid  for  the  support  of  the 
pauper  in  question  for  more  than  a 
year  after  her  commitment.  An  ad- 
mission in  pleading  dispenses  with 
proof,  and  is  equivalent  to  proof. 
The  fact  thus  admitted  had  a  proba- 
tive force  in  tending  to  show  a 
further  adtnission.  Such  payment  by 
t!ie  town  was  an  act  in  the  nature 
of  an  implied  admission  that  it  was 
imder  an  obligation  to  make  it ;  that 
is,  that  it  was  legally  chargeable  in 
favor  of  the  plaintiff  for  the  pauper's 
support,  which  was  the  sole  matter 
put  in  issue  under  the  pleadings." 

Not  Permitted  to  Deny  Explicit 
Admission.  —  And  in  Paige  ;■.  Willet, 
,^8  N.  Y.  28.  it  was  held  that  the 
defendant,  who  explicitly  admits  by 
his    pleading   that    which    establishes 


the  plaintiff's  right,  will  not  be  per- 
mitted to  deny  its  existence,  or  to 
prove  any  state  of  facts  inconsistent 
with  that  admission,  the  court  say- 
ing: 

"  \\'hile  the  answer  stood  upon  the 
record,  the  defendant  was  not  at 
liberty  to  raise  an  issue  which  he 
had  emphatically  closed.  He  had  sur- 
rendered his  right  to  call  upon  the 
plaintiffs  for  proof  of  a  levy,  a  col- 
lection, or  to  question  his  liability 
to  pay  interest,  for  all  these  had  been 
expressly  admitted  by  the  answer 
and  the  proof  furnished  out  of  the 
mouth  of  the  defendant.  It  is  no 
answer  to  say  tliat  the  plaintiffs  had 
voluntarily  gone  beyond  these  ad- 
missions and  opened  up  an  inquiry 
which  the  defendant  was  at  liberty 
to  pursue,  and  by  this  means  escape 
froin  the  effect  of  his  own  fore- 
closure. This  may  have  been  an 
unwise,  as  I  think  it  was,  a  very 
unnecessary  procedure  on  the  part  of 
the  plaintiffs,  but  it  does  not  help 
the  defendant's  case,  nor  enable  him 
to  avoid  the  effect  of  his  own  ad- 
tnissions.  Such  admissions  are  con- 
clusive upon  the  parties  litigant,  and 
upon  the  court,  and  no  countervailing 
evidence  can  properly  be  received,  or, 
if  it  is,  either  through  inadvertence 
or  by  tacit  consent,  foisted  into  the 
case,  it  is  entitled  to  no  consider- 
ation." 

Admissions  in  the  Complaint. 
.\n  admission  may  occur  in  the  com- 
plaint as  well  as  in  the  answer.  Thus 
where  a  complaint  alleged  the  amount 
of  the  account  to  be  $=;4i.90.  and  that 
there  was  a  balance  due,  after  de- 
ducting all  payments,  of  $17.=;. 7=;,  it 
was  held  that  the  plaintiff  admitted 
the  payment  of  $366.1  v  and  that  the 
defendant  was  not  precluded  from 
insisting  upon  this  admission,  by  dis- 
puting the  correctness  of  the  items 
of  the  account.  White  z:  Smith,  46 
N.   Y.   418. 

4.  Newell  v.  Doty,  33  N.  Y.  83. 

5.  Becker  ?'.  Sweetzer,  15  Minn. 
427 :  Griffin  7'.  Long  Island  R.  Co.. 
lor  N.  Y.  348.  4  N.  E.  7'o;  Hnrland 

Vol.  I 


400 


IDMISSIONS. 


Express  Admissions  Not  Necessary  or  Proper  Under  the  Codes.  —  In 
equit\-  pleading  under  the  old  system  if  any  allegation  of  a  pleading 
was  not  intended  to  be  controverted,  it  was  expressly  admitted,  and 
matters  in  avoidance,  if  any.  stated  in  the  same  connection.  liut 
this  is  not  onlv  unnecessary  but  improper  under  the  code  system 
of  pleading  which  requires  an  answer  to  either  deny  the  allegations 
of  the  complaint  or  to  state  new  matter,  the  allegatinu  being  treated 
as  admitted  if  not  specially  denied." 

The  effect  of  this  is  to  relieve  the  party  alleging  such  facts  of 
making  anv  proof  in  support  of  them,  the  result  being  the  same, 
in  tlie  end,  as  if  they  had  been  fully  established  by  evidence.' 

Only  Material  Allegations  Admitted  by  Failure  to  Deny.  — It  is  only  the 
iiiatcrial  averments  of  a  pleading  that  are  admitted  by  a  failure  to 
dcnv  them.'* 


r.  Howard,  3^  N.  Y.  St.  869.  10  N. 
Y,  Supp.  449;  Potter  v.  Frail.  67 
How.   Pr.    (N.  Y.)   445. 

Denial  of  Facts  Not  Admitted. 
Tims  wliere,  in  an  action  for  goods 
sold,  the  answer  admits  thai  the  de- 
fendant purchased  the  goods,  but  de- 
nies each  and  every  other  allegation  in 
said  complaint  contained,  not  herein- 
after specifically  admitted,  contro- 
verted or  denied,  it  was  held  that  the 
answer  put  in  issue  the  value  or 
agreed  price  of  the  goods,  together 
with  the  fact  whether  the  assignment 
under  which  the  plaintiff  claimed, 
wasi  ever  executed  as  alleged.  Raw- 
lings  V.  Alexander,  8  Misc.  514,  28 
N.  Y.  Supp.  748. 

6.  Gould  f.  Williams,  q  How.  Pr. 
(X.   Y.)    51. 

7.  Blakcman  v.  Valleio.  15  Cal. 
638. 

Failure  to  Deny. —  In  Powell  i'. 
Oullahan.  14  Cal.  114,  it  was  said: 
"  L'nder  the  pleadings  in  this  case 
no  evidence  was  necessary  on  either 
of  the  points  specified  in  the  motion 
as  a  ground  of  non-suit.  As  to  the 
first  point,  it  is  only  necessary  to 
say.  that  the  title  of  the  state  is 
distinctly  averred  in  the  complaint, 
and  it  is  not  denied  in  the  answer. 
In  relation  to  the  second  point,  the 
complaint  alleges  that  the  defendant 
is  in  possession  and  excludes  the 
plaintifT:  and  tliis  allegation  is  not 
only  not  denied,  hut  the  answer 
shows  affirmatively  that  he  was  in 
possession,  claiming  adversely  to  the 
plaintifif  when  the  suit  was  com- 
m<'nr<'''.  .         Tf  llic  .-illegation  is  m.i- 

Vol.  I 


terial.  it  is  not  denied,  and  musi  he 
taken  as  true.  If  it  is  not  material, 
the  admission  is  relied  on  as  estab- 
lishing an  independent  fact,  not  put 
in  issue  by  the  pleadings,  aflfecting 
the  whole  case,  but  no  special  aver- 
ment or  denial.  '  When  it  appears 
from  the  whole  conduct  of  a  cause, 
that  a  particular  fact  is  admitted  be- 
tween the  parties,  the  jury  have  the 
right  to  draw  the  same  conclusion 
as  to  that  fact,  as  if  it  had  been 
proved  in  evidence,  and  to  draw  such 
conclusion  as  to  all  the  issues  on 
the  record.'  " 

8.  California. — Canfiekl  v.  Tobias, 
21  Cal.  349:  Doyle  v.  Franklin.  48 
Cal.  537 ;  Kidder  v.  Stevens,  60  Cal. 
414. 

Missouri.  —  Wood  t.  Steamer 
Fleetwood,  19  Mo.  529;  Field  7'.  Barr, 
27  Mo.  416:   Sutter  7'.  Streit,  21   Mo. 

157- 

New  York.  —  Sands  7'.  St.  John, 
36  Barb.  628:  King  7'.  I'tica  Ins. 
Co.,  6  How.  Pr.  485;  Gilbert  v. 
Rounds,  14  How.  Pr.  46. 

Oregon.  —  Larsen  7'.  Or.  Ry.  & 
Nav.  Co.,  ig  Or.  240.  23   Pac.  974. 

Failure  to  Deny  Value  of  Prop- 
erty. —  Thus  it  is  held  lliat  the  vahie 
of  an  article  alleged  in  a  complaint, 
where  the  value  is  not  a  material  is- 
sue in  the  case,  is  not  admitted  by 
the  failure  to  deny  the  same,  the 
court  saying :  "  In  our  opinion,  the 
allegation,  to  be  taken  as  admitted, 
must  be  a  material  one,  and  it  must 
be  so  stated  in  the  petition,  as  to 
bring  to  the  mind  of  the  defendant 
I  he    importance   of    il    in   the   trial   of 


ADMISSIONS. 


401 


b.  By  Failure  to  Deny  Allegations  in  Pleadings  in  Action  on  Trial. 
In  treating  this  branch  of  the  subject  it  will  be)  necessary  to  distin- 
guish between  the  rules  of  pleading  in  actions  at  law  under  the 
common  law  practice  and  imder  the  codes  of  the  several  states,  as 
well  as  statutor}-  modifications  of  pre-existing  rules,  and  the  rules 
of  pleading  and  evidence  under  the  equity  practice.  What  is  said 
under  this  sub-head  will  be  confined,  as  near  as  may  be,  to'  plead- 
ings in  actions  at  law,  whether  under  the  common  law  practice 
or  code  provisions.  The  cfliect  of  admissions  in  pleadings  in  suits 
in  equity  will  be  treated  separately. 

Allegations  Not  Denied  Are  Admitted.  • —  The  rule  is  general  both  at 
common  law  and  xuider  the  codes  that  a  material  allegation  well 
pleaded  must  be  denied  or  it  stands  admitted." 


the  cause;  then,  if  the  defendant 
fails  to  den}'  it  in  his  answer,  it  may 
he  taken  as  confessed ;  hut  here,  the 
sum  of  eight  hundred  and  five  dol- 
lars, as  the  worth  of  the  malt,  was 
not  a  material  matter  to  the  action ; 
the  action  could  have  been  as  well 
supported  if  the  malt  had  been  worth 
but  four  hundred  dollars,  or  any 
other  sum."  Wood  z'.  Steamer  Fleet- 
wood.   19    Mo.    529. 

Failure  to  Deny  Immaterial  Al- 
legations. —  So  in  Canfield  v.  Tobias, 
21  Cal.  349,  it  is  held  that  allegations 
not  material  to  the  plaintiff's  cause 
of  action  are  not  admitted  by  a 
failure  on  the  part  of  the  defendant 
to  deny  them ;  that  the  only  allega- 
tions essential  to  the  complaint  arc 
those  required  in  staling  the  cause 
of  action;  and  that  allegations  in- 
serted for  the  purpose  of  intercept- 
ing, cutting  off  and  anticipating  the 
defense  are  superfluous  and  imma- 
terial, and  do  not  require  an  answer. 

Again  in  Kidder  v.  Stevens,  60 
Cal.  414,  it  is  held  that  the  allegation 
of  time,  as  to  seisin  or  ouster,  in  the 
so  called  action  of  ejectment,  in  Cal- 
ifornia, is  not  material ;  and  that 
denial  of  it  raises  no  material  issue 
except  when  the  profits  arc  in  ques- 
tion. 

But  in  King  v.  Utica  Ins.  Co.,  6 
How.  Pr.  (N.  Y.)  485-.  it  is  held 
that  if  the  party  iriake  distinct  though 
immaterial  allegations,  and  in  a  tra- 
versable form,  he  cannot  have  his 
adversary's  pleading,  taking  issue 
thereon,  struck  out,  the  court  saying : 
"  And  if  a  party  will  make  a  distinct 
though  inmiaterial  allegation,  and  in 
a  traversable   form,   I  am  not  aware 

26 


of  any  rule  of  pleading  or  practice 
by  which  he  can  prevent  his  opponent 
from  denying  its  truth,  or  that  re- 
quires the  court  to  strike  out  that 
denial." 

Matters  of  Aggravation,  —  In 
Gilbert  v.  Rounds.  14  How.  Pr.  (K. 
Y.)  46,  it  was  held  that  circumstances 
of  aggravation  in  actions  of  assault 
and  battery  never  were  traversable, 
and  that  the  defendant  did  not  admit 
such  matters  by  not  pleading  to  the 
declaration  prior  to  the  code ;  and 
ti'nt  statements  of  new  matter  in  an 
action  for  assault  and  battery,  which 
consist  entirely  of  circumstances  of 
aggravation,  do  not  constitute  a  de- 
fense to  the  action,  nor  a  counter- 
claim. 

And  the  rule  extends  to  mere  legal 
conclusions.  Larscn  z'  Or.  Ry.  & 
Nav.  Co.,  19  Or.  240,  23  Pac.  974. 

Instance  of  Immaterial  Alle- 
gation.—In  Sands  V.  St.  John,  36 
Barb.  (N.  Y.)'  628,  an  action  by  the 
receiver  of  a  mutual  insurance  com- 
pany on  a  stock  note,  it  was  alleged 
in  the  complaint  that  the  company 
and  the  receiver  were  restrained  by 
injunction,  for  about  five  years,  from 
bringing  any  action  on  the  note  in 
suit ;  and  it  was  held  that  the  alle- 
gation's being  immaterial  could  not 
be  taken  as  true  by  reason  of  an 
omission  of  the  defendant  to  deny 
it;  and  that  it  was  therefore  un- 
necessary for  the  defendant  to  ac- 
company the  defense  of  the  statute  of 
limitations  with  a  denial  of  the  al- 
legation. 

9.  Allegations  Not  Denied  Ad- 
mitted. —  California.  —  De  Ro  v. 
Cordes,  4  Cal.  ii";  Lee  v.  Figg.  37 
Vol,  I 


402 


ADMISSIONS. 


Manner  and  Form  of  Denial.  —  But  the  manner  and  form  in  which 
an  allegation  may  be  put  in  issue  is  not  the  same  at  common  law 


Cal.  328,  99  Am.  Dec.  271 ;  Felch  v. 
Beaudry,  40  Cal.  439. 

Kansas.  —  Rock  Island  Lumber  etc. 
Co.  V.  Fairmont  Town  Co.,  51  Kan. 
.^04,   32   Pac.    1 100. 

Missouri.  —  Moore  v.  Sauborin,  42 
^lo.  490;  Gorman  v.  Dierkes,  37  Mo. 
,S76. 

Neiv  York.  —  Churchill  v.  Bennett, 
8  How.  Pr.  309;  Ramsey  v.  Barnes, 
35  N.  Y.  St.  43,  12  N.  Y.  Supp.  726; 
Paige  V.  Willet,  38  N.  Y.  28;  Tell  v. 
Beyer,  38  N.  Y.  161  ;  Clark  v.  Dillon, 
97  N.  Y.  370. 

Oregon.  —  Larsen  v.  Or.  Ry.  & 
Nav.  Co.,  19  Or.  240,  23  Pac.  974. 

South  Carolina.- — Charlotte,  Colum- 
bia etc.  Ry.  Co.  v.  Gibbes,  23  S.  C- 
370;  Lupo  V.  True,  16  S.  C.  579. 

Te.xas.  ■ —  Edinbura;  Am.  L.  etc. 
Co.  V.  Briggs  (Tex.),  41  S.  W.  1036. 

Failure  to  Deny  Allegation  of  De- 
mand.—In  De  Ro  ~:  Cordes,  4  Cal. 
117,  it  is  said:  "The  last  point  we 
will  notice  is  one  urged  by  respond- 
ents to  sustain  the  judgment.  They 
say  there  was  no  proof  of  demand. 
Under  the  pleadings,  no  such  proof 
was  necessary.  The  declaration  avers 
the  demand ;  the  answer  is  not  the 
general  issue,  but  is  only  a  specific 
denial  of  two  allegations.  It  denies 
the  collection  of  the  money,  and  de- 
nies that  the  plaintiff  was  owner  of 
the  ship.  Under  our  practice,  and, 
indeed,  under  the  practice  at  common 
l;.w,  such  an  answer  is  held  an  ad- 
mission of  all  other  allegations  in  the 
declaration,  which  arc  well  pleaded." 

When  Answer  Insufficient  to  Raise 
Issue.  —  So  in  Felch  v.  Beaudry,  40 
Cal.  439,  a  question  arose  upon  the 
right  of  tlie  plaintiff  to  judgment  on 
the  pleadings.  In  passing  upon  the 
question,  the  court  said :  "  If  a  com- 
plaint be  itself  sufficient,  there  is  no 
question  that  the  plaintiff  may  apply 
for  judgment  on  the  pleadings,  if 
the  defendant  has  filed  an  answer 
which  expressly  admits  the  material 
facts  stated  in  the  complaint  ;  and  so 
when  the  answer  filed  leaves  all  the 
material  allegations  of  the  complaint 
undcnicd.  This  practice  is  constantly 
pursued,  wdien  denials  in  verified 
answers   arc   literal   merely,   or  con- 

Vol.  I 


junctive,  evasive,  or  the  like.  If  this 
be  the  practice  as  to  answers  which 
insufficiently  deny  the  plaintiff's  alle- 
gations, why  should  not  answers, 
which  merely  set  up  new  matter  in 
defense,  if  found  substantially  insuffi- 
cient, be  subjected  to  the  same  prac- 
tice? The  ground  upon  which  a 
motion,  made  by  plaintiff  for  judg- 
ment on  the  pleadings,  proceeds  in 
any  case,  is  that  his  complaint  is 
sufficient  to  warrant  it,  and  that  the 
answer  presents  nothing,  either  by 
way  of  denial  or  of  new  matter,  to 
bar   or    defeat   the   action." 

Defective  Reply. —  And  this  rule 
extends  to  allegations  made  in  an 
answer  and  not  denied  in  the  repli- 
cation or  repl}',  in  those  states  in 
which  a  pleading  to  the  answer 
of  the  defendant  is  required.  Thus 
in  Moore  v.  Sauborin,  42  Mo.  490, 
it  was  held  that  under  the  pro- 
visions of  the  statute  of  Missouri, 
an  allegation  of  new  matter  contained 
in  an  answer,  not  denied  by  the 
reply,  stood  confessed  upon  the 
record,  and  entitled  the  defendant  to 
a  judgment. 

In  Ramsay  v.  Barnes,  35  N.  Y.  St. 
43,  12  N.  Y.  Supp.  726,  the  complaint, 
after  alleging  the  making  by  the  de- 
fendant of  a  promissory  note  and  its 
endorsement  to  the  plaintiff,  alleged 
that  thereafter  it  was  agreed  between 
plaintiff  and  defendant  that  the  mat- 
ter was  not  one  of  G,  but  a  personal 
one  of  the  defendant,  and  that  the 
defendant  owed  plaintiff  a  certain 
sum,  which  was  the  true  balance 
then  due  upon  the  certain  note.  The 
answer,  while  denying  the  other  al- 
legations of  the  complaint,  did  not 
refer  to  the  statement  of  the  personal 
obligation  of  defendant,  and  it  was 
held  that  the  fact  of  such  personal 
obligation  was   admitted. 

Pleading     in     Form     an     Answer 

When  a  Demurrer And  a  pleading 

in  form  an  answer,  going  only  to  a 
question  of  law.  has  been  held  to  be, 
not  an  answer  but  a  demurrer,  the 
court  saying :  "  There  is  not  a  single 
material  allegation  of  fact  in  the  com- 
plaint which  is  controverted  by  the 
defendant  in  his  pleadings,  styled  an 


ADMISSIONS. 


403 


and  under  the  codes,  nor  is  it  the  same  in  all  the  states  where  codes 
have  been  adopted.  At  common  law  the  general  issue  was  per- 
mitted. 

Under  some  of  the  codes  a  general  denial  similar  in  its  effects 
to  the  general  issue  at  common  law  is  allowed,"  while  in  others  a 
specific  denial,  separately,  of  each  material  allegation  in  the  plead- 
ing of  the  opposite  party  is  required  to  put  that  allegation  in  issue. 

But,   as   stated,   both   at   common    law   and   under   the   codes,   a 


answer,  but  the  sole  issue  presented 
is  one  of  law,  whether  tfie  act  re- 
quiring this  assessment  was  consti- 
tutional. It  is  true  that,  as  we  have 
seen,  the  proper  mode  of  raising 
such  an  issue  would  be  by  demurrer, 
and  the  defendant  has  not  seen  fit 
so  to  style  his  pleading;  but  that  can- 
not alter  its  legal  effect.  It  does 
not  controvert  any  material  allega- 
tion of  fact  contained  in  the  com- 
plaint, and  therefore  it  does  not  raise 
any  issue  of  fact.  It  simply  contro- 
verts the  legal  positions  taken  in  the 
complaint,  and  thereby  raises  only  an 
issue  of  law.  and  can,  therefore,  be 
regarded  only  as  a  demurrer."  Char- 
lotte. Columbia,  etc.  R.  R.  Co.  v. 
Gibbs,  23  S.  C.  370. 

10.  General  Denial  Allowed. 
Indiaiici.  —  Butler  v.  Edgerton.  15 
Ind.  15:  Day  z'.  Wamslcy.  2iZ  Ind. 
145 :  Craig  V.  Frazier,  127  Ind.  286, 
26  X.  E.  842;  Loeb  V.  Weis.  64  Ind. 
285;  Wilson  V.  Root,  43  Ind.  486; 
Board  of  Comrs.  v.  Hill,  122  Ind. 
215,  23  N.  E.  779;  Hoosier  Stone  Co. 
V.  McCain,  133  Ind.  231,  31  N.  E. 
956;  Indianapolis  &  Cincinnati  Ry. 
Co.  V.  Rutherford,  29  Ind.  82,  92 
Am.  Dec.  336. 

y[iiincsota.  —  Stone  Z'.  Quaalc,  ^^6 
Minn.  46,  29  X.  W.  326.  . 

Missouri.  —  Sargent  v.  St.  Louis 
&  S.  F.  Rv.  Co.,  114  Mo.  '!48,  21  S. 
W.  823.  19  L.  R.  A.  460;  Ellet  V.  St. 
Louis.  Kansas  City  etc.  Ry.  Co..  76 
Mo.  518. 

NezK'  York.  —  Otis  v.  Ross,  8  How. 
Pr.  193:  Rost  V.  Harris,  12  .A.bb.  Pr. 
446;  Benedict  -■.  Seymour,  6  How. 
Pr.  298. 

Ohio.  —  Dayton  r.  Kelly.  24  Ohio 
St.  ,^45.  ij  Am.  Rep.  612. 

Effect  of  General  Denial.  —  Thus 
in  Indiana,  in  an  action  of  recovery 
for  goods  alleged  to  have  been  sold 
and    delivered    to    the    defendant,    it 


was  held  that  he  might  show,  under 
an  answer  of  general  denial,  that 
the  goods  were  sold  and  delivered 
to  his  wife  under  such  circumstances 
as  not  to  bind  him.  Day  v.  Wams- 
ley,  33  Ind.   145. 

And  in  Stone  v.  Quaale,  36  Minn. 
46,  29  N.  W.  326,  it  was  held  that  a 
general  denial  is  the  same  in  effect 
as  a  specific  denial  of  the  allegations 
in  the  whole  or  in  a  part  of  the 
pleading  so  denied,  the  court  saying : 
"  In  effect  it  is  precisely  the  same 
as  if  each  of  the  allegations  so  de- 
nied was  specifically  and  separately 
referred  to  and  denied.  It  is  of  no 
greater  and  no  less  efTect ;  is  no  better 
and  no  worse  denial  than  such 
specific  and  separate  denial  would  be. 
It  puts  in  issue  each  allegation  of 
fact  to  which  it  relates  as  fully  as 
if  each  of  such  allegations  were 
specifically   denied." 

.\nd  upon  this  theory  as  to  the 
effect  of  the  general  denial,  it  is  held 
improper  to  plead  such  matters  as 
can  be  properly  proved  under  the 
general  denial,  and  upon  motion  such 
matter  will  be  stricken  out.  Sargent 
V.  St.  Louis  &  S.  F.  Rv.  Co,  114  Mo. 
348.  21  S.  W.  823,  19  L.  R.  A.  460. 

Thus  in  Ellet  f.  St.  Louis.  Kansas 
City  etc.  Ry.  Co..  76  Mo.  5:8,  an 
action  against  a  railway  company  for 
the  death  of  a  passenger,  the  neglect 
alleged  was  the  want  of  care  in  the 
servants  of  the  company  and  defects 
in  its  road.  The  defendant  denied 
all  of  the  allegations  of  the  petition, 
and  also  filed  a  special  plea,  alleging 
that  the  railroad  was  well  con- 
structed and  servants  skillful  and 
careful,  but  that  the  casualty  was 
caused  by  an  extraordinary  rain 
storm.  It  was  held  that  this  matter 
was  such  that  it  could  be  shown 
under  the  general  denial,  and  the 
special  pica  was  properly  stricken 
out. 


Vol.  I 


404 


ADMISSIONS. 


material  allegation  not  denied  in  manner  and  form  as  reqnired 
by  the  law  of  the  particnlar  state  in  which  the  action  is  pending, 
is  admitted.'^ 

Under  the  Codes  Material  Allegations  Must  Be  Denied.  —  Whatever 
may  have  been  the  requirements  of  the  old  common  law  or  the 
equity  practice,  in  this  respect,  the  codes  usually,  if  not  universally, 
require  that  all  material  allegations  in  the  pleading  of  the  opposite 
party  intended  to  be  controverted  must  l)e  specifically  denied  in 
order  to  put  such  party  to  the  proof  of  them.'- 

If  Not  Denied  Taken  to  Be  True.  —  And  if  no  such  denial  is  inter- 
posed the  fact  alleged  is  taken  to  be  true  and  thus  established  as 
elifectually  as  if  proved  at  the  trial. '^     And  the  party  cannot  relieve 


11.  Calkins  :■.  Seabury  etc.  Miu. 
Co.,  5  S.  D.  299,  58  N.  W.  797;  Mor- 
rill x:  Morrill,  26  Cal.  .-:88;  Wood- 
worth  i>.  Knowlton,  22  Cal.  164; 
Harden  v.  Atchison  &  Neb.  Ry.  Co., 
4  Neb.  521. 

12.  Woodvvorth  v.  Knowlton,  22 
Cal.  164;  East  River  Elec.  L.  Co.  i'. 
Clark,  43  N.  Y.  St.  971,  '8  N.  Y. 
Supp.  463- 

Effect    of    Codes    on    Failure    to 

Deny The    code    usually    requires 

that  there  be  specific  denial  of  each 
allegation  of  the  complaint  in  order 
to  raise  an  issue.  In  San  Francisco  Gas 
Co.  T'.  San  Francisco,  9  Cal.  453,  the 
answer  was :  "  And  this  defendant 
further  answering,  saith,  that  this  de- 
fendant has  no  knowledge  or  infor- 
mation in  relation  to  the  allegations 
of  the  second  count  of  the  said 
complaint,  and,  therefore,  denies  the 
same."  It  was  held  that  the  answer 
was  defective  in  not  denying  any 
of  the  allegations  of  the  second  count 
of  the  complaint,  either  positively  or 
as  to  information  and  belief,  the  only 
forms  in  which  the  allegations  of  a 
verified  complaint  can  be  contro- 
verted so  as  to  raise  an  issue;  and 
that  any  other  form  was  unknown 
to  the  code  of  California,  and  could 
have  no  legal  efTect. 

So  it  was  held  in  Anderson  7'.  Par- 
ker, 6  Cal.  197,  that  the  allegation 
of  the  death  of  plaintifT's  ancestor, 
in  a  verified  complaint  was  not  suffi- 
ciently controverted  by  the  averment 
in  the  answer;  "that  defendant  has 
not  sufficient  knowledge  to  form  a 
belief,  and  therefore  neither  admits 
nor  denies." 

In  Newell  z:  Doly,  33  N.  Y.  83,  it 

Vol.  I 


was  said  :  "  There  is  nothing  in  the 
plaintiff's  point,  that  because  the  de- 
fendants did  not  deny  the  allegations 
in  the  complaint,  of  the  making  of 
the  note,  and  delivering  it  to  Brown 
Brothers,  the  payees  who  indorsed 
it  to  plaintifif,  and  because  they  made 
no  general  or  specific  denial  of  any 
allegation  in  the  complaint,  that  this 
is  such  an  admission  of  the  cause  of 
action,  that  a  judgment  contrary  to 
the  admission  is  erroneous.  The 
149th  section  of  the  code  requires 
such  a  denial  only,  of  the  matters 
alleged,  as  the  defendant  means  to 
controvert.  The  defendants  could 
not  truthfully  controvert  or  deny 
those  allegations ;  and  there  is  no 
such  unreasonable  provision  in  the 
code  as  to  require  the  party  to 
answer  a  pleading  Avith  a  falsehood." 

13.  Facts  Not  Denied  Taken  to 
Be  True.—  U 11  i led  States.  — Rohevl- 
son  V.  Perkins,  129  U.  S.  233,  9  Sup. 
Ct.  279- 

California.  —  Horn  zi.  Volcano 
Water  Co.,  13  Cal.  62 ;  San  Francisco 
Gas  Co.  v:  Citv  of  San  Francisco, 
9  Cal.  453 ;  Burke  v.  Table  Mt.  Water 
Co.,  12  Cal.  403;  Thompson  z'.  Lee,  8 
Cal.  275;  Feelcy  z'.  Shirley,  43  Cal. 
369;  Bradbury  Z'.  Cronise,  46  Cal. 
287 ;  San  Francisco  z'.  Staude,  92  Cal. 
560,  28  Pac.  778. 

Colorado.  —  Teller  -■.  Harlman,  16 
Colo.  447,  27  Pac.  947. 

Dakota.  —  Dole  v.  Burleigh,  i  Dak. 
227,  46  N.  W.  692. 

Kansas.  —  Rock  Island  Lumber  etc. 
Co.  v.  Fairmont  Town  Co.,  51  Kan. 
294,  32  Pac.  1 100. 

Kentucky.  —  Morton  r.  Waring,  18 
B.  Mon.  72. 


ADMISSIONS. 


405 


Missouri. — Moore  v.  Sauborin,  42 
.\lo.,  490;  Marshall  v.  Thames  Fire 
Ins.  Co.,  43  Mo.  586;  Lee  v.  Casey, 
.59  Mo.  383. 

Nebraska.  —  Ma.xwell  z:  Higgins, 
38  Neb.  671,  57  N.  W.  388. 

Nezv  FoWe.  —  Mar.\  v.  Gross,  51  N. 
V.  St.  88,  22  N.  Y.  Supp.  393;  Gilbert 
V.  Rounds,  14  How.  Pr.  46 ;  Coffin  v. 
President  etc.  Grand  Rapids  H.  Co., 
46  X.  V.  St.  851,  18  N.  Y.  Siipp.  782; 
Fleischmann  v.  Stern,  90  N.  Y.  no; 
Tell  z:  Beyer,  38  N.  Y.  161 ;  Clark  v. 
Dillon,  97  N.  Y.  370;  Walrod  v.  Ben- 
nett, 6  Barb.  144. 

0/iit).  — State  z:  Ilawes,  43  Ohio 
St.  16,  I.  N.  E.  I. 

Oregon.  —  Wallace  v.  Baisley,  22 
Or.  572,  30  Pac.  432 ;  Larsen  v.  Or. 
Ry.  &  Nav.  Co.,  19  Or.  240,  23  Pac. 
974- 

South  Ciiroliiia.  —  Charlotte,  Col- 
umbia etc.  Ry.  Co.  z'.  Gibbes,  23  S.  C. 
370. 

Wisconsin.  —  Barstow  Stove  Co.  z'. 
Bonnell,  36  Wis.  63;  Marsh  v.  Pugh, 
43  Wis.  597- 

Failure  to  Deny.  —  In  an  action 
brought  against  a  collector  of  the 
Port  of  New  York  to  recover  duties 
illegally  exacted  on  the  importation 
ol  Bessemer  steel  rail  crop-ends  from 
England,  it  was  alleged  that  plaintiff 
"duly  inade  and  filed  due  and  timely 
protest  in  writing,"  and  "duly  ap- 
pealed to  the  Secretary  of  the  Treas- 
ury," and  "that  ninety  days  had  not 
elapsed  since  the  decision  of  the  sec- 
retary." These  allegations  were  not 
denied  in  tiic  answer,  and  it  was  held 
that  the  defendant  could  not  move 
for  the  verdict  on  the  ground  that  the 
protest  was  premature ;  and  that  no 
proof  was  offered  that  there  was  any 
appeal  to  the  secretary,  or  no  decision 
on  said  appeal,  or  of  the  date  of  such 
decision  to  show  that  suit  had  been 
brought  in  time.  Robertson  v.  Per- 
kins, 129,  U.  S.  233,  9  Sup.  Ct.  279. 
Failure  to  Deny  Under  Oath. 
And  where  the  statute  requires  an  an- 
swer under  oath  to  put  in  issue  the 
genuineness  and  due  execution  of  the 
note,  where  a  copy  of  such  note  is  at- 
tpched  to  and  made  a  part  of  the  com- 
plaint, a  general  denial,  without  veri- 
fication is  insufficient  and  admits  the 
genuineness  and  due  execution  of  the 
note  sued     on.       Horn     z'.     Volcano 


Water  Co.,   13  Cal.  62,  73  Am.  Dec. 

569- 

Failure  to  Deny  Conclusive.  —  So 

in  Burke  ;■.  Table  Mt.  Water  Co.,  12 
Cal.  403,  it  is  held  that  the  failure  to 
deny  a  material  averment  is  an  ad- 
mission of  the  facts  contained  in  such 
averment ;  and  that  such  admission  is 
conclusive  against  the  pleader. 

In  Putnam  i'.  Lyon,  3  Colo.  App. 
144,  32,  Pac.  492,  it  is  said ;  "Ac- 
cording to  the  amended  complaint 
and  the  amended  answer,  the  plaintiff 
sufficiently  averred  his  rights  and  ad- 
verse action  by  the  defendants  to  en- 
title him  to  a  decree  in  his  favor  in 
respect  of  these  matters,  if  his  allega- 
tions were  admitted.  The  amended 
answer  takes  issue  on  none  of  these 
averments.  What  is  said  in  the 
cross  complaint  on  this  subject  need 
not  be  considered,  since  in  no  event 
can  that  be  taken  as  a  denial  of  the 
plaintiff's  complaint.  The  admissions 
wh-(  h  follow  from  the  failure  to  deny 
relieve  the  plaintiff  of  the  necessity 
to  make  proof,  and  entirely  justify 
the   decree   entered." 

So  it  is  held  in  Teller  v.  Hartman, 
16  Colo.  447,  27  Pac.  947,  that  a  mate- 
rial allegation  of  the  complaint,  not 
denied  in  the  answer,  will  be  taken 
as   confessed. 

Specific  Denial  Necessary —  Un- 
der the  Code  of  New  York  it  is  held 
that  if  a  material  allegation  in  a 
pleading,  whether  in  the  complaint  or 
answer,  setting  up  new  matter,  is  not 
specifically  controverted  by  the  an- 
swer or  reply,  said  allegation  of  new 
matter,  for  the  purpose  of  the  action 
must  be  taken  as  true.  Walrod  v. 
Bennett,  6  Barb.   (N.  Y.)   144- 

And  the  rule  is  held  to  extend  to 
pleadings  in  mandamus,  such  pro- 
ceeding being  construed  as  a  civil 
action  within  the  meaning  of  the 
statute,  and  that,  therefore,  a  mate- 
rial allegation  in  the  petition  for  the 
writ,  not  denied  by  the  answer,  must 
be  treated  as  admitted  the  same  as  if 
admitted  in  express  terms.  State  v. 
Hawes,  43  Ohio  St.  16,  i  N.  E.  i. 

In  Larsen  z'.  Or.  Ry.  &  Nav.  Co., 
19  Or.  240,  23  Pac.  974,  it  is  held  that 
by  failing  to  reply  to  new  matter  in 
an  answer  every  material  fact  that  is 
well  pleaded  therein,  stands  admitted, 
but  legal  conclusions  need  not  be  de- 
nied. 

Vol.  I 


406 


ADMISSIONS. 


himself  from  this  effect  of  a  faihire  to  deny  a  fact  by  an  allegation 
that  he  has  no  knowledge  on  the  subject." 

Denial  on  Ground  of  Want  of  Knowledge.  —  But  a  denial  for  the 
reason,  or  on  the  ground  that  the  party  has  no  knowledge  of  the 
truth  or  falsity  of  the  fact  is  allowed  in  practice  in  some  of  the 
states,  and  is  eiTectual  to  put  the  fact  in  issue  and  call  for  proof 
of  it.'^ 


In  Fleischmann  v.  Stern,  90  N.  Y. 
110,  it  was  held  that  as  the  code  pro- 
vided that  "  each  material  allegation 
of  the  complaint,  not  controverted  by 
the  answer,  must,  for  the  purpose  of 
the  action,  be  taken  as  true,"  the  de- 
fendant was  not  at  liberty  to  deny,  in 
his  testimony,  the  existence  of  the 
facts  constituting  the  cause  of  action 
stated  in  the  complaint,  or  to  prove 
any  state  of  facts  inconsistent  there- 
with, where  the  answer  did  not  deny 
such  facts;  and  that  the  omission  to 
deny  was  equivalent  to  the  formal  ad- 
mission of  the  truth  of  the  averments, 
and  was  conclusive  as  such. 

In  Moore  v.  Sauborin,  42  Mo.  490, 
the  court  say:  "The  provisions  of 
the  thirty-sixth  section  of  the  same 
chapter  are  equally  explicit  in  direct- 
ing that  'every  material  allegation  of 
new  matter  contained  in  the  answer, 
not  controverted  by  the  reply,  shall, 
for  the  purposes  of  the  action,  be 
taken  as  true.'  We  are  not  called 
upon  to  scrutinize  very  closely  the 
averment  of  this  new  matter.  There 
was  no  demurrer  to  it.  The  object 
evidently  was  to  set  up  such  a  settle- 
ment or  compromise  of  the  whole 
matter,  made  between  the  parties  at 
the  time  of  their  appearance  before 
the  justice,  as  amounted  to  a  release 
of  the  defendant  from  all  liability  on 
account  of  the  prosecution  that  had 
been  instituted  against  the  plaintiff. 
This,  if  true,  was  a  defense  to  the 
action.  Without  a  reply,  it  stood 
confessed  upon  the  record  and  en- 
titled the  defendant  to  a  judgment. 
He  was  not  bound  to  introduce  any 
evidence  upon  that  point,  and  we 
shall  not  look  to  the  bill  of  excep- 
tions for  the  purpose  of  ascertaining 
whether  it  is  sustained  by  the  proof 
made  or  not." 

14.  It  is  held  in  Maxwell  ?'.  Hig- 
gins,  38  Neb.  671,  57  N.  W.  388,  that 
facts  pleaded  in  a  petition  will  be 
taken  as  admitted  where  not  specific- 

Vol.  I 


ally  denied  in  the  answer,  and  the 
answer  for  want  of  knowledge, 
neither  admitted  nor  denied  the  aver- 
ments of  the  petition. 

In  People  v.  Northern  Ry.  Co.,  53 
Barb.  (N.  Y.)  98,  it  is  said:  "But 
the  code  declares  that  every  material 
allegation  in  the  complaint,  not  con- 
troverted by  the  answer,  as  pre- 
scribed by  section  149,  is  for  the  pur- 
pose of  the  action  to  be  taken  as 
true.  None  of  the  material  allega- 
tions of  the  complaint  are,  in  this 
case,  so  controverted.  It  therefore 
follows  that  they  stand  admitted,  and 
being  so  admitted  the  plaintiff  is  en- 
titled to  the  judgment  so  demanded.'' 

15.  Denial  for  Want  of  Knowl- 
edge.—  United  5Vi!/c-.f.  —  Maclay  f. 
Sands,  94  U.  S.  586. 

California.  —  San  Francisco  Gas 
Co.  •;■.  City  of  San  Francisco,  9  Cal. 
453 ;  Thompson  v.  Lynch,  29  Cal. 
189;  People  V.  Board  of  Supervisors. 
45  Cal.  395 ;  Humphreys  v.  McCall, 
9  Cal.  59,  70  Am.  Dec.  621 ;  Curtis  v. 
Richards,  9  Cal.  33 ;  Cunningham  v. 
Skinner,  65  Cal.  385,  4  Pac.  375; 
'Harnev  v.  ^IcLeran,  66  Cal.  34,  4 
Pac.  884. 

Idalio.  —  People  t'.  Curtis,  i  Idaho 

75.3. 

Nchraslia.  —  Harden  v.  Atchison 
&  Neb.  Ry.  Co.,  4  Neb.  521. 

New  Yorl!.  —  Brown  v.  Ryckman, 
12  How.  Pr.  313;  Sheldon  7:  Heaton, 
78  Hun  50,  29  N.  Y.  Supp.  275 : 
Humble  7'.  McDonough,  5  Misc. 
508,  25  N.  Y.  Supp.  965 ;  Bennett  -•. 
Leeds  Mfg.  Co.,  no  N.  Y.  150,  17 
N.  E.  669;  Taylor  v.  Smith,  29  N. 
Y.  St.  365,  8  N.  Y.  Supp.  519- 
.  Oregon.  —  Sherman  ?'.  Osborn,  8 
Or.  66. 

IVisconsin.  —  Stacy  f.  Bennett,  ^9 
Wis.  234,  18  N.  W.  26. 

What  Sufficient  Denial.  —  In 
Humble  J'.  McDonough,  5  Misc.  508, 
25  N.  Y.  Supp.  g6$.  it  is  held  that 
the  answer  that  "defendant  savs  that 


.-IDMISSIONS. 


407 


Denial  on  Information  and  Belief.  —  And  a  denial  on  information  and 
belief  is  allowed  in  some  of  the  states,  and  is  as  eft'ectual  to  raise  an 
issue  upon  the  facts  alleg'ed  as  a  positive  answer/" 

Want  of  Knowledge  or  Information  Sufficient  to  Form  a  Belief. 
And,  in  others,  a  defendant  is  permitted  to  alk\i;e  that  he  has  not 
knowledge  or  information  on  the  subject  sufficient  to  form  a  belief, 
and  thus  put  the  opposite  party  to  the  proof  of  the  fact.^' 


upon  information  and  belief  he  de- 
nies each  and  every  allegation"  is  in 
substance  a  general  denial  on  infor- 
mation and  belief,  and  sufficient. 

The  case  also  involved  a  question 
as  to  whether  an  absolute  denial  was 
necessary  or  not,  because  of  the  fact 
claimed  that  the  defendant  knew  of 
his  own  personal  knowledge  the  truth 
or  falsity  of  the  facts  alleged  in  the 
complaint,  and  it  was  held  that  the 
facts  disclosed  did  not  establish  the 
fact  that  the  matters  were  within  his 
own  personal  knowledge. 

Hypothetical  Denial.  —  In  Brown 
V.  Ryckman,  12.  How.  Pr.  31,1.  the 
court  said : 

"  The  difficulty  under  which  the 
defendant  must  rest  as  to  the  denial 
of  what  another  did,  which  he  cannot 
deny,  being  ignorant  thereof,  and 
which  he  cannot  admit  for  the  same 
reason,  is  not  considered  in  any  of 
the  cases  mentioned,  except  in  the 
case  of  Ketcham  ?'.  Zerega.  The 
code  has  introduced  a  system  entirely 
new.  It  is  not  an  alteration ;  it  is  a 
radical  change,  and  section  140  not 
only  abolishes  all  the  forms  of  plead- 
ing heretofore  existing,  but  pro- 
vides that  the  rules  by  which  the 
sufficiency  of  a  pleading  is  to  be  de- 
termined, are  prescribed  by  the  act. 
This  leads  to  the  decision  of  the 
question,  whether,  under  the  code, 
the  answer  of  a  defendant  under 
oath,  may  be  hypothetical,  and,  in- 
deed, whether  it  can  be  otherwise  in 
many  cases  which  may  arise. 

"  The  defendant  in  this  case  admits 
that  he  made  the  note  sued,  but  he 
does  not  know  whether  it  was  en- 
dorsed or  delivered  to  the  plaintiff, 
and  he  denies  any  knowledge  or  in- 
formation on  the  subiect  sufficient  to 
form  a  belief,  which  puts  that  fact 
in  issue.  Unless  he  denies  the  alle- 
gation positively,  there  is  no  other 
mode  of  reply.  He  has  no  alterna- 
tive.    The  act  prescribes  the  manner 


of  his  denial,  and  leaves  him  no 
choice.  The  denial  is  itself,  in  its 
own  nature,  hypothetical.  He  does 
not  know  whether  the  plaintifT  is  the 
owner  or  not,  but  if  he  is,  then  there 
is  a  defense,  and  so  he  tells  his 
story." 

When  Bound  to  Ascertain  Facts. 
In  People  v.  Curtis,  i  Idaho  753,  it 
appeared  that  the  facts  could  have 
been  ascectained  by  the  defendant  by 
the  examination  of  records  possibly 
within  his  reach,  but  not  such  as  he 
would  be  presumed  to  know  the  con- 
tents of,  and  the  court  held  that,  not- 
withstanding that  he  might  have  as- 
certained the  facts  by  the  examina- 
tion of  such  records,  the  denial  of 
the  material  averments  in  the  com- 
plaint, upon  information  and  belief, 
was  sufficient  to  raise  an  issue  which 
should  have  been  tried  by  the  court. 

16.  Denial  on  Information  and 
Belief  Sufficient.  —  JMaclay  v.  Sands, 
94  U.  S.  586;  Humphreys  v.  McCall, 
g  Cal.  59,  70  Am.  Dec.  621 ;  Wood  v. 
Raydure,  46  N.  Y.  Sup.  Ct.  144; 
Meehan  v.  Harlem  Sav.  Bank.  12  N. 
Y.  Sup.  Ct.  499 ;  Mutraz  v.  Persall, 
5  Abb.  N.  C.  90;  Kitchen  -'.  Wilson, 
80  N.  C.  191  ;  Brotherton  v.  Downey, 
28  N.  Y.  Sup.  Ct.  436.  But  see 
Pratt  INIfg.  Co.  V.  Jordan  Iron  etc. 
Co.,  40  N.  Y.  Sup.  Ct.  143. 

It  is  held  that  the  answer  to  the 
petition  for  a  writ  of  mandate,  pre- 
sented to  the  Supreme  Court,  may 
deny  allegations  of  the  petition  upon 
information  and  belief.  People  v. 
Alameda  Co.,  45  Cal.  30;. 

17.  Want  of  Sufficient  Knowl- 
edge to  Form  Belief.  —  Colorado.  — 
James  ?>.  McPhee.  9  Colo.  486,  13 
Pac.  535:  Haney  i'.  People,  12  Colo. 
345'.  21   Pac.  39. 

Florida. —  Sharp  v.  Holland,  14 
Fla.  384. 

Ion.'a.  —  Claflin  v.  Reese,  54  Iowa 
544,  6  N.  W.  729;  Manney  v.  French, 
23   Iowa  250;   Carr  v.  Bosworth,  68 

Vol.  I 


408 


ADMISSIONS. 


This  form  of  answer,  being  a  concession  to  the  party  pleading 
it,  must  be  complied  with  or  the  answer  will  be  held  to  be  insuffi- 
cient to  raise  an  issue."* 

Where  Party  Knows  or  It  Is  His  Duty  to  Know,  Denial  Must  Be  Positive. 
A  denial  on  information  or  belief,  or  a  failure  to  deny  for  want  of 
knowledge  or  information,  is  insufficient  where  it  is  the  duty  of 
the  party  to  know  the  fact  or  the  circumstances  are  such  that  the 
fact  is  presumptively  within  his  knowledge,  or  where  he  is  aware 
before  answering  that  he  has  the  means  of  ascertaining  whether 
the  allegation  is  true.  In  such  cases  his  denial  must  be  positive  or 
the  fact  will  lie  taken  as  admitted,'"  unless  the  answer  shows  that 


Iowa  669,  27  N.  W.  913 ;  Beyre  i'. 
Adams,  yz  Iowa  382,  35'  N.  W.  491  ; 
Ninde  v.  City  of  Oskaloosa,  55  Iowa 
207,  2  N.  W.  618,  7  N.  W.  sii  ;  :Mc- 
Farland  v.  Lester,  23  Iowa  260. 

Kentucky.  —  Morton  v.  Waring,  18 
B.  Mon.  72. 

Minnesota.  —  Ames  v.  First  Div. 
St.  Paul  etc.  R.  R.  Co.,  12  Minn.  412; 
,\lower  V.  Stickney,  5  Minn.  397. 

Missouri.  —  Walson  7'.  Hawkins, 
60  Mo.  550. 

Nezu  York.  — Flood  v.  Reynolds, 
13  How.  Pr.  112;  Thorn  7'. 'N.  Y. 
Cent.  ^lills.  10  How.  Pr.  19;  Heye  v. 
Holies,  33  How.  Pr.  266;  Collins  v. 
North  Side  Pub.  Co..  49  N.  Y.  St.  37, 
20  N.  Y.  Supp.  892 ;  Snyder  z\  White. 
6  How.  Pr.  321 ;  Temple  v.  Murray, 
6  How.  Pr.  329 ;  Davis  v.  Potter,  4 
How.  Pr.  15s;  Bidwell  v.  Overton. 
35  N.  Y.  St.  574,  13  N.  Y.  Supp.  274; 
Genesee  Mut.  Ins.  Co.  z'.  Moynihen, 
5  How.  Pr.  321 ;  Richter  v.  McMur- 
ray,  15  Abb.  Pr.  346;  Caswell  v. 
Bushnell.  14  Barb.  393 ;  Hagaborn  v. 
Village  of  Edgewater,  iy  N.  Y.  St. 
542,  13  N.  Y.  Supp.  687;  Duncan  v. 
Lawrence,  6  Abb.  Pr.  304 ;  Kellogg 
-c'.  Baker.  15  Abb.  Pr.  286;  Zivi  v. 
Einstein,  49  N.  Y.  St.  224,  20  N.  Y. 
Supp.  893 :  Warner  v.  U.  S.  L.  &  I. 
Co.,  25  N.  Y.  St.  540.  6  N.  Y.  Supp. 
411;  Townsend  v.  Piatt,  3  Abb.  Pr. 
325;  Harvey  v.  Walker,  3^  N.  Y.  St. 
765,  13  N.  Y.  Supp.  170;  Sherman  v. 
Bushnell.  7  How.  Pr.  171 ;  Grocers' 
Bank  y.  O'Rorke.  13  N.  Y.  Sup.  Ct. 
18 ;  Livingston  f.  Hammer,  7  Bos. 
670. 

North  Carolina.  —  Fagg  v.  South- 
ern B.  &  L.  Assn.,  113  N.  C.  364, 
18.  S.  E.  65s :  Farmers  &  Mer.  Bank 
V.  Board  of  Aldermen  etc..  75  N.  C. 
45- 

Vol.  I 


Oregon.  —  Wilson  i\  Allen,  11  Or. 
154,  2  Pac.  91 ;  Colburn  i'.  Barrett, 
21  Or.  27,  26  Pac.  1008;  Robbins  v. 
Baker,  2  Or.  52. 

Soiitli  Daliota.  — Cumins  v.  Law- 
rence Co.,  I  S.  D.  158,  46  N.  W.  182. 

Wisconsin.  —  Hastings  v.  Gwynn, 
12  Wis.  750 ;  Goodell  v.  Blumer, 
41  Wis.  436 ;  Boorman  z'.  Am. 
Ex.  Co.,  21  Wis.  154;  Witmann  v. 
Watry,  37  Wis.  238;  Smith  v.  City 
of  Janesville,  26  Wis.  291  ;  Davis  v. 
Louk,  30  Wis.  308. 

18.  Savre  v.  Gushing,  7  Abb.  Pr. 
371  ;  Collart  v.  Fisk,  38  Wis.  238. 

19.  When  Denial  Must  Be  Posi- 
tive. —  United  States.  —  Buller  v. 
Sidell,  43  Fed.  116. 

California.  —  Humphreys  z\  Mc- 
Call,  9  Cal.  59,  70  Am.  Dec.  621; 
Walker  v.  Biififandeau,  63  Cal.  312; 
Mulcahy  v.  Buckley.  100  Cal.  484,3s 
Pac.  144:  Brown  ;■.  Scott,  25  Cal. 
189;  Vassault  z'.  Austin,  32  Cal.  597; 
Gribble  z:  Columbus  Brewing  Co., 
100  Cal.  67,  34  Pac.  527 ;  San  Fran- 
cisco Gas  Co.  Z'.  San  Francisco,  9 
Cal.  4i3;  Loveland  z\  Garner,  74 
Cal.  298,  15  Pac.  844. 

Idaho.  —  People  z'.  Curtis,  i  Idaho 

7S3- 

Kentucky.  —  Ky.  River  Nav.  Co. 
v.  Com,  13  Bush  435;  Nashville  C.  & 
St.  L.  Ry.  Co.  z:  Carico,  95  Ky.  489, 
26  S.  W.  177;  Wing  z:.  Dugan,  8 
Bush  583;  Hufifaker  r.  Nat.  Bank, 
12  Bush  287;  Grindler  7'.  Farmers  & 
Drovers'  Bank,  12  Bush  333 ;  Barret 
7'.  Godshaw,  12  Bush  592. 

Minnesota.  —  Wheaton  7'.  Briggs, 
35  Minn.  47b,  29  N.  W.   170. 

A'r7('  York.  —  Edwards  7'.  Lent,  8 
How.  Pr.  28;  Wessow  z:  Judd,  I  Ahb. 
Pr.  2^4;  Shearman  7'.  N.  Y.  Cent. 
Mills."  I  Abb.  Pr.  187 ;  Fallon  7'.  Dur- 


.-IDMISSIONS. 


409 


the  party  could  not  have  obtained  the  information.-" 

Substituted  Parties  Bound  by  Admissions.  —  An  allegation  of  a  de- 
fendant, brought  in  by  supplemental  complaint,  of  his  ignorance 
of  a  fact  admitted  by  the  answer  of  the  original  defendant,  to 
whose  interests  he  has  succeeded,  is  insufficient,  as  lie  is  bound 
Ijy  the  admitted  knowledge  of  the  original  party.^^ 

Insufficiency  of  Answer,  How  Raised.  —  But  again  it  is  held  that  the 
insufficiency  in  this  respect  mtist  be  raised  by  motion  to  strike  out 
the  answer,  and  that  the  burden  rests  upon  the  party  making  the 
motion  to  show  that  the  facts  are  within  the  knowledge  of,  or  could 
be  ascertained  by  the  party  answering,  and  that  if  the  sufficiency 
of  the  pleading  is  not  tested  in  this  way.  it  will  be  held  sufficient  on 
the  trial  to  raise  the  issue.'"     But  there  are  cases  directly  to  the 


rant.  60  How.  Pr.  178;  Rofilin  f. 
Long  60  How.  Pr.  200. 

In  People  '•.  Bonney,  98  Cal.  278, 
.■?3  Pac.  98,  the  conrt  cites  and  ap- 
proves the  decision  in  People  '!'■ 
O'Brien,  96  Cal.  171,  31  Pac.  45. 

In  U.  S.  V.  Sykes,  58  Fed.  1000, 
which  was  a  case  for  removing  un- 
stamped whiskey,  a  witness  intro- 
duced by  the  defendant  confessed 
himself  to  be  a  confederate  in  the 
crime.  The  witness  testified  that  his 
father  (the  defendant)  had  given 
him  instructions  to  purchase  tax 
paid  whiskey,  and  that  his  father  did 
not  know  tfiat  the  whisky  had  been 
put  in  unstamped  casks.  The  court 
held  that  his  testimony  ought  to  be 
corroborated. 

Lewis  V.  Acker,  2  How.  Pr.  163 ; 
Chapman  v.  Palmer,  12  How.  Pr. 
3'7;  Beebe  v.  Marvin,  17  Abb.  Pr. 
194 ;  Sherman  v.  Boehm,  13  Daly  42 : 
Ketcham  i\   Zerega,   i   E.   D.   Smith 

55.3- 

IVisconsin.  —  State  v.  McGarry, 
21  Wis.  502 ;  LTnion  Lumbering  Co. 
f.  Board  of  Supervisors,  47  Wis. 
245.  2  N.  W.  281 ;  Mills  V.  Town  of 
Jeflferson,  20  Wis.  54;  Hathaway  v. 
Baldwin,  17  Wis.  635,  86  Am.  Dec. 
730;  City  of  Milwaukee  z:  O'Sulli- 
van,  25'  Wis.  666;  Goodell  ?■. 
Blumer,  41  Wis.  436 ;  Brown  v.  La 
Crosse  Gas  L.  &  C.  Co.,  21  Wis.  51. 

20.  Jones  -'.  Perot,  19  Colo.  141, 
34  Pac.  728;  Haney  v.  People,  12 
Colo.  345,  21  Pac.  39. 

What    Answer    Must    Show "  It 

is  difficult  to  define  with  more  ex- 
act precision  when  an  answer  should 
be  positive  in  its  denials,  than  to  say 


that  when  tlie  material  facts  alleged 
in  the  complaint  are  presumptively 
within  the  knowledge  of  the  defend- 
ant he  must  traverse  them,  if  he 
undertakes  to  do  so  at  all,  directly 
and  positively,  or  he  must  show 
how  it  is  that  he  is  without  knowl- 
edge of  such  facts.  In  the  case  un- 
der consideration,  we  are  of  opinion 
the  presumption  did  not  arise,  that 
the  defendants  knew  that  a  judg- 
ment had  been  recovered  by  Barker 
against  Austin,  or  the  contrary,  and, 
consequently,  that  they  might  deny 
the  recovery  of  such  a  judgment 
upon  information  and  belief."  Vas- 
sault  f.  Austin,  32  Cal.  597. 

'  The  denials  in  the  answer  are  as 
follows  :  The  defendant  '  denies  any 
knowledge  or  information  sufficient 
to  form  a  belief  as  to  each  and  every 
allegation  in  the  complaint,  except 
as  hereinafter  admitted."  This  form 
of  denial  is  defective,  in  that  it  does 
not  contain  a  statement  to  the  effect 
that  defendant  cannot  obtain  suffi- 
cient knowledge  or  information  upon 
which  to  base  a  belief.  From  aught 
that  appears,  information  might  have 
been  obtained,  upon  the  slightest  in- 
quiry, which  would  have  enabled  the 
defendant  to  either  have  admitted  or 
denied  in  positive  form  the  allega- 
tions of  the  complaint.  Civil  Code, 
§56;  Haney  v.  People,  12  Colo. 
345,  21  Pac.  39."  Jones  v.  Perot,  19 
Colo.  141,  34  Pac.  728. 

21.  Forbes  v.  Waller,  25  N.  Y. 
430. 

22.  Smalley  v-  Isaacson,  40  Minn. 
450,  42  N.  W.  352. 

Vol.  1 


410 


JDMISSIONS. 


contrary,  liolding  that  where  the  defendant  alleges  under  oath  a 
want  of  knowledge,  the  answer  cannot  be  stricken  out  on  a  showing 
by  affidavit  that  the  facts  were  within  his  personal  knowledge.--'' 

'  Answer  on  Belief.  —  Under  some  of  the   codes  a  verified  answer 
on  the  belief  of  the  partv  is  held  to  be  suf^cient.^* 

General  Rules  As  to  Sufficiency  of  Answers  Founded  on  Want  of  Knowl- 
edge or  Information,  or  on  Information  and  Belief.  —  The  language  of 
the  several  codes  authorizing  answers  of  this  kind  does  not  diiifer 
so  materially  as  to  call  for  separate  discussion :  the  authorities 
above  cited  will  sufficiently  indicate  the  general  rules  as  to  the 
sufificiency  of  such  answers."^ 

When  Specific  Denial  Necessary.  —  In  some  of  the  states  a  specific 
denial  is  onlv  required  where  the  adverse  pleading  is  verified.  If 
not  verified  a  general  denial  is  sufficient.""  In  other  states  a  gen- 
eral denial  is  permitted  except  as  to  certain  specified  allegations  of 
fact ;  for  example,  where  a  written  instrument  is  the  foundation  of 
the  action,  its  execution  is  deemed  admitted  tmless  genuineness  and 
due  execution  are  denied  under  oath,  and  in  case  of  allegations  of  the 
existence  of  corporations  or  of  any  appointment  or  authority.-'  The 
requirement  extends  to  judgments,-'  and  to  the  power  of  a  municipal 


23.  Caswell  Z'.  Bushnell,  14  Barb. 
(N.  Y.)  393- 

24.  "  It  will  be  observed  that  there 
are  differences  between  our  code  and 
that  of  New  York  in  other  particu- 
lars connected  with  the  verification 
of  pleadings.  Our  code  provides 
that  every  pleading  of  fact  must  be 
verified,  but  this  verification  is  suffi- 
cient when  it  shows  a  belief  that  the 
facts  stated  are  true,  while  the  code 
of  New  York  requires  the  verifica- 
tion to  be  to  the  eiTect  that  the  plead- 
ing '  if  true  to  the  knowledge  of  the 
person  making  it,  except  as  to  mat- 
ters stated  on  information  and  belief, 
and  as  to  those  matters,  he  believes 
it  to  be  true-'  Our  code  contem- 
plates, for  the  sake  of  brevity  and 
conciseness,  a  simple  statement  of 
facts,  without  reference  to  the  man- 
ner, a  knowledge  of  them,  or  a  reason 
to  believe  them,  may  have  been  ob- 
tained, or  may  exist ;  and,  it  is  prob- 
able, with  this  view  any  reference  to 
knowledge  or  information  was 
omitted."  Treadwell  7'.  The  Comrs. 
of  Hancock  Co.,  11  Ohio  St.  183. 

25.  A  very  interesting  discussion 
of  the  subject  will  be  found  in  the 
notes  to  Humphreys  v.  McCall,  70 
Am.  Dec.  621. 

26.  San  Francisco  Gas  Co.  r.  City 
of   San   Francisco,  9  Cal.  453;   Snell 

Vol.  I 


f.  Crowe.  3  I'tah,  page  26  Pac.  522 ; 
Schenk  ■;■.  Evoy,  24  Cal.  104 ;  Ran- 
dolph f.  Harris.  28  Cal.  561,  87  Am. 
Dec.  139;  Doll  V.  Good,  38  Cal.  287; 
Rock  Springs  Coal  Co.  v.  Salt  Lake 
Sanitarium  Ass'n,  7  Utah  15S,  23 
Pac.  742. 

27.  Alabama.  —  Rosenberg  v. 
Claflin.  95    Ala.  249,  10  So.  5'2I. 

California.  —  Smith  v.  Eureka 
Flour  Mill  Co.,  6  Cal.   i. 

Colorado.  —  Watson  v.  Lemen,  9 
Colo.  200,  II  Pac.  88. 

Iowa.  — St\er  v.  City  of  Oskaloosa, 
41  Iowa  353;  Curry  i<.  District  Town- 
ship etc.,  62  Iowa  102,  17  N.  W.  191 ; 
.\sIiworth  V-  Grubbs.  47  Iowa  3.S3 ; 
Brewer  v.  Crow,  4  Greene  520;  Ed- 
monds J'.  Montgomery,  I  Clarke  143  : 
Clark,  z:  City  of  Des  Moines,  19 
Iowa  199 ;  Hall  z'.  Aetna  Mfg  Co., 
.30  Iowa  215 ;  Templin  v.  Rothweiler, 
56  Iowa  259,  9  N.  W.  207. 

Kansas  —  Rock  Island  Lumber  Co. 
z'.  Fairmount  Town  Co.,  51.  Kan. 
394,  32  Pac.  1 100. 

Nezv  York.  —  East  River  Elec.  L. 
Co.  z:  Clark,  45  N.  Y.  St.  63.;.  18  N. 
Y.  Supp.  463. 

Jl'isconsiu.  —  Crane  v.  Morse,  40 
Wis.  368,  5  N.  W.  8is. 

28.  Edmonds  z\  Montgomery,  i 
Clarke  (Iowa)   143. 


ADMISSIONS. 


411 


corporation  to  make  the  contract  sued  on.-"  But  is  limited  to  such 
instruments  as  are  the  foundation  of  the  cause  of  action  or  defense 
and  made  part  of  the  pleading.^"  And  in  some  of  the  states  the 
denial  must  go  to  the  signature  to  the  note  and  not  to  its  execution. ^^ 


29.  Clark  r.  City  of  Des  Moines, 
19  Iowa  199,  87  Am.  Dec.  423. 

30.  Hay  v.  Prazier,  49  Iowa  454. 

31.  Effect  of  Denial  of  Execution. 
It  has  been  held  under  ihc  law  of 
Iowa  that  where  an  answer  did  not 
deny  the  signature  to  the  note  sued 
on,  but  did  deny  the  execution  of  tlie 
note,  the  denial  did  not  cast  on  the 
plaintiff  the  bnrden  of  proving  the 
signature,  but  permitted  the  defend- 
ant to  prove  that  it  was  not  his  gen- 
uine signature.  Sully  v.  Goldsmith. 
49  Iowa  690;  Loomis  j'.  Metcalf,  30 
Iowa  382, 

And  that  in  order  to  put  the  plain- 
tiflf  to  the  proof  the  genuineness  of 
the  signature  must  be  specifically 
and  positively  denied  under  oath. 
Douglass  I'.  Alatheny,  35  Iowa  112; 
Carle  7'.  Cornell,  11    Iowa  374. 

"Appellant's  counsel  insists  that 
under  the  statute,  the  signature  of 
George  Trump,  Jr.,  not  being  denied 
by  him  under  oath,  '  it  is  to  be 
deemed  genuine  and  admitted,'  and 
cannot  be  contradicted,  and  he  cites 
Loomis  &  Leroy  v.  Metcalf  &  Fuller, 
30  Iowa  382.  The  question  there 
was  as  to  the  sufficiency  of  the  denial 
to  put  the  plaintiff  on  proof  of  the 
signature,  and  it  was  held  that,  in 
order  to  cast  the  burden  of  proving 
the  genuineness  of  the  signature  on 
the  plaintiff,  it  must  be  denied  under 
oath  by  the  party  whose  signature  it 
purports  to  be.  See,  also,  holding 
the  same  view,  Douglass  v.  Alatheny, 
ante,  112,  and  cases  cited.  It  was 
held,  in  the  language  of  the  statute, 
that  unless  the  signature  be  thus 
denied,  '  it  is  to  be  deemed  genuine 
and  admitted.'  It  was  not,  however, 
held,  nor  do  we  believe  the  true 
meaning  of  the  language  of  the  stat- 
ute to  be,  that  the  defendant  is 
estopped  from  controverting  the  ex- 
ecution of  the  instrument  or  of  his 
signature  thereto  by  proof,  where  he 
has  denied  the  execution  in  his  an- 
swer." Sankey  v.  Trump,  35'  Iowa 
267. 

See     on     this     subject     Ludlow  v- 


Berry.  62  Wis.  78,  29  N.  W.  140; 
Concordia  Sav.  &  Aid  Ass'n.  v. 
Read,  93  N.  Y.  474.  In  Iowa  it  is 
directly  held  that  the  only  effect  of 
the  statute  is  to  shift  the  burden  of 
proof  in'  case  of  a  denial  of  the  gen- 
uineness of  the  signatures  under  oath 
that  the  failure  to  so  deny  is  not  an 
admission  of  the  genuineness  of  the 
signature,  but  leaves  it  open  to  the 
defendant  to  prove  that  the  signature 
is  not  genuine.  Sankey  v.  "Trump, 
35  Iowa  267 ;  Fannin  v.  Robinson,  10 
Iowa  272. 

Brayley  v.  Hedges,  52  Iowa  623,  3 
N.  W.  652 ;  Farmers  &  Mer.  Bank  v. 
Young,  36  Iowa  44. 

Requirement  Applies  to  Signature 
Only. —  So  it  is  held  that  the  re- 
quirement of  a  verified  denial  applies 
to  the  signature  only,  and  that  an 
alteration  of  the  instrument  may  be 
put  in  issue  by  an  unverified  plea  of 
Hon  est  factum.  Lake  v.  Cruik- 
shank,  31   Iowa  395. 

And  that  the  denial  must  be  by  the 
party  whose  signature  it  purports  to 
he.  Therefore  the  maker  of  a  note 
cannot  deny  the  genuineness  of  the 
signature  of  the  endorser.  Robinson 
V.  Lair,  31  Iowa  9;  Walker  v. 
Sleight,  30  Iowa  310. 

Denial  of  Corporate  Existence. 
So  it  is  held,  under  certain  statutory 
provisions  in  Iowa,  that  the  bare  de- 
nial of  an  allegation  that  it  is  a  cor- 
poration is  not  sufficient  to  put  in 
issue  the  alleged  corporate  character 
of  a  defendant.  Stier  v.  City  of 
Oskaloosa,  41  Iowa  353 ;  Coates  v. 
Galena  &  C-  U.  Ry.  Co.,  18  Iowa 
277;  Blackshire  v.  Iowa  Homestead 
Co.,  39  Iowa  624. 

So  with  respect  to  the  allegation 
that  a  guardian  or  administrator 
was  duly  appointed.  Gates  v.  Car- 
penter, 43  Iowa  152;  Mayes  v.  Tur- 
ley.  60  Iowa  407,  14  N.  W.  73  r. 

And  that  the  party  duly  performed 
all  the  conditions  of  a  contract  on 
his  part.  Halferty  v.  Wilmering, 
112  U.  S.  713.  5  Sup.  Ct.  364. 

And  where  a  promissory  note  sued 

Vol.   I 


412  ADMISSIONS. 

And  in  some  cases  the  failure  to  deny  under  oath  has  been  held  to 
have  the  effect  to  relieve  the  plaintiff  from  proving  the  execution 
or  assignment  of  the  instrument  in  the  first  instance  only,  thus 
shifting  the  burden  of  proof. ^-  But  it  is  held  also  that  a  failure 
to  deny  under  oath  confesses  the  execution  of  the  instrument.''-' 

In  some  of  the  states  it  is  held  that  a  general  denial  is  not 
authorized,  but  the  denials  must  be  specific  as  to  each  fact  intended 
to  be  controverted.''^ 

That  Instrument  Was  Procured  by  Fraud  May  Be  Proved  Under  Non  Est 
Factum.  —  It  is  held  that  where  the  execution  of  an  instrument  was 
procured  by  fraud,  the  fact  may  be  proved  under  the  answer  of 
non  est  factum  which,  under  the  codes  of  some  of  the  states,  may  be 
in  the  form  of  a  general  denial  verified,  and  that  it  is  not  necessary 
to  admit  the  execution  of  the  instrument  and  plead  the  fraud  in 
avoidance. '^^ 

Rule  Requiring  Verified  Denial  Applies  to  Signing  of  Instrument.  Not  to 
Delivery.  —  There  are  authorities  to  the  effect  that  the  requirement 
that  the  execution  of  an  instrument  can  be  put  in  issue  only  by  a 
verified  answer,  applies  only  to  the  manual  signing  of  the  instru- 
ment, and  not  to  its  delivery,  and  therefore  a  denial  unverified  does 
not  confess  the  delivery  of  the  instrument."" 

Denial  Must  Be  Specific  As  to  Each  Fact  Intended  to  Be  Controverted,  and 
Without  Evasion.  —  Under  the  statutory  provisions  requiring  specific 
denials  of  each  material  allegation  of  the  adverse  pleading,  the  denial 
must  be  direct  and  positive  as  to  each  fact  alleged,  and  without 
evasion."'     Therefore,  if  the  several  facts  are  stated  conjinictivcly 

on  is  e.xecuted  by  an  agent,  or  pur-  fraudulent  practices,  could  not  prop- 
ports  to  have  been  so  executed,  a  erly  be  admitted  under  such  an  an- 
sworn  denial  is  not  necessary  to  put  swer;  that  in  order  to  admit  such 
the  plaintiff  to  the  proof,  but  the  evidence,  the  defendant  should  have 
question  is  properly  raised  by  an  un-  admitted  the  execution  of  the  note 
verified  plea  of  non  assuin/'sit.  and  set  up  the  fraud  in  avoidance  of 
Pope  v.  Risley,  23  Mo.   185.  a  recovery  thereon.     This  position  I 

32.  Lyon  v.  Bunn,  6  Iowa  48 ;  think  is  untenable.  The  general  rule 
Seachrist  v.  Griffeth,  6  Iowa,  390;  is,  that  when  a  deed  is  void  ab  initio, 
Partridge  v.  Patterson,  6  Iowa,  514;  and  not  merely  voidable,  the  plea  of 
Terhune  v.  Henry  13  Iowa  gg;  Klein  non  est  factum  is  proper;  and  the 
V.  Keyes,  17  AIo.  326;  i\larlin  v.  facts  showing  the  instrument  to  be 
Lamb,  77  Ga.  252,  3  S.  E.  10.  void,    may   be   given   in   evidence    to 

33.  State  v.  Chamberlain,  54  Mo.  sustain  such  plea."  Corbey  v. 
338.  Weddlc.  57   Mo.  452. 

34.  Gwynn  v.  i\IcCaulcv,  32  Ark.  36,  Hammerslough  v-  Cheatham, 
97.                                           '     '  84  Mo,  13. 

35.  What  May  Be  Proved  Under  37,  Denial  Must  Be  Specific, 
Non  Est  Factum,  —  "It  is  also  con-  Pomeroy's  Rem.  &  Rem.  Rights, 
tended   by   the   plaintiff  that   the   de-  §  633. 

fense  of  the  defendant,  as  shown  by  Arleansas.  —  Fain    v.    Goodwin,    35 

the   evidence,     was     improperly   ad-  Ark.    log;    Lawrence    v.    Meyer,    35 

mitted  under  the  pleadings;  that  the  Ark.    104;    Guynn    v.    McCauley,    32 

answer  only  denied  the  execution  of  Ark.  97 ;   Moore  v.   Nichols,  39  Ark. 

the  note,  and  that  evidence  to  show  145. 

thtt  his  name  had  been  procured  to  California.  —  Thompson   ?'.   Lee,   8 

the   note,   without      his     consent,  by  Cal.  275 ;   Feeley  7'.   Shirley,  43  Cal. 

Vol.  I 


.-iDMISSIONS. 


41?. 


in  the  complaint,  a  denial  of  them  as  a  whole  and  not  separately,  is 
insufficient  and  admits  them  .all."*  But  it  is  held  that  a  part\'  is 
not  bound  to  deny,  in  terms,  the  allegations  of  the  adverse  pleading, 
but  may  allege  a  state  of  facts  inconsistent  with  those  intended  to 
be  controverted,  which  is  a  denial  in  effect.'"'     A  different  conclu- 


369 ;  Bradbury  ?■.  Cronise,  46  Cal. 
287;  Fitch  -■.  Bunch.  30  Cal,  208; 
Marsters  v.  Lash,  61  Cal-  622;  Mor- 
rill V.  Morrill.  26  Cal.  288;  Landers 
Z'.  Bolton,  26  Cal.  393 ;  Mathewson  z'. 
Fitch,  22  Cal.  86;  Levinson  t'. 
Schwartz,  22  Cal-  229;  Nelson  r. 
Murray,  23  Cal.  338;  Blood  z:  Light. 
31  Cal.  115;  Hensley  v.  Tartar,  14 
Cal.  508;  Busenius  z\  Coffee,  14  Cal. 
91;  De  Godey  i'.  Godey,  39  Cal.  157; 
Doll  V.  Good,  38  Cal.  287;  Fuhn  v. 
Weber,  38  Cal.  636;  Randolph  z: 
Harris,  28  Cal.  561,  87  Am.  Dec  139; 
Hunter  v.  Jilartin,  57  Cal.  365  ;  Pat- 
terson V.  Ely,  19  Cal.  28 ;  Burke  z: 
Table  Mt.  Water  Co.,  12  Cal.  403; 
Ord  Z'.  Steamer  L'ncle  Sam,  13  Cal. 
369. 

Colorado.  —  Watson  v.  Lcmen,  9 
Colo.  200.  II  Pac.  88. 

Dakota.  —  Dole-'.  Burleigh,  i  Dak. 
227J  46  N.  W.  692. 

Georgia  —  Martin  z'.  I.aniD,  7; 
Ga.  252,  3  S.  E.  10. 

Idaho.  —  Norris  :■.  Glenn,  i  Idaho 
590- 

Iowa.  —  Wright  z\  Schmidt,  47 
Iowa   233. 

Kentuckv.  —  Mur^an  ;■.  Booth,  15 
Bush  480;"  Clarke  V.  Finnell,  16  B. 
Mon.  329;  Francis  v.  Francis,  18  B. 
Mon.  57 ;  Stevenson  v.  Flournoy,  89 
Ky.   561,    13    S.   W.   210. 

Minnesota. — Minor  z\  Willoughbj', 
3  Minn.  225 ;  Starbuck  v.  Dunklee, 
lb  ilinn.  168,  88  .\m.  Dec.  68. 

Missouri.  —  Breckinridge  v.  \m. 
Cent.  Ins.  Co.,  87  Mo.  62 ;  Kinman  v. 
Cannefa.x,  34  Mo.  147 ;  Emory  !■. 
Phillips,  I  Jones  499;  Dare  i'.  Pacific 
Ry.,  31  Mo.  480;  Bredell  r.  Alex- 
ander, 8  Mo.  App.   no. 

Nebraska  — Hardin  v.  .Atchison, 
Neb.   Ry.   Co.,   4   Neb.   521. 

Nezu  York.  —  Seward  v.  Miller,  6 
How.  Pr.  312;  Thorn  v.  N.  Y.  Cent. 
Mills,  10  How.  Pr.  19;  Salinger  v. 
Lusk,  7  How.  Pr.  4TO ;  opiegel  v. 
Thompson,  i  How.  Pr.  (N.  S.)  129; 
•■Newell  V.  Doty,  a  N.  Y.  83;  Mal- 
colm v.  Lyon,  46  N.   Y.   St.  921,   19 


N.  Y.  Supp.  210;  Conkling  z'-  .Man- 
hattan Ry.  Co.,  58  Hun  611,  12  N. 
Y.  Supp.  846 ;  Lewis  v.  Acker,  2 
How-  Pr.  163;  Young  v.  Catlett.  6 
Duer  437 ;  Miller  v.  Miller,  i  Abb. 
N.  C.  30;  Powers  i\  Rome,  etc.  Ry. 
Co..  10  N.  Y.  Sup.  Ct.  285 ;  Storer  v. 
Coe,  2  Bos.  661  ;  Judd  z'.  Gushing,  22 
Abb.  N.  C.  358;  Sheldon  v.  Sabin,  12 
Daly.   184. 

Xortli  Carolina  — TBonds  z-.  Smith. 
106  N.  C.  553,  II  S.  E.  322;  Deloatch 
z'.  Vinson.  108  \.  C.  147.  12  S.  E. 
895. 

South  Carolina.  —  Lupo  z\  True. 
16   S.   C.   579- 

I'enncssce. — -Miller  z'.  Am.  Mut. 
Ace.  Ins.  Co.,  92  Tcnn.  167,  21  S.  W. 
39,  20  L.  R.  A.  765. 

iVisconsin. — Schaetzel  v.  German- 
town  F.  M.  Ins.  Co.,  22  Wis.  412 ; 
Elliott    V.    Espenhain,    54    Wis.    231, 

11  N.   W.   513;    Robbins   v.   Lincoln, 

12  Wis.  I  ;  Cuthbert  v.  City  of  Ap- 
pleton,  24  Wis.  383 ;  Crane  v.  Morse. 
49  Wis.  368,  5  X.  W.  815. 

38.  Denial  of  Facts  Conjunctively 
Alleged.  —  California.  —  Blo.ul  ■:•. 
Light,  31  Cal.  115;  Fish  z\  Reding- 
ton,  31  Cal.  185;  Burke  z\  Carrulh- 
ers,  31  Cal.  467;  Kuhland  z'.  Sedg- 
wick, 17  Cal.  123;  Doll  V.  Good,  38 
Cal.  287 ;  Reed  z:  Calderwood,  32 
Cal.  109 ;  Richardson  z'.  Smith,  29 
Cal.  529;  More  v.  Del  Valle,  28  Cal. 
170;  Lerou.x  z:  Murdock,  51  Cal.  541 ; 
Wordworth  z\  Knowlton,  22  Cal. 
164 ;  Randolph  z'.  Harris,  28  Cal. 
561,  87  Am.  Dec.  139;  Jones  z\  Eddy, 
90  Cal.   147,  27   Pac.   190. 

Kentucky.  —  Morgan  v.  Bouth,  13 
Bush   480. 

Minnesota.  —  Pullen  v.  Wright,  34 
Minn.   314,   26   N.   W.   394. 

Nezv  York.  —  Hopkins  z'.  Everett, 
6  How.  Pr.  159;  Shearman  z\  New 
York  Cent.   Mills,   i   Abb.   Pr.   187. 

Oregon.  —  Moser  z\  Jenkin~.  5  Or. 

447- 

39.  Statement      of     Inconsistent 

Facts.  — Hill  -■.  Smith,  27  Cal.  476: 
Kinney  z:  Dodge.  loi  Ind.  573 :  Sohn 

Vol.  I 


414 


ADMISSIONS. 


sion  is  reached  in  some  of  the  cases/" 

Denial  As  Broad  As  the  Allegation,  Sufficient.  —  The  requirement  is 
that  the  denial  shall  traverse  fully  and  without  evasion  or  equivoca- 
tion the  allegation  of  the  adverse  pleading.  It  follows  that  if  the 
allegation  is  general  in  terms  when  it  should  be  specific,  the  denial 
may  be  equally  general.  In  other  words,  if  the  denial  is  as  broad 
and  specific  as  the  allegation,  it  is  a  sufficient  denial. '"^ 

When  Verification  Need  Not  Be  Positive.  — While  the  requirement  that 
the  pleading  shall  be  direct  and  positive  is  uniform  in  those  states 
in  which  a  party  is  compelled  to  plead  under  oath,  and  is  allowed 
to  allege  or  deny  on  information  and  belief,  it  is  sufficient  if  his 
verification  is  that  he  is  informed  and  believes  the  allegation  of  the 
pleading  to  be  true.''- 

Denial  of  Every  "Material"  Allegation. —  It  has  been  held  that  an 
answer  denying  every  "  material  "  allegation  of  a  complaint  is  suffi- 
ciently specific  and  amounts  to  a  general  denial.'"'  So  it  has  been 
held  to  be  a  good  general  denial  to  deny  "  each  and  every  allegation 
of  the  complaint  not  herein  admitted  or  controverted,"  or  "  not 
explained. "■'■'     But  to  render  such  an  answer  a  sufficient  denial,  the 


V.  Jervis,  loi  Ind.  578;  Clauser  v. 
Jones,  100  Intl.  123;  Mays  t.  Hedges, 
7g  Ind.  28S:  Nicholson  -'.  Caress,  76 
Ind.  24;  McDonald  v.  American 
Mortgage  Co.,  17  Or.  626,  21  Pac. 
883. 

40.  Must  Be  Direct  and  Unequiv- 
ocal  'A  denial  may  be  general  or 

specific,  at  the  option  of  the  pleader, 
but  in  cither  case  it  must  1)e  direct 
and  unequivocal.  If  it  merely 
ivipUcs  that  the  allegation  is  con- 
troverted, or  justifies  an  inference 
that  such  is  or  will  be  claimed  to  be 
its  cflfect,  it  will  not  be  construed  as 
a  denial."  West  v.  Am.  Bank,  44 
Barb.    (N.  Y.)    ^7S■ 

41.  Denial  as  Broad  as  Allega- 
tion, Sufficient. —  "The  denial  is  as 
broad  as  the  allegation.  If  under  the 
allegation  that  ihe  demand  was  duly 
made  on  the  premises  —  wdiich 
amounts  to  no  more  than  that  the 
demand  was  made  on  the  premises 
—  the  appellants  were  authorized  to 
prove  that  the  demand  was  made 
at  a  particular  place  on  the  prem- 
ises ;  then  under  the  denial  in 
the  answer  the  respondents  might 
prove  that  such  place  was  not  the 
most  notorious  place  on  the  prem- 
ises. A  demand,  to  be  of  any  avail 
to  work  a  forfeiture  at  common  law, 
must  be  made  at  the  proper  time 
and   place,   and   for   the   precise   sum 

Vol.  I 


then  falling  due,  and  a  denial  of 
the  demand  puts  the  lessor  upon 
proof  of  all  the  essentials  of  the 
demand ;  and  if  the  lessor  is  au- 
thorized to  allege  generally,  in  any 
respect,  the  fact  of  the  demand, 
the  lessee  would  be  authorized  to 
make  his  denial  in  as  general  terms." 
McGlynn  v.   Moore,  25  Cal.  384. 

42.  Hardin  v.  Atchison  &  Neb. 
Ry.  Co.,  4  Neb.  521. 

43.  Miller  v.  Brumbaugh,  7  Kan. 
343.  But  see  Dole  v.  Burleigh,  i 
Dak.    227,    46    N.    W.    692. 

44.  Griffin  v.  Long  Island  R.  Co., 
loi  N.  Y.  348,  4  K.  E.  740:  Raw- 
lings  V,  Alexander,  59  N.  Y.  St.  409, 
28  N.  Y.  Supp.  748;  Owens  v.  Hud- 
nut,  35  N.  Y.  St.  567,  12  N.  Y.  Supp. 
700;  Kingsley  v.  Oilman,  12  Minn. 
515;  Leyd  V.  Martin,  16  Minn.  38; 
Smith  V.  Gratz,  59  How.  Pr.  274; 
Ingle  V.  Jones,  43  Iowa  286;  Crane 
V.  Crane.  5  N.  Y.  Sup.  Ct.  209; 
Tracy  v.  Baker,  45  N.  Y.  Sup.  Ct. 
263 ;  Calhoun  v.  Hallen,  32  N.  Y. 
Sup.  Ct.  155. 

But  see  to  the  contrary :  Pomeroy's 
Rem.  &  Rem.  Rights,  §§633-636; 
McEncroe  v.  Decker,  58  Plow.  Pr. 
250;  Potter  V.  Frail,  67  How.  Pr. 
445 ;  Callanan  v.  Oilman,  67  How. 
Pr.  464 ;  Long  v.  Long,  79  Mo.  644  ;* 
Thierry  v.  Crawford,  40  N.   V.   Sup. 


ADMISSIONS. 


415 


matters  in  the  complaint  admitted,  avoided  or  explained,  must  be 
clearly  shown  by  other  allegations  in  the  answer,  so  that  there  can 
be  no  uncertainty  as  to  the  matters  denied." 

Denial  of  Fraud.  —  The  denial  of  fraud  or  fraudulent  intent  is  of 
no  avail  and  presents  no  issue  of  fact  as  against  an  admission  in 
the  same  pleading  of  facts  establishing  the  fraud.*"  But  if  fraud 
is  alleged  as  a  fact,  a  denial  of  the  allegation  has  the  same  etfect 
as  the  denial  of  any  other  fact. 

Facts  Admitted  in  One  Count  and  Denied  in  Another.  —  The  general 
rule  is  that  a  failure  to  deny,  or  an  admission,  in  one  count  or 
paragraph  of  a  pleading,  is  not  conclusive  on  the  party  if  the  same 
fact  is  put  in  issue  in  another  count  or  paragraph.*"  But  there 
are  authorities  to  the  contrary.*^  And  where  the  new  matter  set 
up  is  merely  inconsistent  with  the  fact  alleged  in  the  adverse  plead- 
ing, and  not  in  avoidance  of  it,  the  admission  of  the  fact  in  one 
count  should  undoubtedly  be  held  to  be  conclusive,  as  the  setting 
up  of  the  inconsistent  new  matter  is  no  more  than  an  indirect  denial 
of  a  fact  already*  admitted."*"  But  if  the  admission  in  one  count 
or  paragraph  is  for  the  purpose  of  pleading  a  separate  defense,  the 


Ct.  .^66;  Hammond  z>.  Earle,  5'  Abb. 
N.  C.  105;  Alillville  Mfg.  Co.  v. 
Salter,  i.  Abb.  N.  C.  305;  Waters 
V.   Curtis,   13  Daly    (N.  Y.)    179. 

45.  :\Iiller  v.  McCloskey,  g  Abb. 
X.  C.  303;  Tracy  v.  Baker,  45  N.  Y. 
Sup.  Ct.  263. 

46.  Robinson  ;■.  Stewart,  10  N. 
Y.  189;  Litchfield  V.  Helton,  6  Barb. 
1S7. 

47.  Denial  in  One  Count  of  Mat- 
ter Admitted  in  Another. —  United 
States.  —  Whitakcr  v.  Freeman,  I 
Dev.  fX.  C.  271)  29  Fed.  Cas.  No. 
17,527a ;  Glenn  v.  Sumner,  132  U.  S. 
152.   10  Sup.  Ct.  41. 

California.  —  Siter  v.  Jewett,  33 
Cal.  92:  McDonald  z'.  Davidson,  30 
Cal.   174. 

Kansas.  —  McGrcw  v.  Armstrong, 
5  Kan.  284. 

Massaelntsctts.  —  Blackington  i'. 
Johnson.    126   Mass.  21. 

-Wri'  Hampshire.  —  Larrv  "'.  Her- 
rick.   58   N.   H.  40. 

Neii}  York.  —  Young  v.  Katz,  22 
App.  Div.  542,  48  N.  Y.  Supp.  187. 

Te.ras.  —  Hart  z'.  Blackburn,  20 
Tex.   601. 

JVisconsin.  —  McWilliams  t.  Ban- 
nister, 40  Wis.  489. 

48.  Dole  Z'.  Burleigh,  i  Dak.  227, 
46  X.  W.  692 ;  Beard  v.  Tilghman, 
49   X.    Y.    St.   508,   20   N.   Y.    Supp. 


736;  Fleischmann  z'.  Stern,  90  N.  Y. 
no;  Wood  zi.  Whiting,  21  Barb. 
190. 

49.  Repugnant  Allegations  in 
Different  Counts.  —  West  z'.  Am. 
Bank,  44  Barb.  175 ;  Hartwell  v. 
Paige,  14  Wis.  49.  ''  Under  the  code 
a  party  may  set  up  as  many  defenses 
as  he  chooses,  but  he  cannot,  by 
making  repugnant  allegations,  com- 
pel the  plaintiff,  in  order  to  avoid 
a  denial  in  one  part  of  the  answer, 
prove  a  fact  adinitted  in  another. 
The  object  of  the  code  was  to  com- 
pel the  defendant  to  admit  every 
part  of  the  plaintiff's  complaint 
which  he  could  not  conscientiously 
deny.  Therefore,  any  fact  sustain- 
ing the  plaintiff's  case  admitted  in 
one  part  of  the  answer  is  to  be  taken 
as  true  for  all  purposes  in,  the  case, 
and  the  plaintiff  is  not  bound  to 
prove  it.  In  this  case  the  answer 
is  a  general  denial;  second,  a  justi- 
fication, and  it  is  held  not  well 
pleaded.  (Hartwell  Z'.  Paige,  14  Wis. 
49.)  Viewed  in  the  light  of  these 
authorities,  there  was  no  error  in 
rejecting  the  evidence  of  the  plain- 
tiff of  the  copy  of  the  note  declared 
on,  or  its  contents."  Dole  Z'.  Bur- 
leigh, I  Dak.  227,  234,  4.6  N.  W. 
692.  See  as  bearing  on  this  subject, 
Lipscomb  V.  Lipscomb,  32  S.  C.  243, 
10  S.  E.  929. 

Vol.  I 


416 


ADMISSIONS. 


admission  made  for  such  purpose  does  not  destroy  the  effect  of  a 
denial  in  another  count  of  the  same  pleading'.-'"  Ai;d  there  are 
authorities  holding  that  inconsistent  statements  of  facts  in  different 
counts  of  a  pleading  are  not  competent  evidence  to  contradict  the 
testimony  of  the  party,  at  the  trial,  as  to  the  facts. ^^ 

Denial  "In  Manner  and  Form  As  Alleged"  Insufficient.  —  L  nder  the 
rule  that  a  denial  must  be  direct  and  positive,  it  is  held  to  be 
insufficient  to  deny  that  the  allegation  is  true  "  in  manner  and 
form  as  alleged  "  for  the  reason  that  such  a  denial  goes  to  the 
form  and  not  the  substance  of  the  adverse  pleading.°- 

Negatives  Pregnant.  —  A  negative  pregnant  is  "  the  statement  of  a 
negative  proposition  in  such  a  form  as  may  imply  or  carry  with  it 
the  admission  of  an  affirmative."^^  Such  a  denial  admits  the  affirm- 
ative fact  thus  implied.'^' 


50.  Siter  v.  Jewelt,  31  Cal.  g2 ; 
Hart  T.  Blackburn,  20  Tex.  601  ; 
Young  T'.  Katz,  22  App.  Div.  542, 
48  N.  Y.  Supp.  187;  Kimball  v.  Bel- 
lows, 13  N.  H.  58;  Larry  v.  Herrick, 
58  N.   H.  40. 

51.  Larry  v.  Herrick,  58  N.  H. 
40. 

52.  Crane  v.  Morse,  49  Wis.  368, 
S  N.  W.  815 ;  Dole  v.  Burleigh,  i 
Dak.    227,    46    N.    W.    692. 

53.  Anderson's   Diet. 

54.  Negative  Pregnant  Admits 
the  Facts. —Ci7///or«;a. — Landers  v. 
Bolton,  26  Cal.  393;  Bradbury  v. 
Cronise,  46  Cal.  287 ;  Larney  v. 
Mooney,  50  Cal.  610;  Lay  v.  Neville, 
25'  Cal.  545 ;  Castro  v.  Wetmore, 
16  Cal.  379;  Leffingwell  v.  Griffing, 
31    Cal.   231. 

Colorado.  —  James  v.  McPhee,  9 
Colo.  486,   13   Pac.  535. 

Dakota.  —  Dole  v.  Burleigh,  i 
Dak.  227,  46  N.  W.  692. 

lo'ica.  —  But  see  to  the  contrary, 
Doolittle  V.  Greene,  32   Iowa   123. 

Minnesota.  —  Pullen  7'.  Wright,  34 
Minn.  314,  26  N.  W.  394;  Lynd  v. 
Picket,  7  Minn.  184,  82  Am.  Dec. 
79;  Dean  zk  Leonard,  9  Minn.  190 ; 
Steele  7'.  Thayer,  36  Rlinn.  174,  30  N. 
W.  758;  Frasier  j'.  Williafiis,  15 
Minn.  288;  Burt  v.  McKinstrv,  4 
Minn.  204:  McMurphy  r.  Wa'lker, 
20  Minn.  382. 

Missouri.  —  Garth  v.  Caldwell,  72 
Mo.  622;  Emory  v.  Phillips,  22  Mo. 
499- 

Montana.  —  Harris  v.  Shoutz.  i 
Mont.  212;  Toombs  v.  Hornbuckle, 
I    Mont.  286. 

Vol.  I 


New  York.  —  Baker  v.  Bailey.  16 
Barb.  54;  Moody  v.  Belden,  38  N. 
Y.  St.'  722,  15  TST.  Y.  Supp.  119; 
Davidson  v.  Powell,  16  How.  Pr. 
467 ;  Pfaudler  Process  etc.  Co.  v. 
McPherson,  20  N.  Y.  St.  473,  3  N. 
Y.  Supp.  609;  Elton  V.  MarkhaiTi, 
2     Barb.  343. 

Utah.  —  Rock  Springs  Coal  Co.  v. 
Salt  Lake  Sanitarium  Ass'n.  7  Utah 
158,   25    Pac.    742. 

Washington.  —  Gannon  v.  Dvke,  2 
Wash.  Ter.  266,  5'  Pac.  845;  Seattle 
Nat.  Bank  v.  Meerwaldt,  8  Wash. 
630,    36    Pac.    763. 

Wisconsin.  —  Schaetzel  v.  Ger- 
mantown  F.  M.  Ins.  Co.,  22  Wis. 
412;   State  V.  McGarry,  21  Wis.  502. 

Negative    Pregnant "  The    fact 

that  the  building  was  burned  is 
charged  in  the  petition  as  having 
occurred  November  28  1879,  and 
the  answer  first  '  denies  the  destruc- 
tion of  the  property  as  alleged;' 
this  admits  the  destruction  of  the 
house  by  fire,  if  the  ordinary  rules 
of  pleading  applicable  to  negatives 
pregnant  are  to  prevail.  It  is 
tantamount  to  saying,  "  the  house 
was  destroyed  by  fire,  but  not  on  the 
day,  or  in  the  way  you  say  it  was.' 
Schaetsell  7'.  Ins.  Co.,  22  Wis.  413, 
and  cases  cited ;  Soeding  7'.  Bartlett, 
35  Mo.  90,  and  cases  infra.  And 
the  answer  then  states  that  '  defend- 
ant avers  that  before  saiii  building 
was  burned,  as  alleged,'  and  by 
further  stating  '  that  at,  and  imme- 
diately before  the  time  when  said 
building  was  burned,  mechanics 
were    at    work,'    etc.,    thereby    makes 


APMISSIOXS. 


417 


Can  Not  Be  a  Negative  Pregnant  in  a  General  Denial.  —  The  rule  that 
a  negative  pregnant  admits  the  fact  alleged  has  heen  held  to  apply 
to  a  general  denial  in  case  of  an  allegation  of  the  value  of  property 
in  controversy. ■■''■"■     But  the  better  rule  is  the  other  way.'^" 

It  is  correctly  held  that  a  general  denial  is  a  negative  pregnant 
only  when  a  specific  denial  would  be."*^ 

Insufficiency  of  Denial,  How  Waived  and  Its  Effect.  —  While  the 
authorities  are  agreed  that  a  pleading  must  be  direct  and  positive,  it 
is  not  always  that  a  failure  to  plead  in  the  niamier  required  will 
have  the  effect  to  admit  the  truth  of  the  fact  intended  and  attempted 
to  be  controverted.  In  some  of  the  cases  it  is  held  that  a  failure 
to  traverse  a  fact  b>'  a  direct  and  positive  denial  must  be  taken 
advantage  of  by  an  objection  to  the  form  of  the  denial,  or  it  will 
be  held  at  the  trial  to  be  sufficient  to  raise  an  issue.'*' 


admission  of  the  destruction  of  the 
building  as  charged  in  the  petition. 
Hyeroninius  "'.  Allison,  52  Mo.  103 ; 
Garth  <■.  Caldwell,  72  Mo.  622." 
Breckinridge  "'.  Am.  Cent.  Ins.  Co., 
87  Mo.  62. 

But  see  to  the  contrary,  Mer- 
chant's Nat.  Bank  i'.  Richards,  74 
Mo.  77 ;  Wynn  v.  Cory,  43  Mo.  301  ; 
First  Nat.  Bank  r.  Hogan,  47  Mo. 
472;  Ells  r.  Pacific  Ry.  Co.,  55  Mo. 
278. 

It  is  said  that  the  doctrine  of  a 
negative  pregnant  is  not  recognized 
in  Missouri.  Merchant's  Nat.  Bank 
V.   Richards,   74  Mo.   77. 

55.  Dean  v.  Leonard,  Q  ^.linn. 
190;  Heckhn  r.  Ess,  16  Minn.  51; 
Pottgieser  i'.  Dorn,  16  Minn.  204; 
Moulton  V.  Thomson,  26  Mimi.  120, 
I  N.  W.  836;  Coleman  t.  Pearce,  26 
Minn.  123,  i  N.  W.  846;  Peck  v. 
McLean,    36    Minn.    228,    30    N.    W. 

759- 

56.  Cerman  .\m.  Bank  r'.  White, 
38  Minn.  471,  38  N.  W.  361  ;  Stone 
V.  Quaale,  36  Minn.  46,  29  N.  W. 
326. 

57.  When  General  Denial  a  Neg- 
ative Pregnant.  —  "  The  court  below 
erred  in  holding  the  denial  in  the 
answer  to  be  a  negative  pregnant, 
and  therefore  an  admission  of  the 
allegations  in  the  complaint.  The 
statute  provides  that  the  answer 
shall  contain  '  a  denial  of  each  alle- 
gation of  the  complaint  contro- 
verted by  the  defendant,  or  of  any 
knowledge  or  information  thereof 
sufficient  to  form  a  belief.'  Under 
this,    what    is    termed    the    'general 

27 


denial '  has  from  the  beginning  been 
practiced  and  been  sanctioned  by 
this  court.  As  usually  expressed, 
this  denial  is  of  '  each  and  every 
allegation  '  of  the  whole,  or  of  some 
clearly-indicated  portion,  of  the 
pleading  to  which  the  denial  is  in 
answer,  or  of  the  whole  or  part  of 
such  pleading,  with  clearly  and  de- 
finitely expressed  exceptions.  How- 
ever expressed  it  is  sufficient  if  it 
clearly  shows  that  the  pleader  intends 
to  deny  '  each  and  every '  of  the 
allegations  in  the  whole  or  of  the 
part  of  ihe  opposite  pleading  referred 
to.  This  form  of  denying,  instead 
of  specific  denials,  was  adopted  from 
motives  of  convenience,  and  it  has 
considerations  of  convenience  to 
commend  it.  In  effect,  it  is  pre- 
cisely the  same  as  if  each  of  the 
allegations  so  denied  were  specific- 
ally and  separately  referred  to  and 
denied.  It  is  of  no  greater  and  no 
less  effect.  Is  no  better  and  no 
worse  denial  than  such  specific  and 
separate  denial  would  be.  It  puts 
in  issue  each  allegation  of  fact  to 
which  it  relates  as  fully  as  though 
each  of  such  allegations  were  specif- 
ically denied."  Stone  v.  Quaale, 
36  Minn.  46,  29  N.  W.  326. 

58.  How  Insufficient  Denial 
Waived —  L'nilcd  States.  —  Burley 
I'.  German  Am.  Bank,  in  U.  S. 
216,  4   Sup.   Ct.   341. 

California. —  Perkins  v.  Brock.  80 
Cal.  320,  22  Pac.   194. 

Minnesota.  —  Schroeder  t'.  Cape- 
hart,  49  Minn.  525,  52  N.  W.  140. 

Ne7V    York.  —  Elton    v.    Markham, 

Vol.  I 


418 


ADMISSIONS. 


Denial  of  Conclusion  of  law.  —  The  dcMiial  Uj  be  effective  must  be 
a  denial  of  the  fcicts  alleged,  and  not  the  conclusion  of  law  to  be 
drawn  from  them.  .And  if  the  conclusion  alone  is  denied,  the  facts 
are  admitted,  but  the  conclusion  is  not.''" 

Denial  of  Indebtedness.  —  To  deny  that  the  defendant  is  indebted  to 
the  i>laintitt  is  a  denial  of  a  legal  conclusion  resulting  from  the 
facts  alleged  showing  such  indeljtcdness,  and  is  insufficient  to  raise 
an  issue,  and  admits  the  facts  which  are  alone  material.""    There  are 


20  Barb.  343 ;  Wall  v.  Biiflfalo  Water 
Works  Co.,  i8  N.  Y.  iig;  Pfaudler 
Process  etc.  Co,  v.  McPherson,  20 
N.  Y.  St.  473,  3  N.  Y.  Supp.  609; 
Greenfield  v.  Mass.  Mut.  F.  Ins.  Co., 
47  N.  Y.  4;o;  Dovan  v.  Dinsniore, 
33    Barb.    86. 

Ohio.  —  Woodward  v.  Sloan,  27 
Ohio  St.  592;  Trnstees  of  School 
Section  7'.  Odiin.  S  Ohio  St.  293. 

59.  Denial  of  Conclusion  of  Law. 
Ponieroy's     Rem.     &     Rem.     Riglits, 

§637. 

United  States.  —  Mills  v.  Duryee, 
7  Cranch  481 ;  P.uller  v.  Sidell.  43 
Fed.    116. 

Arkansas.  —  Lawrence  v.  Meyer, 
35  Ark.  104;  Fain  v.  Goodwin,  3s 
Ark.  109;  Moore  v.  Nichols,  39  .Ark. 

145- 

California.  —  Nelson  v.  Murray, 
23    Cal.    338;    Kuhland    v.    Sedwick, 

17  Cal.  123 ;  Scott  V.  Umbarger.  41 
Cal.  410;  Lee  v.  Figg,  37  Cal.  328; 
Lightner  r.  i\Ienzel,  35  Cal.  452; 
Bradbury  z'.  Cronise,  46  Cal.  287; 
Wells  V.  McPike,  21  Cal.  216;  Young 
V.  Miller,  63  Cal.  302;  Higgins  j'. 
Wortell,  18  Cal.  330;  Curtis  v. 
Richards,  9  Cal.  33;  Kinney  v.  Os- 
borne, 14  Cal.  112;  People  v. 
Hastings,  29  Cal.  449;  People  v. 
Board  of  Supervisors,  27  Cal.  655. 

Colorado.  —  Watson  v.  Lenien.  g 
Colo.   20b,    II    Pac.   88. 

Idaho.  —  Swanholm  7'.  Reeser,  2 
Idaho   1 167,  31    Pac.  804. 

Indiana.  —  Indianapolis  etc.  Ry. 
Co.  T.  Risley,  50  Ind.  60;  Nicho!so:i 
V.  Caress,  76  Ind.  24. 

/oTC'O.  —  Cottle  V.  Cole,  20  Iowa 
481. 

Kentucky.  —  ?Iaggard  j'.  lla\-,  13 
B.    Men.    175 ;    Francis    ?'.    Francis, 

18  B.  Mon.  5'7;  Templeton  v.  Sharp, 
10  Ky.  Law  499.  9  S.  W.  507 ;  Greer 
7'.   City   of  Covington,  83   Ky.  410. 

.Miiiursnta.  —  l")i)wncr  7'.    Read,    17 

Vol.  I 


.Minn.  493 ;  Freeman  v.  Curran,  i 
Minn.    169. 

Montana.  —  Higgins  v.  Germaine, 
I    Mont.    230. 

Nevada.  —  Skinner  v.  Clute,  9 
Nev.   342. 

New  York.  —  Emery  v.  Baltz,  94 
N.  Y.  408;  Edson  V.  Dillage,  8  How. 
Pr.  273;  Seeley  v.  Enzcll,  17  Barb. 
530;  McAIurray  -'.  GifFord,  5  How. 
Pr.  14;  Kay  v.  Churchill  10  Abb. 
N.    C.    83. 

Ohio.  —  V.  S.  Rolling  Stock  Co. 
7'.  .\tlantic  etc.  Ry.  Co.,  34  Ohio  St. 
450;  Larimore  v.  Wells,  29  Ohio 
13 ;  Pennsylvania  Co.  z'.  Piatt,  47 
Ohio  St.  366,  25  N.  E.  1028. 

Oregon.  —  Larsen  7'.  Oregon  Ry. 
&  Nav.  Co.,  ig  Or.  240,  23  Pac.  974: 
Boydston  7'.  Giltner,  3  Or.  118; 
Simpson  v.  Pralher,  5  Or.  86 ;  Or. 
Cent.  Ry.  Co.  v.  Scoggin,  3  Or.   161. 

C/to/j.  —  Dickert  t.  Weise,  2  Utah 

350- 

IVashingtou. — Carpenter  7'.  Ritchie 
(Wash.),   28   Pac.   380. 

JJ'isconsin.  —  State  v.  McGarry, 
21  Wis.  502. 

60.     Denial  of  Indebtedness  Is  a 

Denial  of  a  Conclusion Californa. 

Kinncv  '■•  Oshorno,  14  Cal.  112; 
Wells'-.'.    McPike,  21   Cal.   216. 

Colorado.  —  Gale  v.  James,  11 
Colo.  540,  19  Pac.  446. 

loii'a.  —  Morton  7'.  Coffin.  29  Iowa 
235;  Callanan  7'.  Williams.  71  Iowa 
,363,  32  N.  W.  383 ;  Stuckslager  v. 
Smith,  227  Iowa  286;  Mann  7'. 
Howe,  9  Iowa   546. 

Kentucky.  —  Francis  7'.  Francis.  18 
B.    Mon.   57. 

Minnesota.  —  Freeman  7'.  Curran, 
I   Minn.  169. 

Missouri.  —  Engler  v.  Bates,  19 
Mo.  54'?;  Sapington  v.  Jeffries,  is 
Mo.  628. 

New  York.  —  Edson  v.  Dillage.  8 
How.  Pr.  271;  Fordick  v.  Groff,  22 
How.     Pr.     158;    Hand    v.    Belcher 


ADMISSIONS. 


41'i 


cases  to  the  effect  that  a  denial  of  a  dcfeinlanl  tliat  he  nues  the 
plaintiff  the  amount  sued  for,  or  an)-  other  sum,  is  a  sufficient 
denial/" 

Denial  of  Evidence.  —  It  is  a  violation  of  the  rules  of  pleading  to 
set  out  the  evitlence  of  a  fact  or  facts.  It  is  the  fact  and  not  the 
evidence  of  it  that  is  required  to  be  stated.  Therefore,  if  the  evi- 
dence is  pleaded,  it  is  not  necessar}-  to  deny  it,  and  no  admission 
material  to  the  issues  can  result  from  a  failure  to  make  such  denial. '■- 

Denial  of  Non-Essential  or  Immaterial  Averments  Admits  Such  As  Are 
Essential.  —  If  the  denial  yoes  only  to  such  allegations  as  are  not 
essential  to  a  recovery,  merely,  it  is  an  admission'  of  all  the  essential 
facts. '^^' 

Under  the  Codes,  Form  and  Effect  of  Denials  the  Same  in  Actions  at  Law 
and  in  Equity.  —  L'nder  the  codes  of  the  several  states  the  distinc- 
tion in  practice  and  pleading,  so  far  as  they  affect  thd  question  here 
under  consideration,  is  abolished.  Therefore,  the  form  of  the  denial 
and  its  effect  is  the  same  whether  the  action  would  formerly  have 
been  one  at  law  or  in  equity."* 

What  Sufficient  Denial  of  Allegation  of  Damages.  —  Where  damages, 
or  an  indebtedness,  are  alleged,  a  denial  that  the  plaintiff  suff'ered 
the  amount  of  damages  stated  in  the  complaint  is  only  a  denial  that 
the  damages  amount  to  the  specific  sum  named,  and  is  an  admission 
of  damages,  and  that  he  is  entitled  to  recover  any  amount  less  than 
the  sum  specifically  alleged  and  denied.'''' 


Mosaic  Glass  Co..  ^o  N.  Y.  St.  389, 
9  N.  Y.  Supp.  7.58;  Drake  v.  Cock- 
roft,  4  E.  D.  Smith  34. 

0/110.  —  Lariniore  v.  Wells,  ag 
Ohio  13  ;  Knox  Co,  Bank  v.  Lloyd's 
Adnir's,   18  Ohio  St.  353. 

61.  Westlake  v.  Moore,  19  Mo, 
556;  Godfrey  v.  Cruise,  i  Iowa  92; 
Heath,  7'.  White,  3  Utah  474.  24  Pac. 
762;   Dallas  V.  Ferncau,  2t  Ohio  St. 

63.V 

Allegation    of   Indebtedness   as   a 

Fact,    Denial    of.    Sufficient "The 

complaint  alleges  that  defendants 
'  are  indebted  to  the  said  plaintiffs 
for  the  work,  labor,  and  services,' 
etc. ;'  and  the  answer  denies  '  that 
they,  or  either  of  them,  are  in- 
debted to  the  said  plaintiffs,  or  either 
of  them,  for  work,  labor,  and  ser- 
vices,' etc.  If  plaintiffs  had  pleaded 
the  facts  out  of  which  the  indebted- 
ness resulted  as  a  conclusion,  a  de- 
nial of  such  conclusion  would  have 
been  insufficient  to  make  an  issue, 
but,  having  alleged  the  indebtedness 
as  a  fact,  we  think  the  defendants 
might  so  treat  and  so  deny  it  in 
their  answer.     The   substantial   alle- 


gation of  tlie  complaint  is  that  '  de- 
fendants are  indebted,'  and,  if  the 
answer  had  been  in  terms  a  general 
denial,  it  would  have  simply  denied 
the  indebtedness,  and  tendered  the 
same  issue  as  this  answer  does. 
Morrow  v.  Cougan,  3  Abb.  Pr.  328; 
Quin  V.  Lloyd,  41  N.  Y.  349."  Mc- 
Lauehlin  v.  Wheeler,  I  S.  D.  497,  47 
X.  W.  816. 

62.  Racouillat  v.  Rene,  32  Cal. 
4=;o;  Moore  v.  Murdock,  26  Cal.  qi=;. 

63.  Effect  of  Denial  of  Immate- 
rial Fact.  — Leftingwcll  ''.  Griffing,  31 
Cal.  231  ;  Castro  v.  Wetmore,  16 
Cal.  379 ;  Larimore  v.  Wells.  29 
Ohio  13;  Hunter  v.  Martin.  57  Cal. 
365;  Kamlali  v.  Salter,  6  .A-bb.  Pr. 
(N.  Y.)  226;  Freeman  v.  Curran, 
I  Minn.  169;  Jones  v.  City  of  Peta- 
luma,  36  Cal.  230;  Manufacturers 
Nat.  Hank  v.  Russell,  13  N.  Y.  Sup. 
Ct.  375- 

64.  Pomeroy's  Rem.  &  Rem. 
Rights.  §  35   et  scq. 

65.  Effect  of  Denial  of  Damages. 
Huston  V.  Twin  City  etc.  Tp.  Co., 
45  Cal.  550;  Higgins  v.  Wortell, 
18  Cal.  330;  Scovill  V.  Barney,  4  Or. 

Vol.  I 


42n 


ADMISSIONS. 


Rule  As  to  Allegations  of  Value.  —  J  he  ruk'  lliat  a  denial  ul  Uic  spe- 
cific amount  alleged  admits  the  right  to  recover  all  but  the  full 
amount,  has  been  held  to  apply  to  an  allegation  of  the  value  of  the 
property  in  controversy.''"  And  this  rule  has  been  held  to  apply  to 
a  general  denial."'  But  the  better  rule  is  certainly  to  the  contrary."'* 
But;  in  some  of  the  states,  in  actions  of  trover,  trespass  or  replevin, 
it  is  not  necessary  for  the  defendant  to  deny  the  value  or  the  amount 
of  damages  alleged."''  So  in  other  cases  where  the  amount  in  value 
of  property  in  controversy  is  not  material.^" 

What  Put  in  Issue  by  General  Denial.— Independently  of  any  statu- 
tory provision  limiting  its  effect,  a  general  denial  puts  in  issue  every 
material  allegatiim  of  the  pleading  to  which  it  is  directed,  and  puts 


288;  Marsters  v.  Lash,  61  Cal.  622; 
Conway  v.  Clinton,  i  Utah  215;  Dil- 
lon V.  Spokane  County,  ?  Wash. 
Ter.  498.  17  Pac.  889. 

66.  Form  of  Denial  of  'Value. 
Towdy  V.  Elhs,  22  Cal.  650;  Lynd  v. 
Picket,  7  JMinn.  184,  82  Am.  Dec.  79. 

''  The  denial,  in  this  form,  we 
think  insufficient  to  put  in  issue  the 
value  of  the  property  at  the  time 
of  the  assignment,  and,  where  the 
value  becomes  a  material  question, 
must  he  held  as  an  admission  of 
the  allegation  in  the  complaint.  It 
is  a  negative  pregnant,  as  it  in- 
volves an  affirmative  implication 
favorable  to  the  plaintiff.  (Gould 
PI.  320,  §29.)  For  though  the  de- 
fendant denies  that  the  property  was 
worth  seventy-tive  thousand  dollars, 
it  fails  to  stale  how  much  less,  or 
what  it  was  worth,  and  hence, 
though  it  should  be  worth  only  a 
dollar  less,  ihe  answer  iiiight  be 
held  as  literally  true,  while  adniit- 
ling  the  whole  substance  of  the  al- 
legalion  of  the  complaint."  Burt  v. 
.McKinslry.    4     Minn.    204. 

67.  Rule  Applies   to  General  De- 

lial Dean    i'.    I^eonard,    9    .Minn. 

19b;  Hecklin  v.  Ess,  16  .Minn.  51; 
Potlgieser  v.  Dorn,  16  Minn.  204; 
.Moullon  f.  Thomson,  26  Minn.  120, 
1  N.  VV.  836;  Coleman  v.  Pearce, 
26  Minn.  123,  1  N.  W.  846;  Lynd 
7:  Picket.  7  .Minn.  184.  82  .-Xm.  Dec. 
79 

68.  General  Denial  of  Value  Suffi- 
cient— "A  general  denial  has  as  wide 
a  scope  as  the  allegaiions  of  the  plead- 
ing which  it  denies,  and  puts  in  issue 
every  fact  alleged  in  it.  Bliss,  Code 
PI.  ^x\2;  2  Wait.   Pr.  419,  420,  and 

Vol.  I 


Cases  cited.  If  such  a  denial  is  to 
be  held  a  negative  pregnant  as  to 
an  allegation  of  value,  on  principle 
it  should  be  also  so  held  as  to  allega- 
tions of  time,  quantity,  and  the  like. 
Secondly,  any  such  rule  of  ple.iding 
puts  us  out  of  harmony  with  that 
which  obtains  in  every  other  juris- 
diction. In  every  other  state,  so  far 
as  we  can  ascertain,  in  which  the 
code  system  of  pleading  prevails, 
a  general  denial  is  held  a  good 
traverse  of  every  allegation  of  the 
pleading  to  which  it  is  interposed. 
And,  lastly,  our  rule  works  badly 
in  practice.  It  has  compelled  attor- 
neys, for  greater  safety,  to  resort  to 
a  proli.x  system  of  special  denials, 
when  a  general  one  would,  in  briefer 
form,  answer  the  same  purpose;  ant, 
while  it  is  now  many  years  since 
this  rule  was  laid  own  by  this  court, 
yet  so  in  conflict  is  it  with  the  gen- 
erally understood  principles  of 
pleading,  and  with  the  rnlo  which 
obtains  elsewhere,  that  even  at  this 
late  date,  hardly  a  term  of  this  court 
passes  in  which  spme  case  does 
not  arise  in  which  the  pleated  has 
fallen  into  a  trap  by  reason  of  hav- 
ing overlooked  our  decisions  on  this 
question.  Inasmuch  as  it  a  not  a 
rule  of  property,  but  merel>  one  of 
practice,  a  change  in  which  will  not 
affect  any  vested  rights,  we  are.  for 
the  reasons  already  given,  of  opinion 
that  it  should  no  longer  be  adhered 
to."  Cierman-.'\m.  Bank  7'.  White, 
.38  Minn.  471,  38  N.W.  361, 

69.  Jenkins  v.  Steanka,  ly  Wis. 
126. 

70.  Wood  V.  Steamboat  Fleet- 
wood, 19  Mo.  529 ;  Field  r,  Rarr.  27 
Mo.  416. 


ADMISSIONS. 


421 


tlie  adverse  party  io  the  proof  of  all  such  allcc^'ations.''     And  under 
the  codes,  as  sliown  aliove.  wliere  specific  denials  are  required,  of 


71  What  Put  in  Issue  by  Gen- 
eral Denial —  Ponieroy's  Rein.  & 
Rem.  Riglits,  §§  6J2-682. 

Ahihawa.  — Mobile  &  M.  Ry.  Co. 
T.  Gilmer.  85  Ala.  422,  5  So.  l,-58: 
Equitable  Ace.  In.-;.  Co.  7'.  Osborn, 
go  Ala.  201,  0  Sn.  8615,  13  L.  R.  A. 
267. 

California.  —  Elder  v.  Spinks.  53 
Cal.  203 :  Brtick  ?■.  Tucker,  42  Cal. 
^46:  Clink  V.  Thurston,  47  Cal.  21; 
Woodworth  i'.  Knowlton,  22  Cal. 
164;  Coles  V.  Soulsby,  21  Cal.  47; 
Hawkins  v.  Borland,  14  Cal.  413 ; 
Brown  v.  KentfieUl,  50  Cal.  129 

Colorado.  —  Colorado  Cent.  Ry. 
Co.  v.  Blake,  3  Colo.  417 ;  Colorado 
Cent.  Ry.  Co.  v.  Mollandin,  4  Colo. 
XS4. 

Connecticut.  —  Page  v.  Alerwin,  54 
Conn.  426,  8  .MI.  67;. 

Georgia.  —  Causey  v.  Cooper,  41 
Ga.  409 ;  Dickson  v.  Saloshin,  54 
Ga.   117;  Woolfolk  V.  Beach,  61   Ga. 

67. 

Indiana.  —  City  of  Lafayette  ?'. 
Mortman,  107  Ind.  404,  8  N.  E.  277: 
Baker  i'.  Kistler,  13  Ind.  6.^ :  Adams 
Exchange  Co.  -c'.  Darnell,  31  Tnd.  20, 
99  .^ni.  Dec.  582 :  Loeb  v.  Weis,  64 
Ind.  285 ;  Wilson  z:  Root,  43  Ind. 
486;  Board  of  Comrs.  7:  Hill,  122 
Ind.  215,  23  N.  E.  779;  Hoosier  Stone 
Co.  V.  McCain,  133  Ind.  231,  31  N. 
E.  956:  Indianapolis  &  Cincinnati 
Ry.  Co.  V.  Rutherford,  29  Ind.  82, 
92  .\m.  Dec.  336:  Ferguson  -■.  Ram- 
sey, 41  Ind.  511;  Widener  v.  State, 
45  Ind.  244:  Radabaugh  v.  Silvers, 
135  Ind.  60s,  35  N.  E.  104;  Pootlit- 
zer  1:  Wesson,  8  Ind.  .^pp.  472,  35 
N.  E.  1030;  Day  7'.  Wanisley  ^.^ 
Ind.  145';  Garrison  v.  Clark,  11  Ind. 
,369:  Westcott  I'.  Brown,  13  Ind.  83; 
Rhode  7'.  Green,  26  Ind.  83;  Brad- 
ley 7'.  Bradley,  45  Ind.  67 ;  Chicago 
C.  &  L.  R.  Co.  7'.  West,  37  Ind.  211; 
Urton  7'.  State,  37  Ind.  339;  Port  7'. 
Russell,  36  Ind.  60,  10  Am.  Rep. 
5 ;  Tewksbury  7'.  Howard,  138  Ind. 
103,  37  N.  E.  355;  Root  7'.  Hibbcn, 
66  Ind.  247;  Trogden  v.  Deckard, 
45  Ind.  572;  Vanduyn  v.  Hepner,  45 
Ind.  589 ;  Wallace  t.  E.vcliange 
Bank,  T26  Ind.  265,  26  N.  E.  175; 
Clodfeller  7'.  Lucas,  7  Ind.  App.  379, 


34  N.  E.  828:  Bash  V.  Young,  2  Tnd. 
.\pp.  297.  28  N.  E.  344;  Wickwirc  v. 
Town  of  Angola.  4  Ind.  App.  2=;3. 
30  N.  E.  917;  Cain  z:  Hunt,  41  Ind. 
466;  Stuyter  7'.  LTnion  Cent.  L.  Ins. 
Co..  3  Ind.  .A.np.  312,  29  N.  E.  60S: 
Lafayette  S:  Indianapolis  R.  Co.  v 
Ehnian,  30  Iml.  83:  Watkins  7'.  Jo'ies. 
28  Ind.  12;  Bate  v.  Sheets,  50  Ind. 
329:  Morgan  7'.  Wattles,  69  Tnd.  260: 
Wood   7'.    Ostrani.   20   Ind.    177. 

lo'tva.  —  ScntI  7'.  Morse,  si  Iowa 
7,;2,  6  N._W.  68,  7  N.  W.  !•;:  Walters 
7'.  Washington  Ins.  Co.,  I  Iowa  40J, 
63  .\m.  Dec.  4tI  :  Dyson  7'.  Ream,  9 
Iowa  m :  Johnson  v.  Pennell,  67 
Iowa   669,  25   N.   W.   874. 

Kansas  — Perkins  7'.  Ermcl,  2  Kau. 
32t,'. 

Minnesota.  —  German  .\m.  Bank 
7'.  White,  .^8  Minn.  471.  38  N.  W. 
361 ;  Caldwell  7'.  Bruggerman.  4 
Minn.  270;  Finley  7'.  Quirk  g  Minn. 
194.  86  .\m.  Dec.  93;  Nash  v.  City 
of  St. -Paul.  Tt  Minn.  174;  Stone  7'. 
Ouaale,  36  Minn.  46,  20  N.  W.  32S; 
Bond    7'.    Corbett,   2    Minn.    2j8. 

}fissonri.  —  Sargent  7'.  St.  Louis  & 
S.  F.  Ry.  Co.,  144  Mo.  348,  21  S.  W. 
823,  19  L.  R.  A.  460:  Ellet  7'.  St. 
Louis  etc.  Ry.  Co.,  76  Mo.  518; 
Northrup  7'.  Miss.  Valley  Ins.  Co., 
47  Mo.  435,  4  .\m.  Rep.  337:  Farm- 
ers &  Drovers  Bank  v.  Williams,  61 
Mo.  259:  Girls  Industrial  Home  7'. 
Fritchey,   10   Mo.   App.   344. 

Mebraska.  —  .Quitman  7'.  Stichler, 
21  Neb.  72,  31  N.  W.  241;  Donovan 
7'.  Fowler,  17  Neb.  247,  22  N.  W. 
424;  Coole  7'.  Roche,  15  Neb.  24, 
17  N.  W.  119;  Jones  7'.  Fruin,  26  Neb. 
82,  42  N.  W.  283,  18  .Am.  St.  Rep. 
766;    School    District   v.    Slioemaker, 

5  Neb.  36;  Richardson  Z'.  Steele,  9 
Neb.  483.  4  N.  W.  83 ;  City  of  South 
Omaha  7'.  Cunningham,  31  Neb.  316, 
47  N.  W.  930 ;  Burlington  &  M.  R.  R. 
Co.  7'.  Lancaster  Co.,  7  Neb.  33 ; 
Jones  7'.  Seward  Co.,  10  Neb.  154, 
4  N.  W.  946:  Broadwater  7'.  Jacoby, 
ig    Neb.    77,   26    N.   W.   629. 

A''c7C'  York'.  —  Rost  7'.  Llarris,  12 
Abb.   Pr.  446;  Benedict  7'.   Seymour, 

6  How.  Pr.  298;  Newton  7'.  Lee, 
139  N.  Y.  332,  34  N.  E.  905;  Wheeler 
ZK   Billings,  38  N.   Y.  26':   Gritfm  7'. 

Vol.  I 


422 


tPMrSSIONS. 


course  a  trciicral  denial  raises  no  issue  but  admits  the  nlat^■rial  facts 
pleaded. '- 

Filing  Wrong  Pleading  to  Raise  Certain  Issues,  Admits  Them.  —  A 
partN-  may  admit  a  fact  h}-  a  mistake  made  in  filing  the  wrong: 
pleadins;-.  For  exami^le,  where  a  general  denial  or  general  issue 
is  pleaded,  such  plea  admits  that  the  plaintiff  has  ca]:)acity  to  sue.'-' 
And  it  may  be  stated  generally  that  where  such  a  pleading  only, 
is  filed,  as  will  put  in  issue  a  part  of  the  matters  alleged,  all  other 
facts  well  ])leaded  are  admitted. 

Withdrawal  of  Answer.  —  The  withdrawal  of  an  answer  is  an  ad- 
mission of  the  traversable  allegations  of  the  comi)laint  or  petition.'^ 

Answer  Stricken  Out. —  The  effect  is  the  same  if  the  an.swer  is 
stricken  out.      It  leaxes  the  case  as  if  a  default  had  been  taken.'" 

Is  a  Pleading  Competent  Evidence  in  the  Cause  in  Which  it  Is  Filed. 
\Miat  has  been  said  relates  to  the  effect  of  the  pleading,  as  a  plead- 
ing in  the  cause,  and  not  as  evidence  offered  at  the  trial.  Tt  does 
not  follow  from  the  fact  that  a  jileading  contains  express  admissions 
or  omits  to  deny  an  allegation,  which  amounts  to  the  same  thing, 
that  it  is  necessary  or  even  proner  to  admit  it  as  evidence  at  the 
trial.  Tt  is  before  the  court  without  being  received  in  evidence, 
and  may,  bv  its  admissions,  render  it  unnecessary  to  ofifer  any  evi- 
dence on  a  given  allegation.  T.ut  this  is  its  effect  as  a  pleading  and 
not  as  evidence.  Tt  seems_to  be  entirely  unnecessary  and  improper 
to  receive  as  evidence  a  pleading  in  the  cause,  and  it  is  not  generally 
done.'" 


Long  Island  R.  Co.,  loi  N.  Y.  349. 
4  N.  E.  740:  Weaver  v.  Barden,  40 
N.  Y.  286;  Duncan  v.  Lawrence.  6 
AM).  Pr.  304 ;  Winne  7'.  hickles.  g 
How.  Pr.  217;  Andrews  t.  Bond,  16 
Barb.  633 ;  Woolley  t.  Newcombc. 
87  N.  Y.  605:  Scliaus  r.  Alanhattan 
Gas  L.  Co.,  14  .M>1).  Pr.  371  :  Bealy 
f.  Swarthout,  32  Barb.  293 ;  Green- 
field V.  Mass.  Mut.  L.  In.s.  Co.,  47 
N.  Y.  430;  Sawyer  v.  Warner,  15 
Barb.  282;  Scbwa'rtz  v.  Oppold,  74 
N.  Y.  307;  O'Brien  v.  McCann,  58 
Y.  37.3;  McKyriiig  z:  Bnll,  16  N.  Y. 
297,  69  Am.  Dec.  396 ;  Boomer 
V.  Keen,  13  N.  Y.  Sup.  Ct.'  64.';. 

Texas. — Winns  7\  Mitchell,  i  Te.x. 
443;  McKaughan  r.  Harrison,  25 
Tex.  461  ;  Powder  v.  Davenport.  21 
Tex.  626;  Guess  7'.  Lubbock,  5  Tex. 
.S3.S:  Towner  v.  Sayre,  j  Tex.  28; 
Robinson  v.  Brinson,  20  Tex.  438. 

IVisconsin.  —  Dutcher  v.  Dutcber, 
39  Wis.  6.SI ;  McWilliams  j'.  Ban- 
nister. 40  Wis.   489. 

72.  Pico  V.  Colimas,  32  Cal.  .S78 ; 
Snell  -'.  Crowe,  3  Utali  26,  5  Fac. 
522. 

Vol.  I 


73.  Filing        Wrong        Pleading. 

T^ouisville    &    N.    R.    Co.    v.    Tram- 
mcll,  93  Ala.   350,  9  So.  870. 

74.  Price   v.    Page,   24   Mo.    6S- 

75.  Robinson  r.  Lawson,  26  Mo. 
60. 

76.  Pleading  in  Action  on  Trial 
Competent  Evidence.  —  Colter  r. 
Calloway,  f)8  Tiid.  2ig. 

"  The  pleadings  in  a  cause  are 
before  tlic  court  and  constitute 
a  part  of  its  proceedings  without 
being  introduced  in  evidence.  .\d- 
missions  made  in  a  pleading  are 
denominated  solemn  admissions, 
or  admissions  in  judicio.  and  arc 
not  required  to  be  supported  by 
evidence.  Such  admissions  are  taken 
as  true  against  the  party  making 
them  without  further  controversy. 
I   Greenleaf  Lvidence,  §§  27.  205. 

"In  fact  admissions  in  the  pleadings 
cannot  be  either  proved  or  disproved 
on  the  trial,  but  must  be  accepted  fur 
whatever  they  amount  to  in  legal  ef- 
fect, without  reference  to  any  other 
evidence    that     may    be    adduced.       I 


ADMlSSfONS. 


42.^ 


The  rii;;ht  tn  liavc  the  a(hiiissi<jns  in  a  pleathng  coiisiclereil  without 
introchicinjj  it  in  evidence  has  been  extended  to  ori,!i;inal  pleadings 
superseded  by  amended  pleadings." 

In  some  of  the  states  it  is  provided  by  statute  that  the  pleadings 
shall  not  be  competent  evidence.''  And  in  some  cases  it  has  been 
held  that  a  pleading  in  the  case  may  be  read  in  evidence  to  prove 
admissions  contained  in  it.'"'  And  in  others  that  it  is  not  a  part 
of  the  evidence  and  cannot  be  so  considered  nnless  it  is  oflFered 
in  evidence.'"  So  it  has  been  held  that  although  the  admissions  in 
a  pleading  considered  as  a  pleading  are  conclusive,  they  are  not  so 
when  the  same  is  offered  in  evidence.'^ 

How  Much  of  the  Pleading  Must  Be  Offered.  —  Tt  has  been  held  that  a 
pleading  as  evidence  of  an  admission  in  the  action  in  which  it  is 
filed  must  be  taken  as  a  whole.  And  that  a  partv  cannot  tise  a 
part  of  it.  only,  as  an  admission  in  his  favor  without  the  considera- 
tion bv  the  court  of  the  balance  of  the  pleading."-  P>ut  this  rule 
should  be  confined  to  so  much  of  the  pleading  as  relates  to  the 
particular  fact  sought  to  be  established.  That  is  to  say,  if  one 
party  offers  so  much  of  a  pleading  as  goes  to  admit  a  fact  he 
desires  to  establish,  the  opposite  partv  may  offer  anv  further  part 
of  the  same  pleading  which  will  tend  to  counteract  or  explain  the 
admission  and  no  more.'^     ;\ny  other  rule  would  permit  the  use  of 


Phillipps  Evidence  C4th  Am.  ed.,)  p. 

"This  doctrine  is,  in  general  term<;, 
fiillv  recoeni7ed  bv  onr  code. 

"In  2  R.  S.  1876,  p.  186,  §.^72,  it 
is  provided  that.  '  where  noon  the 
statements  in  the  pleadings  o-e  pnrtv 
is  entitled  by  law  to  indgnient  in  his 
favor,  judgment  shall  be  so  r-ndered 
bv  the  conrt.  though  a  verdict  has 
been  fonnd  against  such  party.' 

"As  the  defendant's  answer  was 
already  before  the  court  as  a  portion 
of  the  pleadings  in  the  cause,  it  nec- 
essarily follows  that  no  error  was 
committed  in  the  refusal  of  the  court 
to  permit  such  answer  to  be  formally 
read  in  evidence."  New  Albauy  etc. 
Plank  Co.  7'.  Stallcup,  62  Ind.  345. 

77.  Smith  v.  Pelott,  6^  Hun  6^2, 
18  N.  Y.  Supp.  301. 

78.  Walcott  V.  Kimball,  i  ?  .Mien 
(Mass.)  460;  Brooks  v.  Wright,  13 
Allen  (Mass.)  72;  Phillips  z\  Smitli. 
no  Mass.  61. 

79.  Cook  z:  Huges,  37  Tex.  343; 
Pence  v.  Sweeney.  2  Idaho  914 ;  28 
Pac.  413;  Young  v.  Katz,  22  .\pp. 
Div.  542,  48  N  .Y.  Supp.  87. 

80.  Must  Be  Offered  in  Evidence. 
Gossler  I'.  Wood,  120  N.  C.  6g,  27  S. 


E.  :^T, ;  Smith  t'.  Nimocks,  04,  N.  C. 
24  r 

In  the  case  of  Pence  7'.  Sweenev,  2 
Idaho  014,  28  Pac.  413.  an  answer 
denying  the  allegations  of  the  coni- 
nlaint  had  been  filed  by  the  attnrnevs 
of  the  defendant  and  subsequently  the 
defendant  himself  made  a  verified  .nn- 
swer  admitting  the  alleeations  of  the 
complaint.  It  does  not  appf^nr  th.nt 
the  answer  had  in  fact  been  filed.  Tf 
not  it  was  not  a  pleading  and  stood 
upon  the  footing  of  any  ordinary 
sworn    admission. 

81.  Young  7'.  Katz,  22  .A-pp.  Diy. 
542.  48  N.  Y.  Sunn.  187. 

82.  How  Much  of  Pleading  Must 
Be  Offered.  —  Shradv  v.  Shra^ly.  42 
ApD.   Div.   9.   58   N. 'Y.    Snpn.   546. 

83.  Effect  of  Admissions  in  An- 
swer  "A  brings  an  action  against 

B,  the  maker  of  a  promissory  note. 
B  admits  making  the  note,  and 
pleads  accor<l  and  satisfaction,  pay- 
ment, etc.  At  the  trial.  .A  rea'ls  the 
admission  in  the  answer,  to  avoid  the 
necessity  of  proving  the  making  of 
the  note,  and  rests.  To  liold  that 
(his  admits  the  whole  answer,  and  is 
proof  of  every  issuable  fact  stated  in 
the  answer,  and  in  no  wise  qualify- 

Vol.  I 


424 


.IfWIISSIONS. 


the  party's  own  ])lea(ling  in  his  favor,  as  original  evidence,  in  viola- 
tion of  tlic  well  settled  doctrine  to  the  contrary. 

Under  the  Codes  Answer  Not  Evidence  for  the  Defendant.  —  Under  the 
codes  while  the  answer  is  evidence  against  the  defendant,  often 
heing-  conclusive,  it  is  never  evidence  in  his  favor,  but  stands  pre- 
cisely on  the  footing  of  any  other  self-serving  declaration.'^ 

c.  /;;  Other  Actions  Bctivcoi  Same  Parties.  —  Tt  is  not  only 
admissions  found  in  the  pleadings  in  the  action  on  trial  that  are 
admissible  against  th^  party.  A  pleading  filed  in  another  action,  if 
so  made  and  filed  as  to  be  his  act  and  containing  an  admission 
material  to  the  issue  on  trial,  is  competent  evidence  against  him."' 


ing  the  .ndiiiission  a";  to  making  tlio 
note,  seems  to  u.s  absurd.  Such  a 
rule  would  anta.gonize  the  whole  the- 
ory of  our  system  of  code  pleading, 
under  which  a  fact  admitted  or  al- 
leged in  tlic  complaint,  and  not  denied 
hv  the  answer,  is  to  be  taken  as  true. 
To  call  the  attention  of  the  cinrt  to 
such  admission,  or  failure  to  deny  a 
material  fact  alleged,  it  is  necessary 
to  read  it.  For  that  purpose  it  is 
evidence.  All  other  issuable  facts 
set  up  in  the  answer  are  to  be  deemed 
in  law  as  denied,  and  it  is  on'y  those 
other  statements  in  the  pleadings 
which  go  to  qualify  the  admission 
that  are  to  be  taken  as  a  part  of  the 
evidence  under  such  circumstances. 
.  .  .  When  the  plaintiff  offered  in 
evidence  so  much  of  the  answer  of  de- 
fendant as  averred  the  execution  of 
certain  deeds  of  conveyance',  it  en- 
titled the  defendant  to  read  as  evi- 
dence in  the  case  every  fact  averred 
in  his  answer  going  to  explain,  mod- 
ify, or  qualify  the  averments  made 
evidence  by  the  plaintiff;  and,  as  the 
cause  was  tried  by  the  court,  it  may 
have  been  proper  to  permit  the  whole 
answer  to  be  read,  to  the  end  of  de- 
termining whether  or  not  any  such 
explanations  or  qualifications  were 
contained  therein :  but  this  did  not 
have  the  effect  of  making  the  whole 
answer  conclusive  evidence  in  the 
case.  In  Loftus  v.  Fischer,  it,?  Cal. 
288,  289,  45  Pac.  ,^2g.  a  portion  of  a 
verified  complaint  in  another  action 
was  admilled  in  evidence  01  behalf 
of  the  defendant.  Plaintiffs  counsel 
thereupon  offered  in  evidence  all  of 
that  complaint,  as  was  said,  '  to  ex- 
plain the  portion  admitted.'  The 
court,  in  excluding  the  whole  com- 
plaint, said:     'If  there  is  any  portion 

Vol.  I 


that  the  other  side  fplaintiff)  think 
will  show  how  or  why  that  was  (the 
admission,)  it  is  admissible.'  Plain- 
tiff on  appeal  contended  that  the 
whole  comnlaint  should  have  been 
admitted.  This  co"rt  disiiissed  the 
question  as  follows :  'The  mere 
statement  of  the  facts  shows  the  un- 
soundness of  the  claim.' "  Granite 
Cold  Min.  Co.  v.  Maginness,  iiS  Cal. 
T.u.  W  Pac.  260. 

84.  Answer  Not  Evidence  for  De- 
fendant.—  Blakeman  ?■.  Valleio.  15 
Cal  6^8;  Sweitzer  v.  Claflin,  74  Tex. 
667.    12    S.   W.    T,g$. 

85.  In  Other  Actions  Between 
Same  Parties.  —  Holland  v.  Spell. 
Tjj  Tnd.  561.  42  N.  E.  1014;  Pope  v. 
.Mlis.  im  U.  S.  .-^6.^,  6  Sup.  Ct.  69: 
Rich  V.  Citv  of  Minneapolis,  40  Minn. 
82,  41  N.  W.  4=;^;  Howard  v.  Glenn, 
8=  Ga.  2.^8,  II  S.  E.  610,  21  .\m.  St. 
Rep.  T56;  Wadsworth  v.  T")uncan. 
164  111.  ,360,  4=;  N.  E.  1^2:  Gardner  r'. 
Meeker.  160  Til.  jo.  a8  N.  E.   W7. 

Admissibility  of  Papers  in  Another 
Case.  _"  It  is  urged  als.>  that  the 
court  erred  in  admitting  in  evidence 
the  papers  and  decree  in  an  injunc- 
tion proceeding  instituted  and  prose- 
cuted by  Holland  against  the  town  of 
New  Castle  and  Daniel  Harvey,  its 
then  marshal.  That  proceeding  was 
to  enioin  the  entry  of  Holland's  tract 
for  the  extension  of  said  Vine  street 
in  1884.  One  answer  in  that  case 
was  the  condenniation  proceedings 
and  the  payment  to  Holland  of  the 
$50.  Holland  replied,  among  other 
facts,  that  it  was  agreed  between 
himself  and  the  treasurer,  who  paid 
him  the  $50.  that  he  would  accept  the 
same,  'and  open  said  street,  and  give 
possession  thereof,  when  the  board  of 
trustees    procured    the    right    of    way 


ADMISSIONS. 


42^ 


d.  /;;  Other  Actions  li'here  Parties  Not  the  Same.  —  It  is  not 
necessary  to  the  competency  of  a  pleading',  as  an  admission  against 
tlie  party,  that  it  be  one  filed  in  an  action  between  the  same  parties. 
A  pleading  filed  in  any  action  is  competent  against  the  party  if  he 
signed  it  or  otherwise  acquiesced  in  the  statements  contained  in  it 
if  such  statements  are  material  and  otherwise  competent  as'  evidence 
in  the  cause  on  trial,  not  by  way  of  estoppel,  but  as  evidence,  open 
lo  rebuttal,  that  he  admitted  such  facts.*"     The  fact  that  the  party 


ami  opeiifd  said  street  through  the 
lands  .  .  .  adjoining 
on  the  east,'  and  alleging  that  the 
condition  had  not  been  comolied  with 
on  the  part  of  the  town.  The  decree 
enjoined  the  opening  of  the  street, 
upon  the  theory  of  this  reply,  '  until 
said  defendant  shall  have  first  ob- 
tained a  right  of  way 
through  and  across  the  lands 
adjoining,'  etc.  These 
papers  were  admissible,  not  as  a  for- 
mer adjudication,  but  as  Holland's 
solemn  admission  of  the  receipt  of 
said  money,  and  of  the  condition  upon 
which  he  held  it,  and  at  the  same 
time  why  he  denied  the  right  to  oc- 
cupy his  land  for  the  street.  Tt  was 
not  mere  hearsay  evidence ;  it  was 
the  admission  of  the  party,  and  one 
upon  which  he  procured  a  decree  in 
the  court  in  which  he  now  asks  re- 
lief upon  an  inconsistent  ground." 
Holland  -'.  Spell,  144  Ind.  561,  42  N. 
E.  1014. 

86.  For  What  Purpose  Pleading 
Competent.  —  I  Whart.  Ev.,  §838;  i 
Greenl.    Ev.,   §  193. 

United  States.  —  Hyman  v.  Wheel- 
er, 29  Fed.  347;  Pope  v.  Allis,  115  U. 
S.  363,  6  Sup.  Ct.  69. 

.-ilabama.  —  McLcmore  '■.  Nuck- 
olls, 37  Ala.  662;  Royalls  v.  McKen- 
zie.  25  Ala.  363. 

California.  —  Shaffer  v.  Richards, 
14   Cal.   125'. 

Connecticut.  —  Fengar  v.  Brown, 
57  Conn.  60,  17  Atl.  321. 

Georgia.  —  Pantup  v.  Patton,  91 
Ga.  422,  18  S.  E.  311:  Lamar  v. 
Pearre,  go  Ga.  377,  17  S.  E.  92. 

Illinois.  — Robins  v.  Butler,  24  111. 
387. 

Indiana.  —  Cox  v.  Ralcliffe,  105 
Ind.  374,  s  N.  E.  5. 

Iowa.  —  Ayres  z'.  Hartford  F.  Ins. 
Co.,  17  Iowa  176.  85  .^m.  Dec.  533. 

Kansas.  —  Hob-on     ,■.     Oyileii.    16 


Kan.    388 :       Solomon    R.    R.    Co.    v. 
Jones,  30  Kan.  601,  2  Pac.  6.=;7. 

Kcntuckw  —  Clarke  v.  Robinson,  1; 
R.  Mon.  55 :  Roberts  v.  Tennell,  3  T. 
R.  Mon..  247 ;  Eldridgc  v.  Duncan,  i 
B.  Mon.  lOi  :  Ring  v.  Gray,  6  B. 
Mon.  368. 

Louisiana.  —  Bore  v.  Quierry,  4 
Mart.  545  6  Am.  Dec.  713. 

Maine.  —  Dunbar  v.  Dunbar.  80 
Afe.  i<;2,  13  Atl.  1:78.  6  ,A.m.  St.  Rep. 
166 :  Parsons  v.  Copeland,  ;^7,  Me. 
370.  54  .Am,  Dec.  628. 

Maryland.  —  Garey  r.  Sangston,  64 
Md.  31,  20  .Atl.  1034. 

Mas.uicln<setts.  —  City  of  Boston  v. 
R;rh.nr''son.  T-!  Allen  146:  Bliss  v. 
Nichols,  12  .Mien  443;  Gordon  7'. 
Parmelee,  2  .Allen  212;  Radclyffe  v. 
Barton,  ifir  Mass.  327,  37  N.  E.  373: 
Central  Bridge  Co.  ',■.  City  of  Lowell, 
15  Gray  106. 

Minnesota.  —  O'Riley  I'.  Clampet, 
.S'3  Alinn.  S39.  .^^'^  N.  W.  740;  Siebert 
7'.  Leonard,  21  Minn.  442. 

Mississi/'I'i.  —  Henderson  1'.  Car- 
gill.  31  Miss.  367. 

Missouri.  —  Snyder  "'.  Chicago,  S. 
F.  etc.  Ry.  Co.,  112  Mo.  .^27,  20  S.  W. 
88.S ;  Dowzelot  -c'.  Rawlings.  t;8  Mo. 
75:  Baum  V.  Fryrear,  8=;  Mo.  151; 
Warfield  v.  Lindell,  .30  Mo.  272,  77 
Am.  Dec.  614 ;  Bowman  r'.  Globe 
Steam  Heating  Co.,  80  Mo.  App.  628. 
New  Jersey. — Tindall  v.  Mclntyre, 
24  N.  J.  Law  147. 

AVtc  York.  — Conk  V.  Barr,  44  N. 
Y.  ii^6:  Potter  v.  Ogden.  n6  N.  Y. 
,384,  33  N.  E.  228. 

North  Carolina.  —  .^dams  v.  Utlcy, 
87  N.  C.  356. 

North  Dakota.  — Purcell  7>.  St. 
Paul  F.  &  M.  Ins.  Co.,  5  N.  D.  64, 
64  N.  W.  943. 

Ohio.  —  Earl  v.  Shoulder,  6  Ohio 
409;  Broadrup  ?'.  Woodman,  27  Ohio 
St.  55,^- 

Oregon.  —  Feldman  v.  McGuire, 
34  Or.  309,  55  Pac.  872. 

Vol.  I 


42f) 


.iPMISSIONS. 


is  a  feme  covert  suino-  by  next  friend  does  not  vary  the  principle 
on  wliicli  such  evidence  is  adniissi1)!e.'' 

Must  Be  Signed,  Sworn  to,  or  Otherwise  Authorized  or  Acquiesced  in  by 
the  Party,  —  Tine  pleadinsj  to  be  competent  against  a  party  in  another 
action  must  contain  an  admission  made  by  him.  The  mere  fact  that 
a  pleading  is  filed  as  his  pleading  is  not  enough  to  bind  him  as 
an  admission  in  another  action.  He  must  either  have  signed  or 
sworn    to    it,**    or    authorized    it    to    be    signed    as    his    plead- 


Peniisvlvaniii.  —  Rice.  f.  Bixler,  i 
Watts  &  S.  445;  Kline  v.  First  Nat. 
Bank  (Pa.  St..>  15  Atl.  433;  Limbert 
T'.  Jones,  136  Pa.  St.  31,  19  Atl.  956; 
Trnliy  7'.  Seybert,  12  Pa.  St.  lOl. 

Texas.  —  Bnzard  v.  McAnnltv,  7" 
Tex.  438,  14  S.  W.  1.^8 ;  Hamilton  v. 
Van  Hook,  26  Tex.  302 ;  Wliceler  7'. 
Styles,  28  Tex.  240. 

Bill  in  Equity  in  Another  Suit. 
"  The  rnle  upon  this  subject  is 
stated  as  follows  in  i  Whart.  Ev. 
§  838.  '  The  pleadings  of  a  party 
in  one  suit  may  be  used  in  evidence 
against  him  in  another,  not  as  estop- 
pel, but  as  proof,  open  to  rebuttal  and 
explanation,  that  he  admitted  certain 
facts.  But,  in  order  to  bring  such 
admission  home  to  him,  the  pleading 
must  be  either  signed  by  him,  or  it 
must  appear  that  it  was  within  tlie 
scope)  of  the  attorney's  authority  to 
admit  such  facts.  Yet,  even  if  such 
admissions  are  thus  broueht  home  to 
the  parly,  they  are  entitled  to  little 
weight.'  And  see  Cook  t'.  Barr,  .44 
N.  Y.  156;  Siebert  t.  T^eonard,  21 
Minn.  442;  Meade  7'.  Black,  22  Wis. 
244:  Tabb  7'.  Cabell,  17  Orat.  t6o  : 
Cordon  7'.  Parmelec,  2  Allen  215; 
Brown  7'.  Tewett,  120  ATass.  215;; 
Hobson  7'.  Ogden,  16  Kan.  )88 :  Bliss 
7'.  Nichols,  12  Allen.  443:  Wheeler  7'. 
Styles,  28  Tex.  2jfi.  While  we  are 
not  prepared  to  hold  that  a  pleading 
not  signed  or  sworn  to  by  a  party 
can  be  admitted  as  evidence  against 
him  in  another  suit,  we  think  that, 
when  it  is  so  signed  or  sworn  to,  it 
may  be.  We  can  see  no  difference  in 
this  respect  between  a  bill  in  eouitv 
and  any  other  pleading.  Such  plead- 
ing, when  introduced,  cannot  be  hold 
conclusive,  and  is  open  to  explana- 
tion bv  the  narty."  Bnzard  t.  Mc- 
Anulty,  77  Tex.  4.38,  T4  S.  W.  i  ^8. 

Wiscniishi.  —  Norris  7'.  Careill,  52 
Wis.  251,  Ti;  N.  W.  251;  Mead  7'. 
Black,  22  Wis.  241. 

Vol.  I 


87.  McLemore  v.  Nuckolls,  37 
Ala.  662. 

88.  Must  Be  Signed  or  Authorized 
By  Party.  —  United  States.  —  Board 
of  Com'rs.  V.  Diebold  Safe  etc.  Co., 
133  U.  S.  473,  10  Sup.  Ct.  399;  Combs 
7'.  Hodge,  21  How.  397. 

Alabama. — Tennessee  Coal  etc.  Co. 
7'.  Linn,  123  Ala.   112,  26  So.  245'. 

California.  —  Coward  7'.  Clanton, 
79  Cal.  23,  21  Pac.  3';9. 

Kenttickv.  —  Rankin  7'.  Maxwell,  2 
A.  K.  Marsh  828. 

Massachusetts.  —  Johnson  7'.  Rus- 
sell, 144  Mass.  409,  II  N.  E.  670: 
Brown  7'.  Jewett,  120  Mass.  215; 
Denie  7'.  Williams,  13S  Mass.  28; 
Fare  7'.  Bouillard,  172,  Mass.  30?.  52 
N.  E.  443. 

Minnesota. —  Burns  7'.  Maltby,  43 
Minn.  161,  4.^  N.  W.  3. 

Mississif'l'i.  —  'Meyer  7'.  Blacke- 
more.  54  Miss.  570;  Crump  v.  Gerock, 
40  IMiss.  765 ;  Co-operative  h.  Ins. 
Co.  7'.  Leflore,  53  Miss.  i. 

Missouri.  —  .\nderson  7'.  McPike, 
86   Mo.   293. 

Nezv  York.  —  Cook  7'.  Barr,  44  N. 
Y.  156. 

South  Carolina.  —  Cooper  7'.  Day, 
I  Rich.  Ec|.  26. 

Texas.  —  Buzard  7'.  Mc.Anultv,  77 
Tex.  4.38,  14  S.  W.  138;  Dillon  7'. 
State,  6  Tex.  ss';  Tnternationa!  &  G. 
N.  R.  Co.  V.  Mulliken,  10  Tex.  Civ. 
,^pr).  663.  32  S.  W.  152. 

When  Bill  in  Chancery  Competent. 
".Answers  in  chancery,  which  are  con- 
fessions, are  strong  evidence  against 
the  party  who  makes  them.  But  a 
bill  in  chancery,  wherein  many  of  the 
facts  are  the  mere  suggestions  of 
coimsel,  made  for  the  purpose  of  ex- 
torting an  answer  from  the  defend- 
ant, will  not  be  in  evidence,  except  to 
show  that  such  a  bill  did  exist,  and 
that  certain  facts  were  in  issue  be- 
tween the  parlies  in  order  to  intro- 
duce the  answer,  or  the  deposition  of 


ADMISSIONS. 


427 


ing  f'  or  in  some  other  way  acknowledged  it  as  his ;""  or  acquiesced 
in  the  statements  contained  in  it.°^  But  the  equity  rule  that  facts 
stated  in  a  bill  in  equity  signed  by  the  attorney  only  are  not  the 
statements  of  the  party,  but  mere  suggestions  of  counsel,  is  not 
ajiplicable  under  the  codes;  and  therefore  such  pleadings  signed  by 
attorncvs  are  competent  evidence  as  admissions  of  the  party."-    And 


witnesses.  It  is  not  admiUed  in 
courts  of  law  as  evidence  to  know 
any  fact  either  alleged  or  denied  in 
tlie  bill.  Lord  Kenyon  is  reported  to 
Iiave  admitted  a  bill  in  chancery,  filed 
hy  an  ancestor,  to  be  evidence  of  a 
pedigree  there  stated,  as  a  declara- 
tion in  the  family.  But  it  was  re- 
solved by  the  judges,  in  the  Banbury 
Peerasrc  case,  on  a  question  put  to 
them  by  the  House  of  Lords,  t'lat  :i 
bill  in  equity  or  depositions,  ca''n  ^t  b  ' 
received  in  evidence  in  the  courts  of 
common  law,  on  the  trial  of  an  eject- 
ment against  a  party  not  claimine  or 
deriving  title  in  anv  manner  under 
the  plaintiff  or  defendant  in  the  chan- 
cery suit,  either  as  evidence  of  the 
facts  therein  deposed,  or  as  ''cclara- 
tions  respecting  pedigree.  The  law 
seems,  therefore,  to  be  now  settled 
that  a  bill  in  chancery  cannot  be 
given  in  evidence  as  an  admission  of 
facts  against  the  complainant  himself, 
except  in  the  case  of  pedigree,  and 
not  even  then,  except  as  a  parly  who 
claims  or  derives  title  in  some  man- 
ner under  the  plaintiff  or  defendant 
in  the  chancery  suit."  Owens  f. 
Dawson,   i   Watts   149,   26   Am.   Dec. 

49- 

Must  Be  Signed  or  Authorized  by 

the  Party, —"Tlie  liill  in  enuityfil-d 
by  the  plaintiffs  against  the  defendant, 
was  verified  by  affidavit,  ft  is  true, 
that  a  bill  in  equity,  not  verifie<I.  is 
regarded  as  containing  rather  the 
suggestions  of  counsel,  than  the  de- 
liberate statements  of  the  comnlain- 
anl,  and  is  not,  in  a  collateral  suit, 
admissible  evidence  against  him  of 
the  facts  stated  in  it.  i  Brick.  Dig. 
820.  §  ^~,3-  Rut-  when  it  is  veri- 
fied, because  of  the  solemnity  and  de- 
liberateness  attached  to  an  oath  taken 
in  the  course  of  judicial  proceedings, 
a  different  rule  obtains.  Ilie  bill  is 
then  treated  as  a  statement  of  facts 
adniitled  by  the  complainant,  and  be- 
comes evidence  against  him  in  col- 
lateral suits.  McRea  v.  Tns,  Bank  of 
Columbus,  16  Ala.  755 ;  McLemore  v. 


Nuckofis,  .37     .\la.     662."     Callan  v. 
McDaniel,  72  Ala.  96. 

89.  Dowzelol  v.  Rawlings,  ^S  !\To. 
7^:  Cook  r.  Barr,  44  N-  Y.  T^6:  Cor- 
bett  V.  Clough,  8  S.  D.  176,  6?  N.  W. 
1074;  Brown  r.  Jewett,  120  Mass. 
21^. 

90.  Cook  V.   Barr,  J4  N.   Y.    i?6. 

91.  Corbett  v.  Clough,  8  S.  D.  176. 
6;  N.  \V.  1074:  Kamm  v.  Brrnk  of 
Cr.1  .    7J    Cal.    TOT.    iq    Pac.    76^. 

92.  Pleading  Signed  hy  Attorney 

Competent  Evidence "It  has  been 

laid  down  as  a  rule  in  England  that, 
'generally  speaking,  a  bill  in  chancery 
cannot  be   received   in   evidence  in   a 
court  of  law  to  nrove  any  facts  either 
alleged   or   denied    in    such   bill.'      Tt 
will    be   remembered   that    under   the 
ancient   svstem   of   chancery   practice 
the   pleadings   were  prepared  by   ex- 
perts who  did  not  appear  in  courts. 
The     pleadings       themselves       were 
framed   upon  a   '  fictitious  and  hypo- 
thctically   constructed'   plan,   for   the 
purpose   of   eliciting    fuller    informa- 
tion by  way  of  answer  from  the  de- 
fendant.      Our  judiciary  act  of  l7og 
had  for  one  of  its  main  nurposes  the 
abolition  of  fictitious  forms  of  plead- 
ing.    It  enacted  that  in  suits  at  law 
the  plaintifif  shoidd  set  forth  his  cause 
of  action  plainly,  fully  and  distinctly, 
and  that  '  the  ordinarv  proceeding  in 
chancery  shall  be  a  bill,  which  shall 
be    addressed    to    the    superior   court, 
or  the  judge  presiding     therein,  and 
shall   plainly  set   forth  the  ground  of 
complaint,'   etc.     With   the  exception 
of  the  common-law  forms  in  actions 
of  ejectment   and   trover,     those  old 
fictions   in   pleadings  have  long  been 
unknown  in  the     system  of  pleading 
in   Georgia.        Onr   courts   have   fol- 
lowed the  mandate  of  the  enactment 
above     recited,     and     have  required 
suitors   in  both   forums,  to   set   forth 
nlainly    their   grounds    of   complaint. 
The  general  term  'allornev'  includes 
ihe  powers  and  duties  of  the  solicitor 
and   barrister,  and   in   our  courts   no 
distinction    is    recognized    ns    to    the 

Vol.  I 


428 


ADMISSIONS. 


it  is  held  tiiat  where  an  actii)n  is  ijrosccutcd  in  one's  name  and  for  his 
benefit,  with  his  knowledge  and  consent,  he  will  be  presumed  to  know 
the  facts  alleged  in  the  complaint,  and  to  have  assented  to  them."-' 

Authority  of  Attorney.  —  This  involves  necessarily  the  power  and 
authiiritv  of  an  attorne\-  to  make  admissions  in  pleadin,s;s,  for  his 
client,  and  to  what  extent'  the  same  are  binding-  on  the  client.  This 
w  ill  be  considered  farther  alonj^-.  lint  it  must  be  obvious  that  there 
is  a  wide  difYercnce  bctwe'en  the  effect  of  a  pleading  signed  by  an 
attorney,  and  not  by  the  client,  for  the  purposes  of  the  action  in 
which  it  is  filed  and  where  it  is  offered  as  evidence  in  another 
action."^ 

Authority  Presumed.  —  It  is  the  better  rule  that  where  a  pleading 
is  signed  b\  one  as  the  attorney  of  the  party,  it  will  be  presumed 
that  he  was  authorized  to  sign  and  file  the  same,  and  that  the  partv 
is  bound  by  it  when  offered  as  evidence  the  same  as  if  he  had  signed 
it  himself,  subject  to  his  right  to  show  that  it  was,  in  fact,  signed 
w-ithotit    sanction    or   authoritv    fron-|    hin-i."^     Rut   there   are   cases 


several  Ijranclics  of  legal  work  which 
were  in  ancient  times  parceled  out 
among  several  classes.  The  one 
license  confers  upon  the  attorney  full 
power  to  conduct  the  cause  for  his 
clients  through  all  its  stages,  and  to 
hind  them  in  all  matters  pertaining 
thereto,  save  where  the  law  has  ex- 
pressly limited  his  authority.  The 
constitution  guarantees  to  a  sui'.or 
thel  right  to  appear  in  person  or  hy 
attorney,  and  either  mode  of  appear- 
ance is  as  hinding  as  the  other. 
Hence,  when  the  suitor  elects  to  ap- 
pear by  counsel,  and  plainly  sets 
forth  his  cause  of  complaint,  all  the 
allegations  of  fact,  rnaterial  and  nec- 
essary to  the  complaint,  made  in  the 
pleadiris's  by  the  counsel,  arc,  in  legal 
contemplation,  those  of  the  complain- 
ant himself.  Being  such,  they  arc 
declarations  of  the  coinplainant,  and, 
if  against  his  interest,  are  admissible 
in  evidence  against  hiin  under  the  or- 
dinary rules  governing  admissions. 
T.ike  other  admissions,  they  are  sub- 
ject to  explanation  and  qualificalion. 
unless  the  circurnstances  render  them 
estoppels  under  the  law."  Lamar  v. 
Pcarre.  90  Oa.   -!77,   17   S.   E.   92. 

93.  Kamm  v.  Rank  of  Cal..  74  Cal. 
TQi.  1=;  Pac.  76^. 

94.  Callan  r.  Mcnanicl.  72  .Ma. 
06. 

95.  Authority  of  Attorney  Pre- 
sumed. —  Coward  v.  Clanton.  70  Cal-. 
23.  21  Pac.  350;  Ayres  ;■.  Hartford 
F.  Tns.  Co..  17  Towa  776,  85  .Am.  Dec. 

Vol.  I 


55,3;  Lamar  t:  Pearrc.  go  Ga.  377.  17 
S.  fc,.  92;  Clark  V.  Randall,  76  .■\m. 
Dec.  252,  256,  note ;  Vogel  v.  Osborre. 
32  JNliii.  167.  20  N.  W.  129;  Guv  V. 
iNIanucl.  So  N.  C.  83 

Presumption  of  Attorney's  Author- 
ity.—  "It  is  urged  here  that  the  an 
swer  was  not  verified,  and  was  not 
signed  by  the  respondent,  but  by  his 
attorney.  It  is  enough  to  say  that 
this  objection  to  its  admission  was 
not  made  in  the  court  below,  and  this 
court  will  not  presume,  under  such 
circumstances,  that  the  attorney  was 
acting  without  authority.  There  is 
some  confusion  in  the  cases  as  to  the 
right  to  introduce  a  "leading  in  evi- 
dence, where  the  same  is  signed  by 
an  attorney,  without  first  proving  that 
it  was  pleaded  with  the  knowledge 
and  by  the  authoritv  of  the  partv. 
f  Duff  V.  Dufif,  71  Cal.  ?I3,  521 :  Cook 
z:  Barr,  44  N.  Y.  i.i;6;  Kamm  v-  Bank 
of  California.  74  Cal.  igi.)"  Cow- 
ard 7'.   Clantoti,   79  Cal.   23.   21    Pac. 

Extent  of  the  Rule "  The   rule 

that  llu-  plcaditigs  in  a  cause  arc  not 
evidence  on  the  trial,  but  ailcL'atio'is 
only,  is  limited  to  the  suit  in  which 
they  arc  pleaded.  Outside  of  that, 
admissions  and  declarations  of  a 
party  in  his  pleadings  arc  competent 
against  him;  btit  they  must  appear  to 
be  the  act  of  the  pai-tv.  and  not 
merely  of  his  allorney.  When  it  is 
his  personal  act.  as  in  an  answer  in 
chancery    sworn   by   him.   it    is   com- 


ADMISSIONS. 


429 


liiildiny  that  if  a  pleading  is  siyiK-d,  or  signed  and  verified,  h\  the 
attorney,  it  must  be  clearly  slunvn  that  the  facts  alleged  were 
inserted  at  the  instance  of  the  parly  or  under  his  direction,  or  were 
afterwards  sanctioned  by  him,  in  order  to  constitute  it  an  admission 
of  the  party."''  And  the  facts  and  circumstances  may  be  such  as 
to  remove  any  presumption  of  authority  on  the  part  of  the  attorney 
to  submit  the  pleading  containing  the  admission  and  thus  show 
its  incompetency.''^ 

Must  Be  Within  the  Scope  of  the  Attorney's  Authority. —  Of  course 
an  attorney  cannot  bind  his  client  by  everything  he  may  insert  in 
a  pleading.  On  the  contrary,  as  in  all  other  cases  of  agency,  he 
can  only  bind  the  party  so  long  as  he  acts  within  the  scope  of  his 
authority.  It  follows  that  the  client  is  only  bound  by  such  state- 
ments in  the  pleading  as  are  jiroper  to  be  alleged  in  a  pleading  of 
the  kind.'^* 

Part  of  Pleading  May  Be  Read  in  Evidence.  —  The  party  offering  a 
pleading  as  an  admission  is  ncit  bcmnd  to  offer  the  whole  of  it. 
He  may  offer  so  much  of  it  as  he  deems  necessary  to  prove  the 
admission.""     P.ut   this   is   subject,   of  course,   to  the  right   of  the 


petent.  When  it  is  a  pleading,  liy 
attorney,  of  formal  allegations,  which 
may  be  presumed  to  have  been  made 
without  special  instructions  from  his 
client,  it  is  not  competent.  But  par- 
ticular and  specific  allegations  of 
matters  of  action  or  defense,  which 
cannot  be  presnmed  to  have  been 
made  under  the  general  authority  of 
the  attorney,  but  obviously  from  spe- 
cific instructions  of  the  party,  are 
competent.  Dennie  v.  Williams,  135 
Mass.  28,  and  cases  there  cited.  The 
answer  offered  in  evidence  carries 
witli  it  the  presumption  that  it  was 
made  under  ibe  instructions  of  the 
defendant,  and  the  testimony  of  the 
defendant,  that  he  had  never  seen 
the  answei  and  did  not  know  its  con- 
tents, without  denying  that  he  had 
given  instructions  for  it.  does  not 
overcome  the  presumption ;  especially 
in  view  of  the  fact  that  the  cause 
proceeded  to  trial  and  verdict  under 
the  answer.  We  think  that  the 
evidence  sliould  have  been  admitted." 
Johnson  v.  Russell,  I-14  Mass,  409,  1 1 
N.  H.  670. 

96.     Corbett  v.  Clough.  8  S.  D.  176, 
65  N.  W.  1074;  McDermo'.t  '■.  Mitch- 


Dennit 


Wright. 


ell,   47   Cal.   249: 
l,^^  ^^ass.  28. 

97.  Vogel    7'.    Osborne,   32    Minn. 
167,  20  N.  W.  129. 

98.  Must    Be    Within    Scope     of 
Attorney's   Authority.  —  Internation- 


al &  G.  N.  R.  Co.  V.  Mulliken,  10 
Tex.  Civ.  App.  663,  32  S.  W.  152 ; 
Brown  v.  Jewett,  120  Mass.  215; 
Clark  V.  Randall,  9  Wis.  135,  76  Am. 
Dec.  252- 

"Tn  this  case  it  appears  that  the 
petition  admitted  was  not  signed  by 
the  petitioner,  Frank  S.  Duff.  His 
name  was  written  at  the  end  of  the 
paper  by  his  attorney.  So  far  as  ap- 
pears, the  authority  of  the  attorney 
was  to  file  a  petition  appropriate  to 
the  procurement  of  an  order  of  court 
for  letters  of  administration.  This 
autliority  would  not  e.xtend  beyond 
the  insertion  of  such  allegations  as 
the  law  required  such  application 
should  contain.  As  is  clear  from  the 
section  of  the  statute  above  cited,  a 
description  of  the  property  of  the  de- 
cedent's estate  was  not  required,  but 
only  the  value  and  character  of  such 
property.  The  character  of  the  prop- 
erty would  sufficiently  appear  by  a 
statement  in  tlie  petition  that  it  was 
realty  or  personalty.  The  attorney 
was  only  authorized  to  file  a  petition 
stating  the  character  and  value  of  the 
property.  In  going  beyond  this,  he 
was  not  acting  within  the  scope  of 
his  authority,  and  therefore  the  state- 
ments in  the  petition  describing  the 
property  were  not  on  that  ground  ad- 
missible." Duff  V.  Duff.  71  Cal.  513. 
1 1  Pac.  871. 

99.     Part  Only  of  Pleadings  May 

Vol.  I 


4M) 


ADMISSIONS. 


opposite  parly  to  iiitrochice  tliu  l)alaiice  or  any  other  part  of  the 
pleading  explaining  or  otherwise  affecting  the  part  already 
olifered.'""  j\nd  a  part  of  a  paragraph  or  sentence  cannot  he  offered 
where  the  efifect  will  be  to  pervert  or  render  nncertain  the  sense 
of  the  pleading/ 

Is  Failure  to  Deny  Allegation  Evidence  of  Admission  in  Another  Case. 
We  have  seen  that  for  the  purposes  of  the  case  in  which  it  is  filed, 
a  failure  to  deny  an  allegation  is  an  admission  of  its  truth.  It  has 
been  held  that  a  pleading  thus  admitting  an  allegation  is  not  com- 
petent evidence  in  another  case  of  such  admission. - 


Be  Read  in  Evidence.  —  Gossler  v. 
Wood,  I20  N.  C.  69.  27  S.  E-  33:  Mc- 
Ponald  V.  AIcDoiiald.  16  Vt.  6,10, 

100.  Ronipart  z'.  Lucas,  32  Mo. 
12,?;  .^^cDollald  v.  McDonald,  16  Vt. 
6jo. 

1.  Gnsslor  ;■.  Wood,  120  N.  C.  69, 
27  S.  E.  ,u. 

How  Much  of  Pleading  Must  Be 
Kead,  —  •'  in  general,  the  orator 
may  read  any  portion  of  the  de- 
fendant's answer  as  evidence,  without 
making  any  other  portion  of  the  same 
answer  evidence  in  favor  of  the  de- 
fendant- It  is  said  in  some  of  the 
cases  that  the  orator  has  no  right  to 
.select  parts  of  sentences,  but  must 
take  entire  sentences.  This  may  he 
true,  if,  by  taking  parts  of  a  sen- 
tence, the  sense  is  perverted,  or  ren- 
dered uncertain,  but  beyond  that  I  do 
not  think  the  rule  can  be  made  of 
much  significance,  although  found  in 
the  elaborate  opinion  of  the  chancel- 
lor in  the  well  known  case  of  Hart  v. 
Ten  Eyck,  2  Johns.  Ch.  62,  at  the  gist 
page."  McDonald  f.  McDonald,  16 
Vt.  630. 

"At  the  trial  of  this  case,  the  plain- 
tiff offered  in  evidence  a  portion  of  a 
sentence  of  the  answer  of  Lucas  in 
the  previous  case,  and  refused  to  read 
the  remainder  of  the  sentence,  which 
materially  quahfied  the  efifect  of  the 
portion  read,  and  the  court  refused 
to  compel  him  to  read  the  remainder. 
This  was  inanifestly  wrong,  and  is 
only  equalled  by  the  case  of  the  in- 
fidel who  undertook  to  prove  from 
the  Scriptures  the  want  of  a  deity  by 
reading  the  words  '  there  is  no  God,' 
and  omiltiug  the  preceding  words, 
'  the  fool  bath  said  in  his  heart.'  Tlie 
defendant,  however,  read  the  whole 
answer  as  a  part  of  his  evidence,  and 
we  cannot  say  that  any  error  was 
committed     materially     affecting  the 

Vol.  I 


merits    of    the    action."     Bompart    v. 
Lucas,  32  Mo.  123. 

2.  Effect  in  Another  Action  of 
Failure  to  Deny.— Bank  of  Metropolis 
;•.  Faber,  38  App.  Div.  159,  56  N.  Y. 
"  Supp-  542.  In  order  to  prove  that 
defendant  was,  at  a  certain  time,  a 
director  of  the  corporation,  an  an- 
swer filed  by  such  corporation  was 
offered  in  evidence,  in  which  there 
was  no  denial  of  the  fact  alleged  in 
the  complaint,  that  the  defendant  was 
a  director.  The  court  say  :  "  There 
was  also  offered  in  evidence  a  com- 
plaint in  an  action  brought  by  the 
Ninth  National  Bank  against  this  de- 
fendant and  otiiers,  which  alleged 
that  the  defendant,  with  others,  was 
a  director  or  trustee  of  the  company, 
and  a  copy  of  the  answer  therein, 
purporting  to  show  that  in  the  orig- 
inal, signed  and  sworn  to  by  the  de- 
fendant, there  was  no  denial  of  the 
allegation  that  he  was  a  director. 
The  court  excluded  tlie  evidence,  and 
we  think  properly,  for  the  reason 
that,  assuming,  without  deciding,  that 
the  copy  was  equally  available  as  the 
original  to  prove  any  statement 
therein  contained,  we  do  not  think 
that  the  failure  in  the  answer  to  deny 
the  allegation  of  the  complaint  as  to 
the  defendant's  being  a  director  was 
competent  proof  of  that  fact.  The 
rule  is  well  settled,  as  expressed  in 
Cook  V.  Barr,  44  N.  Y.  156,  in  regard 
to  admissions  contained  in  pleadings 
in  another  action  between  different 
parties : 

"  '  When  a  party  to  a  civil  action 
has  made  admission  of  facts  material 
to  the  issues  in  the  action,  it  is  always 
competent  for  the  adverse  party  to 
give  them  in  evidence;  and  it  matters 
not  whether  the  admissions  were  in 
writing  or  by  parol,  nor  when  nor  to 
whom  ihcv  were  made.'  " 


.IDMISSIONS. 


431 


Separate  Pleadings,  One  Denying,  Another  Admitting  Facts  Alleged. 
A  pleading  may  consist  of  different  coinits,  one  denying  and  the 
other  admitting  the  facts  alleged.  In  such  case  the  coimt  contain- 
ing the  admission  is  held  not  to  be  competent  evidence  of  an  admis- 
sion as  to  another  coinit."  But  again  it  is  held  that  where'  an 
admission  in  a  pleading  is  coupled  with  an  affirmative  allegation, 
the  adverse  party  cannot  rely  upon  the  admission  unless  he  accepts 
it  as  modified  by  the  accompanying  allegation/  which  is  only 
another  wav  of  saving  that  the  jjleading  niust  be  taken  as  a  whole. 

Where  Party  Compelled  to  Elect  Between  Inconsistent  Pleadings. 
Where  a  partv  setting  up  inconsistent  pleadings  is  compelled  to 
elect  upon  which  he  will  rely  and  makes  his  election  to  proceed 
upon  one  of  them,  the  other  is  held  not  to  be  competent  evidence 
against  him.' 

Not  Competent  Evidence  in  Favor  of  the  Pleader.  —  Where  a  pleading 
is  offered  in  evidence  in  another  action  for  the  purpose  of  proving 
an  admission,  it  stands  uijon  the  same  footing  as  other  admissions 
and  cannot  be  used  bv  the  iiartv  himself  in  his  own  behalf."     And 


3.  Glenn  v.  Sumner,  1,^2  U.  S. 
156.  10  Sup.  Ct.  41. 

Admission  and  Denial  in  Different 

Counts    of     Same     Pleading Thus 

it  has  heen  held  that  where  in  an 
action  for  a  libel  a  defendant  pleaded 
not  guilty,  and  a  justification  that  the 
adniis.sion  of  the  libel  contained  in 
the  latter  plea  could  not  be  used 
either  to  estop  the  defendant  to  in- 
sist on  his  denial  or  as  evidence  to 
prove  a  publication  on  the  issue 
joined  on  the  former  plea. 

Whitaker  t'.  Freeman,  i  Dev.  (N. 
C.)  271,  29  Fed.  Cas.  No.  jy.s^?^- 

So  it  was  held  in  McDonald  v. 
Southern  Cal.  Ry.  Co.  loi  Cal.  206, 
35  Pac.  643,  that  an  admissinn  or  aver- 
ment in  a  verified  answer,  in  a  sepa- 
rate and  distinct  defense,  as  to  the 
fact  that  the  defendant  was  a  con- 
solidated corporation,  is  not  evidence 
against  the  defendant  upon  issues 
tendered  in  other  defenses  contained 
in  the  same  answer,  consisting  of 
denials  only. 

4.  Vanderbilt  z\  Sclircyer,  28  N. 
V.  Sup.  Ct.  537. 

5.  Party  Compelled  to  Elect, 
Pleading  Abandoned  Not  Competent. 
"  The  appellaTits,  in  the  first  para- 
graph of  their  answer  denied  the 
speaking  and  publishing  of  the  words 
alleged,  and  in  the  second  paragraph 
admitted  the  publication  and  said  the 
slanderous  words  were  true.     On  mo- 


tion of  the  plaintiff  the  defendants 
were  required  to  elect  and  make 
their  defense  either  on  the  first  or 
second  paragraph.  They  elected,  re- 
serving exceptions,  the  first  para- 
graph as  their  defense,  and  when  the 
plaintiff  attempted  to  prove  the 
words  spoken  by  the  wife,  he  was  al- 
lowed, over  the!  objections  of  the  de- 
fendants, to  read  to  the  jury  the  sec- 
ond paragraph  of  the  answer  that 
had  been  rejected,  as  an  admission 
by  the  defendants  that  the  slanderous 
words  were  spoken  as  alleged.  This 
was  error.  The  defense,  however 
properly,  had  been  denied  the  right 
to  rely  on  the  plea  of  justification  by 
being  required  to  elect,  and,  with 
this  defense  cut  off,  the  plaintiff  was 
nevertheless  permitted  to  read  it  to 
the  jury  as  evidence  establishing  his 
cause  of  action,  and  the  defense  de- 
nied the  right  to  show  that  the  words 
spoken  were  true.  It  was  clearly  in- 
competent as  against  the  defendants, 
or  either  of  them,  and  for  this  error 
the  judgment  must  be  reversed  as  to 
both  defendants.  In  Rooney  v.  Tier- 
ney,  82  Ky.  253,  it  is  held  that  in 
slander,  the  pleas  of  not  guilty  and 
justification  are  inconsistent,  and  the 
case  of  Harper  v.  Harper,  10  Bush 
447,  is  no  longer  the  law."  Lane  v. 
Bryant,  100  Ky'  138,  36  L.  R.  A.  709, 
37  S.  W.  5S4. 

6.     Page  V.  Page,  15  Pick.  368:  St. 
Jolin   7'.    O'Connel,   7    Porter    (Ala-) 

Vol.  I 


432 


.ll>MJSSWi\S. 


the  rule  is  the  same  as  to  the  competency  of  a  pleading  withdrawn 
u\  the  party  by  whom  it  is  filed.'  But  of  course,  like  other  writings 
offered  to  prove  declarations  against  interest,  if  a  part  of  the 
pleading  is  offered  the  party  filing  it  is  entitled  to  have  all  of  it 
bearing  on  the  question  read  in  evidence." 

Any  statement  made  in  the  pleading  tending  to  explain  or  nullify 
the  admission  relied  upon  may  be  disproved  by  the  party  offering 
the  pleading.'-' 

Explanatory  Parts  of  Other  Pleadings  Competent.  —  And  SO  much  of 
the  other  pleadings  in  the  same  case  as  ma)'  be  necessary  to  explain 
and  give  eft'ect  to  or  limit  the  statements  made  in  the  pleading 
offered,  and  no  more,  is  comix'tent  evidence  in  connection  with  it.'" 

Pleading  Filed  or  Admissions  Made  Therein  by  Mistake.  —  The  admis- 
sions contained  in  a  pleading  in  another  action  are  not  conclusive. 
And  the  party  may  show  that  thej  facts  were  stated  or  the  pleading 
filed  by  mistake.  And  it  has  been  held  that  if  an  admission,  made 
in  a  pleading,  was  decreed  in  the  action  in  which  the  pleading  was 
filed  to  have  been  made  by  mistake,  it  is  not  competent  evidence." 

In   Criminal   Cases   and   Actions   to   Recover   Penalties,   Not   Admissible. 

By  statute  of  the  L'nited  States  no  pleading  of  a  party  obtained  by 
means  of  a  judicial  proceeding  in  this  or  any  foreign  coimtry  can 
lie  given  in  evidence  or  in  any  manner  used  against  him  or  his 
property  or  estate  in  any  court  of  the  United  States  in  any  criminal 
proceeding,  or  for  the  enforcement  of  any  penalty  or  forfeiture. '- 


466;   Ellzey  V.  Lane,  4  Miinf.    (Va.) 
66. 

7  Sweetzer  v.  Clafliii,  74  Tex.  667, 
12  S.  W.  395. 

8.  McNutt  V.  Dare,  8.  Rlackf. 
(Ind.)  35 ;  Roberts  v.  Tcnnell,  3  T. 
B.  Moil.  (Ky.)  247;  Giklcrsleevc  7'. 
Landoii,  73  N.  Y.  609;  Bompart  v. 
I.ucas,  32  Mo.  123;  McDonald  <■. 
McDonald.   16  Vt.  630. 

9.  Different  Statements  Must  Be 
Construed  Together.  —  Gildcrsleeve 
I'.  Landon,  73  N.  Y.  609.  was  an 
action  to  recover  certain  personal 
property,  which  plaintiiT  claimed  to 
have  purchased  in  good  faith  from 
his  son.  The  dcfcndanl  admilled  in 
his  answer  tliat  plaintiff  purcliascd, 
hut  alleged  that  he  did  so  with  knowl- 
edge of  defendant's  prior  mortgage.  It 
was  held  that  the  statements  must  he 
taken  and  construed  together;  and  if 
relied  on  to  establish  the  purchase,  it 
must  also  be  held  as  establishing  that 
it  was  made  by  plaintifT  with  knowl- 
edge of  the  mortgage;- but  that  plain- 
tiff, if  he  i-elied  on  the  admission, 
could,  and  it  was  incumbent  upon 
him,  to  disprove  the  allegation  of 
knowledge. 

Vol.  I 


10.  Roberts  v.  Tennell,  3  T.  B. 
Mon.  (Ky.)  247;  Eldridge  ?■.  Dun- 
can, I  B.  Mon.  (Ky.)  lOi  ;  Wheeler 
V.  Styles,  28  Te.x.  240;  Clark  v. 
Spears,   7   Blackf.    (Ind.)    96. 

How  Much  of  Other  Pleadings 
Competent. —  Thus  it  was  said  in 
Clarke  v.  Robinson,  5  B.  Mon.  (Ky.) 
35 :  "  We  are  also  of  opinion  that 
the  court  erred  in  permitting  the 
plaintiff  to  read  the  record  of  the 
chancery  suit  above  mentioned,  as 
evidence  to  the  jury,  the  same  hav- 
ing been  objected  to  by  the  defend- 
ant. The  answer  of  the  defendant 
was  undoubtedly  admissible  against 
him  ;  but  the  bill  was  only  admissible 
so  far  as  was  necessary  to  explain 
the  answer,  and  could  not  be  made 
evidence  by  the  plaintiff,  who  had 
filed  it.  even  to  disprove  the  answer 
read  by  him,  and  much  less  to  prove 
its  own  statements;  and  the  answer 
of  the  assignee  could  not  he  evidence 
against  the  assignor." 

11.  Currier  v.  Esty,  116  Mass.  577. 

12.  U.  S.  Rev.  Stat.  §860; 
Johnson  v.  Donaldson,  ^  Fed.  22 ; 
Daly  V.  Brady,  69  Fed.  285. 


AVMISSJUAS. 


433 


And  it  may  be  doubted  whether,  independently  of  such  a  prohibi- 
tory statute,  such  use  of  a  pleading  as  evidence  would  be  permitted.'" 

Lost  Pleadings.  —  If  a  pleading  containing  an  admission  be  lost, 
seconilary  evidence  of  its  contents,  by  copy  or  otherwise,  may  be 
made." 

Judgment  Founded  on  Pleading  Held  Void,  or  Action  Dismissed,  Pleading 
Still  Competent  Evidence.  —  The  competency  of  a  pleading  as  evidence 
of  an  admission  does  not  depend  upon  the  result  of  the  action  in 
which  it  was  filed.  Therefore,  although  the  judgment  or  proceed- 
ing founded  upon  such  pleading  is  decreed  to  be  void,  or  the  action 
is  dismissed  before  reaching  a  judgment,  still  the  pleading  is  com- 
petent to  prove  any  admission  contained  in  it.'^ 

Equity  Pleadings  As  Evidence  in  Actions  at  law.  —  The  effect  of 
equity  pleadings  in  suits  in  equity  will  be  considered  separately. 
Rut  pleadings  in  suits  in  equity  may  be  ofifered  as  evidence  in  an 
action  at  law.  When  they  are  they  are  usually  held  to  be  admissible 
on  the  same  principle  and  under  the  same  conditions,  that  pleadings 
in  other  actions  at  law  are  admitted."  But  the  authorities  are  not 
uniform  on  the  subject.  There  are  cases  holding,  for  example,  that 
a  bill  in  equity  is  not  admissible  as  evidence  against  the  complainant 
in  an  action  at  law  to  prove  any  fact  alleged  or  denied  in  it,  but  only 
to  show  that  such  a  bill  did  exist,  and  that  certain  facts  were  in  issue 
between  the  parties.^^ 


13.  Johnson  v.  Donaldson,  3  Fed. 
22. 

14.  Ponder  v.  Cheaves,  104  Ala. 
307,  16  So.  145'. 

15.  Starns  v.  Hadnot,  45  La.  Aim. 
318,  12  So.  561  ;  Bore  i'.  Quierry,  4 
Marl.   (La.)   545,  6  Am.  Dec.  713. 

16.  Equity  Pleadings  Competent 
in  Action  at  Law.  —  Georgia.  —  La- 
mar z:  Pcarre.  90  Ga.  377,  17  S. 
E.  92- 

Illinois.  —  Kankakee  &  S.  R.  Co.  v. 
Horan,  131  111.  288,  23  N.  E.  621; 
Fairbanks  v.  Badger,  46  111.  App.  644; 
VVadsworth  -'.  Duncan,  164  III.  360, 
45  N.  E.  132- 

Indiana.  —  Boots  v.  Canine,  94 
Ind.  408. 

New  York.  —  Ford  v.  Belmont,  7 
Rob.  97. 

North  Carolina.  —  Kiddie  v.  De- 
brntz,  r  HajTv.  420. 

Pennsylvania.  —  Kline  z'.  First  Nat. 
Bank,   (Pa.  St.,)   15  Atl.  433. 

Tc.vas.  —  Buzard  v.  McAnnlty,  77 
Tex.  438,  14  S.  W.  138. 

IVest  Virginia.  —  Wilson  v.  Phoe- 
nix etc.  Mfg.  Co..  40  \\'.  Va.  413,  21 
S.  E.  1035,  $2  Am.  St.  Rep.  8go. 

17.  Cases  Holding  Same  Incompe 


tent  to  Prove  Admissions.  —  Doe  v. 

Sybourn,  7  T.  R.  2:  Page  v.  Page.  15 
Pick.  (Mass.)  368:  .A.dams  v.  Mc- 
Millan, 7  Port.  (.Ala.)  73;  Duff  v. 
Duff,  71  Cal.  513,  12  Pac.  .=;7o;  Mc- 
Cormick  v.  Wilcox.  25  111.  247; 
Cooler  V.  State,  5.1;  Ala.  162;  Stetson 
7'.  Goldsmith,  30  Ala.  602 :  Meyer  z'. 
Blackemore,  54  Miss.  570;  Rees  z'. 
Lawless,  4  Lift.   (Ky.)  218. 

"  The  question  whether  a  bill  in 
equity,  or  a  libel  in  the  admiralty,  can 
be  used  in  evidence  as  a  confession 
by  the  party  filing  it.  of  the  particu- 
lar facts  stated  therein,  has  been  the 
subject  of  much  doubt.  ]\Ir.  Phil- 
lips, though  he  admits  there  is  a 
conflict  of  decisions,  inclines  to  the 
opinion  the  evidence  ought  to  be  re- 
ceived. I  Phil.  Ev.  371  ;  2  Phil.  Ev. 
28.  Mr.  Greenleaf  says  it  is  admissi- 
ble, though  very  feeble  evidence,  so 
far  as  it  may  be  taken  as  the  sugges- 
tion of  caunsel.  i  Greenl.  Ev.  225 ; 
3  Greenl.  Ev.  263.  Mr.  Daniell, 
though  he  does  not  consider  it  evi- 
dence at  law,  declares  it  is  so  in 
equity.  2  Daniell,  Ch.  Pr.  976.  On 
the  citlier  hand.  Mr.  Gurley  (Kq.  Ev.. 
2(1  Ed-  426,)  denies  that  the  state- 
ments of  fact   in  a  bill  can  be  used 


28 


Vol.  I 


434 


.IDMJS.SIONS. 


Only  Competent  As  Evidence  of  a  Disputable  Admission.  —  A   pleading 

filed  in  another  suit  is  not  a  judicial  a<lniissi()u,  in  the  strict  sense, 
as  being  conclusive.  It  stands  rather  on  the  footing  of  non-judicial 
admissions  which  may  be  disproved."*  The  strength  of  the  admis- 
sion may  he  increased  by  reason  of  the  fact  that  it  appears  in  a 
pleading,  particularly  if  it  is  verified.  But  it  is  nevertheless  open 
to  dispute  or  explanation  by  the  i^arty  filing  it  the  same  as  any  non- 
judicial admission.  In  this  it  differs  materially  from  an  admission 
made  in  a  pleading  in  the  action  on  trial. 

Failure  to  Assert  Cause  of  Action  or  Defense  in  Pleading  in  Another 
Action. —  .\  pleading  in  another  action  may  be  competent  not  only 
for  the  pur])ose  of  proving  an  express  admission  contained  in  it, 
but  it  may  be  admissible  to  show  that  in  another  action  wliere  a 
party  was  called  upon  to.  or  might  have  made  the  same  claim  of  a 
cause  of  action  or  defense  that  hd  is  now  asserting  in  the  cause  on 
trial,  no  such  claim  was  made.'"  This  is  upon  the  theory  that  a 
failure  to  make  a  claim  when  an  opportunity  offers  is  an  admission 
that  no  such  claim  exists.  Rut  to  render  a  pleading  competent  to 
prove  such  omission  it  must  ajipear  that  the  claim  whether  of  a 
cause  of  action  or  defense,  was  one  that  could  properly  have  been 
made  in  that  action,  and  was  material  in  his  behalf.-" 


against  the  complainant  as  confes- 
sions. 

"Tn  Boileaii  r.  Rutlin.  2  Excli.  664. 
decided  in  1848.  the  conrt  of  ex- 
clieqner,  after  very  careful  examina- 
tion of  all  the  previous  anthorities,  at 
law  and  in  equity,  in  England  and 
Ireland,  came  to  the  decision  that  a 
bill  in  chancery  is  not  evidence  of  the 
truth  of  the  facts  stated  in  it.  as 
against  the  party  in  whose  name  it 
is  filed,  even  though  his  priority  he 
.shown;  hut  is  only  admissible  to 
show  that  a  suit  was  instituted,  and 
the  subject-matter  of  it.  I  consider 
this  decision  to  be  in  conformity 
with  the  weight  of  authority  in  this 
country.  The  American  cases  arc- 
collected  by  Cowen  &  Hill  (volume 
4,  p.  48.)  More  recent  decisions  are 
Adams  z:  McMillan.  7  Fort.  (Ala.") 
7,3 ;  Burden  v.  Cleveland,  4  Ala.  225 ; 
Isaac's  Lessee  v.  Clarke,  2  Gill  i." 
Church  v.  Shelton,  2  Curt.  271.  5 
Fed.  Cas.  No.  2714. 

18.  Starkweather  v.  Kittle.  17 
Wend.   (N.  Y.)   20. 

Is  a  Disputable  Admission.  —  Thus 
in  Solomon  Ry.  Co.  i'.  Jones,  ^^o  Kan. 
601.  2  Pac.  657,  it  is  said:  "And 
while  an  allegation  in  a  verified  peti- 
tion in  another  case  is  not  an  eslop- 
■pol   and   does   not   conclude   the  party 

Vol.  I 


making  it — so  the  court  instructed — it 
is  coinpetent  evidence  against  him. 
just  as  a  declaration  or  admission 
made  by  him  in  any  other  manner  and 
place. 

"  So  it  has  been  held  that  allegations 
in  a  petition  and  an  affidavit  for  an 
attachment  are  admissible  only  in 
evidence,  but  not  conclusive  in  favor 
of  one  not  a  party  to  the  suit,  hence 
such  allegations  are  open  to  amend- 
ment and  correction  by  a  proof  of  er- 
ror." 

Vredenburgh  v.  Baton  Rouge 
Sugar  Co.,  52  La.  .A.nn.  1666,  28 
So.   122. 

19.  Clemens  '■.  Clemens,  28  Wis. 
6,17.  9  Am.  Rep.  520. 

20.  Failure  to  Plead  in  Another 
Action.  —  In  Melvin  v.  Whiting,  i.? 
Pick.  (Mass.)  184,  one  of  the  ques- 
tions in  the  case  was  as  to  the  right 
of  the  defendant  to  a  several  fishery 
in  the  Mcrrimac  River.  The  plead- 
ings in  a  former  action,  in  which  the 
defendant  made  oilier  claims  to  the 
fishery,  but  did  not  allege  or  claim  a 
several  fishery  therein,  were  offered 
in  evidence.  The  pleadings  were  re- 
jected. It  was  insisted  that,  having 
Iiad  an  opportunity  in  a  former  ac- 
tion to  plead  a  several  fishery,  and 
liaung  failed  to  do    so,  it  was  tanta- 


IPM/SSIOXS. 


435 


Competent  to  Prove  a  Fact  As  Well  As  an  Admission  of  a  Fact.  —  We 
are  here  considering  pleadings  as  admissions  only.  TUit  to  avoid 
misunderstanilings  it  should  be  noted  that  this  is  not  the  only  pur- 
])ose  f(ir  which  they  may  be  admissilile.  (  )n  the  contrary,  thev  may 
be  and  freqtiently  are  coin])ctent  as  direct  and  original  evidence  of 
a  fact  in  issue.-' 

And  to  Prove  Former  Adjudication. —  So  the  pleadings  in  another 
action  may  be  competent  to  prove  a  former  adjudication  which  will 
be  considered  under  other  heads. -" 

AUeg'ation  of  a  Conclusion.  —  Like  other  admissions,  such  as  are 
made  in  a  jileadint;  must  l)e  of  some  fact  materia!  to  the  issue  to 
render  the  pleading  competent.  An  allegation  or  statement  of  a 
conclusion  of  law  is  not  competent  as  an  admission. -■'' 

On  a  Subsequent  Trial  of  the  Same  Cause.  —  Admissions  may  be 
made  for  the  purposes  of  the  trial  only  which  will  not  be  binding 
or  even  competent  as  evidence  on  a  subsequent  trial.-*  But  as  a 
rule  this  is  not  so  of  admissions  in  the  pleadings.  They  are  admis- 
sible against  the  partv  even  where  they  are  superseded  by  amended 


mount  to  an  admission  on  liis  part 
that  lie  was  not  the  owner  of  the  sev- 
eral fishery  in  the  river,  but  it  was 
held  that  it  was  not  material  for  the 
defendant  in  the  prior  action  to  set 
up  a  several  and  an  exclusive  fishery, 
and  his  omitting  to  plead  it  as  sucli 
was  not  an  admission  that  lie  had  no 
such   exclusive   rights. 

21.  Competent  as  Independent 
Evidence  of  a  Fact. —  Clemens  ?'. 
Clemens.  2S  Wis.  6,?7.  9  .\ni.  Rep. 
520.      Sec    "  Pl.E.\DINf,S." 

Thus  in  Radclyfife  v.  Barton,  ifii 
IMass.  327,  37  N.  E.  :i73,  it  was  held 
that  the  pleading's  in  an  action  on  a 
judgment  are  admissible  in  a  subse- 
quent action  of  audita  querela,  seek- 
ing to  recover  the  amount  paid  on 
such  judgment  to  show  that  the 
issues  in  both  cases  are  the  same. 

So  in  Church  z'.  Shelton,  2  Curt. 
271,  5  Fed.  Cas.  No.  2714.  it  was 
held  that  ordinarily  a  libel,  filed 
by  a  party  to  another  suit,  cannot 
be  given  in  evidence  against  him 
as  his  confession.  But  if  he  brought 
the  suit  as  a  trustee,  and  recovered, 
the  cestui  que  trust  may  put  the 
whole  record  in  evidence,  to  show  the 
recovery  and  the  title  on  which  it 
rested. 

Again  it  is  held  that  the  judgment 
roll  in  one  action  is  admissible  to 
show  the  election  of  tlie  party  to 
bring  an  action  e.v  conlnutn  as  a 
bar  to  (he  maintenance  of  an  action 


for  tort.  Terrv  v.  Muiiger,  121  N. 
Y.  161,  24  N.  "E.  272,  18  Am.  St. 
Rep.  803.  8  L.  R.  A.  216. 

22.  Sec      "  Ple.vmngs  ;"       "  Res 

.^D.TUDICkT.S." 

23.  Stevens  v.  Crane,  116  Mo.  408, 
22  S.  W.  783. 

24.  Admission    for    the    Purposes 

of  the  Trial IiiMcKinney  v.  Town 

of  Salem,  77  Ind.  213,  it  is  said : 
"  The  court  admitted  in  evidence  an 
agreement  made  between  the  parties 
at  the  time  the  case  was  tried  in  the 
justice's  court.  This  agreement  re- 
cites that  '  the  parties  to  the  above 
entitled  cause,  for  the  purpose  of 
saving  time  and  obviating  the  neces- 
sity of  bringing  witnesses  to  testify, 
do  hereby  agree  that  the  following 
facts  are  true,  for  the  purpose  of  trial 
before  said  justice,  and  that  the  same 
may  be  taken  as  true  by  him.'  The 
recital  limits  the  agreement  to  the 
trial  before  the  justice,  and  restricts 
its  operation  to  the  purposes  of  that 
trial,  and  the  court  erred  in  admit- 
ting it  in  evidence  upon  the  trial 
of  the  cause  on  appeal.  Admissions 
made  simply  for  the  purposes  of  a 
particular  trial,  cannot  be  used 
against  the  party  upon  another  and 
different  trial.  Wheat  f.  Ragsdale, 
27  Ind.  igi  ;  Hays  i'.  Hynds,  28  Tiid. 
531.  For  the  error  in;  admitting  this 
evidence  the  judgment  must  be  re- 
versed." 

Vol.  I 


4.^6 


ADMJSSIUA'S. 


pleadiiijjs  or  otherwise  taken  out  of  the  case,  as  pleadings,  between 
the  first  and  subsequent  trials."^ 

Pleadings  of  Third  Parties  in  Other  Actions  Sometimes  Competent. 
A  pleading  of  a  third  party,  in  another  action,  may  be  competent 
for  certain  purposes,  although  generally  any  statements  contained 
in  such  a  pleading  would  be  hearsay,  and  both  incompetent  and 
immaterial.  They  may  be  competent,  however,  not  as  admissions, 
but  for  the  purpose  of  contradicting  a  witness,-"  or  to  prove  a  fact 
material  to  the  issue  on  trial.-'  But  the  principles  upon  which 
such  pleadings  are  admitted  differ  entirely,  as  will  be  seen,  from 
those  upon  which  the  admissibility  of  pleadings  by  the  parties  to  the 
action  are  rested. 

e.  By  Dcmitrrcr.  —  The  rules  of  law  applicable  to  admissions  by 
demurrer  are  materially  diiiferent  from  those  relating  to  admissions 
contained  in  other  pleadings.  A  demurrer  does  not  admit  the  facts 
alleged  in  the  ])leading  to  which  it  is  addressed  for  the  pur])oses  of 
the  trial,  but  only  for  the  purposes  of  the  demurrer,  or  as  testing 
the  sufficiency  of  such  pleading.  Therefore,  although  a  demurrer 
admits  for  its  own  purpose  that  all  of  the  facts  alleged  are  true, 
if  it  is  overruled  the  admission  can  be  of  no  avail  at  the  trial,  but 
the  facts  thus  and  for  such  purpose  admitted,  may  be  controverted 
by  subsequent  pleadings  and  disproved,  and  the  demurrer  is  no 
evidence  as  an  admission  of  their  truth. 

Not  Competent  Evidence  in  Another  Action.  — It  follows  that  a  demur- 
rer in   one   action   is   not   comjictent   in  another  as   an  admission.-' 


25.  Bill  of  Particulars  With- 
drawn  111   Byrne  v.   Byrne,  47  III. 

507,  it  was  held  that  where  the  de- 
fendant originally  pleaded  the  gen- 
eral i.ssiie.  set-off.  and  the  statute  of 
limitations  upon  which  the  trial  was 
had  and  a  verdict  found  against  him. 
and  a  new  trial  was  awarded,  and 
before  such  trial  he  withdrew  the 
claim  of  set-off  and  bill  of  particulars 
filed  therewith,  such  hill  of  particu- 
lars was  nevertheless  competent  evi- 
dence against  the  defendant  upon  the 
second  trial  as  showing  a  running  ac- 
count between  the  parties. 

26.  Meade  v.   Black,  22  Wis.  2,^2. 

27.  Pleadings  of  Third  Parties 
for  What  Purposes  Competent. 
Barlow    I'.    Dupuy.     I     Mart.     (La.) 

442- 

Thus  in  an  action  involving  title 
to  real  estate  the  plaintiff  had  testi- 
fied that  he  had  been  in  possession 
of  tlie  land  by  a  third  person  men- 
tioned, his  tenant,  and  that  said  party 
had  never  made  any  claim  of  title 
in  himself  to  the  land.  TIic  plead- 
ings in  another  action  brought  by 
the  plaintiff  against  this  same  third 
Vol.  I 


party  to  recover  possession  of  the 
same  land  were  offered  in  evidence 
including  an  answer  by  such  party 
claiming  to  be  the  owner  and  entitled 
to  the  possession  of  the  land.  The 
answer  was  held  to  be  admissible 
to  prove  the  fact  that  said  third 
party  had  made  claim  of  title  to  the 
property,  thus  contradicting  the  tes- 
timony of  the  plaintiff  and  on  the 
further  ground  that  it  "  tended  to 
illustrate  and  explain  the  character 
of  Odell's  possession."  Meade  v. 
Black,  22  Wis.  232. 

28.  Auld  V.  Hepburn,  i  Cranch 
C.  C.  122.  2  Fed.  Cas.  No.  650: 
Auld  V.  Hepburn,  i  Cranch  C.  C. 
166.   2   Fed.    Cas.    No.   651. 

Demurrer  Not  Competent  As  An 
Admission. —  In  Kankakee  &  S.  R. 
Ry.  Co.  V.  Horan.  131  111.  288,  23  N. 
E.  621.  it  is  said:  "It  appeared  that 
said  bill  was  demurred  to  in  the 
court  where  it  was  filed  by  the  de- 
fendanls  thereto,  and  it  is  insisted 
that  said  demurrer  should  have  llu- 
effect  here  of  an  admission  th.il  the 
allegations  of  the  bill  are  true.  This 
cannot  be  conceded.     The  demurrer, 


ADMISSIONS. 


437 


f.  Pleading  Not  Filed.  —  Tlie  filing  of  a  pleading,  if  signed,  veri- 
fied, or  authorized  b_\-  the'  party,  is  not  necessary  to  its  competency 
as  evidence  of  an  admission.  It  is  none  the  less  an  admission 
because  not  filed.-''  But  a  pleading  sworn  to  by  a  party  but  not 
filed,  prepared  h\-  his  attorne\-  on  the  client's  statement  to  him  of 
the  facts,  is  privileged  in  the  hands  of  the  attorne\',  and  is  not 
admissible  in  evidence  against  the  client.^" 

g.  Pleading  Snl^crseded  by  .hiiended  Pleading  Not  Evidence  As 
E.risting  Pleading.  —  When  an  amended  pleading  is  filed  it  super- 
sedes and  takes  the  place  of  tlie  original  pleading.  Therefore  the 
original  pleading  no  longer  exists  as  a  pleading  in  the  cause.''^ 

Not  Conclusive  As  an  Admission.  — It  follows  that  not  being  a  plead- 
ing in  the  cause  on  trial,  any  admissions  it  may  contain  are  not 
conclusive  as  against  the  party  filing  the  pleading,  and  it  can  only 
be  treated  as  an  admission  in  the  case  by  introducing  it  in  evidence.'''- 

Is  Evidence  As  an  Admission.  —  But  it  does  not  follow  that  the 
pleading,  thus  superseded,  is  not  competent  evidence.  On  the  con- 
trary,  it   is  competent  in  the  cause  in  which  it  was  filed,   or  any 


it  is  true,  was  an  admission  of  the 
truth  of  such  matters  in  the  bill  as 
were  well  pleaded ;  but  it  was  such 
admission  only  for  the  purpose  of 
obtaining  the  judgment  of  the  court 
as  to  the  sufficiency  of  tlie  hill  on 
its  face  to  entitle  the  complainant 
to  relief,  or,  rather,  it  was  a  plead- 
ing by  which  the  defendant  demanded 
the  judgment  of  the  court  whether 
he  should  be  compelled  to  answer 
the  bill  or  not.  Story,  Eq.  Plead. 
§  436.  For  no  other  purpose  can  it 
be  held  to  be  an  admission  of  the 
allegations  in  the  bill,  unless  it  ap- 
pears, as  it  does  not  here,  that  the 
demurrer  being  held  insufficient,  the 
defendant  elected  to  abide  by  his  de- 
murrer, and  permitted  a  decree  to 
go  against  him  upon  the  facts  thus 
admitted." 

29.     Burnham    ;■.    Roberts,    70    111. 

Ip- 
so.    Burnham    i'.    Roberts,    70    111. 

IQ- 

31.  Effect  of  Filing  Amended 
Pleading. —  Gilman  r.  Cosgrove,  22 
Cal.  356;  Folger  v.  Boyington.  67 
Wis.  447,  30  N.  W.  715;  Vogel  v. 
Osborne,  32  Minn.  167,  20  N.  W.  i2g; 
Holland  v.  Rogers,  33  Ala.  251; 
Boots   V.    Canine,  04   Ind.   408. 

32.  Original  Pleading  Must  Be 
Offered  in  Evidence Mott  v.  Con- 
sumers Ice  Co.,  73  N.  Y.  543 ;  Hol- 
land V.  Rogers,  33  Ark.  251 ;  Vogel 
V.  Osborne,  32  Minn.  167,  20  N.  W. 


12;  Reeves  i^  Cress,  80  Minn.  466, 
83  N.  W.  443 ;  Bailey  v.  O'Bannon, 
28  Mo.  App.  39;  Fogg.  V.  Edwards, 
27  N.  Y.  Sup.  Ct.  90. 

Thus  in  Folger  v.  Boyinton,  67 
Wis.  447,  30  N.  W.  715,  where  on  an 
appeal  from  a  justice's  court,  the 
complaint  was  amended,  it  was  held 
that  the  defendant  could  not  read  the 
original  complaint  as  before  amend- 
ment, to  the  jury,  the  said  complaint 
not  having  been  offered  in  evidence, 
the  court  saying:  "The  pleadings 
in  the  cause  may  be  referred  to  by 
counsel  or  the  court,  to  ascertain 
the  nature  and  scope  of  the  action, 
and,  if  there  is  an  answer,  the  real 
issues  in  the  cause,  and  for  no  other 
purpose.  But  they  cannot  be  re- 
feired  to  as  proof  of  any  fact,  unless 
they  are  introduced  in  evidence  on 
the  trial,  with  at  least  some  chance 
for  explanation.  The  original  com- 
plaint was  sought  to  be  read  to  the 
jury  to  show  what  the  allegation  of 
the  plaintiffs  was  as  to  the  contract. 
Thisi  was  to  prove  the  admissions  of 
the  plaintiffs  as  to  what  it  was,  and 
therefore  should  have  been  intro- 
duced as  any  other  testimony  in  the 
case,  so  as  to  give  the  plaintiffs  a 
chance  to  explain  such  an  admission. 
But,  that  old  complaint  not  then  be- 
ing the  complaint  in  the  cause,  it 
should,  of  course,  be  introduced  in 
evidence  like  the  records  in  another 
case." 

Vol.  I 


438 


ADMISSfOK'S. 


other  action,  not  as  a  pleaclintj,  hut  as  any  other  written  instru- 
ment containing  an  admission  against  interest,  provided  it  be  signed 
or  acquiesced  in  by  the  party,  or  be  signed  and  filed  by  an  attorney 
having  authoritv  to  bind  him  by  statements  so  made.''"' 

It  has  been  held  that  a  pleading  superseded  by  an  amended  plead- 
ing is  not  competent  evidence  as  an  admission."^      I'.ut  the  cases  cited 


33.  Pleading  Superseded  by 
Amended  One  Competent  Evidence. 
Alabama.  —  Davidson  ii.  Roths- 
child, 49  Ala.  104. 

California.  —  Coward  Z'.  Clanton, 
-9  Cal.  23,  21   Pac.  359. 

Dakota.  —  Gale  t'.  Shillock,  4  Dak. 
182,  29  N.  W.  661. 

Illinois.  — McNM  v.  Welch,  26 
III.  482. 

Indiana.  —  Boots  v.  Canine,  94  Ind. 
408;  Baltimore  O.  &  C.  R.  Co.  v. 
Evarts,  112  Ind.  533,  14  N.  E.  369. 

Iowa. —  Ludwig  v.  Blackshere,  102 
Iowa  366,  71  N.  W.  356. 

Kansas.  —  Juneau  Z'.'Stunklc,  40 
Kan.   756,  20   Pac.   473. 

Kentucky.  —  Edwards  z>.  Matting- 
ly,  21  Ky.  Law  1045,  53  S.  W.  1032. 

Minnesota.  —  Vogel  v.  Oshorne,  32 
Minn.  167,  20  N.  W.  129;  Reeves  v. 
Cress,  80  Minn.  466,  83  N.  W.  443. 

Missouri.  —  Spurlock  v.  Missouri 
Pac.  Ry.  Co.,i  125  Mo.  404,  28  S.  W. 
634;  Schad  7'.  Sharp,  95  Mo.  573,  8 
S.  W.  549;  Walser  v.  Wear,  141  Mo. 
443.  42  S.  W.  928 ;  Bailey  v.  O'Ban- 
non,   28    Mo.    App.    39. 

Nebraska.  —  Miller  v.  Nicodcmus, 
58  Neb.  35'2,  78   N.   W.   518. 

Nc'cs.'  York.  —  Strong  v.  Jwight,  1 1 
Abb.  Pr.  319:  Mott  7:  Consumers 
Ice  Co.,  7T,  N.  Y.  543 ;  Meyer  ?■. 
Campbell,  i  Misc.  283,  20  N.  Y.  Supp. 
705;  Herzfeld  v.  Reinach,  44  App. 
Div.  326,  60  N.  Y.  Supp.  658 ;  New 
York  etc.  Trans.  Co.  v.  Hurd,  51 
N.  Y.  Sup.  Ct.  17;  Fogg  V.  Edwards, 
27  N.  Y.  Sup.  Ct.  90. 

North  Carolina. — Adams  v.  Utley, 
87  N.   C.  3S6. 

South  Carolina.  —  Willis  v.  Tozer, 
44, S.  C.  I.  21  S.  E.  617. 

Texas.  —  Barrett  v.  Fcatherston 
(Tex.  Civ.  .'N.pp.),  35  S.  W.  11,  36 
S.  W.  245 ;  Goodbar  Shoe  Co.  v. 
Sims  (Tex.  Civ.  App.),  43  S.  W. 
1065;  Jordan  v.  Young  (Tex.  Civ. 
App.),  56  S.  W.  762;  Southern  Pac. 
Co.  J'.  Wellington  (Tex.  Civ.  App.), 
57    S.   W.   856. 

Vol.  I 


Utah.  —  Brown  v.  Pickard,  4  Utah 
292,  9  Pac.  573;  Kilpatrick  etc.  Co. 
V.  Box,  13  Utah  494,  45  Pac.  628. 

Washington.  —  Oregon  Ry.  &  Nav. 
Co.  1'.  Dacres,   i   Wash.   195,  23  Pac. 

415- 

Wisconsin.  —  Norris  7'.  Carsjill,  ^7 
Wis.  251,  IS  N.  W.  148. 

Reasons    for    the    Rule A    full 

exposition  of  the  law  on  this  subject 
and  the  reason  for  the  rule  will  be 
found  in  Boots  7'.  Canine,  94  Ind. 
408. 

34.  Cases  Holding  Superseded 
Pleading  Incompetent.  — "  But  we 
think  the  court  erred  in  admitting 
in  evidence,  against  the  objections 
of  the  defendants,  the  original 
answers  filed  by  them  in  this  action, 
and  which  had  been  superseded  by 
the  amended  answers.  The  original 
answers  were  offered  in  evidence 
by  the  plaintiff  as  an  admission  by 
the  defendants  of  their  possession 
and  occupation  of  the  room  in  con- 
test. Whilst  it  is  true  that  pleadings 
in  a  cause  containing  admissions  of 
facts  dispense  with  the  necessity  of 
proving  the  facts  admitted,  the  rule 
applies  only  to  the  subsisting  plead- 
ings on  which  the  cause  is  tried, 
and  not  to  defunct  pleadings,  for 
which  other  and  amended  pleadings 
have  been  substituted.  It  has  doubt- 
less often  happened  that  a  pleading 
contains  admissions  made  under  a 
misapprehension  of  the  facts.  In 
such  case,  if  the  party  amends  his 
pleading,  stating  the  facts  differently, 
he  would  reap  no  benctil  from  his 
amendment,  if  the  adverse  party 
were  at  liberty  to  use  the  first  plead- 
ing as  an  admission  to  overthrow 
the  amended  pleading.  It  cannot  be 
a  sound  rule  of  evidence  which 
works  such  results  and  practically 
puts  it  out  of  the  power  of  a  party 
to  avoid  the  effect  of  a  mistake  in 
the  original  pleading. 

"The  pleading  on  which  a  party  goes 
to  trial  is  the  one  on  which  he  places 


AUAJJSSJONS. 


439 


are  not  in  harmony  with  the  weight  of  authority,  nor  do  they  seem 
to  be  supported  by  sound  reason.  Of  course  the  pleading  ceases 
to  be  conchisive  upon  the  party  when  it  is  superseded  by  an 
amended  pleading,  as  above  stated,  but  it  is  none  the  less  competent 
as  an  admission  if  it  contains  a  material  admission,  leaving  it  open 
to  the  party  filing  the  pleading  to  disprove  the  fact  admitted  by 
any  other  competent  evidence.  And  to  that  end  he  may  show 
undoubtedly,  that  the  admission  was  made  by  mistake  or  explain 
away  the  force  of  it  in  any  legitimate  way.  Some  of  the  cases 
are  based  upon  the  right  given  by  statute  to  set  up  inconsistent 
causes  of  action  or  defenses.  But  a  pleading  superseded  by  an 
amended  one,  not  being  a  pleading,  cannot  fall  within  the  rule,  if 
indeed  an  admission  can  be  held,  in  any  case,  or  for  any  reason, 
to  be  incompetent  because  another  declaration  by  the  party,  incon- 
sistent with  it,  has  been  subsequently  made.^° 


his  defense  or  cause  of  action,  and 
he  is  bound  by  its  admissions.  But 
in  many  cases  it  would  operate  as  a 
gross  injustice  to  hold  him  to  be 
bound  ]iy  the  admissions  of  a  former 
pleading,  made,  perliaps,  under  a  mis- 
take of  the  facts,  and  which  lias  be- 
come functus  officio  by  the  sub- 
stitution of  an  amended  pleading." 
Mecham  v.  McKay,  ^y  Cal  154; 
Pfister  V.  Wade,  69  Cal.  133,  10  Pac. 
369;  Smith  V.  Davidson,  41  Fed. 
172;  Stern  v.  Loewenthal,  77  Cal. 
340,  19  Pac.  579:  Ponce  v.  McElvy, 
51  Cal.  222:  Holland  v.  Rogers,  },i 
Ark.  251;  Little  Rock  &  Ft.  S.  Ry. 
Co.  V.  Clark,  58  Ark.  490,  25  S.  W. 
504;  Miles  V.  Woodward,  115  Cal. 
308,  46  Pac.  1076;  Southern  Pac. 
Co.  V.  Wellington  (Te.x.  Civ.  App.). 
36  S.  W.  1 1 14;  McGregor  v.  Sima 
(Tex.  Civ.  App.),  44  S.  W.  102 1 ; 
Corley  v.  McKeag,  9  Mo.  App.  38; 
Kimball  v.   Bellows,    13   N.   H.   58. 

35.  Such  Pleading  Competent. 
In  a  later  case  in  California  il  was 
held  that  such  a  pleading  was  com- 
petent for  the  purpose  of  contradict- 
ing the  party  as  a  witness  in  the 
cause.  Johnson  v.  Powers,  65  Cal. 
179.  3   Pac.  625. 

So  it  has  been  held  that  a  pleading 
superseded  by  an  amended  pleading 
is  competent  for  the  purpose  of 
proving  an  independent  fact  in  the 
case  for  example,  that  a  tender  and 
payment  into  court  was  made. 
Pfister  V.  Wade,  69  Cal.  133,  10  Pac. 
369. 

And    in    a    still    later    case    it    was 


said :  "  The  appellant  offered  in  evi- 
dence an  answer  of  the  respondent 
in  another  action  between  the  parties 
here,  in  whiirh  he  alleged  an  indebted- 
ness from  the  appellant  to  him  for 
commissions  for  the  sale  of  a  part 
of  this  tract  of  land  as  apf>cllaitt's 
agent.  As  the  appellant  was  con- 
tending in  this  case  that  these  sales 
were  made  by  respondent  as  his 
agent,  and  not  as  a  partner,  it  will 
be  seen  that  the  answer  contained 
a  material  admission.  But  the  re- 
spondent objected  to  the  admission 
of  the  answer,  on  the  ground  that  it 
was  superseded  by  the  filing  of 
another  answer  in  the  case.  This 
was  no  reason  for  excluding  it  as 
evidence.  No  matter  if  it  had  ceased 
to  exist  as  a  pleading  in  the  cause,  it 
was  still  binding  upon  the  respondent 
as  an  admission.  Coward  t'.  Clanton, 
79  Cal.  23,  21    Pac.  359. 

Is  Original  Pleading  Conclusive. 
Again  it  has  been  held  that  an 
original  pleading  filed  by  a  party  con- 
taining a  material  admission  is  con- 
clusive upon  the  parly  unless  it  is 
shown  that  the  admission  was  made 
by  mistake.  Oregon  Ry.  &  Nav.  Co. 
V.  Dacres,  i  Wash.  195,  23  Pac.  415. 
But  this  case  has  no  support  in  prin- 
ciple   or    on    authority. 

It  is  also  held  that  an  original 
pleading  superseded  by  an  amended 
one  may  be  considered  by  the  court 
without  being  formally  read  in  evi- 
dence. Smith  V.  Pelott,  63  Hun  632, 
18  N.  Y.  Supp.  301.  But  this  is  cer- 
tainly open  to  grave  question. 

Vol.  I 


440 


AD  MISS  IONS. 


It  has  hocn  held  also  that  wlicre  the  original  pleading  containing 
the  admission  was  signed  and  verified  hy  the  attorne)',  and  the 
amended  one,  verified  hy  the  ])arty.  denied  and  pnt  in  issue  the 
fact  admitted  in  the  first  ])leading,  the  original,  in  the  absence  of 
any  evidence  that  the  first  ])leading  was  filed  with  the  knowledge 
or  under  the  direction  of  the  party,  was  not  competent  as  evidence.^" 
It  may  properly  be  suggested  that  the  denial  in  the  amended  plead- 
ing of  the  fact  admitted  in  the  original,  went  to  the  weight  to  be 
given  to  the  admission  rather  than  to  the  competenc\-  of  the  plead- 
ing as  evidence.  And  this  must  be  so,  under  the  cases  cited  above, 
unless  the  fact  of  the  denial  in  the  last  pleading  was  of  itself 
evidence  sufficient  to  show  a  want  of  authority  on  the  part  of  the 
attorney  to  make  the  admission. 

Competent  Against  Successors.  —  Such  admissions  are  not  only  com- 
petent evidence  as  against  the  party  filing  the  pleading,  but  against 
those  who  subsequently  come  into  the  suit  as  his  successors  in 
interest  to  the  matter  in  litigation.-"  But  unless  the  relations  of  the 
parties  are  such  that  one  is  hound  by  the  admissions  of  another, 
as  hereinafter  shown,  the  pleading  of  one  party  is  not  competent 
evidence  as  against  his  co-plaintiflf  or  defendant.^* 


36.  '■  Of  covn-se  it  is  elementary 
that  an  amended  pleading  entirely 
supersedes  the  original,  which  ceases 
to  he  a  part  of  ihe  record.  The 
original  has  no  longer  any  existence 
as  a  pleading:  hut  this  is  not  the 
question  here,  .\lthough  superseded 
as  a  pleading,  may  it  still  be  intro- 
duced in  evidence  as  an  admission 
against  the  party  who  interposed  it  ? 
If  it  was  signed  or  verified  by  the 
party,  or  if  it  otherwise  affirmatively 
appears  that  the  facts  stated  therein 
were  inserted  with  his  knowledge 
or  by  his  direction,  we  can  see  no 
reason  why  it  is  not  as  competent 
as  any  other  admission  made  by  him, 
although  it  has  ceased  to  be  a  plead- 
ing in  the  case — not,  of  course,  con- 
clusive, but  subject  to  explanation. 
To  introduce  such  evidence  when  a 
party  has  thus  changed  front  is  a 
common  practice,  and  we  have  no 
doubt  a  correct  one.  And  even  when 
the  pleading  is  signed  or  verified 
only  by  the  attorney,  if  the  party 
stands  by  it  by  allowing  it  to  remain 
the  pleading  in  the  case,  so  that  it 
contains  a  solemn  admission  of 
record,  it  would  perhaps  be  presumed 
that  its  allegations  of  fact  were  in- 
serted by  his  authority,  and  hence 
admissible  against  him  in  other  ac- 
tions.    Tlie  weight  of  authnritv  seems 

Vol.  I 


to  go  that  far.  Gordon  i'.  Parmelee, 
2  Allen  212;  Bliss  v.  Nichols,  12 
Allen  44J ;  Brown  v.  Jewett,  I20 
Mass.  215;  Ayres  i:  Hartford  F.  Ins. 
Co.,  17  Iowa  176;  Truby  f.  Seybert. 
12  Pa.  St.  lOi.  There  is  the  greater 
reason  for  such  a  rule,  under  the 
present  system,  where  technical 
forms  are  abolished,  and  pleadings 
are  required  to  state  the  facts. 
There  is  no  longer  any  reason  for 
considering  the  allegations  of  a 
pleading  as  the  mere  suggestions  of 
counsel.  But  where  the  party  has 
substituted  an  amended  pleading, 
thereby  impli(.dly  saying  that  the 
original  was  interposed  under  a  mis- 
take as  to  the  facts,  we  think  it 
would  be  going  too  far  to  admit  in 
evidence  against  him  the  original, 
when  not  verified  by  him,  or  when  it 
does  nol  otherwise  appear  that  its 
contents  were  inserted  with  his 
knowledge  or  sanction."  Vogel  i'. 
Osborne,  .32  Miiui,  167,  20  N.  W. 
129. 

37.  Miller  z:  Nicodemus,  s8  Neb. 
352,  78  N.  VV.  618;  I  Greenl.  Ev., 
§178;  Townsend  v.  Mcintosh,  14 
Ind.  57;  Rust  T'.  Mansfield,  25  III. 
297. 

38.  Rust  V.  Mansfield,  25  111.  297: 
Townsend  v.  Mcintosh,  14  Ind.  57; 
Penseiieau   7'.    Pulliam,   47    III.    58. 


.'IDMfSSfOXS. 


441 


Original  Pleading  Verified  by  Guardian  ad  Litem.  —  It  has  been  held 
that  a  complaint  verified  by  a  guardian  ad  litem  who  had  no  personal 
knowledge  of  the  facts,  and  who  was  not  a  witness  in  the  case,  was 
incompetent  where  an  amended  complaint  denying  a  material  fact 
admitted  in  the  ori!j;inal,  had  been  filed."'' 

Fact  Omitted  in  Original  and  Alleged  in  Amended  Pleading.  —  The 
original  pleading  is  not  material  as  evidence  merely  because  a  fact 
alleged  in  the  amended  pleading  is  omitted  from  the  original.^" 

h.  Pleadings  Stricken  Otit.  —  If  a  pleading  is  stricken  out  by  the 
court  it  ceases  to  be  a  pleading  in  the  case,  and  admissions  contained 
in  it  are  not  conclusively  binding  upon  the  party  pleading  it.  Like 
a  pleading  superseded  by  an  amended  one,  it  may  be  introduced  in 
evidence  to  ])rovc  any  admission  made  in  it,  but  such  admissions 
are  not  conclusive. '•^ 


39.  Pleading  Verified  by  Guar- 
dian Ad  Litem.  —  "  The  origin.il  com- 
plaint contained  a  verified  statement 
of  the  guardian  ad  litem.  It  did  not 
contain  any  statement  of  the  plain- 
tiff herself.  It  could  not  be  used  to 
contradict  the  plaintiff's  testimony, 
because  she  had  not  verified  it,  and 
there  was  nothing  to  show  that  she 
was  in  any  way  responsible  for  it. 
It  was  not  material  to  contradict  the 
guardian  ad  litem,  because  he  was 
not  sworn  as  a  witness,  and  there 
was  no  pretense  that  he  had  any 
personal  knowledge  as  to  how  the 
accident  occurred.  It  was.  therefore, 
entirely  immaterial  for  any  purpose 
so  far  as  it  might  affect  the  evidence 
given  upon  the  trial.  Having  been 
replaced  by  the  amended  complaint, 
it  had  ceased  to  be  of  any  effect  for 
any  other  purpose  than  as  a  declara- 
tion which  might  lie  used  to  contra- 
dict the  person  who  had  sworn  to  it 
if  the  occasion  arose.  As  that  occa- 
sion did  not  arise,  it  was  not  ma- 
terial, and  the  charge  of  the  court 
was  correct."  Geraty  7'.  National 
Ice  Co.,  i6  App.  Div.  174,  44  N.  Y. 
Supp    659. 

40.  San  Antonio  &  A.  P.  Ry.  Co. 
I'.  Belt  (Te.x.  Civ.  App.),  46  S.  "W. 
374- 

41.  hi  re  Oregon  B.  P.  Pub.  Co., 
18  Fed.  Cas.  No.  10,550.  But  see 
Dunson  v.  Nacogdoches  Co.,  15  Tex. 
Civ.  App.  9.  37  S.  W.  978. 

Eifect  of  Plea  in  Abatement. 
In  Waters  v.  Parker  (Tex.),  19  S. 
W.  1022,  the  question  was  as  to.  the 
effect  of  a  plea  in  abatement,  and  it 


was  held  that  the  admission  of  a  de- 
fendant in  a  plea  in  abatement  could 
not  be  relied  upon  where  the  plea 
was  overruled,  and  he  went  to  trial 
on    his    general    denial. 

Matters    Stricken    Out Again   it 

is  said:  "In  addition  to  this  tes- 
timony, there  were  the  written  ad- 
missions of  the  defendants  in  their 
original  answer,  when  they  under- 
take to  explain  the  condition  of  the 
goods  on  arrival  l)y  saying  '  that  it 
v^as  owing  to  the  inclemency  of  the 
weather,  the  bad  condition  of  the 
roads,  the  necessity  of  unloading  the 
goods,  and  their  consequent  ex- 
posure.' It  will  not  do  to  say  that 
these  matters  of  excuse  or  discharge 
were  struck  out  of  the  answer,  and 
should  not  have  been  considered'. 
They  were  still  admissions  tending 
to  establish  that  the  goods  were  re- 
ceived in  good  order  and  were 
damaged  in  transitu,  and  were  as 
much  evidence  to  be  considered  as 
any  other  admissions.  It  is  true 
that  the  fact  they  were  repudiated 
by  the  defendants  striking  them  out 
in;.y  show  that  they  were  made  under 
a  misapprehension;  but  as  the  fact 
of  that  repudiation,  like  any  other 
correction  of  an  error  in  statement, 
was  as  fully  before  the  court  as 
ihe  original  admission  itself,  it  was  a 
proper  matter  for  the  consideration 
of  the  judge,  and  he  no  doubt  reached 
ihe  light  conclusion."  Bloomingdale 
r.  DuRell,  i  Idaho  33. 

So  it  has  been  held  that  the  ex- 
istence of  a  corporation  may  be 
proved  by  admissions  contained  in  a 

Vol.  I 


442 


ADMISSJONS. 


i.  ]\'ithdraii'n  or  Abandoned  Pleadings.  —  The  rule  is  the  sanle 
where  a  party  vohiiitarily  withdraws  or  abandons  a  pleacHng,  but 
not  as  an  item  of  evidence  against  him.''-'  But  there  are  cases 
holding-  that  a  pleading  withdrawn  cannot  be  used  as  evidence.''^ 

Pleadings  Unauthorized  by  Law.  —  \\  here  a  pleading,  or  a  docu- 
ment intended  as  and  in  the  form  of  a  pleading,  is  offered  as 
evidence  of  an  admission,  it  makes  no  difference  that  it  is  not  a 
pleading  authorized  b}-  law.  Its  competency  does  not  depend  upon 
its  validity  as  a  pleading.  It  is  the  declaration  of  the  party,  and 
for  that  reason  competent  evidence  against  him.** 

j.  Averments  on  Information  and  Belief.  —  Pleadings  in  other 
actions  are  admitted  like  non-judicial  admissions  on  the  ground  that 
they  are  declarations  against  interest  of  facts  within  the  knowledge 


pleading,  and  stricken  out;  the 
court  saying:  "It  is  a  well-settled 
rule,  that  parties  are  bound  by  their 
written  admissions  made  in  the 
progress  of  a  cause  as  a  substitute 
for  proof  of  any  material  fact,  and 
cai  not  repudiate  them  at  pleasure. 
The  admission  of  the  existence  of  a 
corporation  by  pleading  and  setting 
forth  the  fact,  comes  within  the  rule, 
and  is  binding  as  between  parties 
to  the  suit  and  in  the  same  suit  in 
which  such  admission  is  made.  Car- 
radine  v.  Carradine,  T,i  Miss.  69S ; 
Eiwood  V.  Lannon's  Lessee,  27  Md. 
200.  Harper  &  Co.  in  their  original 
answer,  alleged  and  admitted  under 
oath  the  incorporation  of  the  Peck- 
ham  Iron  Company.  And  the  same 
admission  was  made  in  their 
amended  answer.  True,  it  was  in 
both  instances,  from  its  juxtaposition, 
stricken  out  with  other  matter,  on 
motion,  a.^  redundant.  But  though 
stricken  out,  the  fact  that  the  admis- 
sion had  been  made  under  oath,  was 
not  thereby  annulled."  Peckham 
Iron  Co.  V.  Harper,  41  Ohio  St.  100. 
Original  Pleading  Competent. 
So  in  Sayer  v.  Mohney,  ,^5  Or.  141, 
56  Pac.  526,  it  is  said:  "  In  Mecham 
V.  McKay,  iy  Cal.  154,  it  is  held  that 
admissions  in  an  original  answer 
cannot  be  used  against  the  defendant 
after  the  filing  of  an  amended  answer 
omitting  tliem ;  the  court  saying,  'if 
the  party  amends  his  pleading,  stating 
the  facts  differently,  he  would  reap 
no  benefit  from  his  amendment,  if 
tlie  adverse  party  were  at  liberty  to 
use  the  first  pleading  as  an  admission 
to  overthrow  the  amended  pleading.' 

Vol.  I 


The  rule  thus  announced  has  been 
constantly  followed  by  the  supreme 
court  of  California,  but  the  great 
weight  of  judicial  authority,  in  the 
absence  of  a  statute  on  the  subject, 
is  the  other  way;  and  the  correct 
rule,  in  our  judgment,  is  stated  as 
follows:  '.Admissions  made  in 
pleadings  will  bind  the  party  in  the 
suit  in  which  they  are  filed,  thougli 
such  pleadings  have  been  stricken 
out  or  withdrawn.'  " 

42.  Withdrawn  or  Abandoned 
Pleading.  ~  Colorado.  —  Barton  v. 
Laws,  4  Colo.  App.  217,  35  Pac.  284. 

Illinois.  —  Byrne  v.  Byrne,  47  111. 
507;  Daub  V.  Englebach,  109  III.  267. 

Indiana.  —  Baltimore  O.  &  C.  R. 
Co.  V.  Evarts,  112  Ind.  533,  14  N.  E. 

Louisiana.  —  Byrne  v.  Hibernia 
Nat.  Bank,  31  La.  Ann.  81. 

Missouri.  —  Murphy  v.  St.  Louis 
Type  F.,  29  Mo.  App.  541. 

North  Carolina. — Brooks  v.  Brooks, 
go   N.   C.    142. 

Tc.ras.  —  Rvan  r.  Dutton  (Tex. 
Civ.  App.).  38  S.  W.  546;'  "Wright  v. 
U.  S.  Mortg.  Co.  (Tex.  Civ.  App.), 
54  S.  W.  368;  Jordan  ?'.  Young  (Tex. 
Civ.  App.),  56  S.  W.  762. 

Wisconsin.  —  Lindner  v.  St.  Paul 
F.  &  M.  Ins.  Co.,  93  Wis.  S26,  67 
N.  W.   ii2> 

43.  Little  Rock  &  Ft.  S.  Rv.  Co. 
7'.  Clark,  58  Ark.  490,  25  S.  W.  504; 
Gilmore  T.  Borders.  2  How.  (.Miss.) 
824;  Medlin  v.  Wilkins,  I  Tex.  Civ. 
App.  465,  20  S.  W.  1026. 

44.  Warder  v.  Willyard,  46  Minn. 
531,  49  N.  W.  .300,  24  Am.  St.  Rep. 
250. 


APMISSIOXS. 


44:^ 


of  the  partv  makins;'  tlit-'in.  'riKTofuro,  it  is  held  that  a  declaration 
made  in  a  pleading  in  anuther  action  on  information  and  belief 
merely,   is  not  competent  evidence. ^^ 

k.  Coiniiion  Lo'i'  Pleadings.  —  There  is  quite  a  material  differ- 
ence between  common  law  and  code  pleadings  which  is  pointed  ont 
in  many  of  the  decided  cases,  viz.,  that  the  former  are  to  a  great 
extent  fictitious  and  do  not  contain  or  profess  to  contain  statements 
of  facts,  while  the  latter  are  required  by  the  express  terms  of  the 
codes  to  contain  a  plain  and  concise  statement  of  the  facts  consti- 
tuting the  cause  of  action  or  defense.  Nevertheless,  although  the 
code  pleading  mav  be  more  satisfactory  and  effective  evidence,  the 
common  law  pleading  is  competent  as  against  the  party  pleading  it 
for  what  it  is  worth.'"' 

C.  Ple.vdings  in  Suits  ix  Equity.  —  a  Generally.  —  In  this 
article  the  effect  of  pleadings  as  evidence  is  considered  only  so  far 
as  thev  are  or  have  been  held  to  be  or  not  be  admissions.  The 
answer  in  equitv,  being  comjjetent,  as  original  evidence,  in  favor 
of  the  defenclant,  will  be  considered  separately.''' 

b.    Tlie   bill.  —  (1.)   Sig-ned   by   Attorney,    Not    Evidence   of   Admission. 


45.  On  Information  and  Belief 
Not   Competent    in   Another   Action. 

Wood  z\  Bc-iiley.  144  Mas?.  ,^65,  11  N. 
E.  567,  59  Am.  Rep.  95. 

"  It  i.^  true  that  adtnissions  in 
pleadings  in  an  action  between  other 
and  different  parties  have  been  re- 
ceived in  evidence  by  the  courts. 
The  ground  upon  which  these  ad- 
missions have  been  received  has  been 
because  they  were  admissions 
against  the  interest  of  the  party  mak- 
ing them,  and  liecause  of  the  great 
probabiHty  that  a  party  would  not 
admit  or  state  anything  against  him- 
self or  against  his  own  interest  imless 
it  was  true.  .'Xnd,  furthermore,  these 
admissions  have  been  confined  to 
those  cases  where  the  admissions 
contained  the  assertion  of  facts 
which  from  the  nature  of  the  case, 
if  true,  must  have  been  within 
the  knowledge  of  the  party  making 
the  admission,  and  the  pleading  is 
verified  by  him.  These  rules  are 
laid  down  in  the  case  of  Cook  v. 
Barr,  44  X.  Y.  157.  and  their  appli- 
cation is  apparent.  Therefore  an  ad- 
mission contained  in  pleadings  Iie- 
tween  other  parties,  simply  founded 
upon  information  and  belief,  where 
there  is  no  presumption  that  the 
facts  alleged  or  denied  must  have 
been  within  the  knowledge  of  the 
party  making  the  allegation  or  denial, 


and  where  the  allegation  or  denial 
is  not  against  the  interest  of  the 
party  making  the  same,  cannot  be 
received  in  evidence  as  establishing 
any  fact.  In  the  case  at  bar  the 
alleged  admission  was  not  against 
the  interest  of  the  defendant,  who 
was  asserting  a  right  in  respect  to  a 
fact  as  to  which  there  is  no  presump- 
tion that  she  had  any  personal  knowl- 
edge whatever.  Therefore  the  two 
elements  which  are  necessary  to 
exist  in  order  to  justify  the  admis- 
sion of  this  allegation  of  the  plead- 
ings arc  conspicuously  absent,  and 
under  no  rule  of  evidence  could  it 
be  admitted."  Mayor  etc.  v.  Fay.  5,^ 
Hun  Ss.^.  6  N.  Y.  "Supp.  400.  23  .\bb. 
Pr.   (N.  S.)   yv. 

Competent,  Only  Affects  Weight. 
"  When  an  averment  is  made  on  in- 
formation and  belief,  it  is  neverthe- 
less admissible  as  evidence,  though 
not  conclusive.  Lord  Ellenborough. 
in  Doe  t'.  Steel.  .3  Camp.  115.  The 
authority  cited  sustains  the  proposi- 
tion that  the  fact  that  the  averment 
is  made  on  information  and  belief 
merely  detracts  from  the  weight  of 
the  testimony;  it  does  not  render  it 
inadmissible."  Pope  t'.  .\llis,  iIt 
V.   S.  363,  6  Sup.  Ct.  69. 

46.  Soaps  7'.  Eichberg,  42  111.  App. 
375.     But  see  Whart.  Ev..  §838. 

47.  See  article,  "  Answers." 

Vol.  I 


444 


ADMISSIONS. 


There  are  authorities  holding  that  a  bill  in  e()uity,  signed  hy  the 
attorney  only,  and  not  verified,  is  not  an  admission  of  the  party,  but 
the  mere  suggestion  of  the  attorney  ;''*  that  it  is  competent  to  prove 
that  a  suit  was  commenced,  and  the  like,^"  but  that  it  is  not  com- 
petent evidence  of  an  admission  of  the  complainant.^" 

(2.)  Otherwise  if  Signed  or  Verified  by  Party.  —  But,  if  the  l^ill  is 
signed  or  verified  liy  the  partv,  it  then  lieconies  his  statement  and  is 
competent  evidence  against  him  as  such.''' 

(3.)  Where  Matter  Directed  by  Him  to  Be  Inserted.  —  So  where  it  is 
shown  that  the  matter  relied  upon  was  directed  by  the  plaintif?  to 
be  inserted  in  the  bill,  or  that  he  acquiesced  in  the  statement  of 
fact  made,  the  statement  becomes  his  statement  and  the  bill  is  com- 
petent evidence. "- 

(4)  Authorities  Holding  it  Competent. —  Other  cases  are  to  the 
effect  that  a  bill,  whether  signed  or  verified  by  the  party  or  not,  is 
competent  evidence  against  the  party  filing  it,  like  any  other  plead- 
ing."'* 

Not  Competent  in  Favor  of  the  Plaintiff.  —  The  bill  is  not  competent 
evidence  in  favor  of  the  plaintifif,'"'^  except  to  show  that  such  a  bill 


48.     When    Bill     Not     Competent. 

1  Taylor  Ev..  §784. 

England.  —  Doe  i'.  Svliourn,  7  T. 
R.  2. 

United  States. — Clnircli  v.  Slieltoii, 

2  Curt.  271,  5  Fed.  Cas.  No.  2714. 
Alabama.  —  Adams  v.  I\IcMillaii,  7 

Port.  73;  Cooley  v.  State,  55  Ala. 
162 ;  Stetson  z'.  Goldsmith,  30  Ala. 
602. 

California.  —  Duff  v.  Dufif  71  Cal. 
S13.   12  Pac.  570. 

Illinois.  —  McCormack  v.  Wilcox, 
25  111.  247. 

Kentucky.  —  Rces  7'.  Lawless,  4 
Litt.    219. 

Massachusetts.  —  Page  v.  Page,  15 
Pick.   368. 

Mississippi. —  Meyer  v.  Blacke- 
more,   54   Miss.   570. 

Pennsylvania. — Macley  v.  Work,  10 
Serg.  &  R.   194. 

When  Bill  Competent.  —  In  Callan 
V.  McDauicl,  72  .\la.  96.  it  is  said: 
"  The  bill  in  equity  filed  by  the 
plaintififs  against  the  defendant,  was 
verified  by  affidavit.  It  is  true,  that 
a  bill  in  equity,  not  verified,  is  re- 
garded as  containing  rather  the  sug- 
gestions of  counsel,  than  the  deliber- 
ate statements  of  the  complainant, 
and  is  not,  in  a  collateral  suit,  ad- 
missible evidence  against  him  of  the 
facts    stated    in    it.      i    Brick.    Dig. 


829,  §  353.  But.  when  it  is  verified, 
because  of  the  solemnity  and  deliber- 
atcness  attached  to  an  oath  taken  in 
tlie  course  of  judicial  proceedings, 
a  different  rule  obtains.  The  bill  is 
then  treated  as  a  statement  of  facts 
admitted  hy  the  complainant,  and 
becomes  evidence  against  him  in 
collateral  suits.  McRea  v.  Ins.  Bank 
of  Columbus,  16  Ala.  755';  McLemore 
I'.   Nuckolls.   ^7  Ah.  662." 

49.  Daniels   Chan.   PI.   &   Pr.  838. 

50.  Bill  When  Not  Evidence  of 
Admission.  —  Daniels  Chan.  PI.  & 
Pr.  838;  Rees  v.  Lawless,  4  Litt. 
CKy.)  219;  Maclay  t'.  Work.  10  Serg. 
&  R.  (Pa.)  194;  Owens  v.  Dawson, 
T  Watts  (Pa.)  149;  Callan  v.  Mc- 
Daniel,   72   .\la.   q6. 

51.  Competent  if  Signed  or  Veri- 
fied by  Party.  —  Robbins  v.  Butler, 
24  III.  -^87;  Callan  v.  McDaniel.  72 
Ala.  96. 

52.  Daniels   Chan.   PI.   &   Pr.   839. 

53.  Competent  Whether  Signed 
by  Party  or  Not — Soaps  v.  Eicb- 
berg,  42  111.  App.  37s;  Robbins  v. 
Butler,  24  111.  387. 

54.  Not  Competent  for  Plaintiff. 
Daniels  Chan,  PI.  &  Pr.  838;  Lan- 
caster 7'.  Arendcll,  2  Heisk.  (Tenn.) 
434;  Pcarce  v.  Petit,  85  Tenn.  724, 
4  S.  W.  526;  Roberts  t.  .Miles,  12 
Mich.  297. 


Vol.  I 


ADMISSIONS. 


445 


was  filed  r''^  or  in  support  of  an  ap|)lication  for  a  temporary  injunc- 
tion,^'' or  to  prove  pedigree. ^''^ 

c.  Ansxccr.  —  (1.)  Generally.  —  The  law  of  evidence  relating  to 
the  answer  differs  most  materially  from  that  relating  to  answers 
under  the  common  law  and  code  systems  of  pleading."''  The  differ- 
ence consists,  mainly,  in  the  fact  that  the  jjlaintift'  may,  as  a  part  of 
his  bill,  require  the  same  or  parts  thereof,  to  be  answered  by  the 
defendant,  under  oath,  and  that  when  he  does,  the  answer  becomes 
evidence  against  the  plaintiff'  and  in  favor  of  the  defendant  making 
the  answer  required.-'*  This  i)hase  of  the  subject  is  considered 
under  "  Answers."^" 

(2.)  Is  Competent  Evidence  Against  the  Defendant.  —  An  answer  in 
chancery  is  admissible  as  e\idcnce  against  the  party  pleading  it, 
either  in  the  suit  in  which  it  is  filed  or  another  action,  and  whether 
the  parlies  are  the  same  or  not."" 


55.  Lancaster  v.  ArendcU,  2 
Heisk.    (Tenn.)    434. 

56.  "  A  bill  in  chancery  is  never 
evidence  in  favor  of  complainant, 
whether  sworn  or  unsworn.  The  oath 
of  complainant  verifying  it  is  only 
needed  where  required  by  some 
statute  or  rule  of  practice,  and  can 
then  only  avail  in  obtaining  an  in- 
junction or  other  preliminary  relief. 
It  is  no  evidence  on  the  hearinp', 
unless  confessed  or  admitted," 
Roberts  z:  Miles,  12  Mich.  297. 

56a.  Owens  i'.  Dawson,  i  Watts 
(Pa.)    149- 

57.  Mev  I'.  Gnllinian,  105  111.  272. 

58.  Beadi  Mod.  Eq.,  §366;  Story's 
Eq.    PI.,   §849a. 

59.  Sre  article,  '"  Answkrs." 

60.  Is  Competent  Against  the  De- 
fendant. — Aliihaiiia. — Julian  t'.  Rev- 
nolds,  8  Ala.  (N.  S.)  680;  Royall  V. 
McKenzie,  25  Ala.  363. 

Florida.  —  Randall  f.  Parranifire.  I 
Fla.  458. 

Georgia.  —  Gordon  i'.  Green.  10 
Oa.  534. 

llliiiiiis.  —  R(>1)lMns  T'.  Buller.  24 
111.  187.  427;  Daub  I'.  Engleliach.  109 
111.  267. 

Indiaiui.  —  McNutt  v.  Dare.  8 
Rlackf.  35. 

Kcnttukx.  —  Clarke  f.  Ruliinson,  ^ 
B.  Alon.  55. 

Michigan.  —  Dnrfee  j'.  .McClurg.  (1 
Mich.  223. 

Mississil't'i.  —  Greenleaf  ?'.  Ili.uh- 
land,  I   .Miss.   (Walker)   373. 

.V(-Ti'  Jersey.  —  .Manley  !■.  Mickle. 
5.S  N.  J.  Eq.  sf'.V  37  Atl.  7.5S. 


A'orth  Carolina.  —  Kiddie  T'.  De- 
brutz.  I  Hayw.  420. 

Pennsylvania.  —  Maclay  f.  Work. 
10  Serg.  &  R.  194;  Hengst's  .Appeal. 
24  Pa.  St.  413. 

Tennessee.  — WaWen  v.  Huff,  5 
Humph.  90, 

■]'irg,inia.  —  Hunter  v.  Jones,  6 
Rand.  54 t. 

Admission  of  Execution  of  Deed. 
In  Adams  :■.  Shelby,  10  Ala.  (N.  S.) 
478,  it  was  held  that  the  answer  in 
ciiancery,  admitting  the  correctness 
of  a  copy  of  a  deed,  made  by  another 
person,  and  to  wdiich  there  was  no 
subscribing  witness,  is  evidence  both 
of  the  contents  and  execution  of  the 
deed,  against  the  person  making  such 
admission,  the  court  saying;  "The 
iibjection  to  the  answer  in  chancery 
is  understood  to  be,  that  the  execu- 
tion of  a  deed  cannot  be  proved  by 
the  admissions  of  the  obligou.  The 
deed  in  this  case  was  made  by  one 
Holly,  and  the  answer  of  the  de- 
fendant admits  that  the  copy  exhib- 
ited with  the  bill  was  correct.  If  it 
had  been  his  own  deed,  his  answer 
would  have  been  sufficient  to  prove 
its  contents,  the  original  being  lost, 
and  there  being  no  subscribing  wit- 
ness to  it.  But  being  the  deed  of 
another  person,  as  against  himself, 
in  such  case  as  this,  he  certainly 
could  admit  both  the  contents  and 
I  be  execution  of  the  deed,  and  this 
was  llie  effect  of  his  answer." 

Answer    in    Chancery    Oilered    in 

Action   at  Law The  case  of  Rees 

J'.  Lawless.  4  Litt.  (Ky.)  219.  was  an 

Vol.  I 


44(, 


JI'MISSIUXS. 


(3.)  And  Against  His  Successors.  —  And  against  the  successors  in 
interest  of  the  defendant,  or  one  who  claims  under  him.'" 

(4.)  Bill  Need  Not  Be  Offered Exception.  — It    is   not    necessar\-   to 

offer  tlie  bill  in  connection  with  the  answer  where  the  answer  is  not 
responsive,  but  in  avoidance,  and  the  bill  is  not  necessary  to  explain 
the  answer."'  l!ut  it  may  be  oiYered  in  connection  with  the  answer 
where  it  is  necessary  to  explain  it,  and  no  further.'''' 

(5.)  Evidence  of  Verbal  Admissions,  When  SuiBcient  to  Overcome. —  It 
is  held  that  the  effect  of  the  answer  as  evidence  may  be  overcome 
by  proof  of  contradictory  verbal  admissions  made  by  the  defendant, 
if  made  deliberately  and  considerately  and  established  with  reliable 
ccrtaintv,  but  not  otherwise.''"' 


action  of  ejectment.  Rccs  offered  in 
evidence  a  record  of  a  suit  in  chan- 
cery, lirought  by  Lawless  against  one 
Croghan.  to  obtain  a  conveyance  of 
the  land  in  controversy,  which  was 
rejected  hy  the  trial  court.  Tn  speak- 
ing of  this  question,  the  court  said : 
"  The  first  question  which  occurs  is, 
whether  the  circuit  court  erred  in 
rejecting  the  record  of  the  suit  in 
chancery,  as  evidence.  The  record 
consists  of  the  bill  filed  hy  I<awless, 
Croghan's  answer,  and  the  decree 
that  Croghan  should  convey  the  land 
to  Lawless.  The  hill  was  evidently 
not  admissible;  for  it  is  well  settled, 
that  as  the  allegations  of  a  hill  are, 
in  general,  the  mere  suggestions  of 
counsel,  thej'  cannot  he  taken  as 
true  against  the  complainant.  And 
it  is  equally  clear  tliat  the  decree  was 
inadmissible ;  for,  against  Rces  who 
offered  it  in  evidence,  being  no  party 
to  the  suit,  the  decree  could  not  have 
been  admitted,  and  the  rule  is,  that  a 
judgment  or  decree  cannot  he  evi- 
dence ,in  favor  of  any  one,  against 
whom  it  cannot  be  used.  The  answer 
of  Croghan  is.  no  doubt,  admissible 
evidence  against  him :  and  as  Lawless 
derives  title  under  Croghan  subse- 
quent to  the  filing  of  the  answer,  it 
ought,  so  far  as  it  contains  any  ad- 
missions or  confessions,  which  arc 
ciinipetent  to  prove  any  material  fact 
in  controversy,  to  be  coirsidercd  as 
admissihU'  .■ig.uinst    Lawless," 

61.  And  Against  His  Successors. 
Rees  V.  Lawless,  4  Lilt.  (Ky.)  219: 
Townscnd  i'.  Mcintosh,  14  Ind.  57 ; 
Julian  f.  Reynolds,  8  Ala.  680;  Fitch 
r.  Stamps,  6  How.  (Miss.)  487;  Os- 
horn  V.  U.  S.  Bank.  9  How.  (U.  S.) 
7.?8.     Hut  see   Morely  T.   Armstrong, 

Vol.  I 


T,  Mon.  (Ky.)  287,  in  which  it  is 
held  that  an  answer  is  not  binding 
on  one  claiming  under  the  defend- 
ant filing  it  unless  it  has  in  some 
wav  been  adopted  bv  him. 

62.  Bill  Need  Not  Be  Offered. 
Wallen  i:  Huff,  5  Humpli.  qo ;  Ran- 
dall J'.  Parramore,  i  Fla.  458. 

"  But  it  is  argued  that  the  answer 
of  complainant  is  not  evidence 
against  him,  because  the  bill  to  which 
it  responds  is  not  produced.  To 
this  the  answer  is  plain  and  explicit. 
The  hill  is  filed  to  subject  the  land 
to  the  payment  of  the  deht  of  com- 
plainant against  Wallen.  Huff 
answers  and  defends  himself  hy  an 
assertion  of  a  right  to  the  premises 
in  himself,  and  not  derived  through 
his  co-defendant,  but  by  purchase 
from  others,  and  a  possession  of 
more  than  nine  years,  making  his 
title  good  hy  the  operation  of  the 
statute  of  limitations.  Huff's  answer 
then,  upon  this  point,  sets  up  new 
matter  in  defense,  and  is  not  respon- 
sive to  the  bill.  There  is.  then,  no 
necessity  to  produce  the  bill  for  the 
complete  understanding  of  his 
airswer ;  and  Wallen's  answer  refer- 
ring to  Huff's,  and  adopting  it, 
stands  in  the  same  position.  Huff's 
answer  is  necessary  to  the  under- 
standing of  Wallen's.  1)nt  the  bill  to 
neither."  Wallen  v.  I  luff,  5  Humph. 
(Tcnn.)    90. 

63.  Clarke  v.  Rohin.son,  5  B.  Mon. 
(Kv.)  SS ;  Randall  7'.  Parramore,  i 
Fla'.  458." 

64.  Verbal  Admissions,  Effect  of. 
Conner  v.  Tuck,  11  Ala.  (N.  S.) 
794;  Garrett  v.  Garrett,  29  Ala.  4.39; 
Gillelt  7'.  Robhins,  12  \N'is.  .^55. 

May  Be  Overcome  by  Verbal  Ad- 


.IPMISSIOXS.  447 

(6.)  Must  Be  Taken  As  a  Whole.  —  Tlio    complainant    may   use   tlic 


missions.  —  "There  is  no  legal  testi- 
mony contradicting  the  answer  as  to 
those  allegations,  save  the  proof  of 
verbal  admissions,  represented  to 
have  been  made  by  John  Garrett. 
A  positive  responsive  averment,  in  a 
sworn  answer,  may  be  overcome  by 
mere  proof  of  verbal  admissions;  but 
those  admissions  must  appear  to 
have  been  made  deliberately  and  con- 
siderately, and  must  be  established 
with  reliable  certainty,  before  an 
effect  can  be  conceded  to  them 
equivalent  to  that  of  the  testimony 
of  two  witnesses,  or  of  one  with  cor- 
roborating circumstances.  '  When  a 
verbal  admission  is  deliberately  made 
and  precisely  identified,  the  evidence 
it  affords  is  often  of  the  most  satis- 
factory nature  ;'  nevertheless,  '  proof 
of  mere  verbal  admissions  of  a  party, 
unsustained  by  any  other  circum- 
stances, should  always  be  cautiously 
weighed,  because  of  their  liability  to 
be  misunderstood,  the  facility  of 
fabricating  them,  and  the  difficulty 
of  disproving  them.'  Hope  f.  Evans, 
I  Smedes  &  Mar.  Ch.  R.  195;  Con- 
ner V.  Tuck,  II  Ala.  /Q.'i :  Bryan  & 
McPhail  V.  Cowart,  21  Ala.  92 ;  Love 
V.  Braxton,  5  Call  537;  Petty  i'.  Tay- 
lor, 5  Dana.  598,  .3  Greenl.  on  Ev., 
part  VI.,  p.  281,  §289;  I  Id.,  chap. 
XI.,  p.  263.  §  200 ;  Brandon  v.  Ca- 
biness,  10  Ala.  155."  Garrett  r'.  Gar- 
rett, 29  Ala.    (  N.   S.)   439,  +40. 

Goes   to   Weig-ht   and  Not   to   Ad- 
missibility  "The      objections      to 

the  testimony  which  is  relied  upon 
to  overcome  the  denials  of  the  answer 
go  to  its  character  rather  than  to  the 
number  or  credibility  of  the  witnesses 
sworn.  It  consists  in  admissions 
made  by  the  defendant  at  or  about 
tlie  time  of  the  sale,  to  the  elifect 
that  he  purchased  the  land  for  the 
deceased,  and  with  funds  provided 
by  him ;  and  in  proofs  that  the  de- 
fendant had  acquiesced  in  the  occu- 
pancy and  receipt  of  the  rents  of  the 
land,  by  the  deceased  and  those 
claiming  under  him,  since  the  time  of 
the  sale,  the  same  being  a  valuable 
mineral  lot.  It  is  insisted  that  such 
admissions  ought  not  to  be  received 
for  the  purpose  of  disproving  or  re- 
butting  the   sworn    statements   of   the 


answer ;  that  in  order  to  destroy  its 
effect,  the  witnesses  must  testify  to 
facts  within  their  knowledge,  and  not 
to  what  they  have  heard  the  defend- 
ant .say  in  relation  to  them ;  and  that 
the  positive  testimony  of  three  wit- 
nesses, to  declarations  directly  con- 
tradicting the  averments  of  the 
answer,  and  made  at  different  times, 
and  under  different  circumstances, 
are  not  eauivalent  to  the  evidence  of 
two  witnesses  to  the  facts  them- 
selves, and  are,  therefore,  not  a 
compliance  with  the  old  chancery 
rule  upon  the  subject.  But  two  au- 
thorities (10  Vessey,  Jr.,  517,  and  2 
John.  Ch.  R.,  412)  are  cited  to  sup- 
port these  positions,  neither  of 
which,  in  our  opinion,  does  so.  Both 
recognize  the  admissibility  of  such 
declarations,  but  admonish  us  that 
they  are  evidence  of  an  unsatisfac- 
tory character,  on  account  of  the 
ease  with  which  they  may  be  fabri- 
cated, and  the  impossibility  of  con- 
tradicting them;  and  warn  us  against 
their  being  too  readily  accepted  and 
lielieved.  But  with  these  cautions, 
we  know  of  no  rule  which  forbids 
them  in  any  case.  We  know  of  no 
principle  of  law  touching  an  answer 
in  chancery  which  renders  its  state- 
ments so  .sacred  or  so  infallible,  that 
they  may  not  be  attacked,  and  over- 
thrown according  to  the  rules  of  evi- 
dence which  govern  other  cases.  The 
general  principle  which  authorizes 
the  reception  of  admissions,  namely, 
that  whatever  a  party,  contrary  to 
his  own  interests,  voluntarily  adjnits 
to  be  true,  may  reasonably  be  taken 
for  the  truth,  seems  to  be  as  applica- 
ble to  such  a  case  as  any  other.  We 
can  see  no  reason  for  the  exception, 
.'^nd  if  the  admissions  are  clearly  and 
satisfactorily  proved,  and  are  such 
as  to  convince  the  court  of  their 
truth,  we  are  unable  to  see  why  they 
may  not  be  acted  upon.  In  this 
case,  when  taken  in  connection  with 
the  facts  admitted  in  the  answer,  and 
the  circumstances  of  possession  and 
control  of  the  land,  they  satisfactorily 
establish  the  allegations  of  the  bill. 
The  theory  upon  which  it  is  thought 
to  exclude  them,  would,  if  adopted, 
extend  to  their  exclusion  in  all  cases 


Vol.  I 


448 


ADMJSS/ONS. 


answer  of  a  defendant  as  evidence  in  his  favor.  P.ut  he  must  take 
the  answer  as  a  whole  and  not  such  parts  of  it  only  as  are  favorable 
to  liim."^ 

(7.)  Conclusive  on  the  Defendant.  —  While  the  complainant  may 
dispute  the  answer,  this  cannot  be  done  by  the  defendant.  As  to 
him  it  is  conclusive  in  the  suit  in  which  the  answer  is  filed.'"'  It  is 
conclusive  not  only  in  the  action  in  which  it  is  filed,  but  may  be  so 
in  another  action  on  the  ground'  of  estoppel."'' 


where,  according  to  the  former  sys- 
tem, there  was  an  answer  under 
oath,  without  regard  to  their  char- 
acter or  the  manner  in  which  they 
are  made;  and  it  would  follow  that 
written  admissions,  contrary  to  the 
averments  of  tlie  answer,  no  matter 
how  many  times  repeated,  if  not  un- 
der oath,  would  be  of  no  avail  to  the 
plaintiff.  Such,  it  seems  to  us,  could 
not  have  been  the  law."  Gillett  z: 
Robbins,   12  Wis.  319. 

65.  Answer  Must  Be  Taken  as  a 
Whole.  ^Miller  r.  .•\very.  2  Barb. 
Ch.  (N.  Y.)  S82;  McNutt  V.  Dare,  8 
Blackf.  find.)  35;  Greenleaf  v. 
Highland,  i  Miss.  (Walker)  375; 
Ormond  r.  Hutchinson.  13  Ves.  47 : 
Freeman  v.  Tathani,  5  Hare  329. 

66.  Conclusive  on  the  Defendant. 
Home  Ins.  etc.  Co.  v.  Mycr,  93  111. 
271  :  Knowles  z'.  Knowles,  86  111.  1  ; 
Robinson  z:  Philadelphia  R.  R.  Co., 
28  Fed.  S77 ;  Lippencott  Z'.  Ridgwav, 
II  N.  J.  Eq.  526;  Craft  v.  Schlag.  (N. 
J.  Eq.,)  49  Atl.  431.  But  sec  Green- 
leaf  Z'.  Highland,  i  Miss.  (Walker) 
37.S,  in  which  it  is  held  that  matters 
in  avoidance  are  subject  to  be  sup- 
ported or  disproved  by  evidence 
aliunde  on   both   sides. 

And  in  Fant  z>.  Miller,  17  Gratt. 
(Va.)  187,  it  is  held  that  where  an 
answer  lo  a  pure  bill  of  discovery  is 
offered  as  evidence  in  an  action  at 
law,  it  stands  the  same  as  the  testi- 
mony of  a  witness  and  subject  to  be 
disproved  by  odier  evidence. 

Would  Avail  Nothing  if  Not  Bind- 
ing.—  ''Pleadings  would  avail  liUlc 
or  nothing  if  parties  were  not  bound 
by  them.  They  would  be  worse  than 
useless,  if  parties  were  permitted  to 
allege  one  thing  in  them  and  to  prove 
another  on  the  trial,  or  at  the  hear- 
ing. Instead  of  aiding  the  court  and 
parties  in  the  subsequent  investiga- 
tion, by  narrowing  the  field  of  con- 
trove  r^\',  thi\  would  serve  as  a  lure 
Vol.  I 


to  mislead  and  entrap  an  adversary. 
That  the  evidence  must  be  confined 
to  the  issue  between  the  parties,  is  a 
rule  so  well  settled  as  to  admit  of 
no  controversy.  An  attempt  was 
made  on  the  argument  to  take  the 
present  case  out  of  this  rule.  It  was 
said  that  if  Atwater  chose  to  rest  the 
question  of  mortgage  or  no  mort- 
gage on  a  statement  of  indebtedness 
less  in  amount  than  what  was  due 
him  in  fact,  he  was  not  bound  by 
such  statement  in  a  subsequent  ref- 
erence after  the  question  had  been 
decided  against  him.  I  do  not  think 
the  a;"gument  a  sound  one.  I  cannot 
admit  that  a  fact  material  to  the  de- 
cision of  a  question  in  one  stage  of  a 
cause,  can  afterwards  be  changed  or 
proved  to  be  different  when  used  by 
the  same  party  in  a  subsequent  stage 
of  the  same  cause."  Emerson  v. 
."Xtwater.   12  Mich.  314. 

No  Evidence  Against  Will  Be 
Received.  _  It  is  said  in  Weider  r, 
Clark,  27  III.  2Si:  "The  defendant, 
in  his  cross-bill,  alleged  that  he  was 
a  householder,  the  bead  of  a  family, 
and  resided  on  the  premises  in  con- 
troversy, at  the  time  when  the  notes 
and  mortgage  were  executed.  This 
was  admitted  by  complainant's 
answer,  and  such  portion  of  the  evi- 
dence as  shows,  that  he  was  not  oc- 
cupying the  premises  at  the  time  can- 
not be  considered,  in  opposition  to 
that  admission,  so  long  as  it  remains. 
In  determining  the  case,  the  admis- 
-.inu  nuist  be  reeardcd  as  true." 

Immaterial  Whether  'Verified  or 
Not.  —  It  makes  no  difTerence 
whfthor  an  answer  under  oath  is 
called  for.  or  whether  the  answer  is 
actually  sworn  to  or  not,  the  admis- 
sions in  the  answer  are  conclusive 
unon  tlie  defendant  in  either  case, 
liver  z'.   Little,   20   N.    J.   Eq.   443. 

67.  McGee  7'.  Smith."  t6  N.  J.  Eq, 
4'i2.  But  sec  Morse  j'.  Slason.  16 
Vt.  310. 


ADMISSIONS. 


44") 


(8.)  Need  Not  Be  Sworn  To  to  Render  Competent  A|:ainst  Pleader. 
It  is  not  necessary  to  the  competency  of  the  answer,  as  against  the 
party  pleading  it,  that  it  be  sworn  to  by  him.  It  is  his  declaration 
and  competent  as  an  admission  whether  verified  or  hot."* 

(9.)  On  Information  and  Belief.  —  And  an  answer  on  information 
and  belief  may  be  good  as  evidence  against  the  defendant  as  an 
admission."" 

(10.)  Withdrawn  or  Otherwise  Superseded  Competent  As  Admission. 
The  competency  of  an  answer  as  evidence  does  not  depend  upon  its 
being  a  valid  and  subsisting  pleading.  It  is  competent  as  a  decJa- 
ration  of  the  party  against  interest,  although  it  has  never  been  filed. 
or  where  it  has  been  withdrawn,  or  superseded  by  an  amended 
answer.'"  But  this  may  depend  upon  the  reasons  for  withdrawing 
the  answer.'' 

(11.)  Not  Filed  Competent  Against  Defendant.  —  The  filing  of  the 
answer  is  not  necessary  to  its  competency  against  the  defendant. 
It  is  his  declaration  whether  filed  or  not,  and  may  be  used  against 
him.^- 

(12.)  May  Amount  to  Declaration  of  Trust.  —  It  is  held  that  an 
answer  in  a  suit  in  equity  may  be  so  far  an  admission  of  a  trust  as 
to  amount  in  itself  to  a  declaration  of  the  trust. '•• 


68.  Need  Not  Be  Sworn  To. 
United  Stales.  —  Whilteniore  t'.  Pat- 
ten, 8i   Fed.  527. 

Alabama.  —  Julian  f.  Reynolds,  8 
Ala.    (N.    S.)    680. 

Georgia.  —  Sims  r.   Fcrrill,  45   Ga. 

Illinois.  —  Daub  v.  Englebach.  109 
111.  267. 

Michigan.  —  Durfee  v.  McClurg,  6 
Mich.  22 J. 

AVit'  Jersey.  —  Manley  v.  Mickle, 
(N.  J.  Eq.,)  37  Atl.  738;  Synimes  z: 
Strong,  28  N.  J.  Eq.  131  ;  Hyer  v. 
Little,  20  N.  J.  Eq.  443;  Craft  z: 
Schlag,   (N.  J.  Eq..)  49  Atl.  431. 

Unverified    Admissible So    il    is 

said  in  Morris  i'.  Hoyt,  11  Mich.  9: 
"  The  merits  of  the  case  depend 
mainly  upon  the  facts  admitted  by 
the  pleadings,  no  proofs  having  been 
taken  except  upon  the  reference 
after  the  preliminary  decree.  The 
answer,  being  without  oath,  is  but 
a  pleading,  and  of  no  effect  as  mere 
evidence.  So  far  as  it  admits  the 
case  made  by  the  bill,  as  an  admis- 
sion in  pleading,  it  relieves  the  com- 
plainant from  proof ;  so  far  as  it  de- 
nies the  facts,  or  controverts  the 
case  made  by  the  bill,  it  puts  the 
complainant  to  bis  proof.  But  so  far 
as  il  alleges  any  new  matter  of  avoid- 

29 


ance,  or  any  fact,  the  burden  of  prov- 
ing which  would  naturally  rest  upon 
the  defendants,  it  is  of  no  effect  with- 
out proof." 

69.  I  Daniel's  Ch.  PI.  &  Pr..  840. 

70.  Daub  V.  Englebach,  109  111.. 
267. 

71.  Withdrawn  or  Superseded 
Competent.  —  "  On  the  hearing,  the 
chancellor,  over  the  objection  of  the 
defendants,  allowed  complainants  to 
read  the  answers  of  the  defendants 
first  filed.  As  these  answers  had 
been  for  satisfactory  reasons  sub- 
stantially declared  by  the  chancellor 
to  have  been  filed  by  counsel  without 
the  concurrence  of  defendants,  and 
they  were  allowed  to  file  other 
answers  showing  the  facts  in  regard 
to  the  sale  and  transfer  of  said  goods, 
we  think  they  ought  not  to  have  been 
read  as  the  admissions  of  parties 
when  other  answers  were  allowed  to 
be  filed  upon  the  ground  that  the  first 
filed  were  not,  in  fact,  the  statements 
of  the  parties  themselves."  Hurst  !■. 
Jones,    10   Lea   8. 

72.  Worth  z:  .McConnell,  42  Mich. 

477- 

73.  May    Create    a    Trust. 

Hutchinson   z\    Tindall,   3    N.   J.    Eq. 

357- 

"  It  is  sought  in  this  case  to  cstali- 

Vol.  I 


450 


ADMISSIONS. 


(13.)   Not     Competent     Against     Co-Defendant.  —  Exceptions.  —  The 

answer  of  one  defendant  cannot  be  used  as  evidence  against  his 
co-defendant  unless  the  co-defendant  claims  through  him,  or  they 
are  jointly  interested,  or  their  relations  are  such  that  for  some  other 
reason  the  admission  of  one  is  bindins:  on  the  other. '^ 


lish  and  define  the  trust,  by  the 
answer  of  the  defendant.  In  that,  as 
has  been  seen,  he  states  what  he  al- 
leges to  be  the  true  consideration  of 
the  conveyance;  and  proffers  his  wil- 
Hngness  to  execute  a  declaration  of 
trust,  or  secure  the  interest  of  the 
wife  and  children  in  any  way  the 
court  may  direct.  Can  lliis  answer 
of  the  defendant  be  recognized  as 
competent  and  sufficient  evidence  to 
establish  the  trust?  A  declaration 
of  trust  requires  no  formality,  so  that 
it  be  in  writing,  and  have  sufficient 
certainty  to  be  ascertained  and  exe- 
cuted. It  may  be  in  a  letter,  or  upon 
a  memorandum  ;  and  it  is  not  male- 
rial  whether  the  writing  be  made  as 
evidence  of  the  trust  or  not.  The 
recital  in  a  deed  has  been  held  to  be 
a  .sufficient  disclosure.  Bellamv  v. 
Burrow,  Ca.  Tern.  Talb.,  97;  Deg  v. 
Deg,  2  P.  W..  412;  Kirk  v.  Webb, 
Prec.  Ch.  84;  Jeremy's  Eq.,  22. 

74.  Not  Competent  as  Against 
Co-defendant,  When.  —  i  Grecnl 
Ev.,   §  178. 

England.  —  Jones  v.  Turberville,  2 
Ves.  Jr.  11;  Morse  r.  Royal,  12 
Ves.  355 ;  Anonymous,  i  P.  Wms. 
300;  Hoare  v.  Johnstone,  2  Keen  553; 
Green  v.  Pledger.  3  Hare  165 ;  Cher- 
vet  V.  Jones.  6  Madd.  267. 

United  States.  —  Clark  v.  Van 
Riemsdyk,  9  Cranch  153;  Leeds  v. 
Marine  Ins.  Co.,  2  Wheat.  380;  Field 
V.  Holland,  6  Cranch  8 ;  Lenox  v. 
Notrebe.  Hempst.  251,  i.  Fed.  Cas. 
No.  8246c. 

Alabama.  —  May  t.  Barnard,  20 
.\la.  200;  Julian  r.  Reynolds,  8  Ala. 
(N.  S.)  680;  Morre  7'.  Hubbard,  4 
.A.la.  187;  Taylor  7:  Roberts,  3  Ala. 
83 ;  Singleton  v.  Gayle,  8  Port.  270 ; 
Collier  v.  Chapman,  2  Stew.  163 ; 
Cockerham  i'.  Davis,  5  Port.  220; 
Banner  L.  &  L.  Co.  v.  Stonewall  Ins. 
Co.,  77  Ala.  184;  Pearson  v.  Dar- 
rington.  32  Ab.  227;  Halstead  v. 
Shepard,  23  Ala.  558. 

Arkansas.  —  Whiting  7'.  Beebe,  12 
Ark.  421  ;  Dunn  7'.  Graham,  17  Ark. 
60;    Baraque    7'.    Siter,   9    Ark.    545; 

Vol.  I 


Blakcney  7'.  Ferguson,  14  Ark.  640. 

Dclazivrc.  —  Pleasanton  7'.  Raugh- 
ley.  3  Del.  Ch.   124. 

Florida.  —  Stackpolc  v.  Hancock 
(Fla.),  24  So.  914. 

Georgia.  —  Lunday  7'.  Thomas,  26 
('^'  537;  Adkins  7'.  Paul,  32  Ga.  219; 
Allen  7'.  Holden,  32  Ga.  418;  Clay- 
ton 7'.  Thompson,  13  Ga.  g02 ;  Carith- 
ers  7'.  JarrelL  20  Ga.  842. 

Illinois.  —  Rector  v.  Rector,  3 
Gilm.  105:  Martin  7'.  Dryden,  6  111", 
(i  Gilm.)  187;  Rust  V.  Mansfield, 
25  111.  297;  Personeau  V:  Pulliam,  47 
111.  58;  Hill  V.  Ormsbee,  12  111.  166. 
Indiana.  —  McClure  7'.  McCor- 
mick,  5  Blackf.  129;  Townsend  v. 
Mcintosh,   14  Ind.  57. 

/o7ca.  —  Jones  7'.  Jones.  13  Iowa 
277 ;  De  France  7'.  Howard,  4  Clarke 
524;  Williamson  v.  Haycock,  11  Iowa 
40;  Mobley  7'.  Dubuque  Gas  L.  Co., 
II   Iowa  71. 

Kentucky.  —  Rees  i>.  Lawless,  4 
Litt.  219 ;  Winters  7'.  January,  Litt. 
Sel.  Cas.  13 ;  Moseley  7'.  Armstrong, 
3  Mon.  287;  Harrison  7'.  Edwards, 
3  Litt.  340;  Harrison  7'.  Johnson,  3 
Litt.  286;  Hardin  7'.  Baird,  i  Litt. 
Sel.  Cas.  341 ;  Turner  7'.  Holman,  5 
Mon.  410;  Jones  7'.  Bullock,  3  Bibb 
467;  Fanning  7'.  Prilchctt,  6  Mon.  79; 
Blight  7'.  Banks,  6  Mon.  192;  White 
r.  Robinson,  I  A.  K.  Marsh.  423; 
Hunt  7'.  Stephenson,  i  A.  K.  Marsh. 
424;  Davis  7'.  Harrison,  2  J.  J.  Marsh. 
190;  Graham  v.  Sublett,  6  J.  J. 
Marsh.  44;  Bartlett  7'.  Marshall,  3 
Bibb  467. 

Maine.  —  Gilniorc  7'.  Patterson,  36 
Mc.  544 ;  Robinson  v.  Sampson,  23 
Me.   388;    Felch   7'.    Hooper,   20    Me. 

159- 

Maryland.  —  Winn  7'.  Albert,  2  Md. 
Ch.  169;  Glenn  7'.  Grover,  3  Md.  212; 
Stewart  v.  Stone,  3  Gill  &  J.  510; 
Glenn  v.  Baker,  i  Md.  Ch.  73;  Hay- 
wood 7'.  Carroll,  4  Har.  &  J.  518; 
Powles  7'.  Dilley,  9  Gill  222:  Calwell 
7'.  Boyer,  8  Gill  &  J.  136:  Harwood 
T.  Jones,  10  Gill  &  J.  404 ;  McKim  v. 
Thompson,  i  Bland  150;  Lingan  7'. 
Henderson,   I    Bland  236;   Bcvans  v. 


ADMISSIONS. 


451 


(14.)  Not  Competent  in  Another  Action  Against  Representative.  —  So 
it  is  held  that  an  answer  of  a  defendant  is  not  competent  evidence 
in  another  action,  relative  to  the  same  transactions,  against  his 
representatives."  And  this  is  true  whether  the  answer  is  one  filed 
in  the  same  action  in  which  it  is  offered  in  evidence,  or  in  a  different 
action.^''  Btit  an  admission  in  an  answer  b)'  one  defendant  mav  be 
sufficient  to  establish  the  facts  as  against  other  defendants."  And 
a  party  may  so  acquiesce  in  an  answer,  verified  by  another,  as  to 
render  it  a  binding  admission  against  him." 

(15.)   Failure    of    One    Defendant    to    Answer    Not    Competent    Against 


Sullivan.  4  (^.ill  383;  Reese  v.  Reese, 
41   Md.  554. 

Massachusetts.  —  Cliapin  >'.  Cole- 
man.   II    Pick.   330. 

Michigan.  —  Emerson  z\  Atwater. 
12  Mich.  314. 

Mississippi.  —  Lockman  v.  Miller 
(Miss.),  22  So.  822;  Hanover  Nat. 
Bank  '■.  Klein,  64  Miss.  141  ;  Hol- 
loway  7'.   Moore,  4  Smed.  &  M.  594. 

.Vc'Ti'  Jersey.  —  Vanderveer  v.  Hol- 
comb,  17  N.  J.  Eq.  54";  Hoff  t'.  Burd. 
17  N.  J.  Eq.  201  ;  AIcElroy  v.  Liid- 
kmi.  32   N.  J.  Eq.  828. 

Neu'  3'oW>-.— Webb  z:  Pell,  3  Paige 
Ch.  368;  Phoenix  -•.  Dey,  5  Johns. 
412:    Jndd    z'.    Scaver.    8    Paige    Ch. 

548. 

Pennsylvania.  —  Eckman  z:  Eck- 
man,  55   Pa.  St.  269. 

Tennessee.  —  Tnrner  z\  Collier.  4 
Heisk.   89. 

I'ernwnt.  —  Connor  f.  Chase.  15 
Vt.  764;  Porter  z:  Bank  of  Rntland. 
19   Vt.   410. 

I'irginia.  —  Pettit  v.  Jennings,  2 
Rob.  676 ;  Dade  t'.  Madison,  5  Leigh 
401. 

75.  Drnrv  ;•.  Conner,  6  Har.  &  J. 
(Md.)   288. 

76.  Wells  z:  Stratton,  i  Tenn.  Ch. 
328;  Dexter  v.  Arnold,  3  Sum.  152, 
7  Fed.  Cas.  No.  3859. 

77.  Fergus  f.  Tinkham,  38  III. 
407;   Xix  z'.  Winter,  35  Ala.  309. 

Exception  to  Rule  That  Answer 
of  One  Not  Good  Against  Another. 
In  passing  upon  this  question  of  the 
eiifect  of  an  answer  of  one  defendant 
upon  his  co-defendant,  it  was  said  in 
McLane  v.  Riddle,  19  Ala.  180 :  "  It 
is  a  general  rule  with  hut  few  ex- 
ceptions, that  the  answer  of  one  de- 
fendant is  not  evidence  against 
another.  Yet  when  the  right  of  the 
complainant   as   against   one    defend- 


ant is  only  prevented  from  being 
complete  by  some  question  between 
the  plaintiff  and  the  second  defend- 
ant, the  answer  of  the  second  de- 
fendant may  be  read  as  evidence. 
Thus,  if  a  mortgage  is  assigned, 
and  the  assignee  files  a  bill  against 
both  the  mortgagor  and  the  assignor, 
and  the  mortgage  is  proved  and  the 
assignor  admits  the  assignment,  the 
complainant  will  be  entitled  to  a 
decree  notwithstanding  the  mort- 
gagor may  deny  all  knowledge  of  the 
assignment.    See  2  Dan.  Ch.  Pr.  982; 

3  Hare  165.  The  reason  of  this  is, 
that  the  mortgagor  has  no  interest 
in  the  assignment,  and  as  the  answer 
of  the  assignor  estops  him,  the  equity 
of  the  assignee  is  complete.  If  the 
answer  of  the  assignor  is  evidence  to 
prove  the  assignment,  his  admissions 
made  before  the  bill  is  filed  must  be 
evidence  of  the  same  fact.  I  admit 
that  this  view  is  inconsistent  with 
the  case  of  Moore  et  al  v.  Hubbard, 

4  Ala.  187,  but  I  am  entirely  satisfied 
that  the  decision  in  that  case  cannot 
be  sustained." 

So  it  is  said  in  Whiting  Z'.  Beebe, 
12  Ark.  421  :  "  As  a  general  rule, 
it  is  true  that  the  answer  of  one  de- 
fendant cannot  be  used  against 
another.  To  this  rule  there  are  ex- 
ceptions :  one  of  which  is  thus  laid 
<lown  in  Daniel's  Chancery  Pleading 
and  Practice,  vol.  2,  page  982 :  '  In 
case,  however,  where  the  rights  of 
the  plaintiff,  as  against  one  defend- 
ant, are  only  prevented  from  being 
complete  by  some  question  between 
the  plaintiff  and  a  second  defendant, 
it  seems  that  the  plaintiff  is  permitted 
to  read  the  answer  of  such  second  de- 
fendant for  the  purpose  of  completing 
his  claim  against  the  first.'  " 

78.  Dyett  ?-.  North  Am.  Coal  Co., 
20  Wend.    (N.  Y.)    570. 

Vol.  I 


452 


ADMISSIONS. 


Another. —  The  failure  of  mie  defendant  to  answer  which  woiikl 
amount  to  an  admission  ag;ainst  liim  of  the  trutli  of  the  allegations 
of  the  bill,  cannot  be  taken  as  such  admission  as  against  a  co- 
defendant."* 

(16.)  Admissions  in  the  Answer.  —  .\n\'  admissions  in  the  answer, 
whether  under  oath  or  not.  are  conclusive!}-  binding  on  the  defend- 
ant in  the  action  in  which  the  answer  is  filed,  and  relieves  the 
complainant  from  proving  the  fact  admitted.**"  And  the  rule  applies 
although  discovery  has  been  waived  by  the  bill.^'  Therefore,  no 
evidence  will  be  heard  from  the  defendant  to  dispute  a  fact  thus 


79.  Effect  of  Failure  of  One  De- 
fendant to  Answer.  —  Tinilierlake 
etc.  V.  Cobbs,  2  J.  J.  Marsh.  (,Ky.) 
136;  Blight  V.  Banks,  6  Mon.  (Ky.) 
192 ;  Dickenson  v.  Railroad  Co.,  7  W. 
Va.  390;  Harrison  v.  Jolmson,  3 
Liu.    (Ky. )    286. 

Limitation  of  the  Rule.  —  Rnt 
the  rule  is  limited  to  matters  in  which 
the  co-defendant  is  liimself  interested. 
Therefore,  upon  the  matter  in  which 
he  lias  no  interest,  the  answer  of  his 
co-defendant  is  just  as  effective  as 
if  he  were  not  a  party  to  the  suit. 
Blight  V.  Banks,  6  Mo'n.  (Ky.)  192, 
in  which  it  is  said :  "  We  have 
already  seen  that  the  title  is  estab- 
lished from  the  patentees  to  David 
and  Burges  Allison,  and  it  has  liecn 
insisted  that  as  the  bill  is  taken  as 
confessed  against  the  rest,  the  con- 
fession is  sufficient  as  against  them, 
and  all  concerned.  It  will  be  admitted 
that  the  confession  is  clear  evidence 
against  the  defendants,  who  are 
silent,  and  indeed  as  to  all  others, 
whose  interest  can  not  be  prejudiced 
by  the  confession. 

"  As  the  title  has  passed  from 
Banks  and  Claibourne,  it  is  evident 
that  they  have  no  right  to  interfere 
with  the  fact  admitted  by  the  an- 
swers or  silence  of  other  grant- 
ors, unless  they  shall  make  out 
a  valid  lien,  and  the  admissions 
of  the  defendants  against  whom  the 
bill  is  taken  as  confessed,  shall 
operate  against  his  lien,  in  which 
case,  their  silence  cannot  prejudice 
bim." 

80.  Effect  of  Admissions  in  the 
Answer.  —  VuiU-d  Slates.  —  Tilgli- 
nian  i'.  Tilghman.  i  Baldw.  464,  2}, 
Fed.  Cas.  No.  14,045 ;  National  etc. 
Co.  V.  Interchangeable  etc.  Co..  8^ 
Fed.  26;   Commonwcillli   T.    1.  &  f. 

Vol.  I 


Co.  V.  Cummings,  83  Fed.  767 ;  Rob- 
inson !■.  Philadelphia  Ry.  Co..  28 
Fed.  S77- 

Alabama.  —  Toney  v.  Moore.  4 
Stew.  347 ;  .Adams  v.  Shelby,  10  .\la. 
(N.  S.)  -478;  Holmes  v.  State. 
(Ala.),  14  So.  51. 

Arkansas.  —  Pclham  v.  Floyd,  g 
.\rk.  530:  Pelliani  v.  Moreland.  6 
Eng.   442. 

Georgia.  —  Imbodcn  f.  Etowah  etc. 
Mill.  Co.,  70  Ga.  86;  Justices  etc.  ?■. 
Griffin,    15   Ga.   .^9. 

///jiKMJ.  —  Weider  t'.  Clark.  27  III. 
251;  Fergus  V.  Tinkliam,  38  III.  407; 
>Iiller  I'.  Payne.  4  III.  .\pp.  112: 
Chickering  !■.  Fullcrton.  90  111.  520; 
McNail  V.  Welch.  26  III.  .App.  482; 
Higgins  V.  Curliss.  82  111.  28;  Wick 
I'.   Weber,  64  III.   167. 

AV»/i«-/o'.  — Elliot  J'.  Whaley,  I 
\.  K.  Marsh.  460;  Atwood  i'.  Har- 
rison, 5  J.  J.   Marsh.  329. 

Michigan.  —  Morris  v.  Iloyt.  ri 
.Mich.  9. 

Mississippi.  —  Taylor  z:  Webb,  54 
.Miss.  36.  , 

.Vcjf  Hampshire.  —  Hollistcr  i: 
P.arkley.    11   N.   H.   500. 

Xc'a'  Jersey.  ~  Tate  7:  Field  (N. 
J.  Eq.),  37  .\t\.  440;  Lippencott  r. 
Ridgway.  11  N.  J.  Eq.  526;  Hyer  v. 
Little.  20  N.  J.  Eq.  44.^. 

iVi'ii'  ]'orh.  —  Balchen  t'.  Crawford. 
I   Saiidf.  380,  7  N.  Y.  Ch.  366. 

Te)inessec.  —  Yost  z:  Hudiburg.  .2 
Lea  627;  Brown  r'.  Brown,  10  Yerg. 
84. 

I'ernuint.  —  McDonald  t'.  McDon- 
ald. 16  Vt.  630;  Sanborn  v.  Kittredge. 
20  Vt.  632,  50  .■\ni.   Dec.  58. 

ll'est  i'irginia. — Jones  v.  Cunning- 
ham,  7   W.    Va.   707. 

81.  Where  the  Bill  Waives  Dis- 
covery.—  Iniboden  v.  Etowah  etc. 
Min.   Co.,   70  Ga.   »i. 


ADMISSIOXS. 


453 


admitted.**"  And  this  effect  has  been  given  to  the  ungnial  answer 
where  a  supplemental  answer  has  been  tiled. '"■■  lUit  it  must  be  lim- 
ited to  the  e.xact  admissions  made.''*  .\nd  it  is  held  that  nothing 
will  be  regarded  as  admitted  unless  it  is  c.vl^rcssly  admitted."''     But 


82.  Defendant     Cannot     Dispute. 

Robinson  z\  Pliiladelpliia  Rv.  Co., 
-'8  Fed.  577;  Wcider  f.  Clark.'  27  III. 
J5I  ;  Evans  !■.  Huffman,  5  N.  J. 
Eq.  354 ;  Pilaris  v.  Leachman,  20 
.•\la.  662;  Hyer  v.  Little,  20  N.  J. 
Eq.  443 ;  Shirley  '•.  Long,  6  Rand. 
(Va.)  764. 
Admission  Precludes  Ah  Inquiry. 

The  case  of  Van  Hook  t.  Sonierville 
.Mfg.  Co.,  5  N.  J.  Eq.  633,  45  .\ni. 
Dec.  401,  involved  the  execution  of  a 
mortgage.  In  speaking  to  this  ques- 
tion, the  court  said :  "  The  first 
question  for  the  consideration  of  the 
court  is,  whether  the  mortgage  set 
forth  in  the  bill  of  complaint  is  the 
deed  of  the  company.  So  far  as 
regards  these  parties,  and  under  the 
pleadings  in  the  cause,  this  can  not 
be  an  open  question.  The  answer  of 
the  defendants  distinctly  admits  that 
the  company  executed  the  bond  and 
mortgage  in  the  manner  set  forth  in 
the  bill  of  complaint.  This  admission 
precludes  all  inquiry  into  the  fact  or 
the    manner   of    the    execution." 

83.  Effect  of  Original  Where 
Supplemental  Answer  Filed.  —  "  The 
original  answer,  until  il  is  otherwise 
ordered,  always  remains  a  part  of 
the  record,  and,  while  it  so  remains, 
the  defendant  is  bound  by  its  ad- 
missions, and  a  retraction  of  them  in 
a  supplemental  answer  is  of  no  more 
use  than  so  much  waste  paper.  The 
court  never  allows  its  records  to  be 
iiicuiubered  with  useless  papers.  If 
an  admission  has  been  made  in  an 
answer  iinprovidently  and  by  mis- 
take, the  court  will  relieve  the  party 
making  it  from  its  effect,  by  an  order 
directing  so  much  of  the  answer  as 
contains  the  admission  to  be  treated 
as  no  part  of  the  record,  but,  before 
such  an  order  will  be  made,  the 
court  must  be  satisfied  by  affidavit 
that  the  admission  was  made  under 
a  misapprehension  or  by  mistake. 
Courts  e.xercise  a  liberal  discretion 
in  relieving  from  the  effect  of  ad- 
missions in  answers  not  under  oath, 
which  are  mere  pleadings  and  are 
frequently  signed  by  counsel ;  but 
wlierc  an  answer  is  under  oatli,  great 


caution  is  observed.  If  the  relief 
sought  is  from  an  admission  of  law, 
it  may  be  sufficient  to  show  that  he 
was  erroneously  advised  by  his 
solicitor  in  that  regard ;  but  where 
the  relief  sought  is  from  an  admis- 
sion of  fact,  it  should  be  shown  that 
the  answer  was  drawn  with  care 
and  attention,  stating  upon  informa- 
tion and  belief  such  facts  as  were  not 
within  the  defendant's  own  knowl- 
edge. No  court  ought  to  relieve  a 
party  from  the  consequences  of  a 
reckless  misstatement  under  oath. 
It  should  also  be  shown  that  the  fact 
misstated  was  not  one  within  the 
defendant's  own  knowledge,  and  that 
he  was  erroneously  informed  in 
regard  to  it,  and  made  oath  to  the 
answer,  honestly  believing  such  er- 
roneous information."  Maher  v. 
Bull.  39  111.  530. 

84.  Limited  to  Exact  Admissions. 
"  At  this  stage,  it  will  be  convenient 
to  dispose  of  a  point  made  and  in- 
sisted upon  by  the  complainant,  that 
inasmuch  as  the  bill  alleges  that  the 
deed  was  given  for  security,  and  the 
answers  all  admit  that  the  grantors. 
Hunter,  Leeds  and  Thorn,  and  their 
wives,  '  made  and  executed  a  certain 
deed,  or  instrument  in  writing,  of 
such  date  and  of  such  purport  and 
effect,  as  ii<  the  complainant's  bill  is 
mentioned  and  set  forth,'  this  is  an 
admission  of  the  fact  that  the  deed 
was  made  merely  as  and  for  a  mort- 
gage, and  precludes  all  inquiry  on 
the  subject.  But  that  position  can 
not  be  luaintained.  The  bill  sets 
forth  the  deed  verbatim,  and  the 
admission  under  consideration  is 
merely  that  the  instrniuent  was 
given,  and  without  admitting  or 
denying  that  it  was  exactly  as  stated 
in  the  bill,  conceded  that  it  was  in- 
deed    substantially     so."     Brown      v. 

Balen,    t,3    N.   J.    Eq.   469- 

85.  Must  Be  Expressly  Admitted. 
Morris  i'.  Morris,  5  Mich.  171  ; 
Schwarz  v.  Sears,  Walk.  Ch.  (Mich.) 
19;  White  r.  Wiggins,  32  Ala.  424; 
Cushman  '■.  Bonfield,  139  111.  219, 
28  x\.  E.  937- 

Vol.  I 


454 


ADMISSIONS. 


as  to  this  the  cases  are  not  agreed.'*'' 

The  admission  of  facts  in  an  answer  may  be  sufficient  to  overcome 
its  positive  denials.*'  And  where  the  facts  alleged  in  the  bill  are 
admitted,  and  matter  in  avoidance  alleged,  the  complainant  need 
not  prove  the  facts  thus  admitted,  but  the  defendant  must  prove  the 
matter  in  avoidance.**  But  the  answer  may  admit  the  facts  alleged 
in  the  bill  and  the  complainant  not  be  entitled  to  recover.  This 
will  be  so  where  the  bill  fails  to  state  facts  sufficient  to  entitle  the 
complainant  to  any  relief.*''  And  an  admission  of  a  fact  by  the 
answer  will  not  avail  the  complainant  unless  put  in  issue  bv  the 
bill."" 

(17.)   Where    the    Answer    Neither    Admits    Nor    Denies.  —   It   is   held 


86.  lliggins  V.  Curtiss,  82  111.  28; 
Taylor  v.  Webb,  54  Miss.  36;  Lewis 
v.  Knoxville  F.  Ins.  Co.,  85  Tenn. 
117,  2  S.  W.  17. 

Modifications  Result  From  Stat- 
utes  But  It  should  not  be  over- 
looked that  in  some  cases  the  modi- 
fication of  the  rule  results  in  other 
statutory  provisions.  McAllister  v. 
Clopton,  51   Miss.  257. 

87.  Thus  it  is  said  in  Yost  v. 
Hudiburg,  2  Lea  (Tenn.)  627 :  "  Had 
the  answer  stopped  with  a  simple 
denial  of  the  allegation  that  the 
money  or  means  of  A.  S.  Hudiburg 
paid  for  the  property  purchased  from 
Coffman,  the  onus  would  have  been 
upon  the  complainant  to  prove  the 
allegation ;  but  the  answer  having 
gone  further,  the  complainant  is  en- 
titled to  the  benefit  of  all  the  admis- 
sions ;  and  while  in  the  present  atti- 
tude we  must  take  the  history  of 
the  transaction  as  stated  in  the  an- 
swer, yet  he  is  at  liberty  to  draw 
any  legitimate  inference  from  those 
statements,  even  though  it  be  to  es- 
tablish the  existence  of  fraud  in  the 
face  of  the  general  denials  of  the 
answer." 

88.  Defendant  Must  Prove  Mat- 
ters in  Avoidance Clarke  v.  White, 

12  Pet.  178;  Tilghman  v.  Tilghman, 
I.  Baldw.  464,  23  Fed.  Cas.  No.  14,- 
045;  Randall  v.  Phillips,  3  Mason 
378,  20  Fed.  Cas.  No.  n,5==. 

89.  Bill  Must  State  Cause  of 
Action  or  Admission  Not  Effective. 
In  Belew  v.  Jones,  56  Miss.  342,  it 
was  held  that,  notwithstanding  the 
facts  alleged  in  the  bill  were  admit- 
ted by  the  answer,  the  cause  might 
be   reversed   on   appeal,   and   the  bill 


dismissed,  where  by  the  bill  itself 
complainant  was  not  entitled  to  any 
relief,  the  court  saying :  "  In  West 
Feliciana  Railroad  Company  v. 
Stockett  et  al.,  27  iMiss.  743,  744,  it 
was  held  that  a  decree  founded  on  a 
pro  confesso  of  the  bill  must  stand 
or  fall  on  its  allegations;  that  if  the 
complainant  did  not  state  a  case  for 
relief,  the  confession  of  it,  by  a 
failure  to  contest  it,  did  not  impart 
to  it  any  new  or  additional  virtue, 
and  the  decree  must  be  reversed. 
The  analogy  between  that  case  and 
one  where  the  answer  merely  form- 
ally admits  the  truth  of  the  mat- 
ters alleged  in  the  bill  is  complete. 
In  the  one  case,  the  pro  confesso 
operates  as  a  conclusive  admission 
by  the  defendant ;  in  the  other,  the 
defendant  appears,  and,  by  his  plead- 
ing, makes  the  formal  admission.  In 
either  case,  when  the  chancellor 
comes  to  make  his  decree,  he  looks 
to  the  record,  and  grants  relief,  or 
not,  on  the  case  which  it  presents. 
The  question  before  him  is  like  that 
of  '  agreed  facts,'  or  '  a  special  ver- 
dict,' before  the  common-law  judge. 
The  facts  are  conclusively  ascer- 
tained, and  the  judge  pronounces  the 
sentence  of  the  law  upon  them.  So, 
when  the  chancellor  comes  to  make 
up  his  decree  on  a  bill,  and  an  an- 
swer which  admits  the  matters  of 
fact  alleged  in  the  bill  to  be  true, 
he  finds  the  facts  conclusively  ascer- 
tained, and  the  function  which  he 
performs  is  to  declare  whether  the 
complainant  is  entitled  to  relief  nr 
not." 

90.     Hnff    j'^    r.unl,    t7    N.    J.    Eq.. 
201. 


Vol.  I 


ADMISSIONS. 


455 


that  where  the  answer  neither  admits  nor  denies  the  facts  alleged  in 
the  bill,  they  must  be  proved.'" 

But  again  it  is  held  that  a  material  fact  clearly  and  fully  averred 
in  the  bill,  and  not  denied  or  alluded  to  in  the  answer,  must  be 
taken  as  confessed. "- 


91.  Where  Answex-  Neither  Ad- 
mits Nor  Denies.  —  L'//;7<'d  States. 
Young  :■.  Grundy,  6  Cranch  51 ;  Com. 
T.  I.  &  T.  Co.  V.  Cnmmings,  83 
Fed.  767.  1 

.-ilabaina.  —  Bank  of  Mobile  v. 
Planters  and  Merchants'  Bank,  8 
Ala.  772. 

.4rkaiisiis.  —  Hardy  v.  Heard,  15 
Ark.  184;  Bonnell  f.  Roane,  20  Ark. 
114. 

Florida.  —  Stackpole  v.  Hancock, 
40   Fla.   362,  24   So.  914. 

Georgia.  —  Keaton  v.  McGwier,  24 
Ga.  217. 

Illinois.  —  Kitchell  ?'.  Burgwin,  21 
III.  40;  De  Wolf  v.  Long,  2  Gilm. 
679;  Stacey  r.  Randall,  17  111.  467; 
Wilson  V.  Kinney,  14  111.  27;  Nelson 
V.  Pinegar,  30  111.  473;  Trenchard  r. 
Warner,  18  111.  142 ;  Thomas  v. 
Adams,  59  111.  223 ;  Dooley  v.  Stipp, 
26  111.  86;  Cushman  z\  Bonfield,  139 
111.  219,  28  N.  E.  937. 

Kentucky.  —  Kennedy  v.  Meredith, 
3  Bibb  465  ;  Owings  v.  Patterson,  i 
A.  K.  Marsh.  325. 

Maryland.  —  Briesch  v.  McCauley, 
7  Gill   189. 

Michigan.  —  Hardwick  z\  Bassett, 
25   Mich.    149. 

Mississi/tpi.  —  Gartman  v.  Pendle- 
ton,  24   Miss.   234. 

Missouri.  —  Gamble  v.  Johnson,  9 
Mo.  605. 

Neiv  York.  —  Brockway  z:  Copp, 
3  Paige  Ch.  539. 

Tennessee.  —  Hill  v.  Walker,  6 
Cold.  424,  98  Am.  Dec.  465;  Tell  r-. 
Roberts,  3  Hayvv.  138 ;  Wilson  v. 
Carver,  4  Hayw.  90;  Smith  v.  St. 
Louis  Mut.  L.  Ins.  Co.,  2  Tenn.  Ch. 
599.. 

Virginia.  —  Cropper  t.  Brerton,  5 
Leigh  426;  Coleman  7'.  Lyne,  4  Rand. 

454- 

Affect   of   Allegation  of   Want   of 

Knowledge "  No  answer,  from  any 

knowledge  possessed  by  the  respond- 
ent, is  made  to  the  allegation  that 
the  complainant  acquired  complete 
title  to  the  land  under  the  pre-emption 
laws  of  the  United  States,  nor  to  the 


charge  contained  in  the  bill  of  com- 
plaint, that  the  deed  was  procured 
by  threats  of  personal  violence 
amounting  to  actual  duress.  On  the 
contrary,  the  answer  alleeed  that  the 
respondent  before  the  court  was  an 
utter  stranger  to  all  those  matters) 
and  things,  and  that  he  could  not 
answer  concerning  the  same,  because 
he  had  no  information  or  belief  upon 
the  subject.: 

"  Authorities  arc  not  wanting  to 
the  effect,  that  all  matters  well  al- 
leged in  the  bill  of  complaint,  which 
the  answer  neither  denies  nor  avoids, 
are  admitted ;  but  the  better  opinion 
is  the  other  way,  as  the  sixly-first 
rule  adopted  by  this  court  provides 
that  if  no  exception  thereto  shall  be 
filed  within  the  period  therein  pre- 
scribed, the  answer  shall  be  deemed 
and   taken   to   be   sufficient. 

"  Material  allegations  in  the  bill 
of  complaint  ought  to  be  answered 
and  admitted,  or  denied,  if  the  facts 
are  within  the  knowledge  of  the  re- 
spondent ;  and  if  not,  he  ought  to 
state  what  his  belief  is  upon  the 
subject,  if  he  has  any,  and  if  he  has 
none,  and  cannot  form  any,  he  ought 
to  say  so,  and  call  on  the  complainant 
for  proof  of  the  alleged  facts,  or 
waive  that  branch  of  the  controversy; 
but  the  clear  weight  of  authority  is, 
that  a  mere  statement  by  the  re- 
spondent in  his  answer,  as  in  this 
case,  that  he  has  no  knowledge  that 
the  fact  is  as  stated,  without  any  an- 
swer as  to  his  belief  concerning  it, 
is  not  such  an  adinission  as  is  to  be 
received  as  full  evidence  of  the  fact." 
Brown  i'.    Pierce,   7   Wall.   205. 

92.  Alleging  Want  of  Knowl- 
edge  Sanborn   ;•.   Adair,   29   N.   J. 

Efl-  338;  Jones  v.  Knauss,  31  N.  J. 
Eq.  609;  Pinnell  v.  Boyd,  33  N.  J. 
Eq.  190;  Neale  v.  Hagthrope,  3 
Bland  (Md.)  551;  Page  -■.  Winston. 
2  Munf.  (Va.)  298.  See  also  Mickle 
V.  JNIaxfield,  42  Mich.  304;  ;McAI- 
lister  f.  Clopton,  51   Miss.  257. 

Failure  to  Deny  Fact  Clearly 
Alleged.  —  In  Lee  :■.  Stiger,  30  N.  J. 

Vol.  I 


456 


ADMISSIOXS. 


(18.)  Alleging  Want  of  Knowledge. —  .\nd   an   answer  professing  a 

want  of  knowledge  of  the  facts  of  the  bill  cannot  be  considered  as 
evidence,  but  is  sufficient  to  compel  the  complainant  to  establish 
them  by  proof.""  In  this  the  equity  practice  differs  from  the  rule 
under  the  codes  that  all  matters  alleged  in  the  complaint,  and  not 
denied  in  the  answer,  are  admitted."^  And  the  rule  has  been 
changed  bv  statute  in  sc)me  of  the  states."^ 

(19.)  Need  Not  Be  Specific.  — It  is  not  necessary  that  the  answer 
lie  specific  as  to  each  fact  alleged  in  the  bill :  a  general  denial  of 
matters  not  admitted  is  sufficient  if  not  objected  to."" 

(20.)  Matters  Charged  to  Be  Within  Defendant's  Knowledge.  —  Where 
there  is  a  distinct  charge  in  the  bill  that  the  matters  are  within  the 
personal  knowdedge  of  the  defendant,  and  he  is  asked  to  answer  it, 
ins  failure  to  do  so  is  an  admission  of  its  truth."'      So  it  is  held 


Eq.  6io,  the  court  said :  "  The  an- 
swer neither  admits  nor  denies  the 
averment  of  the  bill  that  the  mort- 
gaged premises  were  conveyed  to 
her  subject  to  the  lien  of  the  mort- 
gagee ;  nor  does  it  contain  any  al- 
lusion to  that  fact.  The  bill  on  this 
point  is  unanswered  and  undisputed. 
A  material  and  controlling  fact, 
which  is  clearly  and  fully  averred  in 
the  bill,  and  not  denied  or  alluded 
to  in  the  answer,  must  be  taken  as 
confessed.  Sanborn  i\  Adair,  2 
Stew.  338.  As  the  pleadings  now 
stand,  it  must  be  taken  as  an  ad- 
mitted fact  that  both  the  mortgagor 
and  the  defendant  have  recognized 
the  mortgage  in  question  as  a  valid 
lien." 

Again  it  is  said :  "  The  bill  dis-- 
tiuctly  charges  ihat  he  took  the  mort- 
gage with  full  notice  of  the  trust. 
To  this  he  has  made  no  response 
whatever.  He  has  even  omitted  to 
say  whether  or  not  an  assignment 
was  made  to  him,  or  whether  or  not 
he  claims  any  right  to,  or  interest 
in,  the  mortgage.  He  has  not  offered 
himself  as  a  witness.  That  he  is  not 
an  iimocent  purchaser,  must  be  con- 
sidered as  admitted.  A  material  and 
controlling  fact,  which  is  clearly 
and  fully  averred  in  the  bill,  and  not 
denied  or  alluded  to  in  the  answer, 
must  be  taken  as  confessed."  Jones 
;■.  Knauss,  31   N.  J.  Eq.  (Sop. 

93.  Dntrv  ;■.  Conner,  6  Har.  &  J. 
(Md.)   288. 


94.     Colbert 


Henley,   64    Miss. 


95. 
96. 


Mead  r.  Day,  54  .Miss.  58. 
Stackpole      7'.      Hancock.      40 

Vol.  I 


Fla.   362,  24   So.   914;    Core  v.   Bell, 
20  W.   Va.    169. 

97.  Where  Bill  Charges  Matters 
To  Be  Within  Defendant's  Knowl- 
edge.—Tate  V.  Field,  56  N.  J.  Eq. 
35'.  .!7  Atl.  440;  Smilley  r.  Siler,  35 
Ala.  88;  Ross  v.  Shurtleff,  55  Vt. 
177;    Lyon   V.   Boiling,    14   Ala.    (N. 

S. )   75.V 

Facts  Charged  To  Be  Within  De- 
fendant's Knowledge It  was  held 

in  Mead  r.  Day,  54  Miss.  58,  that 
independently  of  the  statute  of  that 
state,  whenever  the  facts  iare 
charged  in  a  bill  in  equity  as  being 
within  the  personal  knowledge  of  the 
respondent,  he  must  explicitly  admit 
or  deny  them;  and,  if  he  fails  to  do 
so,  they  will  be  taken  as  admitted.  > 
But,  if  the  allegations  of  the  bill 
are  not  of  that  character,  a  failure  to 
deny  them  is  ground  only  of  ex- 
ception to  his  answer,  and  will  not 
justify  the  complainant  in  treating 
them  as  admitted.  'With  respect  to 
the  affect  of  the  statute  upon  the 
question,  the  court  said :  "  Let  us 
see  what  change  has  been  wrought 
in  these  principles  by  our  statute. 
Sec.  1016,  Code  1871,  provides  that 
'the  answer  shall  be  responsive  to  all 
the  material  allegations  of  the  bill ;' 
and  §  1024  declares  that  '  facts 
averred  in  the  bill,  and  not  denied  by 
the  answer,  otherwise  than  by  the 
general  traverse,  may  be  taken  at 
the  hearing  as  admitted.'  These 
provisions  are  brought  forward  into 
our  present  code  from  the  code  of 
1857,  547,  arts.  44  and  45.  They 
have  been  three  times  the  subject 
of  connncnt   in   this  court.      In   Rey- 


ADMISSIONS. 


457 


that  where  the  facts  are  actually  or  prima  facie  within  the  knowl- 
cdare,  information  or  belief  of  the  defendant,  if  in  his  answer  he 


Holds  I'.  Nelson,  41  Miss.  83,  it  was 
said  that  the  complainant  might  well 
have  set  down  the  case  on  bill  and 
answer,  '  for  the  answer  does  not 
deny  a  single  allegation  of  the  bill, 
bnt  only  alleges  that  the  defendant 
has  no  knowledge  of  any  of  the  facts 
stated  in  the  bill,  and  demands  strict 
proof.'  In  Cowen  !■.  Alsop,  51  Miss. 
158,  the  answer  only  declared  that 
■  defendant  does  not  admit  '  the 
charges  made.  The  charges  were 
not  as  to  matters  within  the  per- 
sonal knowledge  of  the  respondent. 
Peyton,  C.  J.,  thought  that  the  facts 
could  not  be  taken  as  admitted,  but 
that  exception  should  have  been 
taken  to  the  answer.  Tarbell,  J., 
thought,  that  under  the  statute  they 
were  admitted.  Simrall,  J.,  having 
been  of  counsel,  took  no  part.  In 
McAllister  v.  Clopton,  51  Miss.  259, 
ihe  respondent  answered  that  he  had 
no  personal  knowledge,  and  required 
strict  proof:  and  it  was  held  that  this 
was  equivalent  to  an  admission  un- 
der the  statute. 

"We  think  that  the  statute  intended 
to  some  extent  to  obviate  the  neces- 
sity of  exceptions  to  answers,  and 
to  compel  the  respondent,  at  the 
risk  of  having  the  allegations  of  the 
bill  taken  for  confessed,  fairly  to 
meet  and  join  issue  on  the  issues 
tendered  by  the  bill.  In  doing  so, 
he  is  compelled  to  do  something 
more  than  disclaim  personal  knowl- 
edge of  the  fact  charged.  A  man's 
personal  knowledge  is  frequently 
limited  within  a  very  narrow  range, 
and  we  all  act  every  dav  w'ith  the 
utmost  confidence,  and  in  the  most 
important  concerns  of  life,  upon  the 
informations  of  others,  and  the  belief 
thereby  engendered  in  ourselves.  To 
this  sort  of  information  and  belief, 
upon  the  part  of  the  respondent,  the 
complainant  is  entitled,  when  he  puts 
him  upon  his  corporal  oath  touching 
the  matters  in  dispute  between  them; 
and  the  respondent  cannot  avoid  a 
disclosure  by  a  mere  declaration  that 
he  knows  nothing  about  the  alle- 
gations made.  Independently  of  our 
statute,  such  an  answer  would  be 
liable  to  exception  for  insufficiency. 
Under  the  statute,   the  charges   may 


be  treated  as  having  been  admitted. 
Under  no  system  is  the  vicious  and 
too  common  habit  of  neither  admit- 
ting nor  denying  anything,  but  call- 
ing for  strict  proof  of  everything, 
admissiljle." 

Facts  Presumed  To  Be  Within  De- 
fendant's    Knowledge The     saine 

rule  is  declared  in  Hardv  v.  Heard, 
15  Ark.  184,  in  which  it  is  said: 
"  .As  a  defendant  in  chancery,  sub- 
mitting to  answer,  must  answer 
fully  and  fairly,  he  has  no  right  to 
say  he  is  not  willing  to  admit  any 
particular  fact  or  facts,  and  rest  his 
defense  there ;  nor  can  he  take  shelter 
behind  sweeping  and  broad  denials, 
or  vague  generalities.  (3  B.  Mon. 
17,  18.)  Such  a  practice  would 
thwart  the  end  to  be  attained  by 
courts  of  equity,  wdiich  is  to  arrive 
at  the  real  justice  of  the  case  by  ap- 
pealing to  the  conscience  of  the  de- 
fendant. And  this  brings  us  to  the 
question  as  to  the  consequences  of  a 
failure  to  answer  a  fact  charged,  and 
presumed  to  be  within  the  knowledge 
of  the  defendant.  The  general  rule 
as  to  answering  in  chancery,  was 
elaborately  discussed  by  this  court  in 
Blakeney  z'.  Ferguson,  decided  at 
January  term,  1854.  The  fact  in  that 
case  was,  that  the  complainants  al- 
leged themselves  to  be,  and  claimed 
as  widow  and  heirs  at  law  of  Joseph 
Ferguson,  deceased.  Blakenev.  in 
answering,  entirely  omitted  to  notice 
or  answer  that  statement,  and  there 
wa's  no  proof  of  it  at  the  hearing. 
It  was  neither  charged,  nor  could  it 
be  presumed,  to  be  within  his  knowl- 
edge. On  this  state  of  case,  quite 
different  from  the  one  now  involved, 
the  court  very  correctly  and  properly 
applied  the  general  rule,  that  the 
failure  of  Blakeney  to  answer  that 
statement  could  not  amount  to  an 
implied  admission  of  its  truth,  and 
as  the  complainants  had  omitted  to 
prove  it,  the  decree  could  not  be 
sustained.  That  rule  is  well  sup- 
ported by  authority,  and  with  it  we 
are  entirely  satisfied:  and  think  it 
should  govern  in  all  cases,  where 
the  fact  is  neither  charged,  nor  could 
be  presumed  within  the  knowledge 
of  the  defendant. 

Vol.  I 


458 


AD.MISSIONS. 


fails  to  deny  them,  or  express  his  belief  of  their  falsity,  and  does 
not  state  that  he  cannot  form  any  belief  respecting  their  trnth,  they 
must  be  considered  as  admitted.'''* 


"  But,  it  has  now  become  to  be  a 
clear  exception  to  that  rule,  which 
we  feel  disposed  to  recognize  and 
enforce,  that  where  the  bill  charges 
the  fact  to  be  within  the  knowledge 
of  the  defendant,  and  which  inaj 
fairly  be  presumed  to  be  so ;  or  with- 
out so  charging,  the  fact  may  rea- 
sonably be  said  to  be  within  the  de- 
fendant's knowledge,  if  the  answer 
is  silent  as  to  that  fact,  or  it  is 
answered  evasively,  it  amounts  to  an 
iDiflied  admission  of  the  facts  thus 
stated ;  and  no  further  proof  is  neces- 
sary to  warrant  a  decree  against  the 
defendant  upon  il.  (Scott  v.  Huine, 
Lit.  Sel.  Cas.  379;  Lewis  v.  Stafford, 
4  Bibb.  318;  Moore  v.  Lockctt.  2 
Bibb.  69;  McCampbell  v.  Gill,  4  J-  J- 
Marsh.  90;  Price  adm.  z'.  Boswell, 
3  B.  Mon.  17,  18;  Mitchell  z:  Mau- 
pin,  3  Mon.  187;  Bright  i'.  Wagle, 
3  Dana  256;  Armitage  v.  Wickliffe, 
12  B.  Mon.  488;  Neale  v.  Haythorp, 
3  Bland  551.)  Evasion  is  worse 
than  silence ;  because  the  former  may 
be  the  result  of  carelessness  or  inat- 
tention, while  the  latter  springs  from 
design,  and  is  entitled  to  no  favor 
whatever. 

"  This  e.xception  and  qualification 
of  the  general  rule  are  only  applic- 
able in  cases  of  knowledge,  either 
charged  or  presumed;  and  if  a  fact 
should  be  charged  to  be  within  the 
knowledge  of  the  defendant,  which 
in  the  very  nature  of  things  could  not 
be,  or  it  was  extremely  improbable 
it  should  be  so,  there  could  of 
course  be  no  implied  admission  aris- 
ing from  either  silence  or  evasion. 
Before  the  complainant  can  have  the 
benefit  of  the  implied  admission,  it 
must  appear  reasonable  that  the  fact 
is  within  the  knowledge  of  the  de- 
fendant." 

Where  Knowledge  Cannot  Be 
Presumed.  —  And  again  :  '  The  fail- 
ure of  T.  T.  Boiling  to  answer  as 
to  the  indebtedness  of  his  father  to 
the  complainant,  cannot  be  regarded 
as  an  admission  of  the  fact.  It  is 
not  alleged  in  the  bill  that  this  de- 
fendant was  informed  of  the  pay- 
ments   made   by   the   complainant   to 

Vol.  I 


.McVoy,  and  it  cannot  be  presumed 
that  he  possessed  other  knowledge 
or  information  in  respect  to  them 
than  the  bill  affords.  The  rule  then, 
'  that  whatever  is  specifically  averred 
in  a  bill,  and  not  denied  in  the  an- 
swer, must  be  taken  as  admitted,' 
does  not  apply."  Lvon  v.  Boiling,  14 
Ala.    (N.    S.)    7S3- 

98.     Where    in    Fact   Within   His 

Knowledge Smilley    v.     Siler,    35 

Ala.  88;  Moseley  v.  Garrett,  i  J.  J. 
Marsh.  (Ky.)  212;  Thorington  v. 
Carson,  I  Port.  (Ala.)  257;  Clark  v. 
Jones,  41  Ala.  349;  Kirkman  v.  Vaii- 
lier,  7  Ala.  217;  Kennedy  v.  Mere- 
dith, 3  Bibb  (Ky.)  465;  Cowan  v. 
Price,  I  Bibb  (Ky.)   172. 

Facts  Prima  Facie  Within  De- 
fendant's Knowledge.  —  In  Grady  z'. 
Robinson,  28  Ala.  289,  it  is  said: 
"  Where  material  matters  are  stated 
in  the  bill,  which,  prima  facie,  are 
within  the  knowledge,  information, 
or  belief  of  the  defendant,  if  in  his 
answer  he  fails  to  deny  them,  or  to 
express  his  belief  of  their  falsity, 
and  does  not  state  that  he  cannot 
form  any  belief  respecting  their 
truth,  they  must  be  considered  as 
admitted,  without  any  order  taking 
them  for  confessed.  McClain  z'. 
Waters,  9  Dana  55 ;  Bailey  v.  Wilson. 
I  Dev.  &  Batt.  Eq.  Rep.  187.  A 
vague  manner  of  denial  of  such  mat- 
ters is  always  received  unfavorably. 
i.\  defendant  is  not  at  liberty  thus 
to  put  in  issue  allegations,  which  he 
may  knozi.'  or  fully  believe,  to  be 
true.  If  he  expresses  himself  ob- 
scurely, and  leaves  to  the  court  the 
task  of  divining  his  meaning,  the 
court  adopts  that  construction  of  his 
language  which  is  strongest  against 
him.  lie  cannot  be  allowed  to 
.shelter  himself  behind  equivocal, 
evasive,  or  doubtful  terms,  and  thus 
mislead  the  complainant ;  nor  behind 
a  literal  denial  which  amounts  to  no 
more  than  a  negative  pregnant,  or 
an  evasion  of  the  point  of  sub- 
stance." 

Effect  of  Equivocal  Answer. 
So  it  is  held  that  where  a  bill  makes 
an  allegation  of  a  fact,  which,  if  true. 


ADMISSIONS. 


459 


(21.)  By  Failure  to  Answer. —  If  a  defendant  is  duly  served  with 
the  sub]joena  and  fails  to  answer,  he  thereby  admits  the  allegations 
of  the  bill,  but  no  more."" 

(A.)  By  Failure  to  Filk  Rki'mcation. —  In  order  to  put  in  issue  the 
allegations  of  the  answer,  the  plaintiff  must  file  a  replication  thereto. 
If  he  does  not,  his  failure  amounts  to  an  admission  of  the  truth  of 
the  facts  allesred  in  the  answer.^"" 


must  be  within  the  knowledge  of  the 
defendanl,  he  should  respond  to  it 
positively.  If  tlie  answer  is  equivo- 
cal, the  hill  will  be  taken  as  true. 
Pierson  z'.  Meaux.  i,  A.  K.  Marsh. 
(Ky.)   4. 

Charged  or  Presumed  To  Be 
Within  Defendant's  Knowledge. 
In  Moore  v.  Lockett,  2  Piibb  (Ky.) 
67,  it  is  further  said:  "  If  an  answer 
is  silent  as  to  a  matter  charged  in 
the  bill  to  be  within  the  defendant's 
knowledge,  or  which  may  be  fairly 
presumed  so  to  be,  the  matter  ought 
to  be  considered  as  admitted ;  but 
ought  not,  where  the  matter  is  not 
so  charged,  or  cannot  reasonabb'  be 
presumed  to  be  within  his  knowledge. 
This  appears  to  us  the  most  equitable 
rule  upon  the  subject;  for  if  the  de- 
fendant files  an  insufficient  answer, 
the  complainant  can  except,  and  com- 
pel a  better  one.  But  were  he  per- 
mitted to  consider  as  admitted  every 
fact  not  particularly  denied  by  the 
answer,  it  would  frequently  produce 
surprise  on  the  defendant ;  and  more- 
over, oftentimes  occasion  decrees 
contrary  to  the  real  justice  of  the 
cause,  upon  implied  admissions,  false 
in   fact." 

99.  Effect  of  Failure  to  Answer. 
Atwood  I'.  Harrison,  5  J.  J.  Marsh. 
(Ky.)  32g;  Robinson  t'.  Townshend, 
3  Gill.  &  J.  (Md.)  41.3;  Blakency  v. 
Ferguson.   14  Ark.  640. 

100.  By  Failure  to  Reply. 
United  States.  —  Reynolds  v.  Craw- 
fordsville  Nat.  Bank,  112  U.  S.  405; 
Gcttings  Z'.   Burch,  9  Cranch  372. 

Alabama.  —  McGowan  z:  Young, 
2  Stew.  276;  Lucas  v.  Bank  of 
Darien,  2  Stew.  280. 

Illinois. — Trout  z'.  Emmons.  20  111. 
433,  81  Am.  Dec.  'J26 ;  Buntain  z: 
Wood,  29  111.  504;  Prettyman  v. 
Barnard,  37  111.  105 ;  De  Wolf  i'. 
Long,  2  Gilm.  679. 


Indiana.  —  Hale  z'.  Plunimer,  6 
Ind.    121. 

Kentucky.  —  Mason  v.  Peck,  7  J.  J. 
Marsh.  301. 

Michigan.  —  Hardwick  z'.  Bassctt, 
25  Mich.   149. 

Nezc  Jersey. — Thomas  z\  De  Baum, 
14  N.  J.  Eq.  37;  Bunker  v.  Anderson, 
32  N.  J.  Eq.  35. 

North  Carolina.  —  Fleming  v. 
Mnrph,  6  Jones  Eq.  59. 

I'crmont.  —  Wright  z'.  Bates,  13 
Vt.  341  ;  Doolittle  v.  Gookin,  10  \'t. 
265. 

I'irginia.  —  Pickett  v.  Chilton,  5 
Munf.  467. 

Effect  of  Failure  to  File  Replica- 
tion  In    Snccd    '•.    Tuwn.    9    Ark. 

53;,  in  passing  upon  the  effect  of  the 
failure  to  file  a  replication,  the  court 
said:  "That  objection  is,  that,  inas- 
much as  the  record  presents  upon  its 
face,  no  replication  to  the  answers, 
the  law  confines  the  hearing  to  the 
bill,  answers  and  exhibits,  and  thus 
the  depositions  will  be  excluded. 
And  such  is  undoubtedly  the  law  of 
which  our  statute,  referred  to  by  the 
appellants,  is  but  a  declaration  or 
affirmance :  and  in  such  case  the  an- 
swer must  be  taken  as  true  in  all 
things,  whether  the  matter  contained 
in  it  be  responsive  or  not,  or  whether 
it  be  negative  or  affirmative,  for  the 
reason,  not  only  that  the  complainant 
in  the  bill  thereby  intimates  his  ad- 
mission of  all  these  facts,  but  also 
that  by  his  omission  he  prevents  the 
respondents  from  proving  such  of 
them  as  he  would  otherwise  have  to 
establish  by  evidence,  by  paralyzing 
his  authority  to  sue  out  a  commission 
to  examine  witnesses,  which  neither 
party  can  do  until  after  an  issue  shall 
have  been  formed  by  the  pleadings, 
unless  for  aged  and  infirm  witnesses, 
and  in  other  cases  which  are  within 
the  range  of  the  exception  to  this 
rule." 

Vol.  I 


460 


ADMISSIONS. 


But  the  filing  of  tlic  replication  may  be  waived,  or  its  filing 
allowed  bv  the  court  nunc  pro  tunc} 

(B. )  The  Filing  of  Necessary  Pleading  May  Be  Waived.  —  If  the 
]«rties  go  to  trial  without  the  filing  of  a  pleading  necessary  to  form 
an  issue,  and  thereby  treat  the  case  as  at  issue,  the  failure  to  file 
the  pleading  will  not  amount  to  an  admission. - 

(C.)  Refusal  to  Answer.  —  It  is  held  that  the  refusal  to  answer  by 
the  defendant  is  not  to  be  taken  as  an  admission  of  the  allegations 
of  the  bill  that  have  not  been  answered.^ 

(D.)  Admissions  Against  Infants.  — The  rule  is  that  no  admission, 
binding  upon  him.  can  be  made  by  an  infant,  but  that,  notwith- 
standing such  admission  on  his  part,  the  complainant  must  prove 
his  case.* 

(22.)  Guardian  Ad  Litem  Cannot  Bind  By.  —  And  that  no  binding 
admission  can  be  made  for  an  infant  by  a  guardian  ad  litem.-' 


1.  Filing  Replication  May  Be 
Waived.—  United  States.  — Reynolds 
I'.  Crawfordsville  F.  Nat.  Bank,  II2 
U.  S.  405;  Brown  v.  Pierce,  7  Wall. 
205'. 

Aii;ansas.  —  Jordan  t.  Bronougli, 
1 1  .\rk.  702. 

Illinois.  —  Marple  r.  Scott,  41  111. 
50;  Jones  V.  Neely,  72  111.  J49. 

Kentucky.  —  Scott  v.  Clarkson.  i 
Bibb  2-7.  " 

Maryland.  —  Glenn  r.  Hebb.  12 
Gill.  &  J.  271. 

Michigan.  —  Harrhvick    v.    Bassett. 
25  Mich.  149. 
'  Xnc  Jersey.  — Ca'.kW]   1:    Sine,    i,? 
N.  J.  Eq.  136. 

Xortli  Carolina.  —  Flenimg  r. 
Mnrph,  6  Jones  Eq.  jq. 

2.  Waiver  of  Necessary  Plead- 
ing. —  Stark  i:  Hilliljcrt.  19  111.  344; 
Webb  V.  Alton  M.  &  F.  Ins.  Co.,  5 
Gilm.  (111.)  223;  Jameson  v.  Con- 
way, 5  Gilm.  (111.)  227;  Marple  v. 
Scott,  41  111.  50;  Scott  V.  Clarkson, 
I  Bibb  (Ky.)  277;  Gaskill  r.  Sine, 
n  N.  J.  Eq.  1.30, 

3.  McDowell  r.  Goldsmith.  2  Md. 

Ch.  370- 

4.  Admissions    in    Pleadings    of 

Infants McClay  v.  Norris,  4  Gilm 

(111.)  370;  Hitt  V.  Ornisbee,  12  111. 
166;  Tompkins  v.  Tompkins,  18  N. 
J.  Eq.  ,303;  Masterson  v.  Wiswould, 
18  111.  48;  Tuttle  V.  Garrett,  16  HI. 
3t;4:  Kent  v.  Taneyhill,  6  Gill.  &  J. 
■(Md.)  i;  Harris  v.  Harris,  6  Gill.  & 
T.  (Md.)  in;  Watson  v.  Godwin.  4 
Md.  Ch.  25;  Benson  i'.  Wright.  4  Md. 
Ch.  278;  Wrottcrfly  v.  Bendish.  3  P. 
Wniv  235. 

Vol.  I 


5.     Guardian     Ad     Litem     Cannot 

Admit.  —  {,/)ii7f(i  States.  — Lenox  v. 
Notrebe,  Hempst.  251,  15  Fed.  Cas. 
No.  8246c. 

Illinois.  —  Cochran     v.     McDowell, 
15   111.    10. 

Maryland.  —  Kent    -•.    Tanovhill,   6 
Gill.  &  J.  I. 

/  'irginia.  —  Bank  of  Alexandria  v. 
Patton.   I   Rob.   528. 

Admission  by  Guardian  Ad  Litem. 
In  Carr  v.  Fielden.  18  HI.  77,  a  gnar- 
dian  ad  litem  put  in  an  answer  sub- 
stantially admitting  the  allegations 
of  the  bill,  and  no  proof  in  support 
of  certain  material  allegations  of  the 
bill  was  made.  The  court  held  that 
full  proof  was  necessary  in  equity 
proceedings  against  an  infant  no 
matter  what  answer  might  be  made 
by  his  guardian  ad  litem. 
'  Bill  Against  Infant  Not  Taken  as 
Confessed.  —  "It  has  been  held  in 
Virginia,  and  in  this  state,  that  it  was 
error  to  proceed  to  decree  against 
infant  defendants  until  they  shall 
have  answered  by  guardian  ad  litem. 
The  policy  of  the  law,  and  the  rules 
and  principles  governing  courts  of 
chancery,  has  never  been  to  take  bills 
for  confessed  by  infants  for  the  want 
of  an  answer.  Infants  are  deemed 
and  taken  to  be  incapable  of  making 
contracts  or  admissions  \\i  civil  tran- 
sactions, ordinarily,  that  are  binding 
upon  them.  And  it  is  because  of  the 
legally  supposed  want  of  proper  un- 
derstanding and  discretion  of  the  in- 
fant that  he  is  not  permitted  to  sue 
in  his  own  name;  and  when  he  is 
sued  in   civil  proceedings,  that  he  is 


.IPMISSIOXS. 


461 


D.  In  UivoRCK  Casks. — a.  i'asc  Xot  Made  Out  by  .-Ittiiiissioiis 
in  Pleadings.  —  The  rule  as  to  admissions  by  the  pleadings, 
either  expressly,  or  by  a  failure  to  deny  the  facts  alleged  in  the 
adverse  pleading  is  entirely  different  in  divorce  cases  from  that 
prevailing  in  ordinary  civil  actions.  The  case  of  the  plaintiff  can- 
not be  made  by  such  admissions  by  the  defendant.  Every  fact 
necessary  to  make  out  a  cause  of  action  must  be  proved,  no  matter 


required  to  defend  or  answer  by 
guardian  ad  litem.  Generally,  the 
appointment  of  a  guardian  ad  litem 
has  been  regarded  as  a  mere  matter 
of  form,  and  the  answer  to  be  filed 
1)y  Iiim  is  also  almost  universally 
merely  formal,  asking  the  court  to 
protect  the  interest  of  the  infant. 
Generally,  the  guardian  ad  litem  has 
no  personal  knowledge  of  material 
matters  alleged  in  the  bill,  and  he 
can  neither  admit  nor  deny  the  alle- 
gations in  relation  thereto.  Infants 
are  regarded  as  the  wards  of  the 
court,  and  this  is  peculiarly  so  with 
respect  to  a  court  of  equity  in  causes 
before  it  involving  their  interests,  to 
which  they  are  parties.  The  mere 
omission  or  neglect  of  a  guardian  ad 
litem  to  tile  a  proper  answer  cannot 
be  allowed  to  prejudice  the  infant. 
.\r\A  I  apprehend  that  ordinarily  the 
admissions  of  the  guardian  ad  litem. 
made  in  the  answer,  would  not  have 
the  force  of  evidence  against  the  in- 
fant. It  would  certainly  be  destruc- 
tive and  ruinous  to  infants  and  their 
rights  and  estates  to  take  material 
allegations  of  a  plaintiff's  bill  as  con- 
fessed by  them  for  the  purposes  of 
the  suit,  which  are  not  expressly  de- 
nied or  controverted  in  the  answer 
made  for  them  bv  their  guardian  ad 
litem."  Laidlev  v.  Kline,  8  W.  \'a. 
218. 

Admission  Does  Not  Affect  Infant. 
In  McClay  v.  Norris,  4  Gilm.  (111.) 
370,  the  court  say:  "It  is  entirely 
clear  that  the  answer  of  a  guardian 
ad  litem,  even  if  it  shall  admit  the 
truth  of  the  charges  in  the  complain- 
ant's bill,  can  in  no  case  affect  the 
infant's  rights ;  and  with  respect  to 
him,  all  allegations  must  be  proved 
with  the  same  strictness,  as  if  the 
answer  had  interposed  a  direct  and 
positive  denial  of  their  truth.  No 
default  or  decree  /rn  eonfesso  can  be 
entered  against  him." 

Full       Proof      Must      Be      Made. 


.■\gain  it  is  said:  "  It  is  a  well  set- 
tled principle  often  recognized  by 
this  court,  that  before  a  decree  can 
pass  against  an  infant  defendant  in 
chancery,  full  proof  must  be  made 
against  him,  and  that  proof  preserved 
in  the  record  or  decree.  No  pre- 
sumption can  be  indulged,  that  proof 
was  made  against  the  infant  defend- 
ant, unless  it  is  shown  by  the  record. 
The  answer  of  a  guardian  ad  litem. 
admitting  the  truth  of  the  charges  in 
the  bill,  cannot  affect  the  infant's 
rights,  but  with  respect  to  him  all 
the  allegations  must  be  proved  with 
the  same  strictness  as  if  the  answer 
had  interposed  a  direct  and  positive 
denial  of  their  truth,  nor  can  a  de- 
fault or  a  decree  pro  eonfesso  l)e  en- 
tered against  an  infant."  Chaffin  i'. 
Kimball,  23  111.  33. 

Infant  Not  Bound  by  Answer  of 
Guardian — It  is  said  in  Wright  '■. 
Miller,  l  Sandf.  103  :  "  The  answer 
of  an  infant  by  his  guardian  i-  in 
truth  the  answer  of  the  guardian, 
and  not  of  the  infant.  Wrottesley  v. 
Bendish,  3  P.  Wins.  336.  Hence, 
the  infant  is  not  bound  by  his  answer, 
it  cannot  be  read  against  him,  and  no 
decree  can  be  made  on  the  admission 
of  facts  which  it  contains,  i  Uan. 
Ch.  Pr.  236,  238;  I  Hoffm.  Ch.  Pr. 
232,  243,  note  I,  and  cases  cited. 
Where  there  are  infant  defendants, 
and  it  is  necessary  in  order  to  enti- 
tle the  complainant  to  the  relief  he 
prays,  that  certain  facts  should  be 
before  the  court,  such  facts,  although 
they  might  be  the  subject  of  admis- 
sion on  the  part  of  the  adults,  must 
be  proved  against  the  infants.  I 
Dan.  Ch.  Pr.  238;  Mills  r.  Dennis.  3 
Johns  Ch.  367.  In  Wilkinson  i'. 
Beal,  4  Madd.  408,  Sir  John  Leach 
refused  to  receive  the  admission  in 
an  infant's  answer  as  evidence 
against  him,  that  one  of  his  co- 
defendants  was  out  of  the  jurisdic- 
tion of  the  court." 


Vol.  I 


462 


ADMISSIOXS. 


whether  they  are  admitted  by  the  pleaihngs  of  the  defendant  or  not." 
b.   Verbal  Admissions  or  Confessions  Insufficient.  —  In  most  of 
the  states  the  granting  of  a  divorce  on  the  admissions  or  confessions 
of  the  parties  to  the  suit  is  forbidden. 

(1.)  Held  Not  to  Be  Competent  Evidence. — And  in  some  of  the  cases 
it  is  held  that,  not  only  by  the  terms  of  the  statute,  but  as  matter  of 
public  policy,  such  admissions  are  not  competent  evidence." 

(2.)  Other  Cases  Hold  Them  Competent.  —  But  in  others  it  is  held, 
notwithstanding  the  provision  of  the  statute  that  a  divorce  cannot 
be  granted  on  the  admissions  of  the  parties,  that  their  admissions 
or  confessions  are  competent  to  be  proved  and  considered  with  other 
evidence  as  establishinsf  the  risht  to  a  divorce.* 


■Hughes  <'.  Hughes, 
Beuuett, 


6.  Alabama. 
44  Ala.  698. 

California.  —  Renuett     v. 

28  Cal.  599- 

Illiiwis.  —  Sbillinger  ':  Shilliuger. 
14  111.   147. 

Indiana. —  Scott  z:  Scott,  17  Ind. 
309. 

Kentucky.  —  Stibbins  v.  SliblMiis,  i 
Met.   (Ky.)   476. 

Massachusetts.  — Baxter  v.  Baxter, 
I  Alass.  346. 

Minnesota. — True  ■«'.  True,  6  Minn. 
458. 

Nc7i.'  York.  —  Palmer  v.  Palmer,  i 
Paige  Ch.  276;  Barry  v.  Barry, 
Hopk.    Ch.    118;    Fowler   v.    Fowler, 

29  Misc.  673,  61  N.  Y.  Supp.  108. 
Pennsylvania.  —  Kilborn    v.    Field, 

78  Pa.  St.  194- 

Texas.  —  Stafford  v.  Stafford.  41 
Tex.  Ill;  Hanna  v.  Hanna,  3  Tex. 
=;i,  21  S.  W.  720. 

Virginia.  —  Hampton  v.  Hampton. 
8;  \'a.   148,   \2  S.  E.  340. 

Admissions  in  Pleadings,  Eifect  of. 
It  is  said  in  Schmidt  v.  Schmidt,  2q 
N.  J.  Eq.  496,  that  to  permit  parties 
in  divorce  suits  to  establish,  merely 
by  the  allegations  and  corresponding 
admissions  of  bill  or  petition  and 
answer,  the  facts  necessary  to  give 
the  court  jurisdiction  would  be  to 
practically  annul  important  provis- 
ions of  tlie  law,  and  leave  to  simple 
unverified  averment  and  admission 
facts  which  the  legislature  intended 
should  be  established  by  proof. 

7.  Stafford  v.  Stafford,  41  Tex. 
Ill  ;  Sheffield  v.  Sheffield,  3  Tex.  79; 
Hanna  i'.  Hanna,  3  Tex.  51,  21  S.  W. 
720;  Hampton  v.  Plampton,  87  Va. 
148,  12  S.  E.  .340. 

Mere       Silence      Under      Charge, 

Vol.  I 


Effect  Of.  — In  True  v.  True,  6 
Minn.  458,  it  was  held  that  independ- 
ently of  any  statute  to  that  effect  a 
divorce  could  not  be  granted  upon 
the  mere  silence  of  a  defendant  un- 
der the  charge  made  against  him. 

Admission  or  Confession  Incom- 
petent  In    Viser    v.    Bertraiid.    14 

Ark.  267,  Mr.  Justice  Scott  used  this 
language  :  "  The  marital  tie,  although 
a  civil  contract  in  the  eye  of  the  law. 
differs  from  all  other  civil  contracts 
in  one  essential  particular.  The  par- 
ties can  never  annul  it  by  means 
either  direct  or  indirect.  Hence  the 
inflexible  rule  of  law  that  the  con- 
fessions of  either  party  are  wholly 
incompetent  as  evidence." 

Conviction  Under  Plea  of  Guilty. 
In  Endick  v.  Endick,  61  Tex.  559,  the 
record  of  conviction  of  tlie  husband 
on  a  criminal  charge  of  having  as- 
saulted the  wife,  based  upon  a  plea 
of  guilty,  was  held  to  be  incompetent 
on  the  ground  that  it  was  in  effect 
an  admission,  and  as  such  inadmissi- 
ble. 

8.    .See  "Divorce." 

Alabama.  —  King  v.  King,  28  Ala. 

315- 

California.  —  Baker  v.  Baker,  13 
Cal.  87 ;  Cooper  v.  Cooper,  88  Cal.  45- 

Illinois.- — Lenning  v.  Lcnning,  176 
111.   180,  52  N.  E.  46. 

/»rfm»n.  —  McCuIloch  v.  McCul- 
loch,  8  Blackf.  60. 

Kansas.  —  Burk  v.  Burk.  44  Kan. 
307,  24  Pac.  466. 

Kentucky.  —  Stibbins  7'.  Stibbins,  I 
Met.  476. 

Maine. — Vance  i'.  Vance,  8  Greenl. 
(Me.)   132. 

.Massachnsetts.  —  Baxter  7'.  Baxter, 


ADMISSIONS. 


463 


(3.)  And  Others  That  Divorce  May  Be  Granted  On,  Alone.  —  And  some- 
go  to  the  extent  of  holding  that  a  divorce  may  properly  be  granted 
on  the  admissions  or  confessions  of  the  party  where  it  appears  that 
there  was  no  collusion  or  imposition  on  the  court." 

c'  Cannot  Be  Granted  on  Stipulation. — What  the  parties  cannot 
do  by  their  admissions  or  silence  they  cannot  do  by  express  consent 
or  agreement;  therefore,  a  divorce  cannot  be  granted  on  the  stipu- 
lation of  thej  parties." 

d.  Neeessary  Allegations,  Not  Ground  for  Divorce,  Effect  of 
Admissions.- — It  has  been  held  that  the  rule  against  accepting  the 
admissions  in  the  answer  as  evidence  extends  only  to  "  facts  alleged 
as  grounds  of  divorce,"  and  not  to  other  necessary  allegations,  such 
as  the  marriage  of  the  parties. ^^ 

E.  Admissions  in  Open  Coukt. — a.  Generajly. — Admissions  are 
often  made  in  open  court,  generally  for  the  purpose  of  avoiding  the 
necessity  of  proving  the  facts  admitted  at  the  trial.  When  so  made 
they  stand  in  the  place  of  absolute  proof  of  the  facts  admitted,  at 


I  Mass.  346;  Holland  v.  Holland,  2 
Mass.   154. 

Mississippi.  —  Armstrong  ;■.  Arm- 
strong, 32  Miss.  279. 

Nczv  Jersey.  —  Clutch  v.  Clutch,  i 
N.  J.  Eq.  474;  Miller  v.  Miller,  2  N. 
J.  Eq.  139 :  Lindsay  v.  Lindsay,  42 
"N.  J.  Eq.  IW.  7  Atl.  666;  Derhy  i'. 
Derhy.  21   N.  J.  Eq.  .36. 

AVtc  York.  —  Doe  "'.  Roe,  i  Johns. 
Ch.  25;  Betts  V.  Betts,  i  Johns.  Ch. 
197;  Stewart  v.  Stewart,  51  N.  Y. 
St.  629,  65  N.  Y.  Supp.  927." 

Pennsylvania. — Matchin  z\  Match- 
in.  6  Pa.  St.  332,  47  Am.  Dec.  466: 
Baker  1'.  Baker,  195  Pa.  St.  407,  46 
Atl.  96. 

Other  Proof  Necessary In  Evans 

V.  Evans,  41  Cal.  103,  evidence  of  ad-" 
missions  made  by  the  defendant  was 
e.xcluded  by  the  court  below.  It 
was  held  that  the  statute  required 
other  proof  to  warrant  the  granting 
of  a  divorce,  but  did  not  prohibit  the 
proof  of  admissions  in  connection 
with  other  proof. 

9.  Lvon  V.  Lvon,  42  Barb,  f  N.  Y.) 
138. 

Admissions  Competent In  Baker 

z'.  Baker,  13  Cal.  87,  it  was  held  that 
the  statute  providing  that  a  divorce 
shall  not  be  granted  on  the  confes- 
sions of  the  parly  ahfne  does  not  ren- 
der such  confessions  incompetent 
evidence,  and  that  the  statute  is  only 
affirmatory  of  the  well  established 
common  law,  and  of  the  English  Ec- 
clesiastical law  which  has  been  recog- 


nized from  the  earliest  period,  both  in 
England  and  in  the  several  states  of 
the  Union,  and  that  the  object  of  the 
rule  is  to  prevent  collusion  between 
the  parties.  See  also  Andrews  i'.  An- 
drews, 120  Cal.  184,  52  Pac.  298; 
Smith  V.  Smith,  119  Cal.  183,  48  Pac. 
7W 

Divorce  Granted  on  Confession 
Alone. —  In  Billings  z:  Billings,  u 
Pick.  (Mass.)  461,  the  ground  for 
divorce  was  adultery,  and  the  only 
evidence  was  the  confession  of  the 
defendant  contained  in  a  letter  to  his 
wife.  It  was  held  that  the  reason 
for  requiring  other  evidence  is,  in 
general,  to  prevent  collusion,  and 
that,  as  in  that  case  it  appeared  by 
other  evidence  that  there  could  be  no 
collusion,  the  divorce  was  properly 
granted  upon  the  confession  alone. 

10.  Robinson  X'.  Robinson,  16 
Mich.  79. 

11.  Allegations  That  May  Be 
Admitted.  — In  Fox  r.  Fox.  25  Cal. 
58-',  it  was  directly  held  that  a  fail- 
ure to  deny  in  the  answer  the  alle- 
gation of  the  marriage  of  the  parties, 
was  an  admission  of  the  fact  that 
rendered  proof  of  it  unnecessarj'. 

Not  Jurisdictional  Facts But  a 

different  rule  was  declared  in  Ben- 
nett 7'.  Bennett,  28  Cal.  599,  in  re- 
spect of  the  allegation  of  the  resi- 
dence of  the  plaintiff,  on  the  ground 
that  the  latter  was  a  jurisdictional 
fact  that  could  not  be  admitted  but 
must  be  proved. 

Vol.  I 


464 


.^l)^llssJ().\s. 


least  for  the  purposes  of  the  trial,  in  and  as  a  part  of  which  they  are 
made,  and  no  evidence  to  the  contrary  can  be  heard. '^ 

b.  U'/icii  Issues  Arc  C/nvigcd.  —  It  is  lield  that  a  clian<Te  in  the 
issues  after  an  admission  has  been  made  does  not  atifect  its  binding 
effect." 

c.  for  the  Purfioscs  of  the  Trial.  —  Where  aihiiissions  are  made 
only  for  the  purposes  of  the  trial  they  are  not  ccmipetcnt  to  be 
proved  against  the  party  making  them  in  any  other  action.^*     Nor 


12.  United  States.  ■ —  Scaife  v. 
Western  N.  C.  Land  Co.,  90  Fed.  238, 
33  C.  C.  A.  47 ;  Lyman  v.  Kansas 
City  &  A.  R.  Co.,  loi   Fed.  636. 

California. — Hearn  v.  DeYoung, 
III  Cal.  373,  43  Pac.  1 108. 

Colorado. — Rockwell  v.  Graham,  9 
Colo.  36,  ID  Pac.  284. 

Illinois. — 'Wineteer  v.  Simonson,  75 
111.  App.  653 ;  Wilson  v.  Spring,  64 
111.  14. 

/Hrfiflfio.— Thompson  v.  Thompson, 

9  Ind.  323,  68  Am.  Dec.  638. 
Kansas. — Central  Branch  U.  P.  R. 

Co.  V.  Shoup,  28  Kan.  394. 

Maryland.  —  Farmers'  Bank  v. 
Sprigg,    II   Md.  389. 

Massachusetts. — Blake     v.     Sawin, 

10  Allen  340. 

Missouri. — Moliny  v.  Barnard,  65 
Mo.  App.  600. 

Netv  Hampshire.  —  Burbank  v. 
Rockingham  Mutual  Ins.  Co.,  24  N. 
H.  550,  57  Am.  Dec.  300. 

Ot/a/ioma.— Consolidated  S.  &  W. 
Co.  V.  Burnham,  8  Okla.  514,  58  Pac. 
654- 

F^rwon*.— Commercial  Bank  v. 
Clark,  28  Vt.  325. 

Facts    Conceded    by    Counsel In 

Oscanyan  v.  Arms  Co.,  103  U.  S.  261, 
the  court  said :  "  Tlie  power  of  the 
court  to  act  in  the  disposition  of  a 
trial  upon  facts  stated  by  counsel  is 
as  plain  as  its  power  to  act  upon  the 
evidence  produced.  ...  In  the 
trial  of  the  cause  the  admissions  of 
counsel  as  to  matters  to  be  proved 
are  constantly  received  and  acted 
upon.  They  may  dispense  with  proof 
of  facts  for  which  witnesses  would 
otherwise  be  called.  They  may  limit 
tlte  demand  made  or  the  set  off 
claimed.  Indeed,  any  fact,  bearing 
upon  the  issues  involved,  admitted 
by  counsel,  may  be  the  ground  of 
the  court's  procedure  equally  as  if 
established  by  the  clearest  proof." 

Vol.  I 


13.  That  issues  have  been 
changed  does  not  affect  admissibil- 
ity— In  Jones  v.  Clark,  37  Iowa  586, 
588,  it  was  claimed  that  the  issues  had 
been  changed  since  the  admission 
was  signed.  The  court  said  :  "  This 
may  be,  but  the  paper  was  signed 
with  reference  to  the  fact  admitted 
and  not  the  issue  in  the  case.  It 
can  be  used  for  any  purpose  in  the 
case,  and  would  be  admissible,  even 
in  another  action." 

To  the  same  effect,  see  Langley  v. 
Oxford,  I  M.  &  W.  508. 

Admission  Binding  Although 
When  Made  it  Was  Not  Within  the 
Issues.  —  Schhtssel  7:  Willett,  u 
Barh.    (N.   Y.)    615. 

14.  Alabama.- — Holman  v.  Bank 
of  Norfolk,  12  Ala.  369. 

California.- — Wilkins  v.  Stidger,  22 
Cal.  231,  83  Am.   Dec.  64. 
Indiana. — Hays  v.    Hynds,  28  Ind. 

531. 

Kansas. — Central  Branch  U.  P.  R. 
Co.  V.  Shoup,  28  Kan.  394,  42  Am. 
Rep.   163. 

.Micliigan. — Isabelle  v.  Iron  Cliffs 
Co.,  57  Mich.  120,  23  N.  W.  613. 

Missouri. — Nichols  v.  Jones,  32 
Mo.  App.  657. 

New  York. — Owen  v.  Cawley,  36 
N.  Y.  600. 

Oklahoma. — Blankinship  v.  Okla- 
homa Co.,  4  Okla.  242,  43  Pac.  1088. 

Vermont. — Commercial  Bank  v. 
Clark,  28  Vt.  325. 

Washington. — Edmunds  v.  Black, 
13  Wash.  490,  43  Pac.  330. 

Wisconsin. — Weisbrod  v.  Chicago 
&  N.  W.  Ry.  Co.,  20  Wis.  441. 

Not  Admissible  in  Another  Case. 
In  Holman  v.  Bank  of  Norfolk,  12 
Ala.  369,  408,  it  was  agreed  between 
the  attorneys  upon  a  former  trial, 
that   no   objection   should   be   made ; 


ADMISSIONS. 


405 


upon  a  subsequent  trial  of  the  same  cause,  without  consent. ^'^ 

d.  Wlicn  Not  Limited.  —  If  admissions  made  are  g-eneral  and  not 
Hmited  to  the  purposes  of  the  trial,  they  may  be  proved  at  a  subse- 
quent trial  of  the  same  case,  or  in  another  action.'" 


that  a  party  named  had  hitherto  been 
permitted  to  represent  the  party  to 
that  suit.  This  stipulation  was  of- 
fered in  evidence  in  another  suit, 
with  which  the  counsel  making  the 
stipulation  had  no  connection.  With 
respect  to  the  competency  of  such 
a  stipulation,  the  court  said :  "As 
the  representatives  of  their  clients, 
counsel  have  doubtless  power  to  ad- 
mit the  existence  of  the  facts ;  but 
such  admission,  as  proof  of  the  exis- 
tence of  the  fact,  is  available  only 
in  that  particular  case.  It  would  be 
a  most  alarming  doctrine,  that  an 
admission  made  by  counsel,  in  the 
progress  of  a  cause,  was  proof  of 
the  fact  so  admitted,  through  all 
future  time.  The  authority  of  coun- 
sel is  confined  to  the  case  in  which 
he  is  employed;  he  has  no  power 
to  bind  his  client,  beyond  the  effect 
of  the  admission,  in  the  particular 
case  in  which  it  was  made." 

15.  Weisbrod  v.  Chicago  &  N.  W. 
Ry.  Co.,  20  Wis.  441 ;  Hays  v.  Hynds, 
28  Ind.  531 ;  McKinney  v.  Salem,  77 
Ind.  213;  Wheat  v.  Ragsdale,  27  Ind. 
191. 

When  Understood  to  be  Limited 
to  Trial — In  Weisbrod  v.  Chicago 
&  N.  W.  Ry.  Co.,  20  Wis.  441,  it  is 
said  that  such  admissions  are 
frequently  made  for  the  purpose  of 
saving  time  where  counsel  are  con- 
fident of  success  on  some  other 
point;  and  when  so  made  they  are 
always  understood  to  have  reference 
to  the  trial  then  pending,  and  not  as 
stipulations  which  shall  bind  at  any 
future  trial. 

"The  bill  of  exceptions  which  con- 
tained an  admission  of  the  counsel 
for  the  defendant  on  a  former  trial 
was  properly  ruled  out.  The  admis- 
sion was  made  only  on  and  for  the 
trial  at  the  time  it  was  made,  and 
could  not  be  used  on  a  subsequent 
trial  without  the  consent  of  defend- 
ants." Hardin  v.  Forsythe,  99  111. 
312,  324- 

But  comt'arc  King  v.  Shepherd, 
105  Ga.  473,  30  S.  E.  634 ;  Taylor  v. 

30 


State  Ins.  Co.,  107  Iowa  275,  77  N. 
W.   1032. 

16.  England. — Langley  v.  Oxford, 
I  M.  &  W.  508. 

Illinois. — Home  Ins.  Co.  v.  Field, 
53  111.  App.  119. 

loxva. — Jones  v.  Clark,  27  Iowa 
S86. 

Kansas.— Cen\.ra\  Branch  U.  P.  R. 
Co.  V.  Shoup,  28  Kan.  394,  42  Am. 
Rep.  163. 

Maine. — Woodcock  v.  Calais,  68 
Me.  246;  Holley  v.  Young,  68  Me. 
215,  28  Am.  Rep.  40. 

Maryland.  ■ —  Farmers'  Bank  v. 
Sprigg,  II  Md.  389;  Elwood  v.  Lan- 
non,  27  Md.  200 ;  Merchants'  Bank  v. 
Bank,  3  Gill  (Md.)  96,  43  Am.  Dec. 
300. 

Oklahoma. — Blankinship  v.  Okla- 
homa &c.  Co.,  4  Okla.  242,  43  Pac. 
1088;  Consolidated  S.  &  W.  Co.  v. 
Burnham,  8  Okla.  514,  58  Pac.  654. 

Pennsylvania. — Truby  v.  Seybert, 
12  Pa.  St.  loi. 

Party  Acting  in  Representative 
Capacity — The  rule  is  the  same 
where  the  admission  is  by  a  party 
acting  in  a  representative  capacity^ 
for  instance  as  administrator.  Phil- 
lips V.  Middlesex,  127  Mass.  262. 

Oral  Admissions  of  Counsel  Not 
Limited — In  Central  Branch  U.  P. 
R.  Co.  V.  Shoup,  28  Kan.  394,  it  was 
claimed  that  mere  oral  admissions 
made  by  counsel  were  necessarily 
made  for  the  purposes  of  the  trial 
only,  and  were  not  competent  to  be 
proved  against  the  party  at  a  sub- 
sequent trial.  But  both  the  court 
below  and  the  supreme  court  held 
the  contrary. 

Unlimited  Competent  on  Another 
Trial.  —  The  rule  is  thus  stated 
in  Home  Ins.  Co.  v.  Field,  53  111. 
App.  119,  123:  "On  the  first  trial 
it  was  admitted  that  Scott  was  the 
agent  of  the  company.  On  the  last, 
plaintiff  offered  in  evidence  the  of- 
ficial stenographer's  notes  to  prove 
tliat  admission,  and  he  w.is  per- 
mitted, over  defendant's  objection, 
to    read    from    them    the    following: 

Vol.  I 


466 


.IIJM/SSIOA'S. 


Whether  General,  or  for  Purposes  of  the  Trial,  a  ftuestion  of  Fact. 
Whether  the  admission  was  made  sjcnerally,  or  only  for  the  purposes 
of  the  trial,  has  been  held  to  be  a  cpiestion  of  fact  to  be  determined 
by  the  jury." 

But  the  rule  is  stated  with  reservations.  It  would  seem  to  be  a 
question  as  to  the  competency  of  the  evidence,  and  if  it  is,  it  must 
be  a  question  for  the  court.'* 

Court  Should  Determine. ^And  it  may  safely  be  said  to  be  the  better 
rule  that  the  court  in  which  the  admission  is  ofifered  should  deter- 
mine, as  matter  of  law,  whether  the  admission  is  such,  and  made 
under  such  circumstances  as  to  be  properly  provable  ag^ainst  the 
party  at  a  subsequent  trial  or  the  trial  of  a  different  case.  It  is 
treated  in  the  decided  cases  as  a  question  of  the  competency  of  the 
evidence,  and  not  of  its  weig'ht  or  effect.'" 

e.  By  an  Attorney  Must  Be  Distinct  and  Formal.  —  .\dmissions 
of  an  attorney  to  liind  his  client  must  be  distinct  and  formal,  and 


'It  is  admitted  by  both  parties  that 
Mr.  Scott  was  the  agent  of  this  com- 
pany.' The  groimd  of  objection  was 
that  the  admission,  according  to  the 
evidence  offered,  was  not  that  of  the 
defendant,  but  of  both  the  parties, 
and  must  be  presumed  to  have  been 
intended  to  be  for  that  trial  only. 
It  was  not  in  terms  so  limited,  nor 
do  we  perceive  in  the  fact  that  it  was 
the  admission  of  lioth,  a  r'^Tson  for 
holding  it  any  the  less  effective  as 
against  the  defendant.  The  law 
seems  to  be  that  such  formal  and 
solemn  admissions  are  in  general 
conclusive,  and  may  be  given  in  evi- 
dence even  upon  a  new  trial." 
I    Grecnl.    on    Ev.,    Sections    27,    186. 

17.  Central  Branch  U.  P.  R.  Co. 
V.  Shoup,  28  Kan.  394,  42  Am.  Rep. 
163. 

On  a  Former  Trial  Competent. 
Plaintiff  offered  to  prove  that  at  a 
former  trial  defendants'  counsel  ad- 
mitted certain  facts.  Defendants 
objecting,  offered  to  show  that  those 
facts  were  admitted  for  the  purposes 
of  the  former  trial  only,  and  that 
plaintiff  before  the  present  trial  had 
notice  that  the  same  matters  would 
now  be  denied.  The  appellate  court 
said:  "The  court  admitted  the  tes- 
tiuKiny.  and  \\'i'  think  correctly. 
.  .  .  If  at  a  former  trial  certain 
facts  were  adniilled  as  true  .  .  . 
that  such  an  admission  was  made 
may  be  proved  as  a  fact.  .  .  . 
But    the    circumstances    surrounding 

Vol.  I 


the  admission,  the  purposes  for  which 
it  was  made,  and  the  conditions  at- 
tached to  it,  may  be  fully  shown. 
It  may  not  infrequently  happen  that 
a  party  will  not  be  bound  by  an 
admission,  and  will  not  be  estopped 
from  denying  its  truth.  And  in  view 
of  the  showing  on  both  sides,  allow- 
ing each  party  to  prove  the  whole 
truth,  it  will  be  for  the  triers  to  de- 
termine how  the  proof  stands  on  the 
facts  in  controversy,  on  which  the 
admission  is  claimed  to  bear."  Perry 
V.  Simpson  Waterproof  Manf.  Co., 
40  Conn.  313,  317. 

18.  Central  Branch  U.  P.  R.  Co. 
V.  Shoup,  28  Kan.  394,  42  Am.  Rep. 
163. 

Admission  Obviously  Intended  for 
the  Trial  Only — It  is  said  in  the 
Kansas  case  cited  that  it  is  true  that 
sometimes  the  waiver  or  admission 
may  be  so  obviously  intended  for  that 
trial  alone  that  the  court  may  prop- 
erly so  instruct  the  jury,  and  it  may 
also  be  so  obviously  intended  as  a 
general  admission  that  the  court  may 
instruct  the  jury  to  treat  it  as  such, 
for  instance,  where  the  parties  sign 
an  agreed  statement  of  facts." 

19.  Hays  v.  Hynds,  28  Ind.  531 ; 
Lord  V.  Bigelow,  124  Mass.  185 ; 
Isabelle  v.  Iron  Cliffs  Co.,  57  Mich. 
120,  23  N.  W.  613. 

And  see  Price  v.  Bank,  17  Ala. 
374,  where  the  appellate  court  refused 
to  review  a  ruling  that  a  certain  ad- 
mission had  been   made. 


ADMISSIONS. 


467 


made  for  the  express  purpose  of  dispeiisiii!;-  witli  fi>rinal  proof  of  the 
fact  at  the  trial. =" 

Made  by  Counsel  in  One  Case  not  Admissible  in  Another. —  Achnissions 
of  fact,  made  b}'  counsel  in  the  trial  of  one  case,  are  held  not  to  be 
competent  evidence  against  his  client  in  another  action.-^ 


20.     Greeiil.  Ev.,  §  186. 

England. — Young  v.  Wright,  i 
Camp.    139. 

Alabama. — Ryan  v.  Beard,  74  Ala. 
306;  Price  V.  Bank,  17  Ala.  374. 

Arkansas. — Flynn  v.  State,  43  Ark. 
289. 

Califnniia. — /»  re  Jessnp,  81  Cal. 
408,  21  Pac.  976,  6  L.  R.  A.  594. 

Georgia. — Central  R.  R.  Co.  v. 
Gamble,  77  Ga.  584,  3  S.  E.  287. 

Illinois  — Carthage  v.  Buckner,  8 
111.  App.  152. 

lo'iva. — Treadway  v.  The  S.  C.  & 
St.  P.  R.  R.  Co.,  40  Iowa  526. 

Kentucky.— 'Ta.\ho\.  v.  McGee,  4  T. 
B.  Mon.  375. 

Maine. — McKeen  v.  Gammon,  31 
Me.  187. 

New  Hampshire. — Alton  v.  Gil- 
manton,  2  N.  H.  520. 

New  York. — King  v.  Masonic  L. 
Ass'n,  87  Ihin  591.  34  N.  Y.  Supp. 
563 ;  Sullivan  v.  Dunham,  35  App, 
Div.  342,  54  N.  Y.  Supp.  962;  Ander- 
son V.  McAIleenan,  15  Daly  444,  8 
N.  Y.  Supp.  483 ;  Voisen  v.  Commer- 
cial Ahit.  Ins.  Co.,  51  N.  Y,  St. 
635.  22  N.  Y.  Supp.  .348. 

North  Carolina. — Fleming  v.  Wil- 
ming-ton  &c.  Co.,  115  N.  C.  676, 
20  S.  E.  714;  Davidson  v.  Gifford, 
100  N.  C.  t8,  6  S.  E.  718. 

Oklahoma. — Blankinship  v.  Okla- 
homa &c.  Co.,  4  Okla.  242,  43  Pac. 
1088. 

Ohio. — Garrett  v.  Hanshue,  53 
Ohio  St.  482,  42  N.  E.  256,  35  L.  R. 
A.  321. 

South  Carolina — Cooke  v.  Pen- 
nington, 7  Rich.  385 ;  Brown  v.  Pech- 
nian.  55  S.  C.  555.  33   S.   E.  732. 

West  Virginia.  —  McGinnis  v. 
Curry,  13  W.  Va.  29. 

Compare  Pratt  v.  Conway,  148  Mo. 
291,  49  S.  W.  1028,  and  Walsh  v. 
Mo.  P.  R.  Co.,  102  Mo.  582,  14  S.  W. 
873   and    15   S.   W.   757. 

After  Trial  and  Before  Decision. 
It  is  held  that  an  admission  made 
by   an    attorney   after   the    trial,   but 


before  the  final  decision,  and  in 
answer  to  an  inquiry  by  the  judge 
before  whom  the  case  is  pending  for 
decision,  is  binding  on  the  client. 
Holderness  v.  Baker,  44  N.  H.  414. 

See  also  The  Harry,  Fed.  Cas. 
N'O.  6147. 

21.  England. — Doe  v.  Bird,  7 
Car.  &  P.  6,  32  Eng.  C.  L-  4iS- 

.•tlaha)na. — llolman  v.  Bank,  12 
Ala.  369. 

California. — Wilkins  v.  Stidger,  22 
Cal.  231,  83  Am.  Dec.  64. 

Illinois. — Hardin  v.  Forsythe,  99 
111.  312;  Contra.  Home  Ins.  Co.  v. 
Field,  53  111.  App.  119,  and  Carthage 
V.  Buckner,  8  111.  App.  152. 

Indiana. — Hays  v.  Hynds,  28  Ind. 

S3I- 

Kansas. — Central  Branch  U.  P. 
Co.  V.  Shoup,  28  Kan.  394,  42  Am. 
Rep.  163. 

Louisiana. — Shipman  v.  Haynes,  15 
La.  363. 

Maryland. — Dorsey  i'.  Gassoway.  2 
H.  &  J.  402,  3  Am.  Dec.  5.S7. 

.!\lichi.i;au. —  Isabelle  v.  Iron  ClifTs 
Co.,  57  Mich.  120,  23  N.  W.  613. 

Missouri. — Nichols  v.  Jones,  32 
Mo.   App.  657. 

Nc%i'  York. — Owen  v.  Cawley.  36 
N.  Y.  600 ;  Anderson  v.  McAIleenan, 
IS  Daly,  444.  8  N.  Y.  Supp.  483. 

irisc-i>iLs-in. — Weisbrod  v.  Cliicngo 
&  N.  W.  Ry.  Co.,  20  Wis.  441. 

By  Attorney  Not  Admissible  in 
Another  Action — An  attorney,  in  all 
matters  relating  to  the  progress  and 
trial  of  the  cause,  may  bind  his 
client.  And  so  admissions  made  by 
tlie  attorney,  for  the  purposo  of 
alleviating  the  stringency  of  some 
rule  of  practice,  or  of  dispensing 
with  the  formal  proof  of  some  fact, 
at  the  trial,  are  binding  upon  the 
client,  for  the  purposes  of  the  cause 
in  which  tlicv  arc  made,  i  Greenl. 
Pac.  925,  16  .\m.  St.  Rep.  185,  sL.  R. 

Mn,   .App.  657,  664. 

But  see  to  the  contrary,  Voisen  v. 
Commercial  Mut.  Ins.  Co,  51  N.  Y- 

Vol.  I 


4()S 


ADMISSIONS. 


At  Hearing  of  Rule  to  Show  Cause. — It  is  held  that  an  admission 
made  by  counsel  on  the  hearing  of  an  order  to  show  cause  cannot 
be  used  at  the  trial.--  But  the  correctness  of  this  holding  may  be 
questioned.^" 

Unless  Made  With  Knowledge  of  Client.  —  Admissions  of  the  attor- 
ney are  competent  if  it  is  shown  that  they  were  made  with  the 
knowledge  and  consent  of  the  party,  or  that  he  acquiesced  in  them.-^ 

In  Argument — Statements  of  counsel  in  argument  are  not  bind- 
ing on  the  client  as  admissions.-^ 


St.  635.  22  N.  Y.  Supp.  348;  Truby  v. 
Seybert,  12  Pa.  St.  lOi  ;  Central  B. 
U.  P.  Co.  V.  Slioup,  28  Kan.  394,  d2 
.■\ni.  Rep.  163. 

Only  Binding  at  the  Trial  at 
Which  Made — In  Isabelle  v.  Iron 
Cliffs  Co.,  57  Mich.  120,  23  N.  W. 
613,  it  is  said:  "The  stipulation  of 
facts  made  in  another  case  by  the  at- 
torneys therein  was  not  admissibli 
in  this.  The  only  ground  upon 
which  its  reception  could  be  based 
was  that  it  contained  admissions  of 
the  party  of  the  e.xistence  of  certain 
facts.  Attorneys,  as  the  agents  of 
parties  whom  they  represent  in  a 
cause,  have  authority,  by  virtue  of 
such  agency,  to  make  admissions 
which  are  binding  upon  the  parties 
in  that  particular  case ;  but  they 
have  no  authority,  by  reason  of  such 
relation,  to  bind  a  party  generally 
by  admission  of  facts.  Their  agency 
is  for  a  special  purpose,  and  for  a 
spcciticd  Iraiisactioii.  and  their  ad- 
missions inade  with  reference  thereto 
rre  binding  upon  the  party  they 
represent.  But  admissions  so  made 
cannot  bind  the  party  in  other  suits 
or  proceedings  between  other  par- 
lies. I  Greenl.  Ev..  Sees.  113-115; 
Elling  V.  Scott,  2  Johns.  157,  163; 
Harrison's  Devisees  v.  Baker,  =;  Litt. 
250;  Baylor  v  Smithers,  I  T.  B. 
Mon.  6;  Tompkins  v.  Ashley,  Mood 
&  M.  32;  Brittingham  v  Stephens, 
I  Hall  (N.  Y.  S.  C.)  379." 

22.  State  v.  Buchanan,  Wright 
(Ohio)   233. 

23.  Shippman  v.  Haynes,  15  La. 
363. 

24.  Lord  V.  Bigelow,  124  Mass. 
185. 

Acquiescence  Must  Be  Shown. 
The  attorney's  power  is  not  general 
but  special  and  confined  to  the  par- 
ticular rncp  in   which   it   is   employed, 

Vol.  I 


and  his  admissions  cannot  be  re- 
ceived outside  of  said  case  unless 
the  client  has  made  the  admissions 
his  own  by  acquiescing  in  them. 
Nichols  -'.  Jones,  32  Mo.  App.  657, 
664. 

Contra. — Voisen  v.  Insurance  Co., 
51  N.  Y.  St.  63s,  22  N.  Y. 
Supp.  348;  Truby  v.  Seybert,  12  Pa. 
St.  lOi  ;  Central,  etc.,  Co.  v.  Shoup, 
28  Kan.  394.  42  .\m.  Rep.  163. 

Express  Acquiescence  Required. 
.\  stipulation  made  by  an  attorney 
in  one  action  will  not  bind  his  client 
in  another  unless  the  latter  expressly 
■Tcquiesces  in  it  in  the  second  suit, 
much  less  will  it  estop  his  assignee. 
Compare  Truby  v.  Seybert,  12  Pa. 
St.  T0[  and  Overholzer  7'.  Mc- 
ATichacl,  10  Pa.  St.  139. 

Made  by  Counsel  Without  Author- 
ity  When    it    appeared,    as   in   (his 

case,  that  the  admission  was  limited 
lo  the  trial  then  pending,  merely  to 
save  time,  and  that  the  client  had  no 
knnwled,ge  of  the  admission,  and 
never  expressly  authorized  it.  and 
when  the  opposite  party  was  put  on 
his  .guard  by  timelv  notice  that  the 
fact  would  not  again  be  admitted,  it 
';eems  to  iis  that  it  was  error  to  al- 
low the  evidence  of  the  previous  con- 
cession to  go  to  the  iury.  Itwotdd, 
ns  a  rule,  tend  to  defeat  rather  than 
nromote  justice;  would  discourage 
(he  making  of  concessions  upon  nisi 
f'rius  trials,  as  to  facts  not  deemed 
necessary  to  contest,  and  thereby 
contract  them,  and  render  them 
niore  expensive  and  vexatious :  and 
all  (his  would  be  compens.nted  by  no 
!»ood  resid's  whatever."  Hays  v. 
TTvnds.  ?R  Tnd.  S3i. 

25.  Sanderson  :•,  State  (Tex,").  4-1 
S.  W.  IT03. 


in.\nssic)NS. 


46') 


f.  Acliiiissioiis  In  Opening  .'^Uilcnicnl  i\oi  Binding.  —  The  admis- 
sion to  be  bindiny  nuisl  he  so  made  as  to  be  a  part  of  the 
evidence  in  the  case,  or  formally  made  to  avoid  or  excuse  the  mak- 
ing of  proof.  Therefore,  the  mere  admission  or  statement  of 
counsel  in  an  opening  statement  is  not  such  as  to  amount  to  a 
binding  admission.^" 

But  there  may  be  exceptions  to  this  rule.  Indeed,  it  has  been 
held  that  an  admission  made  by  counsel,  in  the  opening  statement, 
may  be  conclusive  of  the  case,  and  warrant  a  judgment  without 
further  proceedings.-' 

By  Counsel  in  Criminal  Case.  — It  is  held  that  an  admission  of  a 
fact  by  his  attorney  is  not  binding  on  the  defendant  in  a  criminal 
case.-'      Rut    the    wciqlit    of    authority    seems    to    be    the    other 


When  Offered  in  Evidence  in  An- 
other Action — Adee  ;'.  Howe,  15 
Hun   (N.  Y.)   20. 

Especially  if  in  one  action  client  is 
agent  and  in  the  other  principal. 
Moffit  V.  Witherspoon,  10  Ired.  (Law 
N.  C.)    i8s. 

26.  I  Greenl.  Ev.,  Sec.  186;  Lake 
Erie  &  W.  R.  Co.  v.  Rooker,  13  Ind. 
App.  600,  41  N.  E.  470;  Flynn  v. 
State,  43  Ark.  289;  Person  v.  Wil- 
cox, 19  Minn.  449;  Lvnian  v.  Kansas 
City  &  A.  R.  Co..  loi  Fed.  639. 

Opening  Statement  Made  in 
Former  Trial — In  Evans  ■;•.  Mont- 
gomery, 95  Mich.  497,  55  N.  W.  362, 
it  is  said :  "On  cross-examination, 
defendant  sought  to  show  state- 
ments made  by  plaintiff's  counsel  in 
the  opening  before  the  jury  upon  a 
former  trial,  as  tending  to  show 
that  plaintiff  there  contended  for  a 
different  state  of  facts.  We  know  of 
no  case  going  to  the  extent  of  hold- 
ing that  such  statements  amount  to 
admissions." 

See  also  Butler  v.  Nat'l  Home, 
144  U.  S.  64,  12  Sup.  Ct.  581. 

27.  Pratt  v.  Conway,  148  Mo.  291, 

49  S.  W.  1028;  Walsh  V.  Mo.  P.  Co., 

102  Mo.  582,  14  S.  W.  873,  15  S.  W. 

757- 
Effect    of    Admission    in    Opening 

Statement — Thus  in  Oscanyan  v. 
Arms  Co.,  103  U.  S.  261,  the  action 
was  to  recover  commissions  for  the 
sale  of  firearms  to  the  Turkish  gov- 
ernment, effected  through  the  plaint- 
iff's influence.  It  appeared  from  the 
opening     statement    of     counsel    that 


the  sales  for  which  the  commissions 
were  claimed  were  made  whilst  the 
plaintiff  was  an  officer  of  the  Turk- 
ish government,  and  the  influence 
wliich  he  exerted  upon  its  agent  sent 
to  this  country  to  examine  and  re- 
port in  regard  to  the  purchase  of 
arms.  The  facts  as  detailed  in  the 
statement  were  such  as  to  convince 
the  trial  court  that  the  contract  was 
void  as  corrupt  and  against  public 
policy.  The  defendant  moved  the 
court,  on  the  statement  made,  to 
direct  a  verdict  for  it  without  taking 
testimony.  The  motion  was  granted, 
an  appeal  taken  and  the  judgment 
affirmed. 

See  also  Denefeld  v.  Baumann, 
40  App.  Div.  502,  58  N.  y.  Supp. 
no;  Garrison  v.  McCullough,  28 
App.  Div.  467,  51  N.  Y.  Supp.  128; 
Missouri  Pac.  Ry.  Co.  v.  Hartman, 
5  Kan.  App.  581,  49  Pac.  109;  Lind- 
ley  V.  Atchison,  T.  &  S.  F.  R.  Co., 
47   Kan.  432,   28   Pac.   201. 

Compare.  Kapischki  ?■.  Kncli.  180 
111.  44,  54   N.   E.    179- 

28.  Counsel  Cannot  Admit  in 
Criminal  Case.  —  'The  prisoner's 
counsel  had  no  authority  to  make 
any  statement  or  admission  to  supply 
the  place  or  have  the  force  of  evi- 
dence against  him.  No  confession  of 
theirs  could  bind  or  affect  him. 
Their  admissions  could  not  in  law 
prejudice  or  affect  his  rights;  nor 
could  they  be  in  any  wise  jeopard- 
ized by  the  assumption  of  any 
grounds  whatever  upon  which  his 
defense  may  have  been  placed  by  his 
counsel.  Whether  those  grounds 
were  correct  or  incorrect,  true  or 
false,   was   wholly  immaterial.     That 

Vol.  I 


470 


.l[>.]flSSfONS. 


way.-'' 

g.  How  Must  Be  Made.  —  Te)  h^  a  part  of  tlie  evidence  in  the 
case  they  must  be  made  as  a  i)art  of  the  evidence  at  the  trial,  or 
be  proved  to  have  been  made.^" 

F.  By  Stipulation.  —  a.  Generally.  —  The  parties  may  stipulate 
that  certain  matters  put  in  issue  by  the  pleadings  are  true,  and 
thus  avoid  the  necessity  of  making  proof  of  them.  For  the  pur- 
poses of  the  trial  and  any  appeal  taken  from  a  judgment  or  decree 
rendered  as  a  result  of  the  trial,  such  stipulations  are  not  only 
binding  upon  the  parties,  but  they  are  conclusive.^' 


was  not  the  question  for  the  con- 
sideration of  the  jury,  whose  duty  it 
was  to  decide  the  question  of  the 
guilt  or  innocence  upon  the  law  as 
given  them  by  the  court,  and  the 
evidence  as  given  by  the  witnesses, 
irrespective  of  any  admissions  by 
the  prisoner's  counsel,  or  any 
grounds  upon  which  they  may  have 
rested  his  defense."  Nels  v.  State, 
2  Tex.  280.  Approved  in  Clayton  v. 
State,  4  Tex.  App.  515. 

Admission  Made  in  Summing  up 
Not  Binding — Sanderson  v.  State, 
(Tex.  Crim.),  44  S.   W.   1103. 

Admission  Must  be  Distinct  and 
Formal.  —  "Without  determining 
what  rights  an  attorney  can  waive 
for  a  prisoner  on  trial  for  a  felony, 
we  feel  sure  that  the  fact  of  the 
waiver  or  admission  should  be  dis- 
tinct and  formal,  and  made  for  that 
purpose  in  order  to  bind  the 
prisoner."  Flynn  v.  State,  43  Ark. 
289. 

29.  A  Rule  Contrary  to  that 
Stated  in  the  Text  has  been  An- 
nounced— In  People  v.  Garcia,  25 
Cal.  531,  it  was  held  that  a  solemn 
admission  made  by  counsel  to  avoid 
a  continuance,  and  entry  on  the 
records  of  the  court  having  been 
made,  in  defendant's  presence,  must 
be  presumed  to  have  been  made 
with  his  consent,  and  might  properly 
be  considered  by  tlie  jury. 

See  also  Com.  v.  Young,  165 
Mass.  396,  43  N.  E.  118. 

Admissions  Made  After  Case  is 
Closed — Admissions  made  by  coun- 
sel before  the  parties  rest  are  bind- 
ing, but  otherwise,  if  made  after- 
wards. In  re  Noah,  3  City  Hall 
Rec.   (N.  Y.)   13. 

Submission  on  Agreed  Statement. 
Pisar     V.     Stale,     50     Neb.     455,     76 

Vol.  I 


N.  W.  869;  People  v.  Hall,  86  Mich. 
132,  48  N.  VV.  869. 

Whether  Intent  can  be  Stipulated. 
"  It  is  said  tliat  the  iss\K'  of  crim- 
inal intent  was,  at  least,  for  the 
jury,  .  .  .  Bui  lie  (the  defend- 
ant) is  conclusively  presumed  to 
know  the  law,  and,  if  an  actual  un- 
lawful intent  is  essential,  that  pre- 
sumption supplies  it."  Pisar  v. 
State,  56  Neb.  455,  76  N.  W.  869. 
In  that  case  the  jury  were  given  in- 
structions that  amounted  to  direct- 
ing a  verdict  of  guilty,  and  it  was 
held  that  this  was  not  error  because 
the  criminal  intent  followed  from 
the    facts    agreed    upon. 

But  in  People  v.  Hall,  86  Mich. 
132,  48  N.  W.  869,  the  court  remark- 
ed: "A  conviction  in  a  criminal 
case,  involving  the  question  of  intent, 
cannot  be  predicated  upon  the  admis- 
sions of  counsel,  and  it  is  error  in 
such  cases  to  instruct  that  the  jury 
must  find  the  defendant  guilty. 

30.  Lowrie  v.  Verner,  3  Watts 
(Pa.)  317;  Commercial  Bank  v. 
Clark,  28  Vt.  325 ;  Advance  Elevator 
Co.  V.  Eddy,  16  111.  App.  263; 
Hearne  v.  De  Young,  in  Cal.  373, 
43  Pac.  1 108. 

31.  Alabama. — Stark  v.  Kenan,  11 
Ala.  818. 

California. — Haight  v.  Green,  19 
Cal.  113;  Donner  v.  Palmer,  51  Cal. 
629;  Taylor  v.  Randall,  s  Cal.  80; 
Hearn  v.  De  Young,  in  Cal.  37^, 
43    Pac.    1 108. 

Colorado. — Water  Supply  Co.  v. 
Larimer  &c.  Co.,  25  Colo.  87,  53  Pac. 
386,  46  L.  R.  A.  322;  Rockwell  v. 
Graham,  9  Colo.  36,  10  Pac.  284. 

Illinois. — Wilson  v.  Spring,  64  111. 
14;  City  of  Chicago  v.  Drexel,  141 
111.  89,  30  N.  E.  774;  Culver  v.  Cou- 
gle,  i6s  111.  417.  46  N.  E.  242. 


yl I 'MISSIONS. 


471 


b.  MaiU'  for  Purposes  of  the  Trial.  —  But  as  a  rule  such  admis- 
sions by  stipulation  are  made  for  the  purposes  of  the  trial  only,  and 
if  they  are,  they  are  not  competent  as  evidence  for  or  against  the 
parties  in  any  other  action,  or  in  a  subsequent  trial  of  the  same 
action. ^^ 

c.  Made  ll'itlioiit  I.iim'fatioii.  —  T.ut  it  is  held  that  if  the  stipu- 
lation is  made-  generally,  and  without  qualification,  it  is  binding 
at  a  subsequent  trial,  or  in  any  other  case.'" 


lotva. — Jones  v.  Clark,  y  Iowa 
586. 

Iiidiana.^Peop\e  &c.  Soc.  v.  Mc- 
Kay, 141  Ind.  415,  39  N.  E.  231,  40 
N.  E.  910. 

Massachusetts. — Lewis  v.  Sumner, 
13  Met.  269;  Leonard  v.  White,  5 
Allen    177. 

Michigan. — Alexander  v.  Rice,  52 
Mich.  451,  18  N.  W.  214. 

Minnesota. — Bingham  v.  Board,  6 
Minn.  136,  8  Minn.  441. 

Missouri. — Alder  v.  Wagner,  47 
Mo.  App.  23 ;  Hanna  v.  Baylor,  23 
Mo.  App.  302. 

Neiv  Hampshire.  —  Burbank  v. 
Rockingham  &c.   Co.,  24  N.   H.  550, 

57  Am.   Dec.   300;   Alton  v.   Gilman- 
ton,  2  N.  H.  520. 

New  Yorlt. — Ayvard  v.  Powers,  25 
Misc.  476,  S4  N.  Y.  Supp.  984; 
Butler  V.  Walsh,  48  App.  Div.  459, 
62  N.  Y.  Supp.  913;  Jacklin  v.  Na- 
tional L.  Ass'n,  75  Hun  595,  27  N. 
Y.  Supp.  1 1 12;  Brewster  v.  Man- 
ning, 6  Hun  530;  Penniman  v.  La 
Grange,  23  Misc.  653,  52  N.  Y. 
Supp.  27;  Auburn  Savings  Bank  v. 
Bunkerhoff,  44  Hun    142. 

New  Jersey. — Union  L.  &  E.  Co. 
V.  Erie  R.  R.  Co.,  37  N.  J.  Law,  23. 

North  Dakota. — Mooney  v.  Wil- 
liams,  (N.  Dak.),  83  N.  W.  237- 

Oklahoma. — Consolidated  Steel  & 
Wire  Co.   v.   Burnhani,   8  Okla.   ^14, 

58  Pac.  654. 

South  Carolina.  —  Cooke  v.  Pen- 
nington, 7  Rich.  385 ;  Daniel  v.  Ray, 
I  Hill  (Law),  32. 

Te.xas. — Strippelman  v.  Clark,  ii 
Tex.  296. 

Vermont.  —  Commercial  Bank  v. 
Clark,  28  Vt.  325. 

Wisconsin. — Whorton  v.  Webster, 
56  Wis.   356. 

32.  Hardin  v.  Forsythe,  99  111. 
312;  Hays  V.  Hynds,  28  Ind.  531; 
Holman  v.  Bank  of  Norfolk,  12  Ala. 
(N.  S.)    369,  407;  Kinney  v.  Salem, 


77  Ind.  213;  Wheat  v.  Ragsdale,  27 
Ind.  igi ;  Isabelle  v.  Iron  Cliflfs  Co., 
57  Mich.  120,  23  N.  W.  613. 

Stipulation  Admissible  but  Not 
Conclusive — Although  a  stipulation 
is  made  for  the  purposes  of  a  par- 
ticular trial,  and  afterwards  with- 
drawn, it  is  nevertheless  admissible 
in  evidence  against  the  party  making 
it  in  a  subsequent  trial  of  the  same 
cause,  but  is  not  conclusive,  and 
may  be  disproved,  rebutted  or  ex- 
plained. King  V.  Shepard,  105  Ga. 
473,  30  S.  E.  634. 

Burden   of  Proof The  burden  is 

upon  the  party  objecting  to  the  use 
of  the  stipulation  to  show  that  it 
was  to  be  used  only  on  the  first  trial. 
Brown  v.  Pechman,  55  S.  C.  55=;. 
3i  S.  E.  732. 

Admission  Made  at  First  Trial. 
An  admission  made  by  counsel  at 
the  first  trial  is  not  admissible 
against  his  client  at  the  second  trial. 
Weisbrod  v.  Ry.  Co.,  20  Wis.  441; 
Hardin  v.  Forsythe,  99  111.  312;  Dor- 
sey  V.  Gassoway,  2  H.  &  J.  (Md.) 
402,  3  Am.  Dec.  557. 

Contra. — Home  Ins.  Co.  v.  Field, 
53  III.  App.  119  and  Carthage  v. 
Buckner,  8  111.  App.   152. 

33.  England.— Dot  v.  Bird,  7  Car. 
&  P.  6,  32  Eng.  C.  L.  472;  Langley 
V.  Oxford,  I   M.  &  W.  508. 

Illinois. — Home  Ins.  Co.  v.  Field, 
S3  111.  App.  119. 

Iowa. —  Tones  v.  Clark,  37  Iowa 
586. 

Maryland. — EKvood  v.  Lannon,  27 
Md.  200;  Farmers'  Bank  v.  bprigg, 
II    Md.  389. 

Minnesota.  —  Merchants'  National 
Bank  v.  Stanton,  62  Minn.  204,  64  N. 
VV.  390. 

Missouri.  —  Nichols  v.  Jones,  32 
Mo.  App.  657 ;  Hammontree  v. 
Huber,  39  Mo.  App.  326. 

Vol.  I 


472 


IPMISSIONS. 


d.  Hozi'  Must  Be  Made  or  I'roi'ed.  —  The  stipulation,  to  be  a 
part  of  the  evidence,  must  be  made  in  the  presence  of  the  court  or 
jury,  as  a  part  of  the  trial,  or,  if  not  so  made,  must  be  proved  at  the 
trial  to  have  been  entered  into,  or  it  is  not  available.^* 

e.  Change  of  Issue  Iiiuiiaterial.  —  It  makes  no  difference  that 
the  issues  in  the  case  are  changed  after  the  stipulation  is  filed  if  the 
admission  is  of  facts  material  to  the  issues  newly  formed.^^ 

G.  Agkiced  Case.  —  a.  Generally.  —  An  agreed  case  is  an  agree- 
ment between  the  parties  as  to  what  the  facts  are,  such  facts  to  be 
taken  as  if  alleged  in  proper  pleadings,  and  proved  at  the  trial. ^^ 

b.  Is  Conclusive.  —  The  case  thus  agreed  is  conclusive  against 
the  parties  as  to  the  truth  of  the  facts  stated  in  the  absence  of  an) 
showing  of  fraud,  accident  or  mistake.^' 

c.  Made  for  Purposes  of  Case  Not  Competent  in  Another  Case. 
But  if  the  agreed  case  is  expressly  made  for  the  purpose  of  the  case 
in  which  it  is  made,  it  is  not  competent  evidence  against  the  parties, 
or  either  of  them,  in  another  action.^*' 


New  Yorli. — Foster  v.  Milliner,  50 
Barb.  385. 

Olilahoma. — Consolidated  Steel  & 
Wire  Co.  v.  Bunham,  8  Okla.  514, 
58  Pac.  654. 

Vertnont. — Commercial  Bank  v. 
Clark,   28   Vt.    325. 

That  Certain  Matters  Shall  Not 
be  Litigated — Stipulations  to  the 
effect  that  matters  presented  by  the 
pleadings  are  not  and  shall  not  be 
litigated  in  the  action  may  be  used 
on  the  trial  of  another  action  where 
the  judgment  in  the  first  cause  is 
offered  in  evidence  to  show  a  former 
adjudication,  to  prove  that  the  mat- 
ter in  controversy  and  covered  by  the 
stipulation  was  not  adjudicated. 
Foster  v.   Milliner,   50  Barb.   385. 

Stipulation  Competent  on  Sub- 
sequent Trial — In  Merchants'  Nat. 
Bank  v.  Stanton,  62  Minn.  204,  64 
N.  W.  390,  the  court  said :  "The 
first  trial  was  had  upon  a  written 
stipulation  of  facts,  signed  by  both 
parties.  On  the  last  trial  a  part  of 
this  stipulation,  reciting  and  admit- 
ting the  existence  of  certain  of  these 
facts,  relevant  to  the  issues,  was  of- 
fered and  received  in  evidence 
against  plaintiflf's  objection  and  ac- 
ceptance. This  stipulation  was 
clearly  competent  evidence  on  the 
subsequent  trial,  i  Thomp.  Trials, 
Sec.    361." 

Admissible  but  Not  Conclusive. 
I.uther  V.  Clay,  too  Ga.  236,  28  S.  E. 
46. 

Vol.  I 


34.  Lowrie  v.  Verner,  3  Watts 
(Pa.)  317;  Hearne  -'.  De  Young,  ill 

Cal.  373,  43  Pac.  1108. 

35.  Jones  v.  Clark,  37  Iowa  586; 
Penniman  v.  LaGrange,  23  Misc. 
653,  52  N.  Y.   Supp.  27. 

36.  Pennsylvania  R.  R.  Co.  v. 
Niblack.  qq  Ind.  149 ;  Day  v.  Day, 
TOO  Ind.  460;  Hawks  v.  .vlayor,  144 
Ind.  343,  43  N.  E.  304 ;  Fearing  v. 
Irwin,  55  N.  Y.  486 ;  Royall  v  Eppes, 
2  Munf.   (Va.)  479. 

37.  Page  v.  Brewster,  54  N.  H. 
184;  Levy  V.  Sheehan,  3  Wash.  420, 
28  Pac.  748;  Ex  Parte  Hayes,  92 
Ala.  120,  9  So.  156;  Van  Wart  v. 
Wolley,  R.  &  M.  4,  21  Eng.  C.  I.. 
366. 

38.  Page  v.  Brewster,  58  N.  H. 
126. 

Reasons  for  the  Rule — Chief  Jus- 
tice Gibson,  ruling  that  an  agreed 
case  is  not  admissible  except  in  the 
proceeding  in  which  it  is  drawn, 
said:  "It  is  supposed  to  have  ac 
quired  a  degree  of  credit  from  the 
bare  statement  of  the  case  as  an  ad- 
mission of  the  facts.  For  what  pur- 
pose, and  on  what  condition  was 
that  admission?  Exclusively  to  have 
a  judgment  of  the  court  on  the  facts 
submitted,  and  not  to  give  them  ef- 
fect for  any  other  purpose.  Each 
may  have  been  willing  to  put  the 
law  upon  the  circumstances  without 
intending  to  admit,  or  even  without 
believing  them  to  be  an  accurate 
representation     of     the     truth ;    and 


IPM/SSIOXS. 


473 


But  an  agreed  case,  for  the  purpose  of  the  "  suit  "  is  binding, 
not  only  for  the  purpose  of  determining  the  question  of  law 
involved,  but  for  the  purposes  of  all  subsequent  proceedings  in  that 
action.^' 

H.  Agreed  Statement.  —  \\  licrL-  ihc  parties  agree  to  a  state- 
ment of  the  facts  'n  an  action,  such  statement  takes  the  place  of  an}' 
and  all  evidence  that  might  have  been  given,  in  whole  or  in  part, 
and  the  parties  are  each  bound  as  having  admitted  the  facts  to  be  as 
stated  for  the  purposes  of  the  trial,  and  any  appeal  that  may  be 
taken  from  any  judgment  rendered  upon  the  facts  as  agreed  upon.'"' 


without  consenting  to  be  bound  by 
them  in  another  proceeding."  Mc- 
Lughan  V.  Bovard,  4  Watts  (Pa.) 
308. 

See  also  Hart's  Appeal,  8  Pa.  32 ; 
Harrison's  Devisees  v.  Baker,  5  Litt. 
(Ky.)  250;  Frye  v.  Gragg,  35  Me. 
29. 

39.  Made  for  Purpose  of  Suit. 
"  The  agreement  in  question  was 
entered  into  for  the  purposes  of  the 
suit,  and  not  merely  for  the  case 
that  was  transferred.  An  agreement 
entered  into  for  the  purposes  of  the 
suit,  must  mean  not  only  for  deter- 
mining the  questions  of  law  raised 
by  the  case,  but  for  any  and  all  sub- 
sequent proceedings  to  the  close  of 
the  suit.  There  was  nu  provision 
inserted  that  the  facts  should  be  con- 
sidered as  agreed  to  only  for  the 
purposes  of  that  case,  or  that  they 
should  not  be  used  as  evidence  before 
the  jury,  as  is  usual  where  such  is 
the  intention  of  the  parties.  It  is 
to  be  presumed  that  only  such  facts 
were  agreed  to  as  were  necessary  to 
determine  the  questions  then  raised, 
and  that  if  the  defendants  should 
elect  a  trial  by  jury  such  other  com- 
petent testimony  as  either  party 
might  wish  to  introduce  would  be 
offered  for  the  consideration  of  the 
jury.  It  will  hardly  be  pretended 
that  the  facts  stated  were  untrue,  or 
that  a  fictitious  case  has  been  pre- 
sented to  the  court.  The  court  cer- 
tainly would  not  encourage  such  a 
practice."  Page  v.  Brewster,  54  N. 
H.  184,  187. 

40.  Luther  v.  Clay,  100  Ga.  236, 
28  S.  E.  46,  39  L.  R.  A.  95 ;  Callin 
V.  Ins.  Co.,  83  111.  App.  40;  State  v. 
Connor,  86  Tex.  133,  23  S.  W.  1103; 
Morgan  v.  Davenport,  60  Tex.  230 ; 
Adams   V.   Erchenberger,    (Ark.)    18 


S.  W.  853;  Ish  V.  Crane,  13  Ohio 
St.  574;  Consolidated  Steel  &  Wire 
Co.  V.  Burnham,  8  Okla.  514,  58  Pac. 
654- 

Does  Not  Exclude  Other  Evidence. 
An  agreed  statement  does  not,  un- 
less so  specified,  exclude  other  evi- 
dence, not  inconsistent  therewith. 
Burnham  v.  Railroad  Co.,  88  Fed. 
627 ;  Dillon  v.  Cockcroft,  90  N.  Y. 
649. 

Unlimited  Binding  Generally. 
"The  primary  question  to  be  con- 
sidered is  whether,  on  a  subsequent 
trial,  this  statement  of  facts  was  ad- 
missible, and  its  operation  and  ef- 
fect as  evidence.  .  .  .  Such 
agreements  are  sometimes  made  to 
avoid  continuances,  or  for  some 
specific  purpose,  and,  by  their  terms, 
are  limited  to  the  particular  occa- 
sion or  purpose,  and,  of  cou-se,  lose 
all  force  when  the  occasion  has 
passed,  or  the  purpose  has  been 
accomplished.  But  if  by  their 
terms  they  are  not  limited,  and 
are  unqualified  admissions  of  facts, 
the  limitation  is  not  implied,  and 
they  are  receivable  on  any  subse- 
quent trial  between  the  parties. 
Wetherell  v.  Boyd,  7  Car.  &  P.  6; 
Langley  v.  Oxford,  I  Mees.  &  W. 
507;  Holley  V.  Young,  68  Me.  215; 
Railroad  Co.  v.  Shoup,  28  Kan.  394. 
Speaking  of  admissions  of  this 
character  made  by  counsel  of 
record,  Mr.  Greenleaf  terms  them 
'  solemn  admissions,'  and  says,  '  they 
are,  in  general,  conclusive,  and  may 
be  given  in  evidence  on  a  new  trial.' 
I  Greenl.  Ev.,  Sec.  186.  .  .  . 
Upon  such  agreements  or  admis- 
sions, made  verbally,  every  court  is 
necessitated  to  act  daily.  .  .  . 
And  when  made  in  open  court,  and 

Vol.  I 


474 


.IPMISSIONS. 


It  differs  from  the  statutory  "  agreed  case  "  in  that  the  agreed 
statement  of  facts  is  not  the  "  case,"  but  only  evidence  of  the  facts.*' 

Where  Not  limited  to  the  Trial. — And  it  is  held  that  if  the  admis- 
sions so  made  are  not  limited  to  the  purposes  of  the  present  trial, 
they  are  binding  on  the  parties  at  any  subsequent  trial  of  the  case.*" 

It  is  not  necessary  that  the  agreed  statement  of  facts  be  in  writing 
or,  if  in  writing,  that  it  be  signed.*^ 

Case  Stated.- — Under  the  practice  in  some  of  the  states  a  "  case 
stated  "  is  provided   for  or  allowed,  which   is  a  statement  of  the 


reduced  to  writing,  intended  to  be 
used,  and  used  as  an  instrument 
of  evidence,  and  is  without  limit- 
ation as  to  time  or  occasion,  it  can- 
not be  withdrawn  or  retracted  at  the 
mere  will  of  either  party.  .  .  . 
The  admission  of  the  facts  dispens- 
ing with  evidence,  if  it  could  be  dis- 
regarded by  either  party  on  any  sub- 
sequent trial,  in  the  event  of  in- 
ability to  produce  witnesses  to  es- 
tablish them,  would  often  convert 
such  admissions  into  instruments  of 
fraud  and  injury.  When  they  are 
made  dehberately  and  intelligently, 
in  the  presence  of  the  court,  and 
reduced  to  writing,  they  are  of  the 
best  species  of  evidence;  and  parties 
cannot  be  permitted  to 'retract  them, 
as  they  are  not  permitted  at  pleasure 
to  retract  admissions  of  fact  made 
in  any  form.  If  they  are  made  im- 
providently  and  by  mistake,  and  the 
improvidence  and  mistake  be  clearly 
shown,  the  court  has  a  discretion 
to  relieve  from  their  consequences — 
a  discretion  which  should  be  ex- 
ercised sparingly  and  cautiously,  I 
Greenl.  Ev.  Sec.  206;  Harvey  v. 
Thorpe,  28  Ala.  250."  Prestwood 
V.  Watson,  in   Ala.  604,  20  So.  600. 

41.  In  Pennsylvania  Co.  v.  Nib- 
lack,  99  Ind.  149,  the  agreement  was : 
"For  the  purposes  of  the  trial  of 
this  case,  it  is  agreed  by  plaintiflf 
and  defendant  that  the  facts  are  as 
follows :"  and  the  facts  as  agreed 
upon  were  set  out.  The  court  said : 
"This  was  not  an  agreed  case  under 
Section  553  R.  S.  1881,  but  it  was 
a  trial  upon  an  agreed  statement  of 
facts    used    merely    as    evidence." 

42.  Prestwood  v.  Watson,  in 
Ala.  604,  20  So.  600 ;  Merchants' 
Bank  v.  Marine  Bank,  3  Gill  (Md.) 
96,  43  Am.  Dec.  300;  Doe  v.  Bird, 
7   Car.   &   P.   6,   32   Eng.   C.   L.   472; 

Vol.  I 


Farmers'  Bank  v.  Sprigg,  11  Md. 
389 ;  Woodrufif  v.  Munroe  a  Md. 
146;  Elwood  V.  Lannon,  27  Md.  200; 
Consolidated  Steel  &  Wire  Co.  v. 
Burnham.  8  Okla.  514,  58  Pac.  654; 
P.x  parte  Hayes,  92  Ala.  120,  9  So. 
156. 

Admissible  but  Not  Conclusive. 
In  Luther  v.  Clay,  100  Ga.  236,  28 
S.  E.  46,  39  L.  R.  A.  95,  it  is  held 
that  agreed  statements  of  facts  upon 
which  a  case  was  tried,  though  not 
thereafter  absolutely  binding  and 
conclusive  upon  the  parties  in  the 
trial  of  another  case,  involving  the 
same  issues,  is,  in  such  trial  admis- 
sible in  evidence  at  the  instance  of 
one  against  the  other,  subject  to  the 
latter's  right  to  disprove,  rebut,  or 
explain  any  statement  therein  con- 
tained, the  court  saying :  "When 
parties  to  a  case  agree  to  submit 
the  same  for  decision  upon  an 
agreed  statements  of  facts,  and 
nothing  is  said  in  the  agreement 
to  the  contrary,  each  party  is  abso- 
lutely bound  and  concluded  by  the 
statements  of  fact  thus  agreed  to, 
so  far  as  the  trial  in  which  the  stip- 
ulation is  made  is  concerned.  Where 
the  agreement  is  not  expressly  lim- 
ited to  use  in  the,  trial  in  which  it  is 
made,  it  is  admissible  in  evidence 
as  an  admission  in  any  other  trial 
or  litigation  between  the  same  par- 
ties, where  the  same  issues-  are  in- 
volved ;  but  it  is  not  absolutely 
binding  and  conclusive  upon  the 
parties.  When  it  is  used  against 
such  parties  in  another  trial  of  the 
same  case,  or  in  any  other  case, 
either  party  has  the  right  to  attack 
any  statement  of  fact  made  therein 
either  by  disproving  or  rebutting 
the    same    or    explaining    it    away. 

43.  Prestwood  v.  Watson,  in 
Ala.  604,  20  So.  600. 


.IPMISSIOMS. 


475 


facts  in  ihe  case  to  prucitrc  a  ilccisum  ul  a  court  on  such  facts. 
Such  a  statement  of  the  facts  can  be  used  only  for  the  purpose 
indicated,  and  is  not  competent  as  evidence  of  the  truth  of  the  facts 
stated  therein  for  any  other  purpose."'* 

Abandoned  Not  Competent. — And  if  the  case  stated  is  aljandoned 
it  ceases  to  be  competent  as  evidence  for  any  purpose.''^ 

I.  L'liLL  oF  Exceptions.  —  A  bill  of  exceptions  is  the  statement  of 
the  court  and  not  of  a  party,  and  cannot,  therefore,  be  used  as  an 
admission.  Furthermore,  the  bill  contains  a  statement  of  the  facts 
proved  at  the  trial,  for  the  purposes  of  an  appeal,  only,  and  cannot 
be  used  as  evidence  establishing  the  facts  of  a  subsequent  trial."' 


44.     Hart's  Appeal,  8  Pa.   St.  32; 

•Wheeler  v.  Ruckinan,  35  How.  Pr. 
(N.  Y.)  350;  McLughan  v.  Bovard, 
4  Watts  (Pa.)  308;  Neilson  v. 
Columbia  Ins.  Co.,  i  Johns.  (N.  Y.) 
301;  Elting  V.  Scott,  2  Johns.  (N. 
Y.)  157;  Castleman  v.  Sherry,  t6 
Tex.    228. 

Case  Not  Competent  on  Second 
Trial. — "The  defendant's  counsel  of- 
fered a  copy  of  the  case,  prepared 
on  ihe  appeal  from  the  judgment  on 
a  former  trial  of  this  action  claimed 
to  be  in  the  handwriting  of  the 
plaintiff,  which,  the  case  before  us 
states,  showed  an  entire  different 
statement  by  him  from  that  made 
on  the  present  trial.  The  fact  that 
the  case  was  in  his  handwriting  can 

•  make  no  difference  as  to  the  ad- 
missibility of  the  evidence.  The 
case  itself  is  no  evidence  of  what 
took  place  on  the  trial."  Wheeler 
V.  Ruckman,  35  How.  Pr.  350,  355. 
Reason  for  Such  Limitation. 
So  again  it  is  said :  "Independent 
of  the  effect  imparted  to  it  by  those 
terms,  it  is  supposed  to  have  ac- 
quired a  degree  of  credit  from  the 
bare  statement  of  the  case  as  an 
admission  of  the  facts.  For  what 
purpose  and  on  what  condition  was 
that  admission?  Exclusively  to  have 
the  judgment  of  the  court  on  the 
facts  submitted,  and  not  to  give  them 
effect  for  any  other  purpose.  .  .  . 
A  counsel,  confident  that  the  law  of 
the  case  depends  entirely  on  a  par- 
ticular fact,  which,  if  found,  would 
be  decisive  for  him,  might  be  will- 
ing to  say  to  his  antagonist,  'give 
me  that  fact  and  make  the  rest  of 
the  case  as  you  please ;'  yet  a  state- 
ment immaterial  in  point  of  legal 
effect,    which    could    well    be    risked 


before  a  court,  might  expose  the 
party  to  the  most  inveterate  pre- 
judices of  a  jury;  and  if  the  con- 
sequences of  admissions  thus  made 
were  to  follow  him  on  subsequent 
occasions  into  an  inquiry  by  another 
tribunal,  there  would  be  an  end  of 
agreements  to  settle  facts  by  con- 
sent." McLughan  v.  Bovard,  .4 
Watts   (Pa.)   308,  313- 

45.  McLughan  v.  Bovard,  4 
\\'atts    (Pa.)   308. 

46.  Heeler  v.  Young,  3  Bibb 
(Ky.)  520;  Leeser  v.  Boekhoff.  38 
Mo.  App.  445 ;  Baylor  v.  Smithers, 
I  T.  B.  Mon.  (Ky.)  6;  Hardin  v. 
Forsythe,  99  111.  312. 

Not     Competent     on     Subsequent 

Trial "But   as   the  cause  will   have 

to  be  remanded  to  the  court  below 
for  a  new  trial,  it  is  proper  we 
should  notice  an  objection  to  the  de- 
cision of  that  court  in  refusing  to 
permit  a  bill  of  exceptions  taken 
on  a  former  trial  by  Beeler  to  be 
used  as  evidence  to  prove  his  in- 
fancy. In  that  bill  of  exceptions  it 
is  stated  to  have  been  on  that  trial 
proven  Beeler  was  an  infant  when 
he  executed  the  obligation;  but  as 
that  statement  was  made  for  the 
purpose  of  obtaining  a  decision  on 
a  question  of  law  in  the  progress 
of  the  cause,  we  apprehend  it  should 
he  considered  as  true  only  for  the 
purpose  of  a  decision  on  that  ques- 
tion, and  cannot  conclude  the  par- 
ties on  the  trial  of  an  issue  of  fact 
at  a  subsequent  trial;  for  if  a  state- 
ment in  a  former  bill  of  exceptions 
of  what  was  then  proven,  was  re- 
ceived as  evidence  of  the  fact,  it 
would  be  nugatory  to  call  a  jury  to 
ascertain  the  truth  of  the  fact,  and 
would   be   attended   with    the   absurd 

Vol.  I 


476 


ADMISSIONS. 


iJiil  the  cuiUrary  has  been  held.'' 

And  in  some  of  the  states  a  bill  of  exceptions  is  made  competent 
by  statute,  to  prove  the  facts  contained  therein.^* 

Statement  of  Case.  — In  some  states  a  statement  of  the  case,  or 
statement  on  appeal,  similar  in  its  object  and  effect  to  bills  of  excep- 
tions, is  authorized.  And  to  these  like  rules,  as  to  their  admissibility 
as  evidence,  must  prevail,  as  in  case  of  bills  of  exceptions.*-' 

J.  Petitions  and  Affidavits!  —  a.  Generally.  ■ —  Admissions 
made  by  a  party  in  petitions  filed  or  affidavits  made  in  the  course  of  a 
trial  or  the  proceedings  in  a  cause  are  competent  against  him  the 
same  as  statements  or  declarations  made  in  pleadings :  not  conclusive 
as  pleadings  in  the  cause  on  trial,  therefore,  they  may,  as  a  general 
rule,  be  disproved  or  explained,  but  are  nevertheless  competent 
evidence  if  thev  contain  admissions  material  to  the  issue.'*" 


consequence  of  enabling  either  party 
by  an  exception  not  only  to  liavc  a 
decision  on  the  point  of  law,  but 
also  draw  from  the  jury  to  the  court 
a  trial  of  the  facts."  Beeler  v. 
Young,  3  Bibb    (Ky.)   520,  522. 

47.  Bill  of  Exceptions  Admissible. 
In  Scaifc  v.  Western  N.  C.  Land 
Co.,  90  Fed.  238,  the  bill  of 
exceptions  was  offered  to  prove  a 
former  admission  of  the  fact,  signed 
by  an  attorney  of  record  on  the 
trial,  and  in  passing  upon  the  ques- 
tion as  lo  its  admissibility,  the 
court  said:  ''The  fifth  assignment 
of  error  relates  to  the  admission  of 
a  bill  of  exceptions  in  the  former 
trial  signed  by  counsel  for  the 
plaintiff  and  by  the  presiding  judge, 
wherein  it  was  admitted  that  S.  H. 
Flemming  was  the  agent  of  the  de- 
fendant company.  This  paper,  which 
is  stated  by  the  court  to  be  a 
'record  in  this  cause,'  was  offered 
by  the  defendant  to  prove  that  the 
plaintiff  had  admitted  Flemming's 
agency.  Admissions  by  a  party  are 
always  competent  evidence  against 
liim,  and  there  seems  to  be  no  reason 
why  a  distinct  and  formal  admission 
signed  by  an  attorney  of  record 
upon  a  former  trial,  and  not  with- 
drawn or  modified,  should  not  be 
competent  evidence.  We  are  of 
opinion  that  there  was  no  error  in 
admitting  tliis  record." 

48.  Padley  v.  Catterlin,  64  Mo. 
App.  629. 

49.  Statement  on  Motion  for  New 
Trial  Not  Competent — A  statement 
upon    motion    for    a    new    trial    and 

Vol.  I 


appeal  is  made  for  the  purpose  of 
explaining  the  errors  upon  which  the 
moving  party  and  appellant  will 
rely.  If  it  contains  the  evidence  in- 
troduced at  the  trial,  it  is  for  this 
purpose.  Counsel  frequently  agree 
to  the  correctness  of  a  statement,  or 
that  it  contains  all  of  the  evidence 
given  at  the  trial,  and  these  agree- 
ments are  accepted  as  true  for  the 
purpose  for  which  they  are  made. 
But,  in  fact,  notwithstanding  stip- 
ulations of  this  nature,  statements 
rarely  embody  more  of  the  evidence 
of  rulings  than  counsel  consider 
necessary  to  illustrate  the  errors  as- 
signed ;  and  matter  upon  which  no 
question  is  made,  although  a  part 
of  the  history  of  the  case,  is  set 
aside  as  unnecessary.  \  docuiuent 
prepared  in  this  way,  it  is  scarcely 
necessary  to  say,  should  not  be  re- 
ceived without  preliminary  proof 
that  its  report  of  the  evidence  is 
correct."  Ferraris  v.  Kyle,  ig  Nev. 
435,  14  Pac.  529. 

50.  Engla}id.—Re\  v.  Clarke,  8 
T.  R.  220. 

Uiiilcd  States. — National  S.  S.  Co. 
V.  Tugman,  143  U.  S.,  36,  28  L.  Ed.  87, 
12  Sup.  Ct.  361  ;  Chicago  &c.  Ry. 
Co.  V.  Ohle,  117  U.  S.  123,  6  Sup. 
Ct.  632;  C.annan  :■.  U.  S..  34  Ct. 
Claitns,   237. 

Alabama. — Penn  z\  Edwards,  50 
.Ma.   63;    Halletl   v.    O'Brien,    i    Ala. 

585. 

California. — Shafter  v.  Richards, 
14   Cal.    125, 

Z),-/cKi'(H-.-.— Hall  V.  Cannon,  4  Har. 
(Del.)    360. 


ADMISSIONS. 


477 


The  rule  extends  to  voluntar)-  afifidavits.'^' 

Copies  of  Affidavits  When  Competent. — Copies  of  affidavits  sliown  to 
have  been  recognized  as  true  copies  by  the  affiant  may  be  used  as 
the  originals  might  be  used  as  an  admission. '^- 


lllinois. — Stone  i'.  Cook,  yg  111. 
424;  111.  Cent.  R.  Co.  v.  Cobb,  64 
111.  143;  Snydacker  v.  Brosse,  51  111. 
357- 

Indiana. — Springer  v.  Drosch,  },2 
Ind.  486,  2  Am.  Rep.  356 ;  Behler  v. 
State,  112  Ind.  140,  13  N.  E.  272; 
Obio  &  M.  Ry.  Co.  v.  Levy,  134  Ind. 
343,  32  N.  E.  815,  34  N.  E.  20; 

Ioi\.'a. — Asbach  v.  Chicago  B.  &  Q. 
Ry.  Co.,  86  Iowa  lor,  53  N.  W.  90; 
Davenport  v.  Cummings,  15  Iowa 
219. 

Louisiana. — Michel  v.  Davis,  6  La. 
470;  Flower  v.  O'Connor,  8  Mart. 
(La.)    N.   S.  555- 

Massachusetts. — Knight  i'.  Roths- 
child, 172  Mass.  546,  52  N.  E.  1062; 
Dodge  V.  Nichols,  5  Allen,  548; 
Brighani  v.  Fayerweatber,  140  Mass. 
411,  5   N.   E.  265. 

Missouri. — State  v.  Hayes,  78  Mo. 
307- 

New  York. — ^Morrell  v.  Cavv!<jy, 
17  Abb.  Pr.  76;  Forrest  v.  Forrest, 
6  Duer,  102;  Hadden  v.  N.  Y.  S. 
Co.,  I  Daly  388;  Furniss  v.  Ins. 
Co.,  46  N.  Y.  Super.  Ct.  467;  Stick- 
ncy  V.  Ward,  20  Misc.  605,  46  N.  Y. 
Supp.   382. 

North  Carolina. — Long  v.  Fitz- 
gerald, 97  N.  C.  39,  I  S.  E.  844; 
Musbat  v.  Moore,  4  Dev.  &  B.  124; 
Albertson  v.  Williams,  97  N.  C. 
264,   I    S.  E.  841. 

Oregon. — Tippin    v.    Ward,    5    Or. 

451- 

Pennsylvania. — Kline  v.  First  Nat. 
Bank,  (Pa.)  15  Atl.  433;  Bowen  v. 
DeLattre,   6   Whar.    430. 

Texas. — Wyser  v.  Calhoun,  1 1 
Tex.  323;  Galveston  H.  &  S.  A.  Ry. 
Co.  V.  Eckles,  (Tex.  Civ.  App.),  54 
S.   W.   651. 

Vermont. — Rome  v.  Hulett,  50  Vt. 

637-. 

Virginia. — Fulton  v.  Gracey,  15 
Gratt.   314. 

It  was  doubted  whether  a  peti- 
tion for  probate  of  a  will  was  com- 
petent in  another  proceeding  as 
an  admission  by  petitioner  of  the 
testator's  sanity.     Brighani  v.  Fayer- 


weatber, 140  Mass.  411.  5  N.  E.  265. 

But  Not  Against  Co-Defendants. 
Hyman  v.  Wheeler.  29  Fed.  347. 

Affidavit  by  Married  Woman  is 
Competent  as  Admission.  —  Monell 
V.  Cawley.   17  Abb.  Pr.  76,  82. 

Admissible  as  Affiant's  Declara- 
tions— A  rule  is  thus  declared  in 
Tippin  V.  Ward.  5  Or.  451:  "The 
admission  in  evidence  of  the  affidavit 
of  the  appellant,  made  before  the 
county  judge,  in  a  proceeding  to 
have  the  respondent  placed  in  the 
county  poorhouse.  was  not  error. 
The  making  of  that  affidavit,  al- 
though subsequent  in  date  to  the  al- 
leged breach  of  contract,  was  an  act 
of  the  appellant,  and  the  statetnents 
contained  in  the  affidavit  were  his 
declarations  and  admissions  relat- 
ing to  the  subject  matter  of  the  con- 
tract involved  in  this  litigation,  and 
as  such  were  clearly  admissible  in 
evidence." 

Insufficient  Affidavit  Admissible, 
"held  that  a  petition  of  a  party 
to  set  aside  the  entry  of  satisfaction 
of  a  judgment  alleging  that  another 
person  had  an  interest  in  the  judg- 
ment, jointly  with  him,  was  com- 
petent in  favor  of  the  defendant  in  a 
subsequent  action  on  the  judgment 
in  support  of  a  plea  of  partial  pay- 
ment to  the  partv  so  alleged  tt 
have  an  interest  in  the  judgment. 
Pcnn  I/.  Edwards.  50  .Ma.  63. 

Insufficient  Affidavit  Admissibl' — 
It  makes  no  difference  that  the  affi- 
davit is  not  made  in  accordance 
with  the  statute  authorizing  such  a 
showing.  Davenport  v.  Cummings, 
15  Iowa  219. 

"51.  Malleti  v.  O'Brien,  i  Ala. 
(N.  S.)  585;  Bowen  v.  DeLattre,  6 
\Vbar.  (Pa.)  430;  Maxwell  v.  Hai ri- 
sen, 8  Ga.  61.  52  Am.  Dec.  385. 

52.  Copies  kay  Be  Used,  When. 
Copies  served  by  affiant  may  be  used 
as  originals.  Judge  Spencer  said 
that.  "  the  originals  were  on  file  and 
the  copies  offered  in  evidence  as  be- 
tween H.  and  the  plaintiff,  were  au- 
thenticated by  H.  himself.  He 
served   them   as    true   copies   on   the 

Vol.  I 


478 


ADMISSIONS. 


Affidavit  for  Chang'e  of  Venue. — It  has  been  lichl  that  an  affidavit 
for  a  chanj;c  nf  vcinic  cannot  be  used  at^ahist  the  party  making;  it 
as  an  admission.""  But  the  correctness  of  this  exception  to  the  rnle 
has  not  g'one  iinchallentjed.'** 

li.  .Iffiddvit  of  Tliird  Party  Procured  by  Party  to  Suit.  —  An 
affidavit  made  by  a  tliird  jiarty  ma\-  lie'  competent  against  one  who. 
as  a  partv  to  the  suit,  ]>rocnred  the  affidavit  to  be  made,"^^  or  knowing 
the  contents  of  such  affidavit,  admits  its  truth.'''"'  But  not  other- 
wise.'''' 


plaintiff's  attorney  and  cannot  be 
listened  to  in  saying  tliey  are  not 
trne  copies,  they  were  equivalent  to 
office  copies."  Jackson  7'.  Harrow, 
II  Johns.  CN.  Y.)  4,34.  To  same  ef- 
fecfNatl.  S.  S.  Co.  v.  Tngman,  143 
U.  S.,  28;  36  L.  Ed.  32;  12  Sup.  Ct. 
361. 

53.  An  affidavit  for  a  change  of 
venue  is  authorized  by  law  and  the 
right  to  a  chan.ge  is  not  one  to  be  em- 
barrassed or  burdened  by  permitting 
the  adverse  party  to  use  the  affi- 
davit as  an  instrument  of  evidence. 
Ohio  &  M.  Ry.  Co.  v.  Levy,  134  Ind. 
,■^43.  32  N.  E.  815  and  34  N.  E.  20. 
See  also  Behler  v.  State,  112  Ind. 
140,  13  N.  E.  272. 

The  Supreme  Court  of  Illinois  had 
little  doulit  that  such  an  affidavit 
could  be  used  as  an  admission  of 
the  affiant's.  Kankakee  etc.  Co.  v. 
Horan,  131  111.  288,  23  N.  E.  621. 

54.  Kankakee  &c.  Co.  v.  Horan, 
131  111.  288,  23  N.  E.  621. 

55.  Trustees  of  Wabash  etc. 
Canal  v.  Bledsoe,  s  Ind.  133 ;  Hargis 
V.  Price,  4  Dana  (Ky.)  79;  Brickell 
f.   Hulse,  34  Eng.  C.   L.  454. 

Affidavit  of  Third  Party;  'When 
Competent. — In  Trustees  of  Wabash 
etc.  Canal  v.  Bledsoe,  5  Ind.  133, 
135,  it  is  said:  "Had  the  affidavit 
been  made  by  the  trustees,  or  one  of 
them,  it  cannot  be  doubted  tliat  its 
statements  would  have  been  admis- 
sions binding  upon  them.  It  was 
made  by  their  chief  engineer,  and 
was  adopted  and  presented  to  the 
court  by  them  as  containing  the 
truth,  and  a  continuance  was  ob- 
tained upon  it.  They  thus  made  its 
statements  their  own,  obtained  an 
advantage  upon  them,  and  they  must 
not  now  repudiate  them,  when,  as 
evidence,  they  may  work  to  their 
disadvantage. 

Ex  Parte  Affidavit  by  Third  Party. 

Vol.  I 


The  affidavit  of  a  third  party  con- 
tained in  a  record  read  by  defend- 
ant is  not  evidence  against  defend- 
ant, the  evidence  being  c.r  farie  and 
the  affiant  in  court,  and,  if  evidence 
at  all,  it  is  not  conclusive.  Hargis  v. 
Price,  J  Dana   (Kv.)  79. 

56.  Where  a  Party  Admits  Affi- 
davit of  Another  to  Be  True.  —  In 
Knight  7'.  Rothschild,  172  Mass. 
sonalty.  The  attorney  was  only  au- 
affidavit  stated  that  he  knew  the  con- 
tents of  an  affidavit  made  by  his  at- 
torney, and  that  the  statements 
therein  made  were  true ;  the  court 
said :  "These  statements  thus  be- 
came admissions  of  the  defendant, 
and  they  tended  to  establish  the 
plaintiff's  contention  that  McKeon 
was  insolvent,  and  the  defendant^ 
had  reasonable  cause  to  believe  that 
he  was  insolvent,  and  that  the  goods 
were  delivered  as  a  preference." 

57.  Housten    v.    Bruner.    59    Ind. 

25. 

Unauthorized  Affidavit  by  Attor- 
ney— "We  must  not  be  understood 
as  deciding  that  every  affidavit  made 
by  a  third  person  in  the  progress  of 
a  cause  would  be  evidence  on  its 
trial.  In  a  case,  for  example,  where 
the  party  was  absent,  and  the  at- 
torney representing  him,  not  being 
fully  advised,  but  believing  certain 
facts  could  be  proved,  sboidd  make 
an  affidavit  setting  forth  in  it  the 
circumstances  under  which  it  was 
made,  and  should  obtain  a  continu- 
ance upon  it,  we  do  not  say  the 
party  himself  would  be  liound  by  its 
statements.  But  here,  one  of  the 
trustees  resided  in  the  town  where 
the  suit  was  pending,  and  another  of 
them  near  by,  and  we  presume, 
nothing  appearing  to  the  contrary, 
that  they  were  superintending  the 
-.nit."  Trustees  of  W;di.i^h  ek".  V. 
r.lrdsoe,  5   Ind.    133. 


.IPM/SSIOXS. 


479 


c.  Made  by  an  Agent.  —  So  if  made  l)y  an  agent  within  the  scope 
of  his  authority/'* 

d.  iMadc  by  One  Not  Harming  Anilwrity.  —  Either  a  petition 
or  affidavit  made  without  the  direction  of  a  party,  or  containing 
matter  not  authorized  to  be  inserted  tlierein,  is  not  binding  upon 
him,  and  is  therefore  inadmissible  to  prove  an  admission  by  him.'^" 

e.  Not  Admissible  As  Secondary  Evidence,  When. — A  petition 
or  affidavit  when  olTcred  to  establish  a  fact  stated  therein,  is  parol 
evidence  and  cannot  be  used  to  establish  a  fact  that  must  be  proved 
by  a  record  or  other  written  evidence."" 

f.  Must  Be  Offered  in  Bvidenec.  —  The  affidavit,  although  made 
in  and  as  a  part  of  the  proceedings  in  the  cause,  must  be  ofTered  in 
evidence  to  be  available.  It  cannot  be  noticed  as  an  item  of  evidence 
unless  introduced  as  such."' 


58.  Asbacli  v.  Chicago  B.  &  Q. 
Ry.  Co.,  86  Iowa  tot,  53  N.  W,  90. 

Made  by  an  Agent — In  Reme- 
man  v.  Blair,  96  Pa.  St.  155,  the 
court  referring  to  an  affidavit  made 
in  another  action  by  the  agent  of  a 
party,  and  now  offered  against  the 
latter,  said :  "That  it  was  not  made 
by  the  plaintiff,  bnt  by  his  agent, 
may  weaken  the  effect  of  it  with  the 
jury.  But  it  was  made  for  the  plain- 
tiff, presumably  with  his  knowledge, 
and  he  has  had  the  benefit  of  it.  It 
was  not  the  mere  affidavit  of  one 
who  could  be  called  as  a  witness;  it 
was  a  ckfence  set  up  by  the  plain- 
tiff to  a  suit  against  him  by  the 
contractor  for  these  very  repairs." 

Contra. — An  affidavit  for  continu- 
ance made  by  the  president  of  a  cor- 
poration is  held  not  admissible 
against  the  corporation  in  another 
action,  the  affiant  being  in  court ; 
the  court  saying  that  he  ought  to 
have  been  sworn  as  a  witness  and 
subject  to  cross-examination.  Kemp 
V.  Ins.  Co.,  2  Gill  S:  T.    (Md.)    108. 

59.  By  Attorney  Without  Au- 
thority— In  Duff  V.  Duff,  71  Cal.  513, 
12  Pac.  570,  a  petition  was  sub- 
scribed ill  petitioner's  name,  but  by 
his  attorney,  whose  authority  was  to 
file  a  petition  approi)riate  to  the  pro- 
curement of  an  order  of  court  for 
letters  of  administration.  The  court 
said:  "This  authority  would  not  ex- 
tend beyond  the  insertion  of  such 
allegations  which  the  law  required 
such  application  should  contain.  As 
is  clear  from  the  section  of  the 
statute  above   cited,  a   description   of 


the  property  of  the  decedent's  estate 
was  not  required,  but  only  the  value 
and  character  of  such  property.  The 
character  of  the  property  would  suf- 
ficiently appear  by  a  statement  in  the 
petition  that  it  was  realty  or  per- 
sonality. The  attorney  was  only  au- 
thorized to  file  a  petition  stating  the 
character  and  value  of  the  property. 
In  going  beyond  this,  he  was  not  act- 
ing within  the  scope  of  his  au- 
thority, and  therefore  the  statements 
in  the  petition  describing  the  prop- 
erty were  not  on  that  ground  ajd- 
missible." 

60.  Cannot  Prove  Contents  of 
Written  Instrument. — In  Phillips  v. 
Cooper,  50  Miss.  722,  the  contest 
was  to  determine  the  right  of  the 
parties  to  certain  personal  property 
that  had  been  taken  on  execution. 
One  of  the  parties  had  claimed  the 
property  as  his,  and  given  bond  as 
required  by  statute.  At  the  trial  the 
affidavit  and  bond  were  offered  in 
evidence  lor  the  purpose  of  proving 
the  judgments,  executions  and  levy, 
relied  upon  by  the  plaintiff  in  the 
action,  and  it  was  held,  first :  that 
the  affidavit  did  not  state  the  ex- 
istence of  the  judgment  and  execu- 
tion, but  only  recited  facts  of  such 
judgment  and  execution  as  were 
necessary  under  the  statute,  and 
second :  that  tlie  existence  of  such 
judgment  and  execution  could  not 
be  proved  by  such  affidavit. 

6i-  Osterman  v.  Goldstein,  26 
Misc.  847.  55  N.  Y.  .Supp.   1005. 

Must  Be  Offered  In  Evidence. 
Thus  it  is  said  in  Wyser  :'.   Calhoun 

Vol.  I 


480 


AJ'MISSIOA'S. 


g.  Whole  iMiist  Be  Read.  —  If  a  part  of  an  affidavit  is  offered 
by  one  party,  the  other  party  is  entitled  to  have  read  all,  or  so  much 
of  it  as  may  be  relevant  to  the  part  already  offered."- 

The  fact  that  an  affidavit  is  made  on  information  and  belief 
afifects  its  weight  but  not  its  competency  as  an  admission."' 

K.  Admission,  to  Avoid  Continuance,  That  Absent  Witness 
Will  Testify  to  Certain  Facts.  —  In  some  of  the  states  it  is  pro- 
vided by  statute  that  where  a  continuance  on  account  of  the  absence 
of  a  witness  is  applied  for,  the  facts  to  which  the  witness  would 
testifv  if  present,  must  be  shown,  and  that,  if  it  is  admitted  by  the 
opposite  party  that  the  witness  would  so  testify  if  present,  the 
continuance  must  be  denied.  Such  an  admission  gives  the  party 
applying  for  the  continuance  the  benefit  of  the  testimony  of  the 
witness,  as  if  he  were  present  and  testified  to  the  facts.  Rut  it  is 
not  an  admission  that  the  facts  stated  are  true,  nor  can  the  admission 
be  used  at  anv  other  trial  as  an  admission."* 


II  Te.xas  323:  "The  affidavit  com- 
plained of,  as  affecting  the  legality 
of  the  judgment,  was  made  to  obtain 
an  attachment,  which  appears  to 
have  been  abandoned.  No  question, 
therefore,  arises  upon  the  sufficiency 
of  the  affidavit.  The  only  use 
which  could  have  been  made  of  it. 
by  the  defendant,  was  to  have  given 
it  in  evidence,  to  disprove  the 
plaintiff's  right  to  recover  in  the 
right  in  which  they  sued.  Rut  it 
was  not  given  in  evidence ;  nor  was 
the  plaintiff's  right  so  to  recover, 
questinned  in  the  court  below.  That 
tlie  defendant  had  evidence  which  he 
might  have  adduced,  but,  did  not, 
cannot  now  avail  him  as  an  objec- 
tion to  the  legality  of  the  judg- 
ment." 

Held,  Might  Be  Read  at  Argument 
Without  Being  Offered  in  Evidence. 
But  in  Cross  7'.  Carrctt,  35  Towa 
480,  it  was  held  proper  for  the 
counsel  for  plaintiff  in  his  closing 
argument,  to  read  to  the  jury  and 
comment  upon  tlie  motion  of  defend- 
ant for  a  continuance,  filed  in  a  case 
wlicre  such  motion  had  not  been  in- 
troduced in  evidence,  at  the  trial  of 
the  case  holding  that  the  motion  for 
continuance  was  a  part  of  the  rec- 
ord and  a  proper  matter  of  com- 
ment I)y  the  opposite  party,  without 
being   formally   offered   in   evidence. 

And  this  case  seems  to  Ijc  ap- 
proved in  the  later  case  of  Asbach  v. 
Chicago,  R.  &  Q.  Ry  Co.,  86  Iowa 
Kit,  53  N.  W.  (X). 

VoL  I 


62.  Forrest  <'.  Forrest,  6  Ducr 
(N.  Y.)   102. 

Truth  of  Entire  Affidavit  not  Con- 
ceded— AUhough  one  whose  affida- 
vit is  used  against  him  may  require 
that  the  whole  affidavit  be  read,  yet 
the  party  offering  it  does  not  by  so 
reading  it  concede  the  truth  of  all  of 
it.     State  V.  Hayes,  78  Mo.  307. 

63.  Chicago  &c.  Rv  Co.  v.  Ohle, 
117  U.  S.  123,  6  Sup.  Ct.  632.  But 
in  Mittnacht  v.  Bache,  16  App.  Div. 
426,  45  N.  Y.  Supp.  8r,  there  was  of- 
fered as  an  admission  an  "affidavit 
reading,  "I  nmv  undrrsfand  that  cer- 
tain money  belonged  to  an  estate,  and 
in  support  of  sucli  belief  I  refer  to 
the  demand  made,"  etc.  The  court 
held  this  not  competent,  saying  that  i( 
was  evident  that  affiant  had  no  per- 
sonal knowledge  on  the  subject  and 
did  not  pretend  to  have. 

64.  Made  to  Avoid  Continuance. 
At  a  former  term  of  the  court  de- 
fendants submitted  an  affidavit  for 
a  continuance,  in  which  they  set 
forth  what  they  expected  to  prove  by 
a  witness,  who  had  been  summoned, 
but  did  not  attend.  For  the  purpose 
of  obtaining  a  trial,  plaintiff's  coun- 
sel admitted  that  the  witness,  if 
present,  would  testify  as  therein  set 
forth.  The  party  making  such  ad- 
mission is  not  even  held  to  admit 
either  the  competency  of  the  witness 
or  of  the  testimony.  It  is  an  admis- 
sion that  he  would  so  testify.  The 
party  admitting  may,  however,  ob- 
iect    to    the    competency    of    the    wit- 


IPMlSSfOA'S. 


4S1 


L.  Ix  TiiiTiiMoNY  CiiVKN  As  A  WiTNiiss.  —  a.  Generally.  —  Tes- 
timony given  by  a  party  containing  material  admission  is  alwavs 
competent  against  him  in  any  action,  whether  the  same  be  given 
orally  or  in  written  answers  to  interrogatories  prupoundeil.'"'' 


ness  and  to  the  legality  of  the  evi- 
dence, or  any  part  of  it.  So,  he 
may  disprove  of  the  facts  the  ad- 
mitted testimony  tends  to  prove. 
Such  affidavit  can  in  no  case  he  nsed 
in  a  subsequent  trial  without  the 
consent  of  opposing  counsel.  Its 
whole  power  and  efficiency  expire 
with  the  trial  it  is  intended  to  ac- 
celerate. Ryan  v.  Beard,  74  Ala. 
306,  309. 

It  must  appear  that  a  continuance 
was  applied  for  and  denied  on 
agreement  by  the  adverse  party  ;  that 
the  witness  named  would  testify  as 
stated  in  the  affidavit.  Dempster 
etc.  Co.  V.  Fitzvvater,  6  Kan.  App. 
24,  49  Pac.  624. 

But  in  Prosecutions  for  Crime. 
In  absence  of  a  witness,  the  state 
must  not  only  admit  that  the  witness 
would  testify  as  alleged,  but  must 
admit  the  absolute  truth  of  such 
testimony.  Newton  v.  State,  21  Fla. 
53,  and  see  also  People  v.  Vermil- 
yea,  7  Cow.  (N.  Y.)  369;  State  v. 
Brette,  6  La.  Ami.  652,  where  it  is 
held,  however,  that  if  it  appears 
from  the  record  that  the  jury  did,  in 
fact,  give  full  credit  to  the  state- 
ment of  the  expected  testimony,  the 
error  is  without  prejudice.  De 
Warren  v.  State,  29  Tex.  465 ;  Peo- 
ple V.  Diaz,  6  Cal.  248;  Wassels  v. 
State,  26  Ind.  30;  McLaughlin  v. 
State,  8  Ind.  281  ;  Miller  v.  State,  9 
Ind.  340;  Hyde  v.  State,  16  Tex. 
445 ;  67  Am.  Dec.  630';  Van  Meter  v. 
People,  60  111.   168. 

Contra. — Hamilton  v.   State,  3   Ind. 

55^- 

Such  Affidavit  Used  Against  Affi- 
ant.—  But  an  affidavit  for  contin- 
uance may  be  used  as  an  admission 
of  any  fact  therein  averred  and  as 
a  basis  for  inferences  against  affiant 
from  such  facts,  and  this  even  in  a 
criminal  action.  Belilcr  v.  State,  112 
Ind.  140,  i^  N.  E.  272;  Kemp  v.  Ins. 
Co.,  2  Gill.  &  J.  (Md.)  108; 
Pledger  V.  State,  77  Ga.  242,  53 
S.  E.  320;  State  v.  Young,  99 
Md.  666,  12  S.  W.  879;  Greenley  v. 
State,   60   Ind.    141  ;    State  v.   Hayes, 

31 


78  Mo.  307;  Farrell  v.  People,  103 
III.  17;  Newton  v.  State,  21  Fla.  53; 
De  Warren  v.  State,  29  Tex.  465. 

65.  /llabama. — Loeb  v.  Peters,  63 
Ala.  243,  35  Ani.  Rep.   17. 

California. — Lorcnzana  v.  Cama- 
rillo,  45  Cal.   125. 

Colorado. — ^Onialia  S:c.  Smelting  & 
Ref.  Co.  V.  Tabor,  13  Colo.  41,  21 
Pac.  92s ,  16  Aiu.  St.  Rep.  185,  L.  R. 
A.  236;  Buddee  v.  Spangler,  12 
Colo.  216,  20  Pac.  760. 

Connecticut. — Benedict  v.  Nichols, 
I   Root   (Conn.)   434. 

Georgia. — Maxwell  v.  Harrison,  8 
Ga.  61,  52  Am.  Dec.  385. 

Illinois.- — Wheat  v.  Summers,  13 
111.  App.  444;  Chase  v.  Debolt,  2 
Gilm.  371. 

Indiana. — Jones  v.  Dipert,  123  Ind. 
594,  2Z  N.  E.  944;  McKenzie  v.  Re- 
neau,  8  Blackf.  410. 

Kentucky. — Louisville  &  N.  Ry. 
Co.  V.  Miller,  19  Ky.  L.  Rep.  1665^ 
44  S.  W.  119. 

Massachusetts. — Lynde  v.  Mc- 
Gregor, 13  Allen  182,  90  Am.  Dec. 
188;  Judd  V.  Gibbs,  3  Gray  539. 

Missouri. — -Wiseman  v.  St.  Louis 
&c.  Ry.  Co.,  30  Mo.  App.  516;  Utley 
V.  Tolfree,  yy  Mo.  307;  Glenn  v. 
Lehnen,  54  Mp.  45. 

Nebraska  — I^owe  v.  Vaughn,  48 
Neb.  651,  67  N.  W.  464;  German 
Nat.  Bank  v.  Leonard,  40  Neb.  676, 
59  N.  W.   107. 

New  York. — Lormore  v.  Camp- 
bell, 60  Barb.  62;  Dusenbury  v.  Du- 
senbury,  63  How.  Pr.  349;  Fisher  v. 
Monroe,  2  Misc.  326,  21  N.  Y.  Supp. 
995 ;  McAndrews  v.  Santee,  57 
Barb.  193;  Pickard  v.  Collins,  23 
Barb.  444. 

Pennsylvania. — Tains  v.  Bullitt,  35 
Pa.   St.  308. 

Rhode  Island. — Fitzpatrick  i'.  Fitz- 
patrick,  6  R.  I.  64,  75  Am.  Dec.  681. 

South  Carolina. — State  v.  Senn,  32 
S.  C.  392,  II  S-  E.  292. 

Vermont. — Johnson  v.  Powers,  40 
Vt.  611. 

Evidence  on  Former  Trial  Com- 
petent as  Admission. — A  party  of- 
fered the  testimony  of  his  opponent, 

Vol.  I 


482 


inMfSSlONS. 


h.  Oilers  of  Letter  .Uliiiissiun  of  Its  Correctness.  —  So  a  letter 
or  other  writing  offered  by  a  party  in  his  own  behalf,  at  another 
trial,  is  coni])etent  evidence  against  him  as  an  admission  of  the 
correctness  of  its  contents.'''' 


given  as  a  witness  at  the  trial  of 
another  action  ;■  it  was  objected  that 
tliis  testimony  was  given  for  the 
purposes  of  the  other  action  only. 
But  the  court  said:  "It  is  not  com- 
petent for  a  witness  to  hmit  or  re- 
strict his  testimony  to  the  particular 
trial  for  which  it  is  offered.  He  is 
bound,  by  the  obligations  of  his 
oath,  to  tell  the  truth.  And  that  his 
evidence,  thus  elicited,  in  a  judicial 
proceedings,  or  even  in  a  voluntary 
affidavit,  may  be  used  as  evidence 
against  him,  as  an  admission  of  the 
facts  contained  therein,  is  well  set- 
tled by  all  authorities."  Maxwell  v. 
Harrison,  S  Ga.  6i  ,  52  Am.  Dec  385. 

Testimony  in  the  Trial  of  Another 
Case  Competent — The  rule  is  thus 
stated  in  Pickard  v.  Collins, 
23  Barb.  444,  456:  "The  testimony 
of  the  plaintiff,  on  the  trial  of  another 
case,  which  was  proposed  to  be 
proved,  to  the  effect  that  no  gas 
tar  had  been  put  on  the  fence  after 
he  moved  on  the  premises  occupied 
by  him,  which  is  directly  contrary 
to  his  testimony  on  the  trial  of  this 
case,  regarded  as  an  admission,  was 
relevant  evidence  in  this  case 
on  the  issue  joined  upon  the 
first  cause  of  action ;  and  the  de- 
fendant clearly  had  a  right  to  prove 
that  testimony  as  an  admission,  by 
any  competent  witness  other  tlian 
the  plaintiff." 

But  see  Carter  7:  Edwards,  16  Ind. 
238;  Carter  v.  Buckner,  3  Blackf. 
(Ind.)  314;  Mulliken  v.  Green,  5 
Mo.  489. 

Statements  in  Arbitration  Pro- 
ceeding.—Statements  assented  to  or 
acquiesced  in  by  a  party  to  an  arbi- 
tration may  be  introduced  against 
him  at  the  trial  of  a  subsequent  ac- 
tion at  law.  Tanis  v.  Bullitt,  35  Pa. 
St.  308. 

Admissible  Against  Executor Ad- 

missinns  made  by  a  parly  at  the 
first  trial  are  admissible  against  his 
executor  at  the  second  trial.  Graf- 
fenreid   v.    Kundert   31    111.   App.   304. 

Testimony  Before  a  Justice  Held 
Not  Admissible  on  Appeal In  Car- 

Vol.  T 


ter  z\  LSuckner,  3  Blackf.  (Ind.) 
314,  it  was  offered  to  prove  by 
a  witness  what  had  been  testified  to 
by  the  plaintiff  on  the  trial  before 
the  justice,  but  the  evidence  offered 
was  excluded.  In  ruling  upon  the 
question  on  appeal,  the  court  said : 
"The  plaintiff  was  in  court,  and 
could  have  been  required  to  answer 
to  the  plea  on  oath.  This  was  not 
done,  but  a  witness  is  offered  to 
prove  his  admissions  made  under 
oath  before  the  justice.  This  was 
inadmissible. 

"Other  admissions  or  confessions 
of  the  plaintiff  would  have  been  re- 
ceived, or  if  he  had  been  examined 
in  the  Circuit  Court,  it  would  have 
been  competent  to  have  proved  con- 
tradictions, discrepancies,  or  vari- 
ances occurring  in  his  examination 
before  the  Justice  of  the  Peace,  and 
that  in  the  Circuit  Court.  It  is  true  the 
admissions  of  a  party  may  be  given 
in  evidence  against  him.  These  ad- 
missions may  either  be  in  pais  or  of 
record ;  they,  however,  relate  to  the 
party,  without  violating  any  rules  of 
evidence  which  apply  when  the 
party  is  constituted  by  statute  a  wit- 
ness." 

See  explanation  of  this  ruling  in 
McKenzie  v.  Reneau,  8  Blackf.  314. 

And  in  Carter  v.  Edwards,  16  Ind. 
238,  it  was  held  that  admissions 
made  by  a  party  examined  under 
oath,  on  the  trial  before  the  justice, 
could  not  be  proved  in  an  appellate 
court,  the  party  being  in  court  on 
the  trial  on  appeal,  and  not  then  ex- 
.imined. 

See  also  Martien  v.  Barr,  5  Mo. 
102. 

66.     Effect   of   Offering   letter   In 

Evidence     at     Previous     Trial In 

.\laclay  i'.  Work,  10  Serg.  &  R. 
(Pa.)  194,  it  is  said:  "The  letter  of 
Casper  Weitzel  had  been  procured, 
and  at  a  former  trial  given  in  evi- 
dence by  the  plaintiff,  as  containing 
facts  midoubtcdly  true,  and  as  those 
on  which,  among  others,  he  relied 
for  recovery.  Can  it  therefore  be 
questioned  that  by  the  very  act  of 
giving    it    in     evidence,    he    admitted 


ADMISSIONS. 


483 


c.  To  I'roi'c  Uiiiisshiii  to  Make  Claim.  —  And  his  tfstiinon\-  may 
l)c  used  to  prove  an  omission  on  his  part  to  claim  sometliing  in  the 
former  case  that  he  is  now  claiming,  in  which  case  the  whole  of  the 
testimony  must  be  read,  although  not  material  to  the  issue."' 

d.  That  Party  JVas  Compelled  to  Testify  Iinmaterial.  —  It  makes 
I'.o  ditiference  in  respect  of' the  admissibility  of  the  testimony  of  a 
jiarty  that  he  was  forced  by  legal  process  to  become  a  witness 
and  give  such  testimony  ;"*  nor  that  such  testimony  was  illegally 


that  every  fact  it  contained  was 
true?  And  if  it  cannot,  is  it  not  as 
little  to  be  questioned  that  his  an- 
tagonist might  use  this  admission 
against  him  as  soon  as  the  effect  of 
those  facts  was  ascertained  to  be 
different  from  what  it  was  first  sup- 
posed to  be?  If  the  plaintiff  were 
mistaken  as  to  the  trutli  of  such  as- 
sertion, he  would  be  permitted  to 
disprove  it,  and  that  is  all  he  could 
rcasonalily  reipiirc;  luit  that  the  let- 
ter was  competent  and  proper  to  go 
to  the  jury  I  have  not  the  slightest 
doubt." 

67.  Offer  of  Testimony  to  Show 
Omission  to  Make  Claim. — Tn  Eaton 
V.  Telegraph  Co.,  68  Me.  63,  the 
disclosure  made  by  a  party  to  a  suit 
as  trustee  in  another  action,  was  of- 
fered in  evidence  against  him  to 
show  that  he  omitted  to  claim  there- 
in to  be  the  owner  of  the  property 
he  was  suing  to  recover,  and  the 
evidence  v.as  held  to  be  competent, 
the  cou.t  Sojing:  "But  the  admissi- 
bility of  the  testimony  upon  which 
ihe  verdict  was  founded  is  contested 
l)y  the  plaintiff.  First,  the  trustee 
disclosure  was  objected  to.  VVe 
have  no  doubt  that  it  was  legally  ad- 
mitted. It  is  insisted  that  it  laid  be- 
fore the  jury  many  matters  foreign 
to  the  issue.  But  it  must  be  borne 
in  mind  that  the  point  was  to  show 
what  the  disclosure  did  not  contain 
rather  than  wliat  it  did  contain,  and 
therefore  the  whole  of  it  was  to  be 
read  in  order  to  render  the  point 
available." 

68.  Chase  v.  Debolt,  2  Gil.  (111.^ 
371  ;  Lilley  v.  Mutual  Ben.  L.  Ins. 
Co..  92   Mich.   153.  52  N.  W.  631. 

Statute  Forbidding  Use  of  Testi- 
mony— But  by  a  federal  statute  evi- 
dence obtained  from  a  party 
or  witness  by  means  of  a  judicial 
proceeding  in  this  or  any  foreign 
country  cannot  be  given  in  evidence, 


or  in  any  manner  used  against  him 
or  his  property  or  estate  in  any 
criminal  proceeding  or  for  the  en- 
forcement of  any  penalty  or  forfeit- 
ure. U.  S.  Rev.  Stat.,  Sec.  860; 
Johnson  v.  Donaldson,  3  Fed.  22; 
Daly  V.  Brady,  69  Fed-  285. 

.'\nd  it  is  held  that  independently 
of  such  a  statute  it  would  be  con- 
trary to  all  precedent  and  the  rules 
of  law,  to  allow  evidence  so  ob- 
tained to  be  used  for  such  purposes. 
Johnson  v.  Donaldson,  3  Fed.  22; 
Atwill  V.  Ferrett,  2  Fed.  Cas.  No. 
640. 

Similar  statutes  may  be  found  in 
■;  ime  of  the  states.  Lapham  v. 
.Marshall,  20  N.  Y.  St.  795,  3  N.  Y. 
Supp.  601  ;  Uhler  v.  Maulfair,  23  Pa. 
St.  481  ;  Duseiibury  v.  Dusenbury,  63 
IJow.  Pr.  349. 

Examination     in     Supplementary 

Frooeedings With     respect     to    the 

provisions  of  the  Code  of  New 
York,  prohibiting  the  use  of  an- 
swers to  interrogatories  in  proceed- 
ings supplementary  to  execution  in 
other  actions,  it  was  held  in  Lapham 
V.  Marshall,  20  N.  Y.  St.  79s,  3  N. 
Y.  Supp.  601,  that  the  statements 
made  by  a  witness  under  e.xamina- 
tion  in  a  supplementary  proceeding 
were  privileged;  and  under  the  code 
and  its  amendments  could  not  be 
used  either  in  a  civil  or  criminal 
action,  but,  by  the  amendment  of 
1881,  the  inhibition  was  removed  so 
far  as  it  related  to  civil  actions, 
thereby  making  the  statements  of 
the  witness  competent  evidence  upon 
the  trial  of  another  civil  action ;  and 
that,  as  in  that  case,  the  party  had 
testified  before  the  amendment  of 
the  statute,  she  was  protected  by  the 
statute  then  in  force,  from  the  use 
of  her  testimony  in  the  civil  action. 

Contra. — In  criininal  actions.  Bar- 
ber V.  People,  17  Hun    (N.  Y.)   366. 

Vol.  I 


484 


ADMISSIONS. 


taken,''''  nor  lluit  llie  party  is  present  in  court  and  niinlil  lie  called 
as  a  witness/"  nor  that  the  testimony  o'iven  on  the  former  trial  was 
incompetent.'^ 

e.  Hotv  Proved.  —  The  proof  of  his  previous  testimonv  ma\'  be 
made  by  the  party  himself,  or  by  any  one  else  that  heard  it.'- 


69.  McGahan  v.  Crawford,  47  S. 
C.  566,  25   S.  E.   123. 

Statute  Forbidding  xise  of  Testi- 
mony— In  Uhler  -t'.  .Mauhair..  23 
Pa.  St.  481,  it  was  held  that  the  ob- 
ject of  the  legislature  of  that  state 
in  passing  the  act,  forbidding  the 
use  of  testimony  given  in  answer  to 
any  bill  seeking  a  discovery  in  rela- 
tion to  any  fraud,  or  to  answer  as  a 
witness  in  relation  to  such  fraud 
was  to  remove  every  temptation 
to  falsify  from  every  person 
called  upon  to  answer  as  to  such 
fraud,  and  that  upon  that  ground 
the  answers  given  and  offered  in 
evidence  were  properly  rejected. 

Testimony  Illegally  Taken  Com- 
petent as  Admission. — In  Lilley  v. 
Mut.  Ben.  Life  Ins.  Co.,  92  Mich. 
153,  52  N.  W.  631,  one  had  been  ex- 
amined orally  in  the  probate  court, 
contrary  to  the  .statute  which  pro- 
vided for  written  interrogatories; 
and  upon  the  objection  that  testi- 
mony was  illegally  taken,  and  could 
not  be  afterwards  introduced  as  an 
admission,  the  court  said,  that  he 
gave  his  evidence  as  any  witness 
would  have  done,  and  did  not  seem 
to  have  been  scared  or  misled  into 
saying  anything  to  his  detriment. 
There  was  no  reason  to  suppose  that 
his  evidence  was  different  from 
what  it  would  have  been  had  he 
testified  at  his  own  free  will,  al- 
though he  had  objected  to  the  juris- 
diction  of   tlie   court. 

Testimony  of  a  Married  Woman 
Illegally  Elicited  Before  a  Grand 
Jury — In  Wilson  v.  Hill,  13  N.  J. 
Eq.  143,  it  is  held  that  what  a  party 
testifies  before  a  grand  jury,  ap- 
pearing there  under  a  subpoena  and 
compelled  to  testify,  the  testimony 
being  illegal  because  given  against 
her  own  husband,  cannot  afterwards 
be  offered  against  her  as  an  admis- 
sion. But  see  Carter  v.  Buckner,  3 
Blackf.  (Ind.)  314;  Carter  v.  Ed- 
wards, 16  Ind.  238;  McKcnzie  v. 
Reneau,  8  Rlackf.   (Ind.)   411. 

70.  I'liuldee   j'.    Sp.'ingler,    12   Colo. 

Vol.  I 


216,  20  Pac.  760;  Lorenzana  v.  Ca- 
marillo,  45  Cal.  125 ;  Phoenix  Mut. 
L.  Ins.  Co.  V.  Clark,  58  N.  H.  164. 

■71.  Maclay  v.  Work,  10  Serg.  & 
R.   (Pa.)    194. 

72.  Pickard  v.  Collins.  23  Barb. 
444;  German  Nat.  Bank  v.  Leonard, 
40  Neb.  676.  59  N.  W.   107. 

How  Former  Testimony  May  be 
Proved.— In  the  case  of  Chase  v. 
Debolt,  2  Gil.  (111.)  371,  the  suit  was 
originally  brought  before  a  justice  of 
the  peace,  and  was  appealed  to  the 
Circuit  Court,  and  there  tried.  On 
the  trial  before  the  justice.  Chase 
became  a  witness.  On  the  trial  in 
the  Circuit  Court,  the  court  permit- 
ted the  justice  to  testify  to  what 
Chase  had  sworn  on  the  trial  before 
him,  and  this  was  assigned  as  error. 
In  passing  upon  the  admissibility  of 
this  evidence,  the  court  said  ;  "One 
witness  cannot  testify  to  what  an- 
other witness  had  sworn  on  a  for- 
mer trial,  especially  when  that  wit- 
ness is  alive  and  may  be  called,  for 
this  would  be  hearsay,  if  offered  as 
evidence  in  chief.  But  the  rule  does 
not  extend  to  the  admissions  of  the 
party.  What  the  party  may  have 
stated,  although  under  oath  as  a  wit- 
ness, is  most  clearly  admissible  as 
as  an  admission,  although  compul- 
sory. 2  Stark.  Ev.  22 ;  i  Camp.  30 ; 
4  Jo.  10;  4  Esp.  C.  172,  212;  Atk. 
200;  Cook  200;  II  Ves.  521  ;  i  Stark. 
C.  s66;  3  Eng.  Com.  Law  R.  ,385;  i 
Phil.  Ev.  89;  2  Phil.  Ev.  161,  note 
170. 

"The  decision  in  3  Bl;ickf.  315,  to 
the  contrary,  I  do  not  regard  as 
sound  law,  nor  reconcilable  with 
principle  or  tlie  Ijooks.  Surely  the 
additional  solenmity  and  sanction  of 
an  oath  to  the  admission  ought  not 
to  destroy  its  credit  or  its  admissi- 
bility; otherwise,  all  answers  to  bills 
of  discovery,  and  analagous  cases, 
would  be  e.xchided  as  incompetent. 
An  examination,  therefore,  although 
compulsory,  will  not  exclude  the  ad 
mission  that  may  be  made  " 

Minutes  of  Defendant's  Testimony 


UK]nssioNS. 


485 


The  minutes  of  the  stenographer  are  not  competent  unless  proved 
to  be  correct. ''•' 

f.  Evidence  Iiiiprof^eiiy  Taken  Conif'etent.  —  It  makes  no  differ- 
ence as  to  the  com]K'tency  of  tlie  evidence  tliat  the  testimonv  was  niit 
taken  in  the  manner  required  by  law.'* 

g".  Party  Need  Not  Be  Called  to  Testify.  —  It  is  not  necessary 
to  call  the  party  himself,  or  to  direct  his  attention  to  the  testimony 
fjiven  by  him.  It  is  not  impeaching  but  original  evidence  against 
him,  and  provable  like  any  other  admission.'^ 

h.  'I'estiniony  of  T/iird  Party  Not  Competent.  —  .\s  a  rule  the 
testinion\-  of  a  third  party  is  not  competent,  being,  like  other  decla- 


on  Former  Trial. — In  Johnson  v. 
Powers,  40  Vt.  611.  tlie  plaintiff  of- 
fered to  read  tlic  minutes  nf  the  de- 
fendant's own  testimony,  given  at  a 
former  trial,  which  minntes  the 
counsel  testified  were  correct,  except 
that  they  did  not  contain  the  cross- 
examination  ;  and  it  was  held  that 
the  defendant,  beinp;  present  at  the 
trial  under  revision,  and  not  show- 
ing that  the  cross-examination 
qualified  the  examination  in  chief, 
such    minntes    were    admissilile. 

Minutes  of  the  Judge  as  Evi- 
dence of  Testimony  Given In  Fitz 

Patrick  v.  Fitzpatrick,  6  R.  I.  6_|.  75 
Am.  Dec.  681,  it  was  permitted  to 
prove  testimony  of  a  witness  by  the 
judge's  minutes,  the  court  saying 
that  such  minutes  are  taken  by  every 
judge  as  a  necessary  part  of  his 
duty,  not  only  to  enable  him  to  in- 
struct the  jury,  or  to  sum  up  to  the 
jury,  but  for  use  on  motions  for  new 
trial.  That  to  apply  to  such  min- 
utes the  strictest  rule  with  regard 
to  vohmtary  memoranda  would  be 
to  prevent  the  use  of  them  as  a 
source  of  evidence  for  the  numerous 
and  important  purposes  for  which 
they  are  needed;  for  no  judge, 
speaking  generally,  could  testify 
farther  than  to  identify  his  minutes 
as  written  by  him  at  the  time,  and 
that  he  believed  them  to  be  correct. 
The  presumption  is  that  they  are 
correct  and  should  be  admitted  as 
evidence  with  such  verification  as  in 
the  nature  of  tilings  is  possible. 

Record  of  Other  Jiction  Need  Not 
be  Produced — When  tiio  evidence 
of  a  witness  on  a  former  trial,  who 
is  dead  or  absent,  is  proper  to  be 
introduced  as  evidence  between  the 
same   parties   on   another   trial    upon 


the  same  subject  matter,  the  record 
nuist  of  necessity  1)e  introduced  to 
show  the  fact  of  the  trial  and  of  the 
identity  of  the  parties  and  of  the 
subject  matter. 

But  that  principle  has  no  applica- 
tion where  the  testimony  of  the 
party  is  offered  to  show  his  own 
admission.  Tlie  witness  in  narrat- 
ing such  testimony  of  the  party, 
must  stale  it  from  memory  and  can- 
not read  his  notes  as  evidence,  or 
must  state  that  on  recurring  to  his 
notes  they  contain  substantially 
what  the  party  said.  Kutzmeyer  v. 
Ennis,  27  N.  j.   Law  371. 

73.  Misner  v.  Darling,  44  Mich. 
438,  7  N.  W.  77- 

Reporter's  Notes  Not  the  Best 
Evidence — In  German  Nat.  P.auk 
V.  Leonard,  40  Neb.  676,  59  N.  W. 
107,  the  question  arose  as  to  the 
proper  manner  of  proving  what  had 
been  testified  to  by  a  witness  on  a 
foriuer  trial.  It  was  offered  to 
prove  what  was  said  by  a  witness 
wlio  heard  the  testimony  given. 
This  was  objected  to  on  the  ground 
that  the  testimony  was  taken  down 
by  a  shorthand  reporter,  and  that 
his  notes  of  the  testimony  given 
were  the  best  evidence.  But  it  was 
lield  that  the  reporter's  notes  were 
not  the  best  evidence,  as  claimed, 
and  that  the  oft'ered  evidence  was 
competent. 

74.  Lillcy  V.  Mut.  Ben.  L.  Ins. 
Co.,  92  Mich.   153,  52  N.  W.  631. 

75.  I.oel)  r.  Peters,  63  Ala.  243, 
35  Am.  Rep.  17;  Fisher  v.  Monroe, 
2  Misc.  326,  21  N.  Y.  Supp.  995;  Ed- 
dings  V.  P.oner,  I  lud.  Tcr.  173,  38 
S.  W.  mo;  Louisville  &  N.  Ry.  Co. 
V.  .Miller,  IQ  Ky.  L.  Rep.  i66s,  44  S. 
W.   119. 

Vol.  I 


4S() 


.iDMissioys. 


rations  of  third  parties,  mere  hearsay.'"' 

i.  Exceptions.  — Assent  of  Party  to  Correctness. — Cut  the  party 
may  give  his  assent  to  statements  testified  to  by  another  in  such  way 
as  to  make  them  his  own  admissions.  In  such  case  they  are  com- 
petent upon  a  showing  of  such  assent  to,  or  acknowledgment  of 
their  truth.'"  The  mere  fact  that  he  heard  the  testimony  of  another 
in  a  case  of  his  own,  and  expressed  no  dissent,  is  not  enough  to 
render  the  testimony  competent.'* 

j.  Por  Purpose  of  Iinpcacliuicut.  —  As  against  one  not  a  party, 
l)ut  a  witness  only,  testimony  given  by  him  at  another  time  may  be 
given  in  evidence,  the  proper  foundation  being  laid  therefor,  not  as 
an  admission,  but  for  the  purpose  of  impeachment.'" 

k.  Testimony  on  Trial  Not  an  Admission.  —  The  testimony  of  a 
party  to  the  suit  cannot  be  taken  as  an  admission,  in  that  action, 
of  the  truth  of  any  fact,  but  only  as  evidence,  like  that  of  any  other 
witness  in  the  case.'" 


76.  Recckman  v.  Montgomery,  14 
N.  J.  Eq.  106,  80  Am.  Dec.  229; 
I^ormore  v.  Campbell,  60  Barb.  62. 

77.  Recckman  v.  Montficniery.  14 
N.  J.  Ea.  106,  80  Am.  Dec.  229; 
State  V.  Gilbert.  36  Vt.  145. 

Testimony  of  an  Agent  or  Em- 
ployee, yivcn  at  a  former  trial,  is 
not  generally  competent  apainst  tbe 
principal  at  a  snbscqnent  trial.  Sa- 
vannab  &c.  Rv.  Co.  v.  Flannagan, 
82  Ga.  579.  9  S.  E.  471.  14  .'Vm.  St. 
Ren.  18.3 ;  Denver  &c.  Co.  v.  Watson, 
6  Colo.  App.   429.  40   Pac.   778. 

Admission  of  Truth  of  Testimony 
of  Third  Party — Tims  it  is  said  in 
State  V.  Gilbert.  36  Vt.  14.';:  "But  if 
a  party  wbo  has  beard  a  witness 
testify  admits  that  what  tbe  witness 
testified  is  true,  be  may  thereby 
make  tbat  testimony  evidence 
against  bim,  not  as  independent  evi- 
dence, bnt  as  explanatory  of  tbe  ad- 
mission. It  becomes  by  reference  a 
part  of  tbe  admission  and  it  admis- 
sible for  the  purpose  of  interprctins: 
it.  A  letter  written  by  another  would 
not  be  evidence  against  a  party;  but 
if  tbe  party  on  reading  it.  says  that 
tbe  facts  stated  in  it  are  true,  it  be- 
comes evidence  in  connection  with 
the  admission,  not  as  evidence  of 
the  truth  of  the  statements  it  con- 
tains, but  to  show  what  the  party 
acbuitted." 

Testimony  of  a  Third  Party  Com- 
petent if  Acquiesced  In Tn  Reeok- 

man  v.  ATontgomery,  14  N.  J.  Eq. 
106.   80   .'\m.    Dec.   229.   the   court   in 

Vol.  I 


passing  upon  this  question  said: 
"Tbe  examination  of  Andrew  Mont- 
gomery, taken  in  a  cause  wherein  be 
was  defendant  at  tbe  suit  of  these 
coiTipIainants,  by  virtue  of  an  order 
of  a  justice  of  tbe  Supreiue  Court, 
under  the  act  to  prevent  fraudident 
trusts  and  assignments  (Nix.  Dig. 
2^i)  is  not  l^er  sc  competent  evi- 
dence. Tt  is  not  competent  as  the 
testimony  of  a  deceased  witness  in 
a  former  action,  for  the  cause  is  not 
between  tbe  same  parties ;  nOr  as  an 
admission  of  a  privy  in  blood,  or  in 
estate.     .     .     . 

The  examination  is.  however,  ren- 
dered competent  by  the  subsequent 
examination  of  Ebenezer  Moutcom- 
ery.  who  was  nresent  at  and  beard 
read  the  examination  of  his  father, 
and  assciiied  to  the  truth  of  its'-tate- 
nients.  Tbe  facts  stated,  therefore, 
liy  the  father,  so  far  as  they  are  with- 
in the  knowledge  of  tbe  defendant, 
are  admitted  by  him  to  be  true." 

78.  Sheridan  r.  Smith.  2  Hill 
(N.  Y.)  538. 

79.  Mc.\ndrews  7'.  Santep.  5:7 
Barb.  193;  Omaha  Sic.  Smelting  & 
Ref.  Co.  V.  Tabor.  13  Colo.  41,  21 
Pac.  02=;.  16  .^m.  St.  Rep.  i8s,  5  L. 
R.  A.  236. 

80.  Ephland  v.  Mo.  Pac.  Ry.  Co., 
57  Mo.  App.  147.  71  Mo.  App.  507. 

Testimony  of  Parties  In  Case  on 
Trial  Not  Admissions. — Tn  ATa'tbews 
71  Storey.  54  Tud.  417.  tbe  parties  to 
the  action  testified  therein  as  wit- 
nesses.    The  court    below,   in   an   in- 


.■ii\]frssfONS. 


4S7 


statutes  Forbidding  Use  of  Testimony.  —  In  some  cases  sUitutcny 
l)rovisions,  reiiderino-  testimony  givfn  in  one  action  or  ])roceedini;' 
incompetent  in  another,  have  been  enacted  the  better  to  insure  free 
and  candid  disclosures  by  the  party  examined.*' 

l\r.  In  Dkpositions.  —  a.  Generally.  — Any  statements  made  by  a 
party  in  a  deposition  given  by  him,  material  as  admissions,  may  be 
introduced  as  evidence  of  such  admissions,  in  the  cause  in  which 
the  deposition  was  taken,  or  in  any  other  action. '- 


slrnctioii,  troatcil  the  stalcnicnts  of 
the  parties  as  witness  as  adniissioiis 
of  the  fact  testified  to. 

In  passing  upon  the  correctness  of 
this  instruction,  the  court  said; 
"This  testimony  of  the  two  parties 
would  go  to  the  jury  as  evidence 
tending  to  prove  the  facts  therein 
stated,  but  not  as  facts  admitted  or 
to  take  the  place  of  facts  as  proved, 
as  the  court  in  the  instruction  com- 
plained of  stated.  The  testimony  of 
parties  to  a  suit  must  be  regarded  as 
evidence,  not  as  facts  admitted.  It 
seems  to  us  that  the  court  commit- 
ted an  error  in  giving  the  instruction 
to  the  jury."  But  see  Coit  v.  Wa- 
ples.  I  Minn.  134:  Cal.  Elec.  Wks.  v. 
Finck,  47  Fed.  583 ;  Mason  v.  Poul- 
son,  43,  Md.  161  ;  De  Clercq  v.  Mun- 
gin,  46  111.   IT2. 

81.  Uhler  V.  Maulfair.  23  Pa.  St. 
481 ;  Lapham  v.  Marshall,  20  N.  Y. 
St.  79$,  3  N.  Y.  Supp.  601  ;  Dusen- 
bury  I'.  Dusenbury,  63  How.  Pr. 
340;  Johnson  v.  Donaldson,  3  Fed. 
22;  Atwill  I'.  Ferrett,  2  Fed.  Cas. 
No.  640;  Daly  v.  Brady,  69  Fed.  285. 

82.  United  States. — 'Lastrapes  v. 
Blanc,  3  Woods  134,  14  Fed.  Cas. 
No.  8,100;  Cambioso  v.  Moffett,  2 
Wasli.  C.  C.  98,  4  Fed.  Cas.,  No.  2. 
330. 

Alabama. — Ilallett  v.  O'Brien,  i 
Ala.   (N.  S.)   585. 

Kansas. — Moore  v.  Brown,  23 
Kan.  269. 

Massachusetts.  —  Knowlton  v. 
Mosely,  105  Mass.  136;  Judd  v. 
Gibbs,  3  Gray  539. 

Missouri. — Charleson  v.  Hunt,  27 
Mo.  34;  Kritzcr  v.  Smith,  21  Mo. 
296;  Bogie  V.  Nolan,  96  Mo.  85; 
Padley  v.  Cattcrlin,  64  Mo.  Apn. 
629;  State  V.  Bank,  80  Mo.  626; 
Zimmer   i'.     l\TcLaran,     9    Mo.    App. 

591. 

Nezv  Han: I  shire.  —  Brewer  ■:■. 
Hyndman,     18     N.     II.     9;    Phoenix 


Mut.  L.  Ins.  Co,  V.  Clark.  58  N.  H. 
164. 

Ncii<  York. — Lapham  z>.  Marshall, 
51  Hun    36,  3  N.  Y.  Sunn.  601. 

South  Carolina.  —  McGahan  v. 
Crawford.  47  S.  C.  566,  25  S.  E.  123. 

Texas. — Edwards  v.  Norton,  '^5 
Tex.  40=;;  Chaddick  v.  Haley,  8i 
Tex.  617,  17  S.  W.  2^^;  Bilger  7'. 
Buchanan  ("Tex.")  6  S.  W.  408; 
Parker  v.  Chancellor,  78  Tex.  524, 
15   S.  W.   157. 

•I'irginia. — ^Hatcher  ■:■.  Crews,  78 
Va.  460. 

For   What   Purpose  Admissible   in 

Another     Action In     Last  rapes     f. 

Blanc,  3  Woods  134,  14  Fed.  Cas. 
No.  8,100.  it  was  held  that  the  depo- 
sition of  the  defendant,  taken  in  an- 
other cause,  was  admissible  either  to 
contradict  as  oral  evidence  given  on 
the  trial  or  as  an  admission  by  him. 

A  Deposition  in  Insolvency  Pro- 
ceeding by  one  not  in  custody 
and  not  then  charged  with  crime,  is 
admissible  against  him  in  a  crim- 
inal proceeding.  People  ■:•.  Wieger, 
100  Cal.  352,  34  Pac.  S26. 

Statement  in  Deposition  Admissi- 
ble Although  Party  Has  Testified 
State  -.■.   Bank,  80  Mo.  626. 

Deposition  May  be  Explained,  and 
it  may  be  shown  that  certain  state- 
ments made  were  for  some  reason 
omitted  from  the  deposition,  the 
deposition,  like  other  admissions,  is 
not  conclusive.  Boardman  v.  Wood, 
3  Vt.  570. 

Deposition  of  Party  Since  De- 
ceased— In  Chaddick  v.  Haley.  81 
Tex.  617,  17  S.  W.  233,  it  was  held 
that  a  deposition  of  the  testator 
taken  in  another  action  was  properly 
admitted  on  the  contesting  of  his 
will,  to  show  the  cause  of  his  es- 
trangement from  his  disinherited 
child ;  and  that  it  was  immaterial 
whether  the     deposit in:i     was   prop- 

Vol.  I 


488 


inMissioxs. 


1).  Wlirii  Dcl^ositioii  Iiicuinpctcnt  .Is  Siiiii.  —  And  tlie  statements 
made  in  a  deposition  may  be  read  in  evidence  against  a  party 
upon  proof  that  he  made  such  statements,  aUhough  the  deposition 
lias  been  suppressed  and  is  no  longer  competent  evidence  as  a  depo- 
sition, or  is  incompetent  as  a  deposition  for  other  reasons. ^^ 

c.  \y/icrc  Parly  in  Court.  —  And  although  the  party  is  in  court 
and  might  be  called  as  a  witness,*'^  or  might  legally  have  declined 


crly  taken  or  not  where  no  objeclion 
was  raised  on  the  jrronnd  that  tlie 
statements  therein  contained  were 
not  made  by  the  testator. 

83.  Parker  z'.  Chancellor,  78  Tex. 
524,  15  S.  W.  157;  Moore  v.  Brown. 
23  Kan.  260;  Hatch  v.  Brown,  63 
Me.  410;  INTcOahan  v.  Crawford,  47 
S.  C.  566,  25  S.  E.  123:  Carr  r. 
Oriflfin,  44  N.  H.  510:  Bilger  v.  Bu- 
chanan (Tex."),  6  S.  W.  408;  Faiince 
V.  Gray,  2T  Pick.  (Mass.)  243;  Zim- 
mer  v.   McLaran,  g  Mo.  App.  591. 

Not  Properly  Taken  Admissible 
as  Admission — Tlic  rule  is  ihiis 
slated  in  ledger  v.  Buchanan  (Tex.) 
6  S.  W.  A08:  "Ohiection  was 
made  to  reading  Bilger's  depositions 
in  the  case  between  O'Hara  and 
Bonner.  The  objection  amounted  to 
ihis;  That  the  depositions  were  not 
properly  taken,  as  is  required  in 
case  of  denositions  fiven  under  the 
statutes.  It  is  not  objected  that  the 
statements  of  Bilgerwere  not  proven 
by  the  testimony  of  the  officer  be- 
fore whom  they  were  made.  Bil- 
ger's admissions  made  in  those  depo- 
sitions were  good  teslimouy  aL'aiusl 
himself.  It  mattered  not  that  there 
was  no  commission,  or  whether  they 
were  made  under  oath  before  a 
proper  officer.  If  they  had  been 
made  privately  to  an  individual,  they 
should  have  been  received,  if  proven 
by  the  party  in  whose  presence  they 
were  made.  .  .  .  Thiy  were  prop- 
erly admitted." 

84.  Meyer  v.  Campbell,  48  N.  Y. 
St.  666,  20  N.  Y.  Supp.  70s;  Phoenix 
Mut.  L.  Ins.  Co.  V.  Clark,  58  N.  H. 
164 ;  Bogie  i:  Nolan,  q6  Mo.  8=;,  9 
S.  W.  14;  State  V.  Bank,  80  Mo.  626. 

Presence  of  Party  in  Court  Im- 
material— In  Charleson  !■.  Hunt,  27 
Mo.  34,  plaintiff  was  permitted  to 
read  in  evidence  the  deposition  of  a 


defendant  who  was  present  in  court 
under  a  subpoena  and  ready  to 
testify,  the  court  holding  that  the 
statute  which  gives  the  right  to  ex- 
amine an  adverse  party  as  a  witness 
did  not  exclude  ordinary  means  of 
proof,  and  that  it  is  competent  to 
prove,  as  admission,  oral  or  written 
statements  of  the  party,  though  he 
might  be  called  as  a  witness. 

Where  Canse  for  Using  Deposition 

No     longer     Exists In     Hatch     v. 

Brown,  63  Me.  410  it  is  said  that 
Revised  Statutes,  Chap.  107,  Sec.  17. 
providing  that  a  deposition  shall  not 
be  used  at  a  trial  if  the  adverse 
party  shows  that  the  cause  for  tak- 
ing it  no  longer  exists,  simply  means 
that  it  shall  not  be  used  as  a  depo- 
sition ;  that  the  enactment  has  no 
application  to  the  deposition  of  a 
party.  It  was  only  as  a  paper  con- 
taining his  written  deposition  that 
the  paper  was  offered   and   received. 

However  obtained  they  are  com- 
petent evidence  subject  to  such  ex- 
planations or  additions  as  he  might 
be  able  to  make. 

Deposition  Incompetent  as  Such. 
In  Meyer  v.  Campbell,  48  N.  Y. 
St.  666,  20  N.  Y.  Supp.  705.  it  is 
said:  "Defendant's  counsel  also  of- 
fered in  evidence  plaintiff's  depo- 
sition, taken  dc  bene  esse.  .  .  . 
This  also  was  excluded,  under  ob- 
jection and  exception  by  defendant's 
counsel.  The  deposition  was,  as  a 
matter  of  course,  not  competent  in 
plaintiff's  favor,  since  he  was  pres- 
ent on  the  trial ;  but  the  same  prin- 
ciple which  rendered  the  allegations 
of  the  original  complaint  competent 
evidence  for  defendant  as  declara- 
tions made  by  plaintiff  at  variance 
with  his  claim  on  the  trial  applied 
to  the  deposition,  and  its  exclusion 
was  tlierefore  error," 


Vol.  I 


ADMISSIONS. 


4S9 


to  depose  as  a  witness,'''^  or  was  incompetent  to  testify.*" 

(1.  Not  Conclusive.  —  1  hit  when  tlie  statements  made  in  a  depo- 
sition are  offered  as  an  admission  they  are  not  conclusive,  but  may  be 
disproved  or  explained  like  any  other  admission.*'' 

e.  Whole  Must  Be  Read.  —  The  g-eneral  rule  is  that  the  whole  of 
the  deposition  must  be  offered.** 

f.  E.rceptions  to  the  Rule.  —  An  exception  to  the  rule  admitting 
depositions  as  admissions  has  been  made,  in  some  cases,  by  statute, 
where  the  deposition  has  been  taken  to  perpetuate  testimony.*" 

.Sf.  Party  Need  Not  Be  Called.  —  Tf  the  deposition  is  of  a  party 
to  the  suit,  it  is  not  necessary  to  call  his  attention  to  it,  or  to  ask 
him  if  he  made  such  statements  as  it  contains.  It  is  competent  as 
evidence  of  an  admission,  and  not  for  the  purposes  of  impeachment 
only."" 

N.  Answers  to  Interrogatories.  —  Answers  of  a  party  to  inter- 
rogfatories  in  an  action  in  which  he  is  a  party  are  competent  as  admis- 
sions against  him,  not  only  in  that  action,  but  in  any  other  action 
to  which  he  is  a  party,  where  the  statements  made  in  such  answers 
are  material  to  the  issues  in  the  cause  on  trial."' 


85.     Where     Party     Might     Have 

Refused    to    Depose In     Helm    v. 

TTandley.  i  Litt.  (Ky.')  2IQ.  it  if^  ?aid 
the  law.  in  some  instances,  indulges 
witnesses  in  the  privilege  of  not  de- 
nosing,  where  their  own  interest  may 
he  affected ;  hut  wherever  they  do 
depose  to  facts  which  may  affect 
them  in  another  controversy,  we  are 
aware  of  no  rule  which  precludes 
their  testimony  from  being  used 
against  them  in  such  contro\'ersy. 

8S.  Where  Deponent  Incompe- 
tent   as    a    Witness In    Paunce    v. 

Cray  2i  Pick.  (Mass.')  24,-?.  it  ap- 
peared that  a  deposition  had  not 
been  taken  in  compliance  with  the 
statute,  and  it  was  the  deposition  of 
a  defendant  who  was  incompetent 
as  a  witness,  and  the  court  said: 
"Rut  the  confessions  of  executors 
and  administrators  are  competent 
evidence  against  themselves  in  any 
suit  by  or  against  them  in  their  rep- 
resentative character.  Emerson  v. 
Thompson.  if>  Mass.  R.  a20:  Atkins 
T'.  Sanger,  i  Pick.  ig2 ;  Hill  v.  Buck- 
niinster,  5  Pick.  .TOI.  And  we  can 
discover  no  reason  for  excluding  the 
written  statement  of  the  defendant 
from  the  operation  of  this  rule." 

87.  Boardman  v.  Wood,  t,  Vt. 
570 

88.  Whole  Deposition  Must  be 
Read — In  Kritrcr  v.  Smith.  2T  Afo. 
20(^.   .■?oi.  it   is   said :     ".^s   the   depo- 


sition was  read  as  an  admission,  reg- 
ularly, the  party  readin?  it  should 
have  read  the  whole.  The  distinc- 
tion is  that,  when  an  answer  is  read 
as  part  of  the  pleadings  in  the  cause 
in  which  it  is  filed,  only  such  parts 
may  be  read  as  the  narty  desires ; 
but  when  it  is  taken  from  the  cause 
in  which  it  is  filed  and  read  in  an- 
other proceeding,  as  an  admission, 
there  the  whole  of  it  must  be  read 
by  the  narty  offering  it. 

89.  Dwinel  v.  Godfrey,  44  Me.  65. 
But  thi.s  is  only  by  virtue  of  a  stat- 
ute to  that  effect.  The  general  rule 
annlies  to  depositions  taken  for  such 
purnosp.  Faiince  v.  Gray,  21  Pick. 
CMass.1-2M;  McGahan  v.  Crawford, 
47  S.  C.  s66,  25  S.  E.  12.-!. 

90.  Phoenix  Mut.  L.  Ins.  Co.  v. 
Clnrk.  c8  N.  H.   164. 

91.  Alabama. — Gay  7:  Rogers, 
100    Al.n.   624.  20  So.    77. 

Florida  — Tacksonville  T.  &  K.  Rv. 
Co.  V.  Peninsula  L.  T.  &  M.  Co.. 
27  Fla.  1. 157,  g  So.  661,  17  I-  R-  A. 

Genrsia.—WhMock  v.  Crew.  28 
Ga.  2R0. 

Louisiana.  —  Alford  v.  Hu.ghcs,  14 
T.a.  Ann.  727;  Murison  v.  Butler.  t8 
La.  Ann.  107. 

MniHC— Jewett  v.  Rines.  .10  Me,  9; 
AForrell   v.   Rogers.    T    Greenl.   328. 

]\fassnrliiisrtt.';. — Williams    v.    Che- 

Vol.  I 


490 


.IPMfSSJONS. 


And  they  may  become  competent  and  material  for  the  purpose  of 
contradicting  the  party  making  the  answers,  as  a  witness  in  that  or 
any  other  case,  whether  a  party  to  the  action  or  not. 

b.  Bills  of  Particulars. — A  bill  of  particulars  furnished  by  one 
party  to  a  suit  to  another  is  competent  evidence  of  an  admission."- 

P.  By  Default. —  Generally. —  Where  a  defendant,  after  legal 
service,  fails  to  answer,  and  thereby  suffers  a  default,  he  admits  or 
confesses  all  of  the  material  allegations  of  the  complaint  well 
pleaded,  except  tlie  amount  of  damages  alleged."'' 


ncy,  3  Gray  215 ;  Nichols  v.  Allen. 
112  Mass.  23. 

Missouri. — Utiev  v.  Tolfree,  77 
Mo.  307. 

Pcnnsvh'ania. — IMalone}'  v.  Davis, 
48  Pa.   St.   S12. 

92.  I,ee  v.  Heath,  61  N.  J.  Law, 
250.  39  Atl.  729. 

93.  England.  —  Green  v.  Hearne. 
3  D.  &  E.  .-^oi  ;  Skelton  v.  Hawling,  i 
Wil.son  258. 

United  .9/a/c.s.  —  Dickson  v.  Wilk- 
inson, 3  How.  S7 ;  Clements  v.  Berrv. 
II  How.  398:'  Miller  v.  U.  S.,  11 
Wall.  268:  McAllister  v.  Knhn,  96 
U.  S.  87 ;  Oregon  Rv.  Co.  v.  Oregon 
Ry.  &  Nav.  Co.,  28  "Fed.  505. 

Alabama.  —  Powell  v.  Washington, 
15  Ala.  803;  Garrow  v.  Emanuel.  3 
Stew.  285 ;  INTcGehee  v.  Childress.  2 
Stew.  50(5;  Mannd  7'.  Loeh,  87  Ala. 
374,  6  So.  376:  Ledhelter,  etc.  v.  Vin- 
ton, 108  Ala.  644.  18  So.  602. 

Arkansas.  —  Johnson  v.  Pierce,  12 
.'\rl<.  =0Q ;  Hershy  ?'.  MacGreevv.  46 
Ark.  498. 

California.  —  Hntchings  v.  Eheler. 
46  Cal.  557 ;  Himnielmann  v.  Spana- 
gel,  39  Cal.  401  ;  McGregor  7'.  Shaw, 
II  Cal.  47;  Cnrtis  7'.  Herrick,  14  Cal. 
117;  Rowe  V.  Table  ]\rt.  Water  Co., 
10  Cal.  441. 

Colorado.  —  Hoyt  7'.  Macon.  11 
Colo.  113;  Weese  v.  Barker,  7  Colo. 
178,  2  Pac.  919. 

Connecticut.  —  Shcpard  v.  New 
Haven,  etc.  Co.,  45  Conn.  54;  Hav- 
ens V.  Hart,  &  N.  \\.  R.  Co.," 28  Conn. 
69;  Martin  7'.  New  York  &  N.  E.  R. 
Co.,  62  Conn.  331,  25  Atl.  239; 
Welch  7'.  Wadsworth,  30  Conn.  149; 
Star  Cash,  etc.  Co.  7'.  Starr,  69  Conn. 
440.  37  Atl.  1057. 

Delaware.  —  Randell  v.  Chesapeake 
&  Del.  Canal,  i  Harr.  233;  Maeklin 
V.  Ruth,  4  Harr.  87. 

Plorida.  —  Russ  v.  Gilbert,  10  Fla. 
54- 

Vol.  I 


Illinois.  —  Tucker  v.  Hamilton,  108 
111.  464;  Binz  7'.  Tyler,  79  111.  248; 
Morton  7'.  Bailey,  i  Scain.  213 ; 
Greenup  v.  Woodworth,  Breese  232; 
Peck  7'.  Wil.son,  22  111.  205 :  Cook  7'. 
Skelton,  20  111.  107:  Underbill  v. 
Kirkpatrick.  26  III.  85':  Rietzell  v. 
Peonle.  72  111.  ai6;  Madison  County 
7'.  Smith,  9^  111.  328;  Garrison  7'. 
People.  21  Til,  53';;  Phociii\-  Ins.  Co, 
V.  Hendrick,  73  111.  .\np.  601  ;  Cut- 
right  7',   Stanford.  81  111.  240, 

Indiana.  —  Cravens  7',  Duncan,  55 
Tnd.  347;  Fisk  7',  Baker,  47  Ind.  S34; 
Briggs  7'.  Sneghan,  45  Ind.  14;  Peo- 
ple r.  County  Court.  10  Ind.  19;  Hub- 
Iiard  7'.  Chappel.  14  Ind.  601  ;  Ein- 
erv  V.  Evansville  T.  C.  R.  Co,,  13  Ind, 
143:   Goble  V.   Dillon.  86  Ind.  327. 

Iowa.  — Greeley  7'.  Sample,  22  Iowa 
3.38:  Pfantz  7'.  Culver,  13  Iowa  312; 
Johnson  7'.  Mantz.  69  Iowa  710,  27  N. 
\\'.  467;  Warthen  7'.  Himstreet,  I12 
Iowa  605,  84  N.  W.  702. 

Kansas.  —  Breiuicr  7'.  Bigelow,  8 
Kan.  496. 

Maine.  —  Thompson  v.  Gilmore. 
50  Me.  428;  Ellis  7'.  Jameson,  17  Me. 

235- 

Maryland.  —  Kiersted  7'.  Rogers,  6 
Har.  &  J.  282. 

Massachusetts.  —  Folger  7'.  Fields. 
12  Cush,  03;  Gardner  -■,  Field.  I 
Gray  151. 

.l//»)i«()/(J.— Dond  7'.  Dnluth  Mill- 
ing Co..  55  Minn,  53,  56  N,  W.  463; 
F.xlev  V.  Berrvhill,  37  Minn.  182,  33 
N.  W.  567. 

.Mississifpi.  —  Claiborne  7'.  Plant- 
ers' Bank,  2  How.  "27;  Winn  v. 
Levy,  2  How.  902. 

Missiinri.  —  Moore  7'.  Sauborin,  42 
Mo.  490. 

Montana.  —  Second  Nat.  Bank  v. 
Kleinschmidt,  7  Mont.  1.1(1,  14  Pac. 
667. 

Nebraska.  — Hardy  v.  Miller,  11 
Neb.  395,  9  N.  W.  47.S ;  German  Am. 


ADMISSIONS. 


491 


]'*xcc])ti(ins  ti)  the  general  nik-  ari'  SDiiK'tiiiu's  niailc  l)v  statute. "' 
When     Equivalent    to     Confession     of    Judgment.   —    In    some   of   the 


Bank  V.  Stickle,  59  Neb.  t,2\.  80  N. 
W.  QTO;  Slater  v.  Skirviiig,  51  Neb. 
108,  70  N.  W.  493. 

Nevada.  —  Evving  v.  Jennings,  15 
Nev.  379. 

Nn^'  Haiiif'sliirc.  —  Toppan's  Peti- 
tion, 24  N.  H.  43;  Hnntress  r.  Ef- 
fingham, 17  N.  H.  584;  Parker  r. 
Roberts,  63  N.  H.  431. 

New  Jersey.  —  Creamer  v.  Dike- 
man,  39  N.  J.  Law  195. 

Nczc  Me.rieo.  —  Metzger  v.  Wad- 
dell,  I  N.  M.  400. 

Ne-M  York.  —  McGnire  v.  Ulrich,  2 
Abb.  Pr.  28;  Stelle  v.  Palmer,  11 
Abb.  Pr.  62. 

North  Camlina. — McDowell  v.  As- 
bury,  66  N.  C.  444;  Parker  v.  Smith, 
64  N.  C.  291. 

Ohio.  —  McKinzie  v.  Perrill,  15 
Ohio  St.  162. 

South  Carolina.  —  Frean  v.  Cruik- 
shanks,  3   McCord  84. 

Tennessee.  —  Mississippi,  etc.  R. 
Co.  V.  Green,  9  Heisk.  588;  Hall  r. 
Mount,  3  Cold.  73;  Union  Bank  r. 
Hicks,  23  Tenn.  326. 

Te.vas.  —  Watson  v.  Newshani,  17 
Tex.  437;  Boles  t'.  Lintbicum,  48 
Tex.  220;  Guest  v.  Rhine,  16  Tex. 
549;  Willard  z'.  Conduit,  10  Tex. 
213 ;  Long  V.  Wortham,  4  Tex.  381  ; 
Johnson  i'.  Stallcup,  41  Tex.  529; 
Clark  V.  Compton,  is  Tex.  32;  Focke 
V.  Sterling,  18  Tex.  Civ.  App.  8,  44  S. 
W.  611;  Hawkins  r.  Haney,  i  Tex. 
App.  395 ;  Johnson  r.  Dowling,  I 
Tex.  App.  6m;  Belcher  z:  Ross,  x^ 
Tex.  12. 

What    Default    Admits In    Binz 

r.  Tyler,  79  111.  248,  it  is  said:  "The 
remaining  objeclion  urged,  that  the 
verdict  was  contrary  to  the  evidence 
can  not  be  considered.  The  judg- 
ment was  on  the  demurrer,  for  de- 
fault of  plea.  The  defendant,  by 
IK-rmitting  judgment  thus  to  be 
given,  was  so  far  out  of  court  that 
he  was  entitled  to  cross-examine  wit- 
nesses for  the  purpose  of  reducing 
the  damages,  only,  and  it  was  not 
admissible  for  him  to  make  a  de- 
fense to  the  action.  The  demurrer 
admitted  every  material  allegation  in 
the  declaration,  and  nothing  was  left 
lo  be  inquired  into  but  the  amoinit 
i)f  damages  sustaine<l  by  the  plaintiff. 


Mijrton  T'.  Bailey,  et  al.,  I  Scam.  213; 
Cook  7'.   Skehon,  20  111.   107." 

By  Married  Woman.  —  The  default 
admits  that  a  woman  sued  is  a  feme 
sole  and  subieet  to  iudgment  as  such. 
Focke  z\  Sterling.  18  Tex.  Civ.  App. 
8,  44  S.  W.  611. 

Capacity  of  Plaintiff  to  Sue .\nd 

the  capacity  of  the  plaintiff  to  sue. 
Starr  Cash  etc.  Co.  ;■.  Starr,  69  Conn. 
440,   37   At!.    1057. 

Not  Delivery  and  Value  of  Goods. 
Tn  Parker  z:  Smith,  64  N.  C.  291, 
an  action  for  goods  sold  and  de- 
livered, it  was  held  that  a  default 
admitted  a  cause  of  action,  and  en- 
titled the  plaintiff  to  nominal  dam- 
ages, but  did  not  relieve  him  of  the 
necessity  of  proving  the  delivery  of 
the  goods  and  their  value. 

Not  Validity  of  Contract.  —  .A.gain 
it  is  held  tliat  a  defaidt  does  not 
tidmit  the  right  to  recover  upon  a 
coiUract  void  as  usurious,  but  only 
admits  the  contract  and  submits  the 
validity  of  it  to  the  iudgment  of  the 
court.  IMorelv  z'.  Smith.  21  Tex.  441  : 
Campbell  5-.  State  Bank,  i  Tex.  ife. 
Instrument  Sued  on  Must  Be  Pro- 
duced.—  Tn  Kiersted  z'.  Rogers,  6 
Har.  &  J.  (Md.")  282,  it  is  held  that 
in  an  action  of  assumpsit  on  a  prom- 
issory note,  a  default  is  an  admission 
of  the  cause  of  action,  and  the  de- 
fendant's liability  to  the  amount  of 
the  note;  but  that  the  note  sued  on 
must  be  produced  at  the  trial,  that  it 
may  be  seen  whether  any  part  of  it 
has  been  paid,  but  that  it  need  not  be 
Iiroved.  See  also  Green  7'.  Hearne, 
3  D.  &  E.  .■?oi ;  Anonymous,  3  Wilso-i 
IS.S;  West"?'.  Fleniming,  t,6  Fla.  29S, 
18  So.  587- 

Default   of   Married   Woman Tn 

Griffith  V.  Clarke.  18  Md.  457.  it  is 
held  that  a  judgment  by  default 
against  a  feme  covert  in  a  suit  at 
law.  on  a  promissory  note,  is  void. 

Production  Required  by  Statute. 
Tn  some  of  the  states  a  production 
of  the  instrument  is  required  by  stat- 
\ite  generally,  or  in  certain  cases,  or 
in  certain  court-;  Strock  t'.  Com..  90 
Pa.  St.  272. 
94.     State  v.  Ownby,    10  Mo.  71. 

Vol.  I 


492 


ADMISSIONS. 


decided  cases  it  is  held  that  where  a  defendant  \vith(h-a\vs  his  answer 
and  suffers  judgment  to  go  against  him  for  the  want  of  an  answer, 
it  is  equivalent  to  a  confession  of  judgment.^'^ 

But  tlie  entry  and  withdrawal  of  an  answer  differs  in  this  res])cct 
from  a  failure  to  answer  at  all."" 

Only  Facts  Well  Pleaded.  —  This  efTect  of  a  default  is  confined  to 
facts  well  pleaded,  or  as  is  sometimes  said,  the  issuable  facts,"'  and 
does  not  extend  to  allegations  of  conclusions  of  law."^ 

Confined  to  Facts  Alleged. —  And  the  default  is  confined  to  the  facts 
alleged  in  the  pleading."" 

Rule  the  Same  at  law  and  in  Equity.  —  The  rule  that  a  default 
admits  the  facts  well  pleaded  a])plies  equally  to  actions  at  law  and 
suits  in  equitw'  and  in  admiralty ;"  and  to  thei  averments  in  a  scire 
facias  upon  a  recognizance  to  appear  and  answer,''  and  to  a  petition 
for  a  supersedeas  of  an   execution.''     But  not  in  a  jiroceeding  by 


95.  Gricr  v.  Powell,  14  Tex.  320; 
Storey  V.  Nichols,  22  Tex.  87;  Gil- 
der V.  Mclntyre,  29  Tex.  8q;  Cart- 
wright  V.  Roff.  I  Tex.  78:  Burton  v. 
Lawrence,  4  Tex.  373 ;  Creamer  v. 
Dikenian,  39  N.  J.  Law  195 ;  Eaton  v. 
Harris,  42  Ala.  491  ;  Clements  7'. 
Johnson.  3  Stew.  &  P.  (Ala.)  269; 
Mount  V.  Stewart,  86  Ala.  365,  =;  So. 
.S82. 

96.  Storey  t'.  Nichols,  22  Tex.  87; 
Gilder  7:  Mclntyre,  29  Tex.  89; 
Goodlet  V.  Stamps.  29  Tex.  121  ; 
Wheeler  v.  Pope,  K  Tex.  262:  Janson 
7'.  Bank  of  Republic,  aS  lex.  ^99; 
Grigsby  r.  Ford,  3  T-Tow.  (Miss.) 
184;  Clements  ?'.  Johnson,  3  Stew.  & 
P.  GMa.")  269:  Wheeler  7:  Roberts, 
2  Tex.   .^pp.   124. 

97.  Harlan  v.  Smith,  6  Cal.  173; 
Bragg  7'.  Citv  of  Chicago,  73  Til.  i';2; 
Slelle  f.  Pa'lmcr.  TT  Abb.  Pr.  (N. 
Y.)  62:  Peck  7:  Wilson.  22  Til.  205; 
Tohnson  ?'.  Mantz.  6g  Iowa  710.  27 
N.  W.  .167;  Oond  7:  Dnlnth  ATilling 
Co.  5c;  Alinn.  ■^3,  qfi  N.  W.  463. 

98.  Tlollis  7:  Richanlson,  13 
Grav    CMass.)    392. 

99.  Thompson  v.  nearbnru.  707 
111.  87:  Doud  V  Duluth  Milling  Co., 
5?    Minn.    =;3.    qo  N.   W.   46?. 

"  Admits  Only  Facts  Alleged "  But 

no  prcsunintion  arises  from  the  de- 
fault, wdiether  the  defendant  has  ap- 
peared or  not.  that  be  admi's  the 
existence  of  other  f;icts,  not  in  anv 
manner  stated  in  the  writ.  .\nd. 
from  the  provisions  of  the  statute 
wbicli  we  are  considering,  it  is  mani- 
fest, under  (he  con-^trnction  already 
referred   to,  1bn(   a    iudgment   in  rrm 

Vol.  I 


cannot  be  rendered  against  the  prop- 
erty, without  proof  of  other  facts, 
wdiich.  from  the  nature  of  the  case, 
cannot  be  alleged  in  the  writ.  The 
attachment  of  the  property  is  neces- 
sarily subsequent  to  the  purchase  of 
the  writ.  Whether  the  property  at- 
tached and  returned  is  identical  with 
that,  in  all  respects,  on  which  the 
labor  was  performed,  as  the  basis  of 
the  lien,  although  it  may  have  marks 
in  common  with  that  which  is  not 
attached,  the  officer's  return  has  no 
tendency  to  establish.  The  identity 
must  be  proved  aliunde.  Hence  this 
latter  proof  cannot  be  supplied  by  a 
default  of  any  one,  who  can  be 
treated  as  a  partv,  at  any  stage  of  the 
proceedings."  Thompson  7:  Gilniore. 
SO   Me.   428. 

Admits  Only  the  Allegations  of 
the  Complaint.  —  Tn  Chaffin  ;■.  Mc- 
Faddeii,  41  Ark.  .12.  the  (piestion 
jirnse  a^i  to  the  effect  of  a  default, 
where  the  connilaiiU  failed  to  state 
fact-;  sulhcieut  to  eiUitle  the  plaintiff 
to  a  mechanic's  lien.  Tn  passing  upon 
ilie  dueslion.  the  court  said:  "Mr-;. 
Chaffin.  by  her  default,  did  not  admit 
that  a  lien  had  been  fixed  on  the  lots 
for  the  debt,  for  the  necessary  facts 
to  constitute  a  lien  were  not  alleged 
in   the  complaint." 

1.  Ricks  ?'.  Pinsou,  _'i  T<-x.  TO7 ; 
Tbonuison  7'.  Dearlmrn.  107  111.  87 


2. 
3. 

Stale 
31.1. 
4. 
803. 


Miller  7'.  U.  S..  II   Wall    268. 
Garrison  7:  Pconle.  21  111.  .<;3= : 
7'.  Gilmore.  8r  l\Tc.  .39(1.  17  Atl. 

Powell   7'.   Washinglou,    i:;   .Ma. 


IIWIISSIOXS. 


493 


inutii)ii  In  cuiiipcl  a  sheriff  to  i)ay  over  nioiie}-,"'  nor  in  proceedings 
for  the  settlement  of  decedents'  estates." 

In  Case  of  Constructive  Service.  —  In  some  of  the  cases  it  is  held 
that  in  case  of  notice  by  publication,  a  failure  to  answer  is  not  such 
an  admission  of  the  facts  as  to  dispense  with  proof  on  the  part  of 
the  plaintiff'.' 

By  Infant  Admits  Nothing.  — There  can  be  no  judgment  against 
an  infant  as  upon  an  admission  by  default,  but  the  case  must  be 
fully  proved  whether  the  infant  answers  or  not.' 

May  Be  Competent  in  Another  Action.  —  The  mere  fact  that  a  party 
has  been  charged  in  one  case,  and  suff'ered  a  default,  may  amount 
to  an  admission  of  the  truth  of  the  fact  in  another  case  where  the 
judgment  on  the  default  wotdd  not  be  competent  as  an  adjudication 
of  the  fact.'' 

When  Admits  Amount  of  Damages.  —  A  default  admits  the  amount 
of  damages  only  where  they  are  certain  and  liquidated.  If  the 
damages  are  unliquidated  and  uncertain,  they  must  be  proved,  not- 
withstanding the  default.'" 


5.  Todd  r.  Caiiies,  iS  B.  Mon. 
(Ky.")  620;  TerriU  v.  Cecil,  3  Met. 
(Ky.)    347. 

6-     llcndri.x  T.  Hendrix,  46  Tex.  6. 

7.  Ik-ach    ?■.     Mnsgrove      16    Fed. 

305- 

8.  Chaffiii  f.  Kimball.  2.^  111.  .« ; 
Oreeiioiigh  i'.  Taylor,  17  111.  602. 
See  Ante,  p.  460. 

9.  ToppaiiVs  Petition,  24  N'.  H.  4.3. 
Admission     of     Co-Partuership.  — 

Thus  it  ha.s  been  held  that  when 
parties  are  charged  to  be  co-partners 
and  suffer  a  default,  thus  admitting 
the  fact,  their  conduct  in  allowing 
a  default  to  be  taken  may  be  proved 
in  another  case  as  tending  to  show 
that  they  were  co-partners.  Ellis  v. 
Jameson,  17  Me.  235 ;  Millard  v. 
Adams,  i  Misc.  4,^1.  21  N.  Y.  Supp 
424. 

10.  England.  —  Longman  v.  Fcnn 

I  BIk.  S41  ;  Green  v.  Hearne,  3  D. 
&   E.   301. 

United  Slates. — Clements  v.  Berry 

I I  How.  398. 

.Uahanta: — Cater  v.  Hunter,  3 
.Ala.  30;  i\laund  v.  Loeb,  87  Ala.  374, 
6  So.  376 ;  Ledbetter  etc.  v.  Vinton, 
108^  Ala.  644,  18  So.  692. 

Canncetieut.  —  Havens  v.  Hart- 
ford &  N.  H.  R.  Co.,  28  Comi.  69; 
Welch  V.  Wadsworth,  30  Conn.   149. 

Delaicaie.  —  Randel  v.  Chesapeake 
Cv  Uel.  Canal,  I  Harr.  233. 

Florida.  —  Parkhurst   v.    Stone,   36 


Fla.  456,  iS  So.  596;  Russ  7'.  Gilbert. 
IQ  Fla.  54. 

Georgia.  —  Kaiser  v.  Rmwii,  98  Ga. 
19,  25  S.  E.  925. 

Illinois.  —  O'Connor  f.  Mullen.  11 
111.  it6;  Binz  v.  Tyler,  79  111.  248; 
Greenup  i".  Woodworth.  Breese  232 : 
Cook  I'.  Skelton,  20  111.  107 ;  Town  of 
South  Ottawa  v.  Foster,  20  111.  296: 
Phoenix  Ins.  Co.  r'.  Hedrick,  73  Til. 
.'\pp.  601  ;  Hemiiigton  v.  Stevens,  26 
111.  298:  Chicago  &  Rock  Island  Co. 
V.   Ward,   16  111.   522. 

Indiana.  —  May  v.  State  Bank,  g 
Ind.  233:  Marion  &  Logansport  R. 
Co.  I'.  I.omax.  7  Ind.  406;  Goble  v. 
nillon,  86  Tnd.  ,^27. 

Kansas.  —  Cooper  v.  Brinkman  38 
Kan.  442,  17  Pac.  157. 

Kentucky.  —  Burcbett  z\  Herald,  98 
Ky.  5.10.  33  S.  W.  85. 

Marvla)id.  —  Kicrsted  '■.  Rogers.  6 
liar.  &  J.  282. 

Minnesota.  —  Exiey  v.  Berryhill. 
37  Minn.   182,  33  N.  W.  567. 

Nebraska.  —  Slater  v.  Skirving.  51 
Neb.  108,  70  N.  W.  493- 

New  Hampshire.  —  West  v.  \Vbit- 
ncy,  26  N.   H.  314. 

Nezv  Me.vico.  —  Metzger  ;■.  Wad- 
dell,  I  N.  M.  400. 

Nciii  York.  —  Bates  r.  Loomi.s,  5 
Wend.  134;  Anderson  !■.  Brooklyn 
Heights  R.  Co.,  32  App.  Div.  266.  52 
N.  Y.  Supp.  984;;  BuUard  v.  Sber- 
wood,   85    N.    Y.    253;    Lazzarone   zk 

Vol.  I 


494 


ADMISSIONS. 


Some  of  the  cases  go  farther  and  hold,  penerally,  tliat  the  a 


Oisliei,  4g  N.  V.  Si.  520,  21  N.  Y. 
bupp.  267. 

Nortli  Carolina. — Faucette  v.  Lud- 
den,  117.  N.  C.  170,  23  S.  E.  173; 
Cowles  V.  Cowles,  121  N.  C.  272,  28 
S.  E.  476;  iMcLeod  V.  Nimocks,  122 
N.  C.  437,  29  S.  E.  577;  Parker  v. 
Smith,  64  N.  C.  291  ;  Rogers  v. 
Moore,  86  N.  C.  85. 

Pennsylvania.  —  Ernest  v.  Hosklns, 
100  Pa.  St.  551. 

Tennessee.  —  Williams  T.  President 
&  Directors,  i  Cold.  43. 

Texas.  —  Swift  v.  Karis,  11  Tex. 
18;  Niblett  V.  Shelton,  28  Te.x.  548; 
Storey  v.  Nichols,  22  Tex.  87;  Gil- 
der z:  Alclntyre,  29  Tex.  89;  Ricks 
V.  Pinson,  21  Tex.  507;  Guest  v. 
Rhine,  16  Tex.  549;  Clark  v.  Coinp- 
lon,  15  Tex.  32;  Carlwright  v.  Roff, 
I  Tex!  78;  Burton  v.  Lawrence,  4 
Tex.  373;  Mississippi  Mills  v.  l?au- 
nian,  12  Tex.  Civ.  App.  312,  34  S.  VV. 
681. 

Effect  of  As  to  Allegation  of 
Damages. —  The  general  rule  on  the 
subject  IS  staled  in  Ricks  v.  Pinson, 
21  Tex.  507.  as  follows:  "The  gen- 
eral rule  has  been  qualified  and  its 
extent  shown  in  some  of  the  cases 
above  cited.  A  judgment  by  default 
on  liquidated  demands  admits  the 
whole  of  the  claim,  and  if  there  be  a 
mistake  or  omission  apparent  upon 
the  instrument,  the  clerk  has  com- 
petent authority  and  should  make  the 
correction.  (10  Tex.  R.  241.)  Where 
the  demand  is  unliquidated,  the  judg- 
ment '  admits  that  something  is  due, 
but  disputes  the  amount.'  Hence  in 
'  an  action  of  assumpsit  for  goods 
sold  or  work  done,  and  materials 
found  on  various  occasions,  a  plain- 
tiff is  not,  in  strictness,  by  a  judg- 
ment by  default,  relieved  from  the 
necessity  of  proving  the  delivery  of 
each  article,  or  the  extent  of  the 
work  done,'  etc.  (3  Chitty's  Gen'l 
I^rac.  673.)  Formerly  judgments  by 
default,  in  England,  were  final  only 
in  an  action  of  debt,  but  in  other 
actions  the  courts  were  strict  in  limit- 
ing the  cases  in  which  reference  to 
the  master  would  be  substituted  for 
a  writ  of  inquiry.  It  was  allowed  in 
actions  on  bills  of  exchange,  prom- 
issory notes,  etc.,  where  it  was  onlv 
ncccs.sary  to  compute  the  amoimt  nf 
the  principal  and  interest.  Rut  it 
Vol.  I 


mount 


was  refused  where  the  action  was  on 
a  bill  of  t.xcliange  for  foreign  money, 
or  on  foreign  judgments,  etc.  But 
by  the  Connnon  Law  Procedure  Act 
of  1852,  in  actions  where  the  dam- 
ages are  substantially  a  matter  of 
calculation,  ii  shall  not  be  necessary 
to  issue  a  writ  of  inquiry,  but  the 
judge  may  direct  the  amount  to  be 
ascertained  by  a  master  of  the  court, 
t Wayne  on  Damages,  320,  19  Law 
Library.   6th   scries.)" 

Distinction  Between  Liquidated 
and  Unliquidated  Damages.  —  The 
doctrine  is  thus  slated  in  Clements 
V.  Berry,  11  How.  (U.  S.)  398: 
"  Now  a  judgment  by  default  is  in- 
terlocutory or  final.  When  the  action 
sounds  in  damages,  as  covenant, 
trover,  trespass,  etc.,  it  is  only  inter- 
locutory that  the  plaintiff  ought  to 
recover  his  damages,  leaving  the 
amount  of  ihem  to  be  afterwards  as- 
certained. I  Tidd's  Pr.  568.  But 
where  the  amount  of  the  judgment 
is  entered  by  the  calculation  of  the 
clerk,  no  further  steps  being  neces- 
sary, by  a  jury  or  otherwise,  to  as- 
certain the  amount,  the  judgment  is 
final.  And  of  this  character  was 
the  judgment  entered  on  the  8lh  of 
March.  The  action  was  debt,  brought 
upon  several  notes  of  hand;  the 
default  admitted  the  execution  of  the 
notes,  and  the  judgment  which  fol- 
lowed was  final,  leaving  the  clerk 
to  make  it  up  in  form.  The  affirm- 
ance of  this  judgment  on  the  loth  of 
March  was  unnecessary,  as  the  judg- 
ment of  the  court  on  the  8th  con- 
cluded the  matter  in  controversy.  It 
was  a  mere  clerical  duty  to  make 
the  calculation  and  enter  the  judg- 
ment in  form  ;  and  the  entry  on  the 
loth  can  be  considered,  in  regard  to 
the  lien  in  question,  in  effect  as 
nothing  more  than  the  performance 
of  this  clerical  duty,  which  had  lieen 
antliorized  by  the  entry,  on  ine  8th. 
It  was  an  affirmance  of  that  which 
already  had  been  fixed,  by  the  judg- 
ment of  the  court.  What  remained 
to  be  done  was  matter  of  form,  as  it 
added  nothing  to  the  legal  effect  of 
the    judgment    by    default." 

See  also  Parker  !■.  Smith.  64  N.  C. 
2QI  ;  Rogers  v.  Moore,  86  N.  C.  85; 
West   7'.   Whitney.  26  N.  H.  314. 

Liquidated  Damages.  —  .Xgain  it  is 


.in.inssioNS. 


495 


the  i)laintitT  is  entitled  to  recover  is  not  admitted  to  lie  as  alleged 
in  the  complaint,  but  ma}-  be  controverted  and  disproved.'^ 

Controlled  by  Statutory  Provisions.  —  It    should    not    be    overlooked 
that  many  of  the  cases  cited  on  this  subject  are  founded  upon  statu- 


said  in  Niblett  z:  Sheltoii,  28  Tex. 
5'48:  "In  this  case  the  plaintiflf's 
cause  of  action  being  liqnidated.  that 
is,  the  amonnt  due  by  an  instrument 
in  writing,  it  was  not  necessary  to 
call  a  jur>'  for  the  purpose  of  as- 
sessing the  amount  due  the  plain- 
tiff. The  jury  is  necessary  only  when 
the  damages  of  the  plaintiff  are  un- 
liquidated. A  judgment  by  default 
amounts  to  an  achnission  of  the  truth 
of  the  facts  charged;  the  facts  set 
out  in  the  petition  are  to' be  taken 
as  proved  and  admitted,  (4  Tex. 
381  ;  21  Id.  508)  ;  and  there  is  noth- 
ing to  prevent  the  court  from  making 
a  decree  without  reference  to  a  jury. 
•(3  Tex.  305:  10  /(/.  213;  16  Id.  549; 
17  Id.  438.)" 

11.     Briggs  T'.  Sneghan,  45  Ind.  14. 

Does  Not  Admit  Amount  of  Dam- 
ages.—In  Goble  7'.  Dillon.  86  Ind. 
327,  it  is  said:  "A  default  admits 
the  cause  of  action  and  all  tlic  ma- 
terial and  traversable  averments  of 
the  complaint.  As  to  the  amount 
sued  for  in  such  an  action  as  that  of 
Hobbs,  which  was  upon  a  Quantum 
meruit,  a  default  admits  that  some- 
thing is  due  the  plaintifT  from  the 
defendant,  but  no  more  than  a  nom- 
inal amount.  Upon  an  assessment 
of  damages  after  a  default,  the  de- 
fendant can  not,  for  the  purpose  of 
defeating  a  recovery,  prove  that  the 
contract  sued  on  was  not  performed, 
or  any  substantive  defense  as  such, 
so  as  to  secure  a  judgment  for  the 
defendant  as  to  the  cause  of  action. 
Evidence  wdiich,  under  a  general 
denial,  might  defeat  a  recovery  by 
the  plaintifif,  will  not,  after  a  default, 
have  that  eflfect." 

Rights  of  Party  After  Default. 
The  doctrine  as  to  the  rights  of  a 
party  after  default  taken  against  him 
is  thus  declared  in  Loeber  r'.  Dela- 
haye,  7  Clark  (Iowa)  478:  "A  de- 
fendant, being  in  default,  admits  the 
right  of  the  plaintiff  to  recover. 
While  in  this  attitude,  his  rights  are 
exceedingly  circumvented  by  the  ex- 
press language  of  the  code.    The  pro- 


ceeding is  substantially  in  the  hands 
of  the  plaintiff.  While  the  default 
continues,  the  plaintiff  has  nothing 
to  do,  but  to  prove  his  damages.  In 
doing  this,  his  proof  will,  of  course, 
vary  according  to  the  nature  of  his 
cause.  If  a  defendant  is  in  default, 
however,  he  cannot  claim  that  plain- 
tiff is  entitled  to  recover  nothing. 
He  is,  at  least,  entitled  to  nominal 
damages.  In  the  adjudication  of  the 
question,  whether  he  is  entitled  to 
more,  the  defendant  is  given  the 
right  to  appear  and  cross-examine 
witnesses.  If  he  would  do  more,  he 
must  first  remove  the  default.  These 
remarks  are  made  in  view  of  the  ob- 
jection of  appellants,  that  the  petition 
is  insufficient  to  authorize  the  judg- 
ment. We  are  clear  that  it  is  not  so 
wanting  in  substance,  as  that  the  ob- 
jection can  avail  a  party  in  default." 

And  in  Frabue  i\  Stonuni,  20  Tex. 
453,  it  is  said  that  ''  if  the  claim  set 
forth  be  in  writing  and  liquidated, 
the  amount  to  be  recovered  by  the 
plaintiff  is  still  an  open  question  to  be 
determined  by  the  clerk,  unless  a 
jury  is  asked  for  by  either  party." 
The  action  was  one  in  which  the 
clerk  was,  by  statute,  authorized  to 
assess  the  damages  in  case  of  de- 
fault. 

Rights  of  Defendant  After  De- 
fault  In    Fisk    V.    Baker,    47    Ind. 

534,  it  is  held  that  "  a  party  who  has 
suffered  a  judgment  to  be  rendered 
against  him  by  default  has  no  stand- 
ing in  court  except  for  two  purposes. 
The  one  is  to  have  the  default  set 
aside  and  the  other  is  to  appear  and 
contest  the  amount  of  damages." 

Damages  Assessed  by  Clerk —  In 
some  of  the  states  provision  is  made 
for  the  assessment,  or  ascertainment 
of  the  damages  by  the  clerk.  But 
this  is  confined  to  cases  wdiere  the 
amount  can  be  ascertained  from  the 
complaint;  is  a  purely  ministerial  act. 
and  must  rest  upon  the  rule  that, 
being  certain  and  liquidated,  the 
amount  is  admitted  by  the  default. 
Alexander  v.  McPow,  108  Cal,  25.  41 
Pac.  24. 


Vol.  I 


496 


.IDMISSIONS. 


tory  provisions  relating  to  the  effect  of  a  default,  and  the  power  of 
the  clerk  to  enter  judgment  without  proof.^- 

Special  Defense,  When  Allowed.  —  Under  the  Statutes  of  some  of 
the  states  a  defendant,  resting  under  default,  is  permitted  to  inter- 
pose a  special  defense  affecting  the  damages  and  reducing  the 
amount  of  the  recovery  to  a  nominal  sum.'' 

Value  Not  Admitted.  —  In  actions  for  damages  for  a  tort,  or  other 
actions  invol\-ing  the  value  of  property,  a  default  does  not  admit 
the  vahie  alleged,  but  the  value  must  be  proved.''' 

When  Admits  Cause  of  Action.  — If  the  declaration  or  conlplaint 
states  facts  sufficient  to  constitute  a  cause  of  action,  and  withstand 
a  general  demurrer,  the  default  admits  a  cause  of  action,  and  a 
judgment  may  be  rendered  on  such  admission,  but  not  otherwise." 


12.  Billiard  z:  Sherwood,  85  N.  Y. 
253;  McMullin  ?■.  ]\Iackey,  25  N.  Y. 
St.  265,  6  N.  Y.  Supp.  885 ;  Lazzanme 
V.  Oishei,  49  N.  Y.  St.  520,  21  N.  Y. 
Supp.  267;  Vorzimer  v.  Shapiro,  6 
Misc.  143,  26  N.  Y.  Supp.  53 ;  Cole  v. 
Hoeburg,  36  Kan.  263,  13  Pac.  275; 
Cobb  f.  Dunkin.  19  How.  Pr.  (N. 
Y.)     164. 

13.  Brcnnan  v.  Berlin  Iron  Bridge 
Co.,  71  Conn.  479.  42  Atl.  625;  Oc- 
kershausen  v.  New  York,  N.  H.  & 
H.  R.  Co.,  71  Conn.  617,  42  Atl.  650. 

14.  Warren  v.  Kennedy,  i  Heisk. 
(Tenn.)  437;  City  of  Guthrie  v.  Har- 
vey Lumber  Co.,  5  Okla.  774,  50  Pac. 
84;  Slater  v.  Skirving,  51  Neb.  108, 
70  N.  W.  493 ;  Parker  v.  Smith,  64 
N.  C.  291 ;  Haley  v.  Kureka  Co.  Bank. 
21   Nev.  127.  26  Pac.  64. 

What   Default   Admits In   Rose 

7'.  Gallup,  33  Conn.  338,  the  rule  is 
stated  as  follows:  "A  default  in 
such  a  case  would  admit  no  more 
than  what  would  be  sufficient  to 
decide  the  case  in  favor  of  the  plain- 
tiff, upon  the  plea  of  the  general 
issue.  It  is  simply  an  admission,  on 
the  part  of  the  defendant,  that  he  is 
unable  to  make  a  complete  defense. 

"  We  are  satisfied  that  no  case  can 
lie  found  which  goes  farther  than 
this,  that  in  a  case  like  the  present 
a  default  admits  a  liability  for  the 
removal  of  some  one  of  the  articles 
described  in  the  declaration,  and 
without  further  proof  nominal  dam- 
ages only  can  be  given.  Havens  v. 
Hartford  &  New  Haven  R.  R.  Co., 
28  Conn.  69;  BoUes  v.  Loomis,  5 
Wend.  134;  Green  v.  Hearnc,  3  T.  R. 
301. 

Vol.  I 


"It  would  seem  to  follow,  as  a  nec- 
essary consequence,  that  if  nominal 
damages  only  can  be  given  without 
further  proof,  the  defendant  may 
contest  his  liability,  so  far  as  the 
plaintif!^  seeks  by  proof  to  enhance 
the  damages  beyond  a  nominal  sum'." 

15.  England.  —  Bowdcll  7'.  Par- 
sons, 10  East  359. 

United  States.  —  Cragin  v.  Lovell, 
109  U.  S.  194;  McAllister  v.  Kuhn, 
96  U.  S.  87. 

Alabama.  —  Randolph  v.  Cook,  2 
Port.  286;  Napper  v.  Noland.  9  Port. 
218;  Cater  7:  Hunter,  3  Ala.  30; 
McGchee  i'.   Childress,   2   Stew.   506. 

Arkansas.  —  Chafifin  v.  McFadden, 
41  Ark.  42;  Johnson  ?'.  Pierce,  12 
Ark.  599. 

California.  —  Harlan  i'.  Smith,  6 
Cal.  173;  People  j'.  Rains,  23  Cal. 
127 ;  Hammon  v.  Ashmead,  60  Cal. 
439;  Hunt  ?•.  San  Francisco,  11  Cal. 
250. 

Colorado.  —  Hoyt  v.  Macon  11 
Colo.    113. 

Connecticut.  —  Shepard  v.  New 
Haven  etc.  Co.,  45  Conn.  54;  Whipple 
V.  Fuller,   n   Conn.  582. 

Delaware.  —  Macklin  v.  Ruth,  4 
Harr.   87. 

I'lorida.  —  Russ  v.  Gilbert,  19  Fla. 
54 ;  Hcllen  v.  Steinwender,  28  Fla. 
191.   10  So.  207. 

Illinois.  —  Bragg  v.  City  of  Chi- 
cago, 73  111.  152;  Madison  Co.  v 
Smith,  95  111.  328;  Chicago  &  N.  W. 
R.  Co.  V.  Coss,  73  III.  394;  Cutright 
V.  Stanford,  81  111.  240;  Thompson 
V.   Dearborn,   107   111.  87. 

Indiana.  —  Smith  i'.  Carley,  8  Ind. 
j-i;  Globe  Ace.  Ins.  Co.  v.  Reid, 
19  Inil.  App.  203,  47  N.  E.  947;  Sloan 


ADMISSIONS. 


497 


I'lUt  the  default  does  waive  mere  defects  or  irregularities  in  the 


V.  Faurot,  II  Ind.  App.  689,  39  N.  E. 
539- 

/oicn.  —  Locber  v.  Delahaye,  7 
Clarke  478;  Wartlien  v.  Himstreet, 
112  Iowa  605.  84  N.  W.  702;  Whittey 
f.  Douge.  9  Iowa  597 ;  Bosch  v.  Kas- 
sing,  64  Iowa  312,  20  N.  W.  454. 

Kansas.  —  St.  Louis  &  S.  F.  Ry. 
Co.  J'.  McReynolds.  24  Kan.  368; 
Zane  -■.  Zane,  5  Kan.  134. 

Keiitiickv.  —  Gould  V.  Bonds,  i 
Bush  189.  " 

Massnchusctts. — Mollis  f.  Richard- 
son,   13    Gray   392. 

.Mississi/'fii. — Clail)orne  i'.  Planters' 
Bank.  2  How.  727 ;  Winn  v.  Levy,  2 
How.  902 ;  Winston  r.  Miller.  12 
Snied.  &  M.  550. 

Missouri.  —  Robinson  j'.  Missouri 
R.  etc.  Co.,  53  Mo.  435. 

Nebraska.  —  Slater  v.  Skirving,  51 
Neb.   108.  70  N.  W.  493. 

Nd'ada.  —  Ewing  v.  Jennings,  15 
Nev.   379. 

Ne-.i'  York.  —  Argall  z:  Pitts,  78  N. 
Y.  239;  Shields  r.  Clement.  67  N.  Y. 
St.  370,  3i  N.  Y.  Supp.  676. 

Oregon.  —  Bailey  v.  Malheur  etc. 
Ins.  Co.  (Or.),  57  Pac.  910;  Mitchell 
■z'.  Silver  Lake  Lodge,  29  Or.  294,  45 
Pac.  798. 

Tennessee.  —  Miss.  etc.  R.  Co.  ?'. 
Green.   9   Heisk.   588. 

Te.ras.  —  Hall  i'.  Jackson.  3  Tex. 
305:  Goodlett  z:  Stamps,  29  Te.x. 
121;  Boles  z'.  Lilhicum,  48  Tex.  220; 
Ishmel  z:  Potts  (Tex.  Civ.  App.), 
44  S.  W.  615;  Andrews  z:  Union 
Cent.  L.  Ins.  Co..  92  Tex.  584,  50 
S.  W.  1/2;  McCulIan  z'.  Worchison 
(Tex.),"  40  S.  W.  545;  Thighen  v. 
Mnndine,   24  Tex.   282. 

When  Complaint  Does  Not  State 
a  Cause  of  Action.  —  In  1  lall  z\  Jack- 
son, 3  Tex.  305,  it  is  said :  "  That 
the  present  was  a  judgment  by  de- 
fault, cannot  alter  the  case,  or  dis- 
pense with  the  rule  which  requires 
that  the  proofs  shall  conform  to  the 
allegations:  and  that  the  latter  must 
be  sufficient  to  constitute  a  legal  has  s 
on  wdiich  to  predicate  the  judgment. 
The  defendants,  not  liaving  appeared, 
can  be  deemed  to  have  waived  noth- 
ing which  was  essential  to  the  plain- 
tiff's  title   and   right   to   recover. 

"  In  Virginia,  it  has  even  been 
held,  that  the  statute  of  jeofails,  does 

32 


not  apply  to  cure  errors  and  defects 
in  the  proceedings,  in  cases  of  judg- 
ments by  defaults ;  and  that  defects 
which  would  be  cured  by  verdict  in 
other  cases,  will,  in  these,  be  held 
fatal.  (3  Leigh.  270.)  But  without 
going  quite  this  length,  it  may  safely 
be  asserted,  that  to  maintain  a  judg- 
ment by  default,  the  petition  must 
set  forth  a  cause  of  action  with  sub- 
stantial accuracy  (3  Scammon,  258,) 
and  with  sufficient  certainty,  to  in- 
form the  court  wdiat  judgment  to 
render,  without  looking  for  infor- 
mation to  proofs  not  within  the  alle- 
gations, since  '  the  court  cannot 
judicially  act  upon  such  proofs  '  as 
a   ground   for   its   decision." 

Declaration  Must  Be  Sufficient. 
"  As  a  general  rule,  a  default  regu- 
larly taken  adinits  the  cause  of 
action,  but  then  there  must  lie  a 
declaration  or  complaint,  containing 
such  a  statement  of  facts  as  will, 
when  admitted,  in  point  of  law  au- 
thorize a  judgment  against  the  de- 
fendant."     Smith    z\    Carley.    8   Ind. 

451- 

Where    Complaint    Is    Insufficient. 

In  Bosch  V.  Kassing,  64  Iowa  312, 
20  N.  W.  454,  the  court  said :  ''  A 
default  is  an  admission  of  the  cause 
of  action  stated  in  the  petition,  and 
that  something  is  due  to  the  plain- 
tiff. But  where  no  cause  of  action 
is  stated  in  the  petition  a  default 
can  have  no  such  effect.  It  is  true 
that  a  defendant  may  be  concluded 
by  a  default  where  the  facts  stated 
in  the  petition  do  not  constitute  a 
good  cause  of  action  in  law,  or  where 
the  petition  is  so  defective  as  to  be 
vulnerable  to  a  demurrer ;  but, 
where  the  petition  omits  the  neces- 
sary averment  to  show  liability 
against  the  defendant,  the  court 
may  and  should,  even  unon  default, 
refuse  to  enter  judgment." 

Does  Not  Admit  Cause  of  Action. 
•■  The  default  admits  the  facts 
averred  in  the  petition  to  be  true, 
but  does  not  admit  that  the  facts  in 
law  entitle  petitioner  to  relief.  If 
the  facts  thus  admitted  to  be  true 
do  not  authorize  or  require  the 
relief,  the  court  has  no  power  to 
grant  it.  Plaintiff,  on  a  default,  is 
not  entitled  to  a  judgment  unless  he, 

Vol.  I 


498 


ADMISSIONS. 


complaint  if  a  cause  of  action  is  stated."'  And  some  cases  have 
gone  so  far  as  to  hold  that  a  default  nia\'  admit  a  cause  of  action 
when  the  complaint  does  not  state  a  good  cause  of  action  in  law," 
and  when  there  is  an  "  omission  of  any  allegation  or  averment,  on 
accoinit  of  which  omission  a  demurrer  could  have  been  main- 
tained."''* 

Admits  Cause  of  Action  Alleged.  —  In  some  of  th.c  cases  it  is  said  in 
terms,  that  the  default  "  admits  the  cause  of  action,"'  and  that  the 
party  can  only  contest  the  amount  of  damages.'"  lUit  by  this  must 
be  meant  the  cause  of  action  "  as  disclosed  in  the  declaration."-"  and 
not  that  a  recovery  may  be  had  as  upon  an  admission,  by  default, 
of  a  cause  of  action,  when  none  is  alleged  in  the  declaration  or 
complaint. 

Admits  Truth  of  Complaint  but  Not  Its  Sufficiency.  —  The  cticct  of 
a  default  is  to  admit  the  truth  of  the  facts  alleged  in  the  pleading, 
but  not  that  the  pleading  or  the  facts  thus  admitted  are  sufficient 
to  entitle  the  pleader  to  recover.-' 


by  his  declaration,  has  shown  a  right 
of  recovery.  If,  on  looking  through 
the  record,  the  court  sees  that  there 
are  grounds  for  arresting  the  judg- 
ment, the  court  should  refuse  judg- 
ment, notwithstanding  the  default. 

"To  recover,  the  plaintiff  must 
show  a  sufficient  cause  of  action, 
and  this  is  true  wliether  there  be  a 
trial  or  a  default.  The  default  con- 
fers no  more  rights  than  a  finding 
of  a  jury.  And  all  know  tliat  if  the 
facts  found  by  a  jury  do  not  au- 
thorize a  recovery,  the  court  will 
refuse  to  enter  a  judgment.  So,  in 
this  case,  if  the  facts  averred  in  tlie 
petition  do  not  authorize  tlie  relief 
sought,  tlie  judgment  must  he  re- 
versed." Madison  Co.  T',  Smith,  ti^^ 
III.   328. 

In  Case  of  Insufficient  Declaration. 
In  Winston  i'.  Miller,  t2  Smed.  & 
M.  (Miss.)  550,  it  is  said:  ''It  is 
insisted,  however,  tliat  our  statute 
in  regard  to  amendments,  cures  this 
defect  after  a  judgment  by  default. 
Its  words  are,  '  Nn  judgment  after 
verdict,  or  by  nil  dicit.  sliall  be  re- 
versed for  any  defect  in  the  writ 
or  for  any  defect  whatsoever,  in 
the  declaration  or  pleading,  either 
of  form  or  of  substance,  which 
might  have  been  taken  advantage  of 
by  a  demurrer.'  Hutch.  Code,  847. 
These  terms  are  very  comprehensive. 
and  cure  almost  every  conceivable 
defect  in  the  proceedings.  But  we 
do  not  think  they  embrace  a  case 
in    wliieh    the    writ    and    declaration 

Vol.  I 


show,  tlial,  at  the  lime  of  tlie  com- 
mencement of  the  suit,  the  cau.-e  of 
action  had  not  accrued.  That  is  a 
defect  which  arises  above  the  writ 
and  declaration,  and  is  not  inherent 
in  them.  It  shows  the  party  liad  no 
riglit  to  sue  out  either,  and  the  ut- 
most perfection  of  their  form  could 
not  aid  the  total  absence  of  cause 
of  action." 

16.  Warthen  z\  Himstreet,  112 
Iowa  60s,  84  N.  W.  702;  Miller 
Brewing  Co.  r'.  Capital  Ins.  Co.,  Ill 
Iowa  520.  82  N.  W,  1023;  r>.skren  v. 
Squire.   29   Or.   228,  45    Pac.   779. 

17.  Bosch  "'.  Kassing.  64  Iowa 
,112,  20  N.  W.  454;  Miller  Brewing 
Co.  V.  Capital  Ins.  Co..  iii  Iowa 
.S20.  82  N.  W.  i02,v.  W'artlicn  v. 
Himstreet,  112  Iowa  605,  84  X.  W. 
702;  Askrcn  i'.  Squire.  29  Or.  228, 
45  Pac.  779;  Moore  r.  .\larti1i,  124 
.\la.  291,  27  So.  252. 

18.  Ro1)inson  ?'.  Mo.  Ry,  etc.  Co.. 
3.?   Mo.   4,:!4. 

19-  Briggs  ''.  Siieghau.  45  Ind. 
14;  Fisk  !•.  Baker.  47  [nd.  ^,^4 ; 
C.oble  V.  Dillon,  86  Ind.  ,=,27 ;  Whit- 
ney T'.  Douge,  9  Iowa  597 :  Union 
Bank  v.   Hicks,  2?  Tenn.    326. 

20.  Hunt  V.  Burton.  18  .\rk.  188: 
Shepard  7'.  New  Haven  etc.  Co..  45 
Conn.  34;  Whipple  t\  Fuller.  11 
Conn.  381  ;  Argall  v.  Pitts.  7*^  N.  Y. 
239;  Chaffin  v.  McFadden,  41  .Ark. 
42;  Doud  I'.  Dulnth  Milling  Co.,  55 
Minn.   33,  56  N.   W.  463. 

21.  Thompson  ■;■.  Dearborn,  107 
111.   87. 


ADMISSIONS. 


4"t't 


When  it  Will  Be  Presumed  Cause  of  Action  Was  Stated.  —  In  case 
of  a  collateral  attack  upon  the  judgment  on  default,  it  will  he  pre- 
sumed that  a  cause  of  action  was  stated. -- 

Confined  to  Relief  Prayed  For.  —  The  default  only  admits  and  au- 
thorizes judgment  for  the  relief  prayed  for  in  the  complaint.--' 

And  Relief  Must  Be  Warranted  by  Facts  Alleged.  —  It  is  not  enough 
that  the  relief  is  prayed  for.  however.  It  must  he  within  the  alle- 
gations of  the  complaint.  The  default  admits  that  the  plaintiff  is 
entitled  to  such  relief  as  the  facts  properly-  alleged  authorize.-* 


Not  an  Admission  That  Plaintiff 
Is  Entitled  to  Recover.  —  The  effect 
of  a  default  as  an  admission  is 
clearly  stated  in  Johnson  ;'.  Pierce, 
12  Ark.  599.  "  '  Default,'  says  TidH, 
'  is  an  admission  of  the  cause  of 
action  and  therefore,  when  founded 
on  a  contract,  the  defendant  cannot 
prove  the  contract  fraudulent.  .\nd 
so  when  the  action  is  on  a  note  or 
bill,  no  proof  of  their  execution  is 
required.'  Tidd's  Pr.  522.  So  that, 
when  Tidd  says.  '  Default  is  an  ad- 
mission of  the  cause  of  action,'  we 
see  from  the  examples  given  by  him 
what  he  means  by  '  admitting  the 
cau.>ie  of  action.'  It  evidently  can- 
not, upon  principle,  mean  more  than 
that  the  facts  alleged  in  the  declar- 
ation are  admitted,  or.  in  other 
words,  are  considered  as  though  they 
were  proven.  And  this  is  the  extent 
to  which  we  -understand  tlie  case 
cited  by  counsel  in  4  Humphries 
Reports,  to  go. 

"  But  suppose,  when  they  are  all 
admitted  as  fully  as  if  proven,  and 
still  fail  to  show  a  legal  right  in 
the  plaintiffs  to  recover  after  allow- 
ing the  benefit  of  the  statute  of 
jeofails  and  amendments,  shall  we 
say  that  they  are  entitled  to  recover? 
Most  clearly  not ;  unless  we  could 
suppose  that  a  default  would  not 
only  confess  the  facts  alleged,  but 
also  furnish  additional  facts  by  in- 
tendment  to  be   confessed." 

22.  Cutright  z:  Stanford,  8r  111. 
240. 

23.  Jolinson  t'.  Stallcup.  41  Tex. 
529;  .\lexander  ''.  McDow,  108  Cal. 
25,  41  Pac.  24 ;  Pickett  v.  Handy, 
9  Colo.  357,  48  Pac.  820;  Staacke  v. 
Bell,  125  Cal.  ,309,  57  Pac.  1012; 
Parszyk  7:  Mach,  10  S.  D.  555',  74 
N.  W.  1027 :  Johnson  ?•.  Mantz.  (Sg 
Iowa  710.  27   X.  W.  467. 

Relief  Confined  to  Prayer  of  Com- 


plaint  The  rule  is   thus   stated  in 

Burling  v.  Goodman,  i  Nev.  266: 
"  We  think  both  grounds  of  objec- 
tion are  well  taken,  and  that  the 
judgment  as  it  stands  is  erroneous. 
Where  judgment  is  taken  by  default, 
the  plaintiff  is  confined  to  a  re- 
covery of  the  particular  amount  or 
thing  demanded  in  the  prayer  of  the 
complaint.  If  the  prayer  be  for 
judgment  of  one  thousand  dollars, 
the  plaintiff  cannot  legally  take  judg- 
ment for  a  greater  amount.  Or  if  he 
pray  for  the  possession  of  specific 
personal  property,  he  cannot  have 
judgment  for  the  return  of  properly 
of  a  different  kind.  The  reason  and 
fairness  of  the  rule  are  obvious. 

''  The  defendant  by  his  default 
admits  the  justice  of  the  claim,  and 
thus  consents  that  judgment  be  taken 
against  him  for  what  is  prayed  for 
in  the  first  instance.  Whereas,  if  a 
greater  sum  or  a  different  relief 
were  demanded,  he  may  appear  and 
contest  the  claim  as  unjust  and  un- 
reasonabl*  It  would  seem  to  fol- 
low, and  indeed  is  embraced  within 
this  rule,  that  where  the  demand  is 
for  judgment  in  federal  currency 
generally,  that  is,  in  dollars  and 
cents,  a  party  cannot  recover  a  judg- 
ment upon  a  default  payable  in  a 
specific  kind  of  money  —  gold  cnin. 
for  instance  —  especialK'  if  the  latter 
kind  of  money  exceed  the  former  in 
(uliial  value.  .\  different  rule  would 
prove  a  trap  and  snare  for  debtors, 
however  honest  they  may  be.  and 
certainly  could  never  receive  the 
sanction  of  courts  of  justice." 

24.  Argall  v.  Pitts.  78  N.  Y.  239; 
Chicago  &  X.  W.  Ry.  Co.  z:  Coss, 
73  111.  394;  Sloan  V.  Fanrd,  11  Ind. 
App.  689,  39  X.  E.  5.w;  Hall  V.  Jack- 
son, 3  "rex.  305 ;  Chaffin  v.  McFad- 
den,  41  .Vrk.  42;  Thompson  v.  Dear- 
born,  107  111.  87. 

Vol.  I 


30(1  ADMISSIONS. 

Admission  of  Part  of  Cause  of  Action.  —  \\  here  separate  causes  of 
action  are  alleged  in  separate  counts,  a  default  as  to  one  entitles  the 
plaintiff  to  judgment  thereon,  although  an  answer  is  filed  to  the 
other. -^ 

Where  Some  Counts  Good,  Others  Bad.  —  So,  if  the  complaint  is 
good  as  to  some  of  its  counts,  and  bad  as  to  others,  a  default  as  to 
all  of  them  is  an  admission  of  the  cause  of  action  stated  in  the 
good  counts,  but  not  as  to  the  others."" 

Against  i-art  of  Parties  Jointly  Sued. —  Where  the  cause  of  action  is 
joint,  a  default  by  one  only  admits  the  joint  liability  and  does  not 
authorize  a  judgment  against  the  party  defaulting  until  the  right  to 
such  judgment  is  established  as  against  his  co-defendant.-' 

Default  of  One  of  Several  Not  Jointly  Liable.  —  Even  where  the 
cause  of  action  is  not  joint,  or  the  relief  sought  the  same  against 
all  of  the  defendants,  a  default  by  one  does  not  necessarily  entitle 
the  plaintiff  to  a  judgment  against  him.  The  defendant  or  defend- 
ants not  defaulting,  may  make  such  defense  as  to  prevent  a  recovery 
against  such  other  defendant,  notwithstanding  his  default.-'* 

Default  As  to  Part  of  the  Issues.  —  It  may  happen  that  a  party  has 
defaulted  as  to  a  part  of  the  issues,  only,  by  a  failure  to  ])lead  to 
such  part.  If  so  the  effect  of  such  default  extends  only  to  those 
issues.-" 

Effect  of  in  Divorce  Cases.  —  The  rule  that  a  default  admits  the 
allegations  of  the  bill  or  complaint  does  not  apply  to  proceedings 
for  divorce.  In  such  cases  the  plaintiff  must  prove  his  case  not- 
withstanding the  default.'''" 

,  But  it  is  held  that  even  in  divorce  cases  a  default  dispenses  with 
the  necessity  of  findings  of  fact  by  the  court.-" 

O.  Offer  to  Confess  Judgment  or  Suffer  Default.  —  In 
many  of  the  states  provision  is  made  by  which  the  defendant  in  an 
action  is  allowed  to  offer  to  confess  judgment  after  suit  brought  for 
such  sum  as  he  believe*  to  be  due,  which,  if  accepted,  is  binding 
upon  him  for  the  amount  offered.  But  this  cannot  be  regarded  as 
an  admission,  but  a  mere  offer,  which,  if  not  accepted,  amounts  to 
nothing,  unless  the  plaintiff   fails  to  recover  a  greater  sum  which 

25.  Curran  r.  Kerchiier,  117  N.  C.  land   r.    Floyd,   6    Serg.   &   R.    (Pa.) 
264.   23    S.    E.    177-  412. 

26.  Hunt  v.  San  Francisco,  11  28.  Picrson  v.  David,  4  Clarke 
Cal.  250.  (Iowa)    410;    Perrin   v.   Johnson,    16 

27.  Kincaidt'.  Purcell,  I  Ind.  324;  ^"^^'\      ,             ^       ,               ,,.  , 
Davis    v.    Graniss,    S    Blackf,    (Ind.)  29-     Snyder  !■.    Quarton,  47   Mich. 
79;   Finance   Co.   7C  Hanlon,   7S   III.  ""  '  ""'"  ''    ^■''"  F'"-'"ic>^co,  11  Cal. 
App.    188;    McDonald   v.    Mayor  etc.  ^50. 

(Cal).  55  Pac.  600;  Brigs  v.  Grein-  30.    A)ile,  p.  461  ;  Welch  v.  Welch, 

feild.   I    Strange    (Eng.)    606.  16  Ark   527;   Stihhins  v.    Slibbins,    I 

For    an    interesting    discussion    of  ^let-    (Ky.)    47^1:    Shillinger  r.   Shil- 

the  proper  mode  of  assessing   dam-  linger,  14  111.  147;  I.inden  7:  I.iiulen, 

ages  where  some  defendants  sued  on  .^6  Barb.   (N.   Y. )   61. 

a  joint  cause  of  action  plead  to  issue  31.     Fox  v.  Fox,  25  Cal.  588;  In  re 

and   others   suffer   default,   see   Crid-  Cook.  77  Cal.  220. 

Vol.  I 


ADMISSIONS. 


SOI 


casts  him  for  tlie  costs,  and  if  acccjjted,  it  becomes  in  legal  cftect  a 
contract  to  pay  that  sum  which  is  consiinimated  l>y  the  rendition 
■of  a  jud,q;ment  for  the  sum  offered. ■'- 

Offer  to  Be  Defaulted.  —  It  has  been  held  that  an  offer  to  be 
defaulted  under  some  of  the  statutes  is  equivalent  to  brinoing 
money  into  court,  and  as  a  confession  of  an  indebtedness,  leaving 
only  the  amount  due  to  be  determined.'''' 

But  again  it  is  held  that  a  mere  ofifer  to  suffer  default  does  not 
admit  the  contract  sued  on.'''* 

R.  Confession  of  Judcmkxt. — A  confession  of  judgment  is  an 
admission  of  the  facts  necessary  to  establish  the  riglit  thereto,  and 
is  competent  evidence  of  such  admission. ^'^ 

Admits  the  Law  As  Well  As  the   Facts. — .\nd  the  admission  extends 
to  the  law  as  well  as  the  facts  involved  in  the  claim  and  judgment.^* 

Is  Conclusive.  —  And  the  general  rule  is  that  the  judgment  by 
confession,  based  upon  the  admission  of  the  party,  is  conclusive, 
and  the  confessor  estopped  to  go  behind  it.^' 

Competent  in  Another  Action.  —  And  the  admission  may  be  shown 
as  such,  in  another  action,  Init  in  such  case  it  is  not  conclusive. '' 

Admission  of  Amount  Due  in  the  Answer.  —  A  like  effect  has  been 
given  to  an  admission  in  the  answer  of  a  defendant,  of  an  ainount 
due.  where  the  monev  is  in  court. ^° 


32.     WeiUwortli    t'.    Lord.    39    Me. 


71  ;  Oilman  t. 
Courtright   <•. 
SU- 
SS.    Fogg  V 
see  Jackson  7', 


Pearson, 
Staggers, 


Me.  352; 
Ohio  St. 


Hill,  21  Me.  529.     Bnt 
Hampden,  20  Me.  37. 


34.  Jackson   i'.   Hampden,  20   Me. 

37-  . 

In  Maine,  where  this  practice  pre- 
vailed, it  was  later  provided  by  stat- 
ute that  an  offer  to  be  defaulted,  if 
not  accepted,  should  not  be  taken 
as  an  admission.  'Wentworth  z>. 
Lord,  39  Me.  70. 

It  is  not  equivalent  in  its  effect 
to  a  default.  Pitkin  z>.  New  York  & 
N.  E.  R.  Co.,  64  Conn.  482,  30  Atl. 
772. 

35.  lozi'a.  —  Troxel  Z'.  Clarke,  9 
Iowa  201 ;  Plummer  v.  Douglas,  14 
Iowa  6g,  81  Am.  Dec.  456. 

Kentucky.  —  Bonta  z'.  Clay,   i  Litt. 

27-       ,  . 

Louisiana.  —  Skinner   z'.    Dameron, 

5   Rob.  447. 

Maryland.  —  McMechen  z'.  Mayor 
of  Baltimore,  2  Har.  &  J.  41  ;  Huston 
v.  Ditto,  20  Md.  305. 

Nczi'  lerscy.  —  Seward  v.  Payne,  4 
N.  J.  Law   loi. 

Pennsylvania.  —  Earnest     v.     Hos- 


kins,  100  Pa.  St.  551;  Bradde  v. 
Brownfield,  4  Watts  474. 

Virginia.  —  Honaker  v.  Howe,  19 
Graft.   50. 

Wisconsin.  —  Buffalo  z:  Barb  Wire 
Co..  64  Wis.  338,  25  N.  W.  208. 

36.  Troxel  z:  Clarke,  9  Iowa  201  ; 
Plummer  Z'.  Douglas.  14  Iowa  69.  81 
Am.  Dec.  456 ;  Trimmer  v.  Win- 
smith.  23   S.   C.  449. 

Admits  the  Law  As  Well  As  the 
Facts. —  In  Borta  z:  Clav.  i  Litt 
(Ky.)  27,  it  is  held  that  a  confession 
of  judgment  admits  the  law  as  well 
as  the  facts  to  be  against  the  party 
confessing. 

Estops  to  Attack  Note  for  Usury. 
So  it  is  held  that  a  confession  of 
judgment  for  the  full  amount  of 
principal  of  a  note,  usurious  on  its 
face,  estops  the  party  from  going 
behind  the  judgment  to  purge  it  of 
illegal   interest. 

37.  Troxel  z'.  Clarke,  9  Iowa  201  ; 
Burchett  z'.  Casady,  18  Iowa  342. 

38.  Earnest  z:  Hoskins,  100  Pa 
St.  551. 

39.  Merritt  v.  Thompson,  i  Abb. 
Pr.  (N.  Y.)  223,  10  How.  Pr.  428; 
Quintard  Z'.  Secor,  i  Abb.  Pr.  (N. 
Y.)  393:  Jackson  z\  Hampden,  20 
Me.  37- 

Vol.  I 


=i(i2 


.IDMISSIONS. 


Binding  Until  Time  for  Acceptance  —  The  offer  is  Ijiiulitir;-  on  the 
defendant  for  the  time  within  which  the  plaintiff  is  allowed  to 
accept  it,  and  in  the  meantime  cannot  be  withdrawn.^" 

S.  Payment  of  Money  Into  Court.  —  The  voluntary  payment 
of  money  into  court,  upon  a  claim  made  against  a  party  therefor,  is 
an  admission  of  the  cause  of  action  to  recover  that  sum  and  no 
more." 

Where  Action  Is  on  Contract  Admits  the  Contract.  —  And  where  the 
action  is  upon  a  special  contract,  payment  into  cotirt  admits  the 
contract  and  liability  thereon  in  the  amount  of  the  sum  paid  in.^^ 
P.ut  this  has  been  doubted. *•■" 

The  payment  may  be  made  as  upon  a  particular  count,  in  which 
case  the  admission  extends  no  farther  than  to  the  confession  of  a 
cause  of  action  upon  that  count. ''^ 

Is  a  Payment  on  Account.  —  The  bringing  in  of  the  money  is  in 
eft'ect  a  payment  as  of  that  date,  on  account  of  the  sum  claimed.*" 


Is  a  Confession  of  a  Cause  of  Ac- 
tion.—But  in  Fogg  7'.  Hill,  21  Me. 
529,  it  is  held  that  an  offer,  inider 
the  statute  of  that  state,  to  be  de- 
faulted, is  equivalent  to  bringing  the 
money  into  court,  and  must  be  re- 
garded as  a  confession  of  the  cause 
of  action,   but  not   the   amount    due. 

40.  Walker  v.  Johnson,  8  How. 
Pr.   (N.  Y.)   240. 

41.  Monroe  v.  Chaldeck,  78  111. 
429;  Sweetland  z:  Tuthill,  54  111. 
215;  Seaton  v.  Benedict,  5  Bing.  28, 
15  Eng.  C.  L.  454;  Gutteridge  7". 
Smith,  2  Black.  374 :  Rucker  z:  Pals- 
grave, I  Taunt,  419;  Story  z'.  Finnis, 
^  Ene.  Law  &  Ef|.  S48;  Stapleton  z'. 
Norvell,  6  ^I.  &  W.  g. 

What  Payment  Into  Court  Admits. 
In  Creenl.  Ev.,  vol.  I.  §  205,  it  is 
said:  "There  is  still  another  class  of 
judicial  admissions,  made  by  the  f>ay- 
incnl  of  money  into  court,  upon  a 
rule  granted  for  that  purpose.  Here, 
it  is  obvious,  the  defendant  con- 
clusively admits  that  lie  owes  the 
amount  thus  tendered  in  payment ; 
that  it  is  due  for  the  cause  men- 
tioned in  the  declaration;  that 
ihc  plaintiff  is  entitled  to  claim 
it  in  the  character  in  which  he  sues: 
that  the  court  has  jtirisdiction  of 
the  matter ;  that  the  contract  des- 
cribed is  rightly  set  forth,  and  was 
duly  executed ;  and  that  it  has  been 
broken  in  the  manner  and  to  the 
extent  declared;  and  if  it  was  a  case 
of  goods  sold  by  sample,  that  they 
agreed    with    the    sample.      In    other 

Vol.  I 


words,  the  payment  of  money  into 
court  admits  conclusively  every  fact 
whi(;h  the  plaintiff  would  lie  obliged 
to  prove  in  order  to  recover  that 
money." 

42.'  Dyer  v.  Ashton.  i  Barn.  &  C 
2,  8  Eng.  C.  L.  2 ;  Leggett  z\  Cooper, 
2  Stark.  102,  3  Eng,  C.  L.  335';  Cox 
z\  Brain,  3  Taunt.  95 ;  Bennett  v. 
Francis,  2   B.   &   P.   550. 

Extent  of  Admission In  Seaton 

Z'.  Benedict.  5  Bing.  28,  15  Eng.  C. 
L.  454,  it  is  held  that  where  the 
action  is  upon  a  special  contract, 
payment  into  court  admits  the  con- 
tract and  liability  thereon  in  the  sum 
paid  in.  But  that  in  common  in- 
debitatus assumpsit  the  payment 
admits  no  more  than  that  the  sum 
paid  is  due. 

43.  Gutteridge  z\   Smith,  2  Black. 

374- 

44.  Gutteridge  -■.  Smith,  2  Black. 
374;  Cox.  I'.  Brain,  3  Taunt.  95; 
Stapleton  z'.  Norvell,  6  M.  &  W.  9. 

45.  The  effect  of  bringing  money 
into  court  is  thus  stated  in  Boyden 
7'.  Moore,  5  Mass.  365  :  "  The  bring- 
ing money  into  court  is  a  practice 
adopted  to  relieve  the  defendant 
against  an  unexpected  suit  for  money, 
which  he  is  willing  to  pay,  but 
which  he  has  not  tendered  to  the 
plaintiff  before  the  commencement  of 
the  suit.  MtCT  the  defendant  has 
brought  ill  as  much  money  as  he 
thinks  proper,  and  the  plaintiff  has 
refused  to  receive  it  in  satisfaction, 
the  defendant  is  entitled  to  have  the 


ADMISSIONS.  SO:^ 

In  Cases  of  Tort.  —  The  rule  is  the  same  in  cases  of  tort.  The 
l)avnieiit  into  court  achnits  a  cause  of  action  for  the  amount  paid  iu.^" 

III.  TO  WHOM  MAY  BE  MADE. 

1.  Generally.  —  In  respect  of  the  mere  question  of  the  competency 
of  admissions,  as  evidence,  it  is  immaterial  as  a  rule,  whether  they 
are  made  to  a  party  in  interest  or  to  a  stranger.  I5ut  as  we  shall 
see  farther  along,  it  may  he  (|uite  material  in  respect  of  their  weight 
as  against  the  party  making  them.  If  made  to  an  adverse  party  in 
interest  they  may  be  conclusive,  but  not  so  if  made  to  a  stranger.'" 

And  as  to  their  competency,  it  may  be  quite  material  whether  they 
are  made  to  an  attorney  or  other  person  sustaining  a  confidential 
relation  towards  the  party  making  them  under  such  circumstances 
as  to  render  them  ])rivileged,  in  which  case  they  are  not  competent.** 

2.  To  Adverse  Party  or  His  Agent.  —  It  may  be  stated  as  a  general 
rule  that  all  admissions  made  to  the  adverse  party  to  the  contro- 
versy, or  his  agent,  if  material  to  the  issue,  are  competent  unless 
made  in  an  efifort  to  arrive  at  a  compromise."*'' 

3.  To  Attorney  or  Agent.  —  As  to  admissions  made  to  one's  own 
attorne}'  or  agent,  they  are  competent  to  be  proved  against  the  party 
making  them  unless  made  under  such  circumstances  as  to  rentier 
them  confidential  and,  for  that  reason  privileged."'" 

If  made  to  the  attorney  or  agent  of  the  adverse  party  respecting 
a  matter  in  which  he  is  then  engaged  as  such  attorney  or  agent,  it 
is  the  same  as  if  made  to  the  principal.  If  made  to  him  when  not  so 
engagetl,  it  is  the  same  as  if  made  to  a  stranger.  If  made  to  one's 
own  agent  it  is  competent.''' 

4.  To  Third  Party.  —  The  competency  of  an  admission  does  not, 
as  a  rule,  depend  upon  the  person  to  whom  it  is  made.  Therefore, 
if  made  to  a  stranger  having  no  interest  in  the  controversy,  it  is 
just  as  competent  as  if  made  to  a  party  in  interest. '''- 

same  considered  as  a  payment  made  44-^;      Winebrenner     v.     Brunswick- 

on  the  day  on  which  it  was  brought  Balke  etc.  Co.,  82  Iowa  741,  47  N.  W. 

in,    and    he    is    answerable    only    for  io8y. 

fiinhcr  damages.     He  then  stands  on  52.     Georgia.  —  Brown      ?■.      INIat- 

the  same  ground  as  if,  on  tendering  thews,  79  Ga.   i,  4  S.  E-  IJ. 
money   before   the   action,  the  plain-  JlUnois. — Brown  r.   Calumet   River 

tiff    had    refused    to    receive    it,    but  Ry.  Co.,  125  111.  600,  18  N.  E.  283. 
had  commenced  his  action,  in  which  .Massachusetts.  —  Hosmer  v.  Groat, 

the  tender   was  pleaded."  143   Alass.    16,  8   N.   E.  431. 

46.  Story  :•.  Finnis,  3  Eng.  Law  Missouri. — Hinters  v.  Hinters,  114 
&  Eq.  548.  Mo.    26,    21    S.    W.    456;    Meier    v. 

47.  Brown  i'.   Mathews,  79  Ga.   I,  Meier,  105   Mo.  411,  16  S.  W.  223. 

4  S.  E.  13;  Gregory  v.  Com.,  121  Pa.  North      Carolina.  —  Carpenter      v. 

St.  611,  15  Atl.  452.  Tucker,  98  N.  C.  316,  3  S.  E.  831. 

48.  See  succeeding  sections.  Pciinsyhaiiia.  —  Gregory    v.    Com., 

49.  Post,  p.  596;  Gregory  v.  Com.  121  Pa.  St.  611,  ij  Atl.  452;  Reed  v. 
121  Pa.  St.  611,  15  Atl.  452.  Reed,  46  Pa.  St.  239. 

50.  Post,  p.  60b;  Brown  v.  Mat-  rcniio;//.  —  .\bbott  v.  Pratt,  16 
thews.  79  Ga.  i,  4  S.  E.  13.  Vt.   626. 

51.  Cramer  v.  Gregg,  40  111.  .A.pp.  In  Secor  v.  Pestana,  37  111.  525,  it 

Vol.  I 


504 


ADMISSIONS. 


By  Acquiescence.  —  \\  ith  respect  to  admissimis  by  ac(|uicscence  in 
what  is  said  by  another,  the  inference  to  be  drawn  from  silence, 
when  a  statement  is  made  by  a  stranger  is  not  so  strong  as  if  made 
by  one  adversely  interested,  because  the  obligation  to  speak  or  the 
inducement  to  make  answer  is  not  so  great. ''■' 

IV.  BY  WHOM  MAY  BE  MADE. 

1.  Parties  to  the  Record.  —  A.  GenEkallv.  —  The  general  rule  is 
that  every  material  fact  must  be  proved  by  testimony  on  oath  and 
not  by  declarations  or  admissions  not  on  oath.'**  One  of  the  excep- 
tions to  this  rule  is  that  the  declarations  of  a  party  to  the  record,  or 
of  one  identified  in  interest  with  him  against  his  iiiterest.  are.  as 
against  such  party,  admissible  in  evidence.^" 


is  said:  "As  to  the  fom-lh  in- 
struction, it  was  properly  refused, 
because  the  admissions  and  declar- 
ations of  appellant  were  admissible 
no  matter  to  whom  made,  as  con- 
fessions relating  to  the  character  and 
extent  of  his  tenancy.  There  is  no 
rule  of  law  requiring  such  admis- 
sions, to  be  available,  that  they 
should  be  made  to  the  party  or  his 
agent." 

To    Stranger    Competent When 

a  relevant  fact  or  act  is  to  be  ac- 
counted for,  a  conversation  had  with 
one  of  the  litigating  parties  with  a 
third  person,  in  the  absence  of  the 
other,  may  account  for  it.  or  serve 
as  a  link  in  the  chain  of  explanation. 
If  so  it  is  admissible  in  evidence. 
But  the  application  of  this  rule  must 
be  carefully  guarded."  Brown  v. 
Matthews,  79  Ga.  i,  4  S.  E.  13. 

53.  Ante,  p.  379;  Larry  v.  Sher- 
borne. 2  Allen  (Alass.)  34;  Com.  v. 
Kenney.  12  Mete.  (^Iass.)  235,  46 
Am.  Dec.  672 ;  Hackett  i'.  Callendcr, 
32  Vt.  97 ;  Bentley's  Appeal,  99  Pa. 
St.   500. 

54.  Lancaster  z:  Longenecker,  6 
Binn.    (Pa.)    I. 

55.  England.  —  Spargo  v.  Brown, 
9  Barn.  &  C.  935,  17  Eng.  C.  L.  412- 

United  States.  —  The  Stranger.  23 
Fed.   Cas.   No.   13.525. 

Alabama.  —  Humes  v.  O'Bryan,  74 
Ala.  64;  Frank  v.  Thompson,  105 
Ala.   211,   16   So.  634. 

Arkansas.  —  Phelan  v.  Bonham,  9 
.•\rk.  jSg;  Southern  Ins.  Co.  v. 
White,  58  Ark.  277,  24  S.  W.  425. 

California.  —  Moore  v.  Campbell, 
72   Cal.   251,    13   Pac.  689:   White  v. 

Vol.  I 


Merrill,  82  Cal.  14,  22  Pac.  1 129; 
Robinson  zk  Dugan  (Cal.),  35  Pac. 
902;   Wright  7'.   Carillo,  22  Cal.   595. 

Colorado.  —  Wilson  t'.  Morris.  4 
Colo.  App.  242,  36  Pac.  248 :  Holnian 
V.  Boston  L.  &  S.  Co.,  20  Colo.  7,  36 
Pac.  797 ;  Plummer  v.  Struby-Esta- 
brooke  M.  Co.,  23  Colo.  190,  47  Pac. 
294;  Teller  v.  Ferguson,  24  Colo. 
432,  51  Pac.  429. 

Connecticut.  —  White  t'.  Reed,  15 
Conn.  457 ;  Bassett  v.  Shares,  63 
Conn.  39,  27  Atl.  421 ;  Plant  v. 
?iIcEwen,  4  Conn.  544 ;  Pierce  v. 
Roberts,  57  Conn.  31,   17  Atl.  275. 

Georgia.  —  Ingram  v.  Hilton  etc. 
L.  Co.,  108  Ga.  194,  3i  S.  E.  961. 

Illinois.  —  Cramer  i'.  Greee.  40  111. 
App.   442. 

Indiana.  —  Miller  v.  Cook,  124 
Ind.  loi,  24  N.  E.  577;  Denman  v. 
.McMahin,  37  Ind.  241. 

Iozs.'a.  —  Winebrenner  !■.  Bruns- 
wick-Balke  C.  Co.,  82  Iowa  741,  47 
N.  W.  1089;  Bullard  z:  Bullard,  112 
Iowa  423,  84   N.   W.  513. 

Kansas.  —  Pope  Z'.  Bowzer.  i  ls.au. 
App.  727,  41   Pac.   1048. 

Maine.  —  Laughlin  v.  Eaton,  54 
Me.    156. 

Maryland.  —  Pierce  z\  Roberts, 
(Md.),    17   All.   275. 

Massachusetts.  —  Green  z\  Gould, 
3  Allen  465 ;  Abbott  v.  Andrews,  130 
Mass.  145 ;  Hosmer  v.  Groat,  143 
Mass.  16,  8  N.  E.  431;  Heywood  v. 
Heyvvood,  10  Allen  105 ;  Atkins  v. 
Sanger,  i   Pick.   192. 

Michigan. — Evans  v.  Montgomery, 
95  Mich.  497,  55  N.  W.  362;  Reiser 
z:  Portere,  106  Mich.  102.  63  N.  W- 
104 1 ;    Ford    z'.    Savage,    in     Mich. 


ADMISSIONS. 


505 


Identity  With  Party  Must  Be  Shown.  —  Therefore,  in  order  to  ren- 
der such  admissions  competent,  if  not  made  by  the  part}'  himself, 
the  identity  of  interest  of  the  person  making  them  with  the  party 
to  the  suit  must  be  shown. ^" 


144,  59  N.  W.  240;  Ba.xtcr  i:  Rey- 
nolds, 112  Mich.  471,  70  N.  W.  1039. 

Minnesota.  —  Potter  r.  Alellen,  41 
]\Iinn.  487,  43  N.  \V.  375;  Hosford 
V.  Hosford,  41  Minn.  245,  42  N.  \V. 
1018;  Towle  z:  Shcrer,  70  Minn. 
312,  73   N.   W.   180. 

.l/uj/ij"//'/'/.  —  Hall  V.  Waddill,  78 
Miss.    16,    28    So.    831. 

Missouri.  —  Meier  v.  Meier,  105 
Mo.  411,  16  S.  W.  223;  McLaughlin 
V.  McLaughlin,  16  Mo.  242;  Wise- 
man z:  St.  L.  A.  &  T.  Ry.  Co..  30 
Mo.  App.   516. 

Nebraska.  —  Bartlctt  t'.  Cheese- 
brough,  ^u  Neb.  339,  49  N.  W.  360. 

A'rii'  llampsliirc.  —  Tcnney  z'. 
Evans,  14  N.  H.  343,  40  Am.  Dec. 
194. 

Nezc  York.  —  Bronson  v.  Winian, 
8  N.  Y.  182;  Potter  v.  Ogden,  136 
N.  Y.  384,  i3  N.  E.  228;  Larrison 
v.  Payne,  52  Hun  612,  ^  N.  Y. 
Supp.  221  ;  Reed  v.  McCord,  18  App. 
Div.  381,  46  N.  Y.  Supp.  407 ;  New- 
combe  v.  Hyman,  16  Misc.  25,  2y 
N.  Y.  Supp.  649;  Alarvin  v.  Rich- 
mond, 3  Denio  58;  Doyle  v.  St. 
James   Church,   7   Wend.    178. 

North  Carolina.  —  Tredwill  v. 
Urahani,  88  N.  C.  208. 

Pennsylvania.  —  Silvis  z'.  Ely,  3 
Watts  &  S.  420;  Wilson  v.  Wilson, 
137  Pa.  St.  269,  20  Atl.  644. 

Rhode  Island.  —  Fay  v.  Feelcy,  18 
R.  I.  715,  30  Atl.  342;  State  v.  Little- 
field,   3   R.    L    124. 

South  Carolina.  —  Hodges  Z'.  Tar- 
rant. 31  S.  C.  608,  9  S.  E.  1038;  Mc- 
Gahan  v.  Crawford,  47  S.  C.  566,  25 
S.   E.    123. 

Texas.  —  Hardy  z'.  De  Lenn,  5 
Te.x.  211;  Ellis  V.  Stone,  4  Te.x.  Civ. 
App.  157.  23  S.  W.  405;  Wells  V. 
Fairbanks,  5  Tex.  582 ;  Clapp  ZK  En- 
gledow,  72  Tex.  252,  10  S.  W.  462; 
Galveston  H.  &  S.  A.  Ry.  Co.  v. 
Hertzig,  3  Tex.  Civ.  App.  296,  22 
S.  W.  1013 ;  Extence  v.  Stewart, 
(Tex.  Civ.  App.).  26  S.  W.  896; 
Shelburne  v.  McCrocklin  (Tex.  Civ. 
App.).  42   S.   W.  329. 

Vermont.  —  Robinson  v.  Hutchin- 
son, 31  Vt.  443 ;  Bennett  v.  Camp. 
54   Vt.   36;    McCann   v.   Hallock,   30 


Vt.  233;  Hill  V.  Powers,  16  Vt.  516; 
Goodnow  V.  Parsons,  36  Vt.  46; 
Barber  r.  Bennett,  58  Vt.  476,  4  Atl. 
271.  I  L.  R.  A.  224. 

I'irginia.  —  Barton  i'.  Scott,  3 
Rand.   399. 

Wisconsin.  —  Hunter  z\  Gibbs,  79 
Wis.  70,  48  X.   W.  257. 

In  Proof  of  Marriage The   fact 

of  marriage  may  lie  established  by 
the  admissions  of  the  parties. 
Greenawaldl  z\  McEnuelev,  85  Pa. 
St.  35-'. 

So  the  declarations  of  defendant 
in  an  action  for  criminal  conversa- 
tion is  held  to  be  competent  to  prove 
the  marriage  of  the  woman  against 
whom  the  offense  is  committed. 
Forney  z'.  Hallacher,  8  tierg.  &  R. 
(Pa.)    159,  II   Am.  Dec.   590. 

Party  Not  Served —  In  some  of 
the  states  under  statutory  provisions 
it  is  held  that  the  admissions  of  a 
party  not  served  are  inadmissible  as 
against  a  party  who  has  appeared. 
Derby  v.  Rounds.  53  Cal.  659;  Gris- 
wolcl  7'.  Burroughs,  60  Hun  558,  15 
N.   V.   Supp.   314. 

Where  Not  Made  Upon  Personal 
Knowledge. —- And  his  admissions 
made  without  any  personal  knowl- 
edge of  the  fact  admitted  may  be 
proved  against  him.  Reed  v.  Mc- 
Cord, 160  N.  Y.  330,  54  N.  E.  737. 

56.  England.  —  Spargo  v.  Brown, 
9  Barn.  &  C.  935,  17  Eng.  C.  L.  412; 
Wise  z:  Charlton,  4  Ad.  &  E.  786, 
31  Eng.  C.  L.  346;  Beauchamp  v. 
Parry,  i  Barn.  &  C.  89,  20  Eng.  C.  L. 
408;  Barough  ?■.  Wliite,  4  Barn.  &  C. 
325.  10  Eng.  C.  L.  600;  Phillips  v. 
Cole,  10  Ad.  &  E.  106,  37  Eng.  C.  L. 

United  Slates.  —  Lamar  f.  Micou, 
112  U.  S.  452. 

Alabama.  —  Harrison  z'.  Mock,  16 
Ala.  (N.  S.)  616;  Jones  z'.  Norris,  2 
Ala.  526;  Mahone  v.  Williams,  39 
Ala.    202. 

California.  —  Kilburn  v.  Ritchie,  2 
Cal.  145,  56  Am.  Dec.  326 ;  Dean  v. 
Ross,   105   Cal.  227,  38  Pac.  912. 

Colorado.  —  Davis  v.  Johnson,  4 
Colo.  .\pp.  545,  36  Pac.  887. 

Vol.  I 


5()(j 


ADMISSIONS. 


Cannot  Be  Shown  by  Admissions  of  the  Party.  —  As  against  another 
the  admissions  of  a  party  cannot  be  received  to  show  his  interest 
in  property  in  controversy.^'     And  it  is  not  enough  in  case  of  per- 


Cfliiiiccticut.  —  Plant  v.  McEwen, 
4  Conn.  544. 

Georgia.  —  Pool  ;■.  Morris.  29  Ga. 
374.    74    Am.    Dec.    68. 

Idaho.  —  Deascy  v.  Thurman.  i 
Idaho  775. 

Illinois.  —  Haulfv  v.  Erskine.  19 
111.  265-. 

Mas.iacltiisctts.  —  Noyes  v.  Morrill. 
108  Mass.  ,396 ;  Baker  v.  Briggs,  8 
Pick.   122,   19  .-Xni.   Dec.  311. 

MicJiigan.  —  Canipaii  v.  Dubois,  39 
Mich.  274. 

New  York.  —  Smith  v.  Webb,  i 
Barb.  230:  Gardner  v.  Barden,  7  N. 
Y.  433 ;  Bullis  V.  Montgomery,  50 
N.  Y.  352 ;  ^lercadante  v.  Manhattan 
Ry.  Co..  82  Hnn  555.  31  N.  Y.  Supp. 
540. 

Pennsylvania.  —  Hill  7:  Roderick, 
4  Watts  &  S.  221  ;  Continental  Ins. 
Co.  V.  Delpench,  82  Pa.  Si.  225. 

South  Carolina. — Agncw  v.  Adams. 
26  S.  C.  loi,  I  S.  E.  414;  De  Bruhl 
V.   Patterson,  12  Rich.    (Law)   363. 

Vermont.  —  Warner  v.  McGary,  4 
Vt.  507:  Orr.  V.  Clark,  62  Vt.  136, 
iq  .All.  929. 

By  a  Co-Distributee In  Prcwett 

V.  Coopwood.  30  Miss.  369.  the  ques- 
tion was  as  to  the  competency  of  ad- 
missions made  by  one  distributee  of 
an  estate  as  against  other  distribu- 
tees, and  the  court  said,  in  passing 
upon   the  question  : 

"The  object  of  the  evidence  was 
to  create  a  presumption  that  the  de- 
fendant had  not  received  so  much 
of  the  estate  at  least  as  belonged  to 
the  widow.  If  she  had  been  the  only 
distributee,  and  the  estate  owing  no 
debts,  as  is  proved  in  this  case,  the 
evidence  would  have  been  admis- 
sible on  the  ground  that,  being  the 
sole  beneficiary  in  the  estate,  she 
could  make  admissions  or  do  any 
other  act  affecting  her  interest, 
which  a  legal  owner  of  property 
could  make  or  do.  But  she  could 
make  no  admission  affecting  the 
rights  of  a  co-distributee,  because 
she  liail  no  power  over  his  interest." 

By  Contractor  for  construction  of 
building  against  owner.  Dickenson 
College  V.  Church,  I  Watts.  &  S. 
(Pa.)    462. 

Vol.  I 


Statement    of    the     Rule It    is 

well  settled  that  the  declarations  of 
third  persons,  not  parties  to  the 
record,  cannot  be  admitted  in  evi- 
dence, except  in  those  cases  where 
they  have  a  joint  interest  with  the 
plaintiff  or  defendant,  or  where  some 
legal  relation  such  as  that  of  part- 
ners, exists.  Kilburn  i'.  Ritchie,  2 
■  Cal.    145.   56   .\m.   Dec.   ,^26. 

By  Assignor  for  Benefit  of  Cred- 
itors  In     the     case     of     Bullis    v. 

Montgomery,  50  N.  Y.  352,  the  as- 
signment was  by  an  insolvent  debtor 
for  the  benefit  of  his  creditors  and 
his  admissions  were  offered  in  evi- 
dence as  against  the  assignee,  and 
in  support  of  the  offer  it  was  urged 
that  there  was  such  privity  between 
the  assignor  and  the  assignee  as  to 
let  in  such  admissions  against  the 
latter.  But  it  was  held  by  the  court 
that  there  was  no  identity  of  in- 
terest between  an  insolvent  assignor 
in  trust  for  his  creditors  and  his 
assignee,  but  that  the  assignee  holds 
primarily  for  the  creditors,  and  for 
lho--e   in   hostility  to  the  assignor. 

Must  Be  Identity  of  Interest In 

.Fitch  r.  Chapman,  10  Conn.  8,  the 
court  said :  "  It  is  said  that  the 
plaintiff  is  identified  with  John  Chap- 
man because  he  claims  through  him. 
The  indorsee  of  a  promissory  note, 
claims  through  the  indorser ;  but  it 
does  not  therefore  follow,  that  the 
declarations  of  that  indorser  can  be 
given  in  evidence;  as  was  observed 
in  Barough  '■.  White,  above  cited. 
I  should  think  the  idemity  snoken 
of  in  the  books,  referred  rather  to 
those  cases  where  the  nominal  plain- 
tiff was  suing,  in  fact,  for  the  bene- 
fit of  a  third  person ;  and  this  iden- 
tified their  interests." 

By  Executor  Before  His  Appoint- 
ment  So  it  is  held  that  the  ad- 
missions of  one  -sued  as  e.xecutor, 
before  he  became  such,  are  inadmis- 
sible because  the  judgment  if  re- 
covered would  affect  the  creditors 
and  heirs  of  the  testator  to  whom 
the  executor  was  a  stranger.  Plant 
Z'.   .\lcEvven.  4  Conn.  544. 

57.     Backnam  v.  Barnum,  15  Conn. 

67. 


ADMISSIONS. 


507 


sonal  property  to  show  merely  that  the  part\-  to  the  action  claims 
through  the  party  whose  admission  is  offered.''** 

Foundation  for  Proof  of,  Not  Necessary.  —  The  evidence  of  admis- 
sions by  a  party  is  not  necessarily  impeaching,  although  it  may  have 
that  effect,  and  it  is  not  necessary  to  lay  a  foundation  for  the  proof 
by  asking  the  part\   with  respect  to  it  as  in  case  of  impeachment."'' 

After  Action  Brought.  —  It  makes  no  difiference  in  respect  of  the 
competency  of  admissions  by  a  party  that  they  were  made  after  the 
commencement  of  the  action  if  they  relate  to  matters  occurring 
before  suit  brought.''" 

a.  By  One  of  Two  or  More.  — •  Where  two-  or  more  defendants 
are  joined,  the  admissions  of  any  one  of  them  are  admissible,  as 
against  him,  but  not  against  his  co-defendants  except  where  such  a 
joint  interest  is  shown  as  will  render  his  admissions  l)inding  on  the 
other  defendant  as  shown  farther  along."' 

b.  Other  Declarations  to  Explain  Iiiadiuissible. — \\'here  admis- 
sions are  proved  against  a  party,  it  is  not  competent  for  him  to  prove 
other  declarations  of  his  in  his  own  interest  contradictory  or  explan- 
atorv  of  such  admissions."-     The  rule  is  different  where  the  counter- 


58.  Fitch  V.  Chapman.  lo  Conn. 
8 1  Smith  V.  Webb,  I  Rarlx  230; 
Christie  v.  Bishop,  i  Barli.  Ch.  105. 

59.  Bullard  v.  Bullard.  T12  Iowa 
42.^.  84  N.  W.  513;  Teller  v.  Fer- 
guson. 24  Colo.  432,  51  Pac.  429; 
Louisville  &  N.  R.  Co.  v.  Miller,  ig 
Ky.  Law  1663'.  44  S.  W.  119;  Bart- 
lett  V.  Cheesebrough,  32  Neb.  339, 
49  N.  W.  360;  Hunter  7'.  Gibbs,  79 
Wis.  70,  48  X.  W.  2^7:  Garr  Scott 
&  Co.  V.  Shaffer,  no  Ind.  191,  38 
N.  E.  811;  Salter  T'.  Edw.  Hines  L. 
Co.,  77   111.   App.  97. 

GO.  Dole  V.  Young.  24  Pick. 
(Mass.')    250. 

61.  England.  —  Rex.  v.  Inhab- 
itants of  Hardwick.  11  Fast.  ""'8. 

Alabama. —  VoWy  v.  McCall,  37 
Ala.  20 ;  Palmer  v.  Severance,  g  Ala. 
751:  Falkner  v.  Leitli,  15  Ala.  (N. 
S.)  9;  Goodman  v.  Walker,  30  Ala. 
(N.  S.)  482,  68  Am.  Dec.  134;  Smith 
J'.  Rogers,  i  Stew.  &  P.  317;  Lewis 
V.  Lee.  66  .\la.  480. 

California.  —  White  v.  Merrill.  82 
Cal.  14,  22  Pac.  1 129;  Spanagel  v. 
Dellinger,  38  Cal.  278. 

Georgia.  — Kiser  v.  Dannenberg,  88 
Ga.   541,   15   S.   E.    17. 

Illinois.  ■ —  Rogers  7'.  Suttle,  19  111. 
App.    163. 

Indiana.  —  Hayes  v.  Burkam,  67 
Ind.  359;  Smitli  v.  Meiser,  11  Ind. 
ApTi.   468,  38   N.   E.   1092. 


Kansas.  —  Boynton  z'.  Hardin,  g 
Kan,   App.    156,  58   Pac.    1007. 

Massachusetts.  —  Hubbell  7'.  Bis- 
sell,  2  Allen  196;  Hodges  7'.  Hodges. 
2  Cush.  455:  Edgerton  7'.  Wolf,  6 
Gray  453 ;  Phelps  7'.  Hartwell,  i 
Mass.    71. 

Missottri.  —  Enders  v.  Richards,  33 
Mo.  598. 

New  York.  —  Christie  v.  Bishop, 
I  Barb.  Ch.   105. 

Norili  Carolina.  —  Tredwell  v. 
Graham,  88  N.  C.  208. 

Pennsylvania.  —  Continental  Ins. 
Lo.  7'.  Delpench,  82  Pa.   St.  225. 

Soutli  Carolina. — De  Brulil  v.  Pat- 
terson, 12  Rich.   (Law)   363. 

Texas.  —  Shelborn  7'.  AlcCrocklin 
(Tex.  Civ.  .App.),  42  S.  W.  329. 

]]'est  Virginia.  —  Dickinson  7/. 
Clarke.  5  W.  Va.  280. 

Inadmissible  Against  Party  Mak- 
ing Them,  When.  —  In  Mc]\Iillen  v. 
McDill.  no  111.  47,  it  was  held  that 
the  admissions  of  one  party  were 
not  admissible  even  as  against  him 
where  the  effect  of  the  admissions 
must  go  to  defeat  the  action  as  to 
his  co-parties  as  well  as  himself. 

Unless  in  the  Presence  of  the 
Others.  —  Crippen  v.  Morse,  49  N. 
Y.  63.  But  see  Rogers  v.  Suttle,  19 
111.    .App.    163. 

62.  Nutter  7'.  O'Donnell,  6  Colo. 
253;    Harding   7'.    Clark,    15    III.    30; 

Vol.  I 


308 


ADMISSIONS. 


declarations  are  made  as  a  part  of  the  same  conversation  or  in  the 
same  letter,  or  other  writing',  or  correspondence.  There  the  whole 
conversation,  instrument  or  correspondence  must  be  heard  and  taken 
together."^ 

B.  Proper  P.-vrties.  —  If  one  made  a  party  to  the  suit  is  a  proper 
party,  his  admissions  are  admissible,  at  least  as  ag^ainst  him."^ 

C.  Of  Nominal  Parties.  —  a.  Generally  Incompetent.  —  The 
test  of  the  competency  of  statements  made  as  admissions,  if  other- 
wise competent  and  material,  is  whether  or  not  such  statements  were 
against  interest.  If  a  party  to  the  suit  is  a  merely  nominal  party, 
having  no  interest  in  the  result,  his  declarations  are  not  within  the 
reason  of  the  rule  and  are  inadmissible.'"-''     r,ut  it  has  been  held  that 


Blight   V.    Ashley.    Pet.    C.    C.    15,   3 
Fed.  Cas.  No.   1541. 

63.  Bailey  v.  Pardridgc,  35  III, 
App.  121  ;  Lippus  V.  Columbus  Watch 
Co.,  '6  N.  Y.  St.  620.  n  N.  Y. 
Supp.  3ig;  Ellen  v.  Ellen,  18  S.  C. 
4Sg. 

64.  Edwards  v.  Derrickson.  28  N. 
J.  Law  39;  Gibson  v.  Winter,  5  Barn. 
&  A.  96,  27  Eng.  C.  L.  50:  Hogan 
V.  Sherman,  s  Mich.  60:  Sargeant 
V.  Sargeant,  18  Vt.  371  ;  Smith  v. 
Vincent.  15  Conn,  i,  38  Am.  Dec.  52. 

By  One  Joined  but  Not  a  Proper 
Party.  —  '['he  admissions  of  a  party 
to  tlie  suit  are  inadinissible  where  it 
appears  that  he  has  no  interest  in 
the  matter  in  controversy,  and  is  for 
that  reason  not  a  proper  party. 
Wright   V.    Cornelius,    10   I\Io.    174. 

65.  f.ngland.  —  Webb  ■;•.  Sinith, 
R.  &  M.  106,  21  Eng.  C.  L.  712; 
Rex.  V.  Inhabitants  of  Hardwick,  11 
East  578. 

United  States.  —  Palmer  -'.  Cassin, 
2  Cranch  C.  C.  66,  18  Fed.  Cas.  No. 
10,687. 

Alabama.  —  Graham  v.  Lockhart, 
8  Ala.  (N.  S.)  9;  Chisholni  v.  New- 
ton, I  Ala.  371  ;  Head  v.  Shaver,  g 
Ala.  (N.  S.)  791;  Roberts  v.  Tra- 
wick,  13  Ala.  68;  Thompson  v. 
Drake,  32  Ala.  99;  Gary  v.  Colgin. 
II  Ala.  514;  Sally  v.  Gooden.  5 
Ala.  (N.  S.)  78;  Copcland  v.  Clark, 
2  Ala.  (N.  S.)  388;  Brown  v.  Fos- 
ter, 4   Ala.   282. 

California.  —  Spanagel  ?'.  Dellin- 
ger,   .38   Cal.   278. 

Illinois.  —  Dazey  v.   Mills,  5   Gilm. 

Indiana.  —  McSweeney    ?■.    McMil- 
Icn.   96   Ind.   298. 
Maine.  —  P.utler  v.   Milletl,  47  Me. 

Vol.  I 


492;  Foster  V.  Gilnian,  29  Me.  136; 
Carle  v.   Bearce,  33   Me.  337. 

Massachusetts.  —  Ragley  i'.  Bry- 
ant, 24  Pick.  198:  Tyler  v.  Ulmer, 
12  Mass.  163 ;  Wing  v.  Bishop,  3 
Allen   456. 

Minnesota.  —  State  v.  Olson,  55 
Minn.   118,  56  N.  W.  585-. 

Nc'iV  York.  —  Frear  v.  Evertson, 
20  Johns.    142. 

Pennsylvania.  —  Mertz  v.  Det- 
weiler.  8  Walls  &  6.  376 ;  Morton  v. 
Morton,  13  Serg.  &  R.   107. 

Tennessee.  —  Moyers  'c:  Tnman,  2 
Swan  80. 

Texas.  —  Thompson  ?■.  Johnson 
(Te.x.  Civ.  App..)  56  S.  W.  S9I. 

Vermont.  —  Sargeant  t.  Sargeant, 
18  \l.   371- 

Of  Nominal  Plaintiif  Not  Admissi- 
ble  The  rule  is  thus  stated  in  the 

case  of  Chisholm  v.  Newton,  i  Ala. 
371  :  "  The  general  prir.ciple  on 
which  the  competency  of  admissions 
as  evidence  rests,  is  the  interest 
which  the  party  making  them  has  in 
the  suit,  or  its  subject  matter.  Froin 
this  it  would  seem  that  the  admis- 
sions of  one  who  has  no  interest  in 
a  suit,  ought  not  to  be  allowed  to 
control,  it.  It  is  said  by  Mr.  Starkie 
in  his  compilation  of  the  rules  of 
evidence  (2  Starkie  on  Ev..  40.) 
lliat  the  admission  of  a  /yarty  on  the 
record  is  always  evidence,  though  he 
be  but  a  trustee  for  another,  and  al- 
though it  appear  from  the  admission 
itself  that  he  is  such :  for  this  he 
cites  the  case  of  Bowernian  v. 
Rodenius  (7  Term,  663).  This  case 
when  examined,  does  not  support 
ihd  rule  in  its  great  extent,  as  stated 
by  the  commentator.  It  was  an  ac- 
tion   brought    in    the    name    of    one 


ADMISSIONS. 


50'» 


the  question,  whether  such  party  has  an  interest  in  the  result  or  not, 
is  a  question  for  the  jury."" 

The  declarations  of  one  not  a  party  on  the  record  cannot  be 
received  to  show  that  he  has  an  interest.""  But  the  admissions  of 
the  alleged  nominal  jiart}-  are  competent  to  show  that  he  has  an 
interest.''* 

b.  Of  Kciord  Held  Competent. — And  there  are  cases  holding 
tliat  the  admissions  of  a  party  of  record,  although  onlv  a  nominal 
party,    are    comjictent.     This    was    the    common    law    rule."''     The 


person,  wlieii  tlic  actual  i  itcrcst  was 
in  another:  to  prove  tlic  interest  of 
the  latter,  in  order  to  let  in  an  ad- 
mission made  by  hint,  a  letter  from 
the  nominal  jilainliff  was  offered, 
which  the  jud.efc  at  n'si  frius  re- 
jected: but  which  was  afterwards 
ruled  by  the  Court  of  King's  Bench 
to  be  competent  evidence. 

"  This  decision,  then,  was  merely 
that  the  admission  of  the  plaintiff  of 
record,  was  proper  evidence  to  show 
the  actual  interest  in  the  suit  was  in 
another,  whose  admissions  ought 
then  to  have  been  allowed  to  con- 
trol the  case.  This  case  evidently 
does  not  warrant  the  conclusion 
that  the  admission  of  the  plaintiff 
on  the  record  will  be  allowed  to 
control  the  case  against  the  interest 
of  the  actual  plaintiff,  after  that  in- 
terest is  disclosed.  Indeed,  the 
reverse  of  the  principle  laid  down 
bv  Mr.  Starkie  was  ruled  in  the  case 
of  Cowling  T'.  Ely  (2  Star,  cases 
366)  where  it  was  held  that  the  ad- 
mission of  a  guardian  who  was  the 
plaintiff  on  the  record,  was  not  evi- 
dence against  the  infant." 

Made  After  Parting  with  Interest. 
In  Sally  r.  Gooden,  5  Ala.  (N.  S.) 
78,  it  is  held,  that  declarations  made 
by-  a  nominal  parly  after  parting 
with  his  interc'-t  are  inadmissible; 
otherwise,   if  made  before. 

Admissions  of  a  Trustee  Plaintiff 
in  the  Action. —  The  rule  is  thus 
stated  in  Sargeant  t'.  Sargeant,  18 
Vt.  371  : 

"  One  question  made  in  this  case 
is,  whether  the  admissions  of  the 
plaintiff  of  record  are  to  be  received 
in  evidence.  At  common  law  the 
declarations  and  admissions  of  the 
party  of  record,  although  a  mere 
trustee,  are  always  adtnissible:  Gib- 
son ;■.  Winter,  5   P>.  S:  .\d.  96  (27  E. 


C.  I^.  501  where  the  subject  is  fully 
discussed  and  the  cases  are  citeil  and 
commented  upon  by  Ch.  J.  Denman. 
But  in  this  state  a  different  rule  has 
long  prevailed.  We  do  not  allow  the 
admissions  of  a  mere  trustee  to  go  to 
the  jury.  The  payee  of  a  promissory 
note,  which  is  put  in  suit  by  some 
other  person  as  holder,  but  to  whom 
the  note  is  not  indorsed,  is  perhaps 
prima  facie  to  be  regarded  in  that 
light.  His  admissions  were,  then, 
correctly  enough   excluded." 

66.  Campbell  v.  Day,  16  Vt.  558; 
Hogan  V.   Sherman,  5   Mich.  60. 

67.  Ryan  v.  Merriman,  4  Allen 
(Mass.)    77. 

68.  Thompson   v.   Drake,   32   Ala. 

09- 

69.  England.  —  Gibson  v.  Winter, 
5  Barn.  &  A.  96,  27  Eng.  C.  L.  5°- 

Connecticut.  —  Bulklev  v.  Landon, 
3  Conn.  76 ;  Plant  v.  McEwen,  4 
Conn.  544;  Coit  v.  Tracy,  8  Conn. 
268,  20  Am.  Dec.  no. 

Maine.  —  Hatch  v.  Dennis,  10  Me. 
244. 

Maryland.  —  Beattv  <'.  Davis,  9 
Gill.    211. 

Michigan.  —  Hogan  v.  Sherman,  5 
Mich.  60. 

Missouri.  —  Dillon  v.  Chouteau,  7 
Mo.  386. 

Nezi'  Hampshire.  —  Tenney  v. 
Evans,  14  N.  H.  343,  40  Am.  Dec. 
194. 

Pennsylvania.  —  Johnson  v.  Kerr, 
I  Serg.  &  R.  25. 

J'ermont.  —  Sargeant  v.  Sargeant. 
18  Vt.  371. 

Of  Party  to  Record  Competent. 
The  cases  holding  that  the  admissions 
of  a  party  of  record,  tending  to 
show  that  he  has  no  cause  of  action 
competent,  proceed  upon  the  theory 
that  he  must  be  regarded  for  the 
purposes  of  the  action,  as  having  an 
interest,    or    he    could    not    maintain 

Vol.  I 


;io 


.IDMISSJONS. 


extent  or  nature  of  his  interest,  whether  joint  or  several,  is  imma- 
terial so  lonij;  as  the  admission  is  offered  as  against  the  party  mak- 
ing it.'" 

2.  Of  Persons  Interested  in  Result,  but  Not  Parties  Competent. 
A  party  having  an  interest  in  tlie  suit,  and  particularly  one  in  whose 
behalf  the  suit  is  being  prosecuted  bv  a  nominal  party,  is.  in  respect 
of  this  question,  in  legal  effect  a  party,  and  his  admissions  are  com- 
petent."' 

3.  By  Party  in  Possession  Affecting  Title.  —  A.  Grnekai.lv. 
The  general  rule  is  that  declarations  of  a  part\-  in  disparagement 
of  title  to  property  of  which  lie  is  in  possession,  claiming  to  be  the 
owner,  or  otherwise  interested  therein,  are  competent. "-' 

B.  Grantors,  FormJ'R  Owners  and  Pri\-ies. — a.  Of  Grantor  .Id- 
inissiblc  x-lgaiiist  Him  and  Claimants  Under  Him.  —  The  admissions 
of  the  owner  of  property  in  possession  are  admissible,  not  onlv 
against  him,  but  against  subsequent  purchasers  from  or  claimants 
under  him,  if  such  admissions  affect  his  title  to  the  propertv  and  are 
against  his  interest.''' 


the  action.  Bulkk-y  f.  I^infloii,  3 
Ciinii.  76. 

Exception  to  the  Rule.  —  But 
where  the  admissions  of  an  executor, 
made  before  his  appointment,  were 
oftered.  it  was  held  thai  as  it  ap- 
peared that  they  were  made  wlien  he 
had  no  interest,  they  were  inadmis- 
sible. Plant  !■.  McEwen.  4  Conn. 
.=;44. 

Where  Party  Has  Parted  with  His 
Interest.  —  In  IJillon  r.  Chouteau.  7 
Mo.  386,  it  is  held  to  lie  the  incon- 
trovertible rule  that  the  admissions 
of  the  plaintiff  on  the  record  are  ad- 
missible evidence,  and  that  his  ceas- 
ing to  be  a  party  to  the  record  does 
not  affect  the  question  of  the  com- 
petency of  the  evidence,  and  that  the 
fact  that  the  party  is  since  deceased 
does  not  affect  the  question.  But  the 
rule  is  in  this  case  placed  upon  the 
ground  that  the  party  being  a  party 
to  the  record,  he  could  not  be  ex- 
amined as  a  witness. 

70.  Black  V.  Lamb,  12  N.  J,  Eq. 
108 ;  Foster  !■.  Oilman,  29  Me.  136. 

71.  Carlton  v.  Patterson,  29  N.  II. 
580;  I  Greenl.  Ev.,  §180;  Bigelow 
I'.  Foss,  59  Me.  162;  Richardson  v. 
Field.  6  Green.  (Me.)  303;  Proctor 
r.  Lainison,  7  Car.  &  P.  629,  32  Eng. 
C.  L.  793 ;  Eaton  v.  Corson,  59  .\le. 
510;  Barber  7'.  Bennett,  58  Vt.  476, 
4  Atl.  231,  I  L.  R.  A.  224;  Grim- 
shaw  V.  Paul,  76  111.  164;  Pike  v. 
Wiggin,  8  X.  TI.  356. 

Vol.  I 


Must  Be  Interested  at  the  Time. 
In  Boston  v.  Scott,  3  Rand.  (Va.) 
,?99,  it  is  held  that  to  render  declar- 
ations competent  they  must  have  been 
made  while  such  interest  existed  and 
that  if  ni.-ide  before  the  party  acquired 
an   interest  they  were  inadmissible. 

72.  2  Whart.   Ev,   §  1156. 
linglaitd.  —  Woolwav    v.    Rowe,    i 

Ad.  &  E.  114.  28  Eng.'C.  L.  76-, 

Connecticut.  —  Smith  i'.  ^lartin.  17 
Conn.   399. 

Indiana.  —  McSwceney  v.  McMil- 
len,  96  Ind.  298. 

Massachusetts.  —  Plimpton  v. 
Chamberlain,  4  Gray  320. 

Minnesota.  —  Hosford  v.  Hosford. 
41    Minn.  245,  42  N.  W.   1018. 

.Missouri. — -Meier  v.  Meier.  105 
Mo.  411,  16  S.  W.  22?:  Anderson  v. 
McPike,  86  Mo.   293. 

Pennsylvania. — Morrison  f.  Funk, 
2;^  Pa.  St.  421  ;  Grant  r.  I.cvan,  4 
Barr    393. 

Te.vas.  —  Ellis  i'.  Stone,  4  Tex. 
Civ.  App.  157,  23  S.  \\'.  40^:  Hays 
r.  Hays.  66  Tex.  606.  i  S.  \V.  895. 

I'ermont.  —  Wood  z\  Willard,  36 
Vt.  82.  84  .\m.  Dec.  659. 

I'irginia.  —  Dooley  v.  Ba\nes.  86 
Va.   1144.    10   S.    !■;.   974. 

73.  Ilngland.  —  I5rown  v.  Raw- 
lins, 7  East  409;  Doe  v.  Peltett.  5 
Barn.  &  A.  223,  7  Eng.  C.  L.  129; 
Doe  V.  Coyle,  6  Car.  &  P.  359.  25 
Eng.  C.  L.  474;  Doe  v.  .Austin,  9 
Ring.   41,   23   Eng.   C.   I..   477;   Wise 


ADMISSIONS. 


511 


z:  Charlton.  4  Ail.  &  E.  786,  31  Eiig. 
C.  L.  346. 

Uiv.tcd  States.  —  Bowen  v.  Chase, 
98  U.  S.  254;  Henderson  v.  W'ana- 
niaker,   yq  Fed.   736. 

Alabama.  —  Brewer  z:  Brewer,  ig 
Ala.  481  ;  Pearce  v.  Ni.\,  34  Ala. 
183;  Alexander  i:  Caldwell,  S.t  Ala. 
517;  Bancani  v.  George,  6";  Ala.  259; 
Beasley  r.  Clarke,  102  Ala.  254,  14 
So.  744;  Wisdom  ■:■.  Reaves,  no  .\la. 
418.  18  So.  13:  Mahone  i'.  Williams, 
39  Ala:  202 ;  Goodganie  ;■.  Coles,  12 
Ala.   (N.  S.)   77- 

Arizona.  —  Rnsh  '■.  French,  i  .Ari'. 
00,  25   Pac.  816. 

Arkansas.  —  Allen  v.  AIc(^iaiigliey, 
31   Ark.  252. 

California.  —  Bollo  v.  Navarro,  i;^ 
Cal.  459;  People  v.  Blake,  60  Cal. 
497;  Lord  c'.  Thomas  (Cal.),  36  Pac. 
-■-2;  Stanley  r'.  Green,  12  Cal.  148: 
McFadden  i'.  Ellmaker,  52  Cal.  348; 
Tompkins  v.  Crane,  50  Cal.  478 ; 
Austin  V.  Andrews,  71  Cal.  98,  16 
Pac.  546;  Smith  J'.  Glenn  (Cal.), 
62  Pac.   180. 

Connecticut. — Norton  v.  Pcttihone, 
7  Conn.  319,  18  Am.  Dec.  116: 
Rogers  i'.  Moore,  10  Conn.  13;  Peck 
v.  Atwater  Mfg.  Co.,  61  Conn.  31, 
23  Atl.  699;  Potter  r.  Waite,  55  Conn. 
236,  10  Atl.  563;  SiTiith  r.  Martin. 
17  Conn.  399. 

Georgia.  —  Lamar  7'.  Pearre,  90 
Ga.  377,  17  S.  E.  92;  Yonn  t'.  Pitt- 
man,  82  Ga.  637,  9  S.  E.  667 ;  Power 
r.  Savannah  etc.  Ry.  Co..  56  Ga. 
471:  Ozment  v.  Anglin,  60  Ga.  242; 
Ogden  -'.  Dodge  Co.,  97  oa.  461,  25 
S.  E.  3^1. 

Illinois.  —  Mueller  i'.  Relihan.  94 
111.  142;  Cline  r.  Jones,  tit  ill.  563; 
Stunipf  !■.  Osterhage,  in  111.  82; 
Randegger  v.  Ehrshardt,  51  111.  loi  ; 
Gage  -'.  Eday,  179  111.  492,  33  N.  E. 
1008. 

Indiana.  —  Joyce  v.  Hamilton,  in 
Ind.  163,  12  N,  E.  294;  McSweency 
z'.   McMillen,  96  Ind.  298. 

Indian  Territory.  —  AlcCurlain  t'. 
Grady,  i  Ind.  Ter!  107,  38  S.  W.  65. 

loti'a.  —  Robinson  v.  Robinson,  22 
Iowa  427;  Wilson  t".  Patrick,  34 
Iowa  362. 

Kansas.  —  .Anderson  f.  Kent.  14 
Kan.  207. 

Maryland.  —  Dorsey  7'.  Dorsey,  3 
Har.  &  J.  410,  6  Am.  Dec.  506;  Hale 
V.  Monroe,  28  Md.  98;  Keener  f. 
KaufFman.    16   Md.   296, 


.Massachnsells  —  i'ickeriiig  v.  Rey- 
nolds, 119  Mass.  in;  Plimpton  z: 
Chamberlain,  4  Gray  320 ;  Blake  z'. 
Everett,  I  .Allen  248;  Hyde  -•.  Mid- 
dlese.x  Co..  2  tjrav  26T ;  Foster  z: 
Hall,  12  Pick.  89;  Bridge  z:  Egglcs- 
ton,  14  Mass.  244;  White  z'.  Loring, 
24  Pick.  319;  Proprietors  of  the 
Cnurch,  etc.  v.  Bullard,  2  Mete.  363; 
Davis  t'.  Spooner,  3  Pick.  283 :  Tyler 
z:  Mather,  9  Gray  177. 

Michigan.  —  Jones  z'.  PasJiby,  67 
Mich.  459.  35  N.  W.   152. 

Mississipfii.  —  Graham  v.  Biisliv,  34 
Miss.  ^72;  Whitfield  z:  Whitfield,  40 
Miss.  3S2. 

Missouri.  —  Wilson  t'.  Albert,  89 
Mo.  537,  I  S.  W.  209;  Wood  I'. 
Hicks,  .36  Mo.  326;  Dickerson  z: 
Chrisman,  28  Mo.  1.^4;  Johnson  z: 
Quarlles,  46  Mo.  423;  Meier  v. 
Meier,  10=;   Mo.  411.  16  S.  W.  223. 

Nebraska. — Cunningham  z\  Fnller, 
35  Neb.  58,  52  N.  W.  836. 

Nezv  Hampsliire.  —  Dow  z\  Jewel, 
18  N.  H.  ,uo,  45  Am.  Dec.  371  ; 
Baker  v.  Haskell,  47  N.  H.  470,  93 
Am.  Dec.  455 ;  Pike  v.  Hayes.  14  N. 
H.  19,  40  Am.  Dec.  171  ;  Hulburt  v. 
Wheller,  40  N.  H.  7?, :  Smith  v.  Pow- 
ers, 15  N.  H.  546;  State  z:  Mills,  63 
N.  H.  4;  Smith  -'.  Forrest.  49  N. 
H.  230. 

Nezi.'  Jersey.  —  Edwards  z:  Der- 
rickson,  28  N,  J.  Law  39;  \'an  Blar- 
com  V.  Kip,  26  N.  J.  Law  351  ;  Town- 
send  V.  Johnson,  3  N.  J.  Law  279; 
N.  J.  Zinc  etc.  Co.  z\  Lehigh  Zinc 
etc.  Co.,  59  N.  J.  Law  189,  35'  Atl. 
91S; 

Nezc  York.  —  Bingham  ''.  Hyland. 
3^  Hun  631,  6  N.  Y.  Supp.  7;;  Lvon 
r'  Ricker.  141  N.  Y.  225.  ^6  N."  E. 
189;  Pitts  V.  Wilder,  i  N.  Y.  5J.S : 
Jackson  z'.  Bard.  4  Johns.  2^0; 
Keator  v.  Dimmick,  46  Barb.  138; 
Spauldiiig  t'.  Hallenbeck,  35  N.  Y. 
204;  Chadwick  z:  Fonner,  69  N.  Y. 
404 ;  Jackson  z'.  McCall,  10  Johns, 
377,  6  Am.  Dec.  ,343 ;  Vroonian  v. 
king,   36   N.    Y.   477. 

North  Carolina.  —  Newlin  z'.  Os- 
borne, 4  Jones  (Law)  1-7,  67  Am. 
Dec.  2(39;  Roberts  z\  Preston,  100 
N.  C.  243,  6  S.  E.  S74 ;  McCauless 
z:  Revnolds,  67  N.  C.  268;  Gidnev 
z:  Moore.  86  N.  C.  484;  Harshaw 
T'.  i\Ioore,  12  Ired.  Law  247 ;  Hed- 
rick  V.  Gobble,  6^  N.  C.  48;  Headen 
r.  Womack,  SS  Si.  C.  468;  Magee  v. 

Vol,  I 


ADMISSIONS. 


Blankfn--hip,  g^  \.  C.  563;  Canslcr 
v.    File.    5   Jones   424. 

Pennsylvania.  —  ^^orri^on  f.  Funk. 
2},  Pa.  "St.  421;  Patton  v.  Gold.s- 
borongh.  0  Serg.  &  k.  .17 ;  Pierce  x\ 
McKeelian,  ,3  Pa.  St.  136:  Hiigus  v. 
Walker.  12  Pa.  St.  173:  Sergeant  v. 
Ingersoll,  15  Pa.  St.  343:  St.  Clair 
I'.  Sliale.  20  Pa.  St.  105 ;  Dawson  v. 
Mills,  ,!2  Pa.  St.  302 i  Grant  v.  Levan. 
4  Pa.  St.  393;  Penrose  v.  Oriffitli,  4 
Binn.  231  ;  Griibb  v.  Grtibb,  74  Pa. 
St.  25;  Alden  v.  Grove.  18  Pa.  St. 
377;  Gihblchousc  i\  Toug,  3  Rawl. 
436. 

South  Caraliiia  —  Ellen  z'.  Ellen, 
18  S.  C.  489. 

Tennessee.  —  Dunn  v.  Eaton,  92 
Tenn.  743,  23  S.  W.  163. 

Te.vas.  —  Ellis  r.  Stone,  4  Tex. 
Civ.  App.  In7.  23  S.  W.  405;  Snow 
V.  Starr  (Tex.,)  12  S.  W.  673; 
Hancock  f.  Tram  Lumber  Co..  65 
Tex.  225 ;  Hurt  v.  Evans,  49  Tex. 
311:  Wilson  7'.  Simpson  (Tex.),  16 
S.  W.  40 ;  Coughran  v.  Alderete 
(Tex.  Civ.  .\pp.),  26  S.  W.  log: 
Hays  r.  Hays,  66  Tex.  606,  I  S.  W. 
895;  Titus  V.  Jobnson,  50  Tex.  224. 

Utah.  —  McCormick  ?■.  Sadler.  14 
Utah  463,  47  Pac.  667;  Harrington 
V.  Chambers,  3  Utah  94,  i   Pac.  362. 

Vermont.  —  Wood  v.  Willard,  36 
Vt.  82.  84  Am.  Dec.  659:  Hale  v. 
Rich,  48  Vt.  217;  Oakman  v.  Walker, 
69  Vt.  344,  38  Atl.  63. 

I'irginia.  —  Dooley  z'.  Baynes,  86 
Va.  644,   10  S.  E.  974. 

Il'est  I'irginia.  —  Fry  v.  Peamster. 
36  W.  \"a.  454,  IS  S.  E.  253;  Houston 
7'.   McCluney,  8  W.  Va.  13.S. 

As  Against  Grantees The  ad- 
mission, is  confined  in  some  of  the 
cases,  in  respect  of  purchasers,  to 
grantees  not  shown  to  be  innocent 
purchasers  for  value,  and  to  admis- 
sions made  prior  to  the  purchase. 
Ellis  7'.  Stone,  4  Tex,  Civ.  App.  157, 
23  S.  W.  405 ;  Dooley  7'.  P.aynes.  86 
Va.  644,  10  S.  E.  974- 

As  to  Existence  of  Homestead. 
Where  the  existence  of  a  homestead 
is  in  question,  the  admissions  of  a 
former  claimant,  while  in  possession, 
in  disparagement  of  the  claim,  are 
competent  in  favor  of  one  claiming 
adversely.  Anderson  7'.  Kent,  14 
Kan.   207. 

Reason  of  the  Rule.  —  The 
groiuids  upon  which  such  admissions 

Vol.  I 


arc  held  to  be  competent  are  thus 
stated  in  Dooley  7-.  Rayncs,  86  Va. 
644,  10  S.  E.  974 :  ■'  The  principle 
more  fully  expressed,  upon  which 
such  declarations  are  admissible  as 
original  evidence,  is  that  the  declar- 
ant probably  knew  the  truth,  and  that 
his  own  interest,  which  would  natur- 
ally influence  him  not  to  make  un- 
true admissions  to  the  prejudice  of 
his  title,  is  a  sufficient  security  against 
falsehood ;  and  not  only  arc  such 
admissions  admissible  against  the 
declarant,  but  equally  so  against  per- 
sons subsequently  deriving  title 
through  or  from  him,  because  of  the 
privity  of  estate  or  identity  of  in- 
terest that  subsists  between  the  par- 
ties." 

See  to  the  same  effect,  Chadwick 
V.  Former.  69  N.  Y.  404. 

Of  Widow  in  Possession.  —  In  Doe 
7'.  Peltetl,  5  Barn.  &  A.  223,  7  Eng. 
C.  L.  129,  it  was  held  that  the 
declarations  of  the  widow  in  posses- 
sion of  premises,  that  she  held  them 
for  life,  and  that  after  her  death 
they  would  go  to  the  heirs  of  her 
husband,  were  admissible  in  evidence 
to  negative  the  fact  of  her  having 
had  twenty  years'  adverse  possession, 
the  court  saying:  "All  questions  of 
evidence  must  be  considered  with 
reference  to  the  particular  circum- 
stances under  which  it  is  offered. 
Here,  the  question  was,  whether  the 
widow  had  occupied  the  premises 
adversely  for  more  than  twenty 
years,  and  her  declarations  are  of- 
fered in  evidence  to  rebut  the  statute 
of  limitations;  and  for  that  purpose. 
I  think  they  were  admissible.  They 
were  not  used  to  show  the  quantum 
of  her  estate,  but  only  to  explain 
the    nature    of    her   possession." 

Who  Are  Privies  in  Estate As 

to  who  are  privies  in  estate  within 
this  rule  of  evidence,  see  Pool  v. 
Morris.  29  Ga.  374,  74  Am.  Dec.  68. 

Of  Mistake  in  Deed The  ad- 
mission of  a  grantor  of  a  mistake  in 
a  deed  is  competent  against  a  sub- 
sequent purchaser.  Allen  7'.  Mc- 
(^.aughcy,  31  Ark.  232. 

Tenant  by  Courtesy — In  Orr  7'. 
Clark,  62  Vt.  136.  19  Atl.  929,  the 
court  said :  "  The  testimony  of 
Andrews  as  to  the  admissions  of 
Whitcomb  was  properly  excluded. 
Whilcomb  occupied  the  land  after  his 


ADMISSIONS. 


51.-? 


b.  .iiid  Against  Strangers.  —  And  against  strangers.'^  The  fact 
that  the  party  making  the  declarations  is  still  alive  does  not 
affect  the  competency  of  the  evidence.'^  But  it  is  held  that  the 
admissions  of  living  former  owners  should  be  confined,  as  against 
strangers,  to  cases  where  they  are  part  of  the  res  gestae.''^'  Nor  is 
it  affected  by  the  fact  that  the  declarant  is  a  competent  witness.'' 

c.  Against  Whom  Not  Admissible. —  (1.)  Prior  Grantees. —  Such 
admissions  are  not  competent  against  a  prior  grantee.'* 


wife's  decease,  with  his  daughters' 
consent.  He  was  a  tenant  by  cour- 
tesy without  their  consent.  What 
he  supposed  aliout  the  title  while 
lie  was  thus  occupying  could  not  give 
construction  to  the  writing,  or  affect 
tlie  title  of  his  daughters  or  of  their 
legal    representative^." 

By  Expected  Heir  of  an  Estate. 
In  Morton  v.  Massie.  3  Mo.  482,  it 
was  held  that  declarations  made  by 
one  likelj'  to  become  an  heir  of  an 
estate,  in  the  lifetime  of  the  intes- 
tate, as  to  the  condition  of  his  prop- 
erty, were  not  competent  after  his 
death  as   evidence. 

By  Administrator  of  Predecessor. 
The  admissions  of  the  administrator 
of  a  predecessor  in  title  are  not  com- 
petent as  against  the  present  claim- 
ant. Lawrence  v.  Wilson,  160  Mass. 
304.   35   N.    E.   858. 

Of  Ancestor  Against  Heir It  is 

held  in  general  terms  that  whenever 
the  adinission  of  an  ancestor  would 
have  been  admissible  against  him,  if 
living,  it  is  admissible  against  an 
heir  claiming  under  him  by  descent. 
Davis  T'.  Melson,  66  Iowa  715,  24  N. 
W.  526;  McSweeney  v.  McMillen, 
96  Iowa  298;  Wallis  i'.  Luhring.  1.34 
Ind.  447,  34  N.  E.  231  ;  Hodges  i'. 
Hodges.   2    Cush.    (Mass)    455. 

For  What  Purpose  Admissible. 
In  Stanley  ?'.  Green,  12  Cal.  148  it  is 
held  that  it  matters  not  whether  the 
declarations  relate  to  the  limits  of  a 
party's  own  premises  or  the  extent 
of  his  neighbor's,  or  to  the  boundary 
line  between  them  or  to  the  nature 
of  the  title  he  asserts,  if  their  purport 
is  to  restrict  his  own  premises  or 
lessen  his  own  title,  they  are  ad- 
missible. 

Must  Be  Privity  of  Estate.  —  Such 
admissions  arc  admissible  only 
against  one  claiming  under  the  same 
title  held   by   the  pre<lccessor  at   the 

33  • 


time  the  admissions  were  made  ;uul 
cannot  affect  a  title  subsequently  ac- 
quired by  the  person  making  them. 
Xoves  7'.   Morrill.   108   Mass.  396. 

7'4.  Anderson  r.  McPike,  86  Mo. 
293:  McLcod  V.  Swain,  87  Ga.  156, 
13  S.  E.  315,  27  Am.  St.  Rep.  229; 
I.von  z'.  Ricker,  141  N.  Y.  22'^,  36 
N.   E.    189. 

By    Equitable    Owner The    rule 

extends  to  declarations  of  one  in 
possession  under  an  equitable  title; 
for  example,  where  he  holds  under  a 
bond  for  a  deed.  Niles  J'.  Patch,  13 
Gray    (Mass.)    254. 

Competent  'Whoever  May  Be  Par- 
ties  In     Payne    v.    Crawford,     102 

.\la.  .387.  14  So.  854,  it  is  held  that 
such  declarations  may  be  given  in 
evidence  in  an  issue  of  disputed  ow- 
nership, no  matter  who  may  be  the 
parties  to  the  suit. 

75.  Woolway  v.  Rowe,  i  Ad.  & 
K.   114.  28  Eng.  C.  L.  7fi. 

76.  Anderson  r.  McPike,  86  Mo. 
293. 

Recitals  in  Deeds ,\nd  see  Pen- 
rose T'.  Griffith.  4  Piinn.  (Pa.)  231,  in 
which  it  is  held  that  recitals  in  deeds 
are  not  admissible  against  strangers. 

77.  Sandifer  v.  Hoard,  59  111.  246; 
Bridge  z'.  Eggleston,  14  Mass.  244. 

Waiver  by  Calling  Declarant  As  a 
Witness.  — But  in  Merrick  ?■.  Park- 
man.  18  Me.  407,  it  is  hcUl  that  if 
the  party  entitled  to  prove  the  ad- 
missions calls  the  party  making  them 
as  his  own  witness  to  prove  the 
facts,  he  thereby  waives  the  right  to 
prove  the  admissions. 

78.  .\lcxander  z:  Caldwell.  S5 
Ala.    517 

Recitals  in  Deeds —  It  was  siid  in 
Penrose  v.  Griffith,  4  Binn.  (Pa.) 
231:  "The  rule  of  law  is.  that  a 
deed  containing  a  recital  of  another 
deed,  is  evidence  of  the  recited  deed, 
a.gainst   the   grantor  and   all   pcrsirs 

Vol.  I 


514 


ADMISSIONS. 


(2.)  Or  Subsequent  Grantee  if  Made  After  the  Grant.  —  Nor  against 
his   grantee,   or   subsequent   claimants    if   made   after   the   sjrant ;'° 


claiming  bv  title  derived  from  him 
suhsc'iiuciitly.  What  is  the  reason  of 
this  rule?  It  is  this,  the  recital 
amounts  to  a  confession  of  the  party, 
and  that  confession  is  evidence 
against  himself  and  those  who  stand 
in  his  place.  But  such  confession 
can  be  no  evidence  against  a  stranger. 
It  can  be  no  evidence  against  one 
who  claims  by  title  derived  from  the 
person  making  the  confession,  before 
the  confession  made,  because  he  docs 
not  stand  in  the  place  of  the  person 
making  the  confession  :  he  claims 
paramount  the  confession.  One  who 
has  conveyed  his  right,  can  by  no 
subsequent  confession  affect  the  right 
which  he  has  conveyed.  Nor  can  any 
confession  by  him  alter  the  general 
rule  of  evidence  with  respect  to  the 
person  to  whom  he  has  conveyed." 

While  Mortgage  Is  Subsisting 
Wliich  Is  Subsequently  Foreclosed. 
In  Hagg  ?'.  Mason,  141  Mass.  64,  6 
N.  E.  702,  the  admissions  offered 
were  made  during  the  existence  of  a 
mortgage  on  the  land  which  was 
subsequently  foreclosed  and  through 
which  foreclosure  the  demandant 
derived  title.  The  admissions  were 
held  to  be  competent. 

79.  United  States.  — Grhws  Dry 
Goods  Co.  V.  Malcolm,  58  Fed.  670 ; 
Clements   v.    Moore,    6    Wall.   299. 

Alahama.  —  .^bney  v.  Kings'and,  10 
Ala.  •?t;.s',  44  .\m.  Dec.  491  ;  dregorv 
V.  Walker,  38  Ala.  (N.  S.)  26; 
.•\nonymous,  .34  Ala.  430,  73  Am. 
Dec.   461. 

Arkansas.  —  Crow  f.  Watkins,  48 
Ark.    169,  2  S.  W.  659. 

California.  —  Spanagel  i".  Dellin- 
ger,  38  Cal.  278;  Kilburn  v.  Ritchie, 
2  Cal.  145,  56  Am.  Dec.  326;  Thomp- 
kins  V.  Crane,  50  Cal.  478 ;  Hyde  v. 
Buckner,  108  Cal.  522,  41   Pac.  416. 

Connecticut.  —  Nichols  v.  Ilotch- 
kiss,  2  Day  121. 

Georgia.  —  Bowden  v.  Achor,  95 
Ga.  243,  22  S.  E.  254;  Settle  V.  .M- 
lison,  8  Ga.  201,  52  Am.  Dec.  393. 

Illinois.  —  Hart  t'.  Randolph,  142 
111.  521,  32  N.  E.  517;  Myers  v.  Kin- 
zic,  2fi  111.  36;  Simpkins  v.  Rogers, 
'5  f'l-  397;  Dnnaway  7'.  School 
Directors,  40  111.  247;  lientley  7'. 
O'r.ry.ni,    111    111.    53;    R;indegger   7'. 

Vol.  I 


Ehrhardt,  51  III.  lOl  ;  Gridley  I'. 
Bingham,  51  III.  153;  Wheeler  v. 
McCorristcn,  24  111.  41 ;  Durand  7'. 
Weightman,  108  III.  489;  City  of 
Elgin  7'.  Beckwith,  119  111.  367,  lO  N. 
E.  558;  Shea  7:  Murphy.  164  III. 
614,  45  N.  E.   1021. 

Indiana.  —  McSweeney  7'.  McMil- 
len,  96  Ind.  298;  Burkholder  v. 
Casad,  47  Ind.  418 ;  Thompson  v. 
Thompson,  9  Ind.  323,  68  Am.  Dec. 
638;  Kennedy  7'.  Divine,  77  Ind.  490; 
Harness  v.  Harness,  49  Ind.  384; 
Robbins  v.  Spencer,  140  Ind.  48;,  38 
N.  E.  522. 

Io7i.v.  —  Cedar  Rapids  Nat.  Bank 
7'.   Lavery,   no  Iowa  575,  81   N.  W. 

Kentucky.  —  Sharp  v.  Wickliffe,  3 
Litt.  10,  14  Ain.  Dec.  37 ;  Beall  v. 
Barclay,  10  B.  Mon.  261 ;  Ring  7'. 
Gray,  6  B.  Mon.  368;  Christopher  v. 
Covington,  2  B.  Mon.  357;  Meri- 
weather  v.  Herran,  8  B.  Mon.  162. 

Maryland.  —  Hum  7'.  Saper,  6  Har. 
&  J.  276 ;  Worthington  7'.  Worthing- 
ton    (Md.),  20  Atl.  911. 

Massachusetts.  — Holbrook  7'.  Hol- 
brook,  113  Mass.  74;  Chase  v.  Hor- 
ton,  143  Mass.  118,  9  N.  E.  31;  War- 
ren 7'.  Carey,  145  Mass.  78,  12  N.  E. 
999;  Bartlett  7'.  Delprat,  4  Mass. 
702;  Stearns  7'.  Hendersass,  9  Cush. 
497;  Gates  r.  Mowry,  15  Gray  564. 

Michigan.  —  Dawson  v.  Hall,  2 
Mich.  390. 

Minnesota.— KwvV/.  v.  St.  Paul  & 
D.  R.  Co.,  61  Minn.  18,  63  N.  W. 
i;  Derby  7'.  Gallup,  5  Minn.  119; 
lUirt  V.  McKinstry,  4  Minn.  204. 

Mississil'f'i.  —  Ferriday  i'.  Selser,  4 
1  low.   506. 

.Missouri.  —  Stewart  7'.  Thomas.  35 
Mo.  202 ;  Weinrich  7'.  Porter,  47  Mo. 
293 ;  Davis  7'.  Evans,  102  Mo.  164, 
14  S.  W.  875;  Carin  v.  Smith,  24 
Mo.  221  ;  Current  River  L.  Co.  v. 
Cravens,  54  Mo.  App.  216;  Sammons 
7'.   O'Neill,  60   Mo.   App.   5TO. 

Nevada.  —  Hirschfeld  7'.  William- 
son, 18  Ncv.  66,  I  Pac.  201. 

A'c-7t'  Ilantpshirc.  —  Baker  v.  Has- 
kell, 47  N.  H.  479.  93  Ain.  Dec.  455. 

Ne7i'  Jersey.  —  Boylau  7'.  Meeker, 
28  N.  J.  Law  274. 

Ne7i'  York.  —  Vrooman  7'.  King,  36 
N.  Y.  477;  Hutchins  '■.  Ilutchins,  98 


ADMISSIONS. 


515 


altIiou!;'h  tlie  grantor  is  still  in  ixisscssioii  when  the  declaration  is 
made;*"  unless  the  admissions   fall  within  some  of  the  exceptions, 


N.  Y.  56 ;  Jones  v.  Jones,  6,3  Hnn 
630,  17  N.  Y.  Supp.  905;  Dnane  v. 
Paige,  82  Hnn  139,  31  N.  Y.  Snpp. 
310;  Williams  v.  Williams,  i-|2  N. 
Y.  156,  36  N.  E.  1053. 

North  Carolina.  —  Headen  v.  W'o- 
mack,  88  N.  C.  469;  Melvin  v.  Bul- 
lard,  82  N.  C.  33;  Gadsby  v.  Dyer, 
91  N.  C.  311. 

Pennsylvania. — Packer  7'.  Gonsalus, 
I  Serg.  &  R.  526;  Fergnson  1: 
Staver,  33  Pa.  St.  411;  Posters  v. 
Pesters.  3  Watts  &  S.  127;  McLangh- 
lin  V.  AIcLanglilin,  91  Pa.  St.  462; 
Baldwin  i'.  Slier,  191  Pa.  St.  432.  43 
Atl.  326 ;  McCullough  v.  Cnmber- 
land  Val.  R.  Co.,  186  Pa.  St.  112,  40 
Atl.  404. 

Tennessee.  —  Vance  ''.  Smith,  2 
Heisk.  343. 

Texas.  —  Thompson  t.  Herring.  27 
Tex.  282;  Hilbnrn  v.  Harrell  (Tex. 
Civ.  App.),  29  S.  W.  92--  Bevill  v. 
Jones,  74  Tex.  148,  11  S.  W.  1128; 
Smith  r.  Gillam  (Tex.),  15  S.  W. 
794;  Wilcox  V.  Simpson,  68  Tex. 
306,  4  S.  W.  829;  Carleton  i'.  Bald- 
win, 27  Tex.  572;  Hinron  !■.  Walker. 
65  Tex.  103;  Stephens  v.  Johnson 
(Tex.  Civ.  App.),  4S  S.  W.  328; 
Bland  V.  Cheslcy  (Tex.  Civ.  App.), 
3=;  S.  W.  842;  Smith  V.  James  (Tex. 
Civ.    App.).   42   S.    W.    792. 

Utah.  -^  Snow  v.  Rich,  22  Utah  123, 
61    Pac.   336. 

J'ermont.  —  Denton  t'.  Perrv,  c  Vt. 
.382;  Shepherd  v.  Hayes,  16  Vl.  486; 
Bracket!  I'.   Wait,  6  Vt.  411. 

lirgiiiia.  —  Thornton  t.  Gaar.  87 
Va.  315,  12  S.  E.  753;  Sam  r.  Brock 
(Va.),  23   S.  E.  224. 

JVcst  Virginia.  —  Houston  v.  Mc- 
Cluney,  8  W.  Va.  135';  Crothers  v. 
Crothers,  40  W.  Va.  169,  20  S.  E. 
927 :  Casto  V.  Fry,  t,:>,  W.  Va.  449, 
10  S.  E.  799. 

Wiseonsin.  —  Matteson  i\  Hart- 
maun,  01   \\'is.   485.  65   X.   W.   58. 

To  Show  Adverse  Possession A 

difFerenl  rule  may  prevail  with  re- 
spect to  declarations  in  case  of  a 
claim  of  adverse  possession.  For 
example :  in  the  case  of  Stearns  v. 
Hendersass,  9  Cush.  (NFass.)  497, 
-''  Am.  Dec.  64,  the  declarations  of  a 
grantor,  made  after  his  grant,  were 
held  to  be  competent  as  bearing  upon 


the  question  of  adverse  possession 
under  a  claim  of  right,  as  it  tended 
to  establisli  such  adverse  possession, 
with  the  knowledge  of  the  grantor, 
and  to  show  his  acquiescence  in  such 
an  adverse  claim. 

Made    at    Time    of    Execution    of 

Deed Declarations     made     at     the 

time  of  the  execution  of  a  i\i:ei.\. 
which  is  in  evidence,  are  held  to  be 
competent  as  a  part  of  the  res  g  sfae, 
and  are  therefore  admissible  not  only 
as  admissions  against  those  claiming 
under  him,  but  in  their  favor.  See 
"Declarations:"  "Res  Gestae;" 
Kenney  v.  Phillipy,  91  Ind.  511  ;  Pot- 
ter V.  McDowell,  31  Mo.  62 ;  Branch 
V.  Makeig,  9  Tex.  Civ.  App.  284,  28 
S.  W.  loso ;  State  r.  .\ndrews,  39  W. 
Va.   35.    19   S.   E.   385. 

Between  Signing  and  Delivery. 
In  Denton  t.  Perry,  5  Vt.  382,  it  was 
held  that  admissions  made  by  a 
grantor  between  the  date  of  the  deed 
and  its  acceptance  by  the  grantee 
were  competent  as  against  such 
grantee. 

By  Mortgagor  After  Execution  of 
Mortgage.  —  The  declarations  of  a 
mortgagor  after  the  execution  of  the 
mortgage  in  disparagement  of  the 
validity  of  the  instrument  are  not 
admissible  against  the  mortgagee. 
Grimes  Dry  Goods  Co.  v.  Malcolm, 
58  Fed.  670;  Duane  v.  Paige,  82 
Hun   139,  31   N.  Y.  Supp.  310. 

Deed  of  Gift The  rule  excluding 

declarations  of  the  grantor,  made 
after  the  sale  or  conveyance,  applies 
to  deeds  or  other  transfers  by  way 
of  gift.  Newman  z'.  Wilbourne,  i  S. 
C.  Eq.  10 ;  Julian  i'.  Reynolds,  8 
Ala.    (N.    S.)    680. 

But  see  Worniouth  z'.  Johnson,  58 
Cal.  621.  in  which  it  is  held  that  in 
case  of  a  deed  of  gift  the  declarations 
of  the  grantor  made  after  the  con- 
veyance were  competent  against  the 
grantee. 

To  Establish  Trust Such  dec- 
larations made  after  the  conveyance 
cannot  be  received  to  convert  an  ab- 
solute deed  into  a  trust  for  the  bene- 
fit of  a  stranger.  Crow  v.  Watkiiis, 
48  Ark.   169,  2  S.  W.  6^0. 

80.  Williams  v.  Williams,  ij2  N. 
Y.    156,    .36   N.   E.    TO53;    Cnrdini    :■. 

Vol.  1 


516 


ADMISSIONS. 


for   example,   res  };cs/at'   or   coiis])irnc\     l)el\\i.x'ii    llie   grantor   and 
grantee." 

(3.)  By  Testator  After  Execution  of  Will.  —  The  rule  exchuling 
admissions  made  after  a  party  has  parted  with  his  interest,  has  been 
applied  tn  declarations  of  a  testator  made  after  tlie  execution  of  his 
will."- 


Ritciunir,  <S7  Mo.  54;  Gales  ''.  Mowiy. 
15  Gray  (Mass.)  564;  Vronman  v. 
King,  36  N.  Y.  477:  Robinson  t. 
Pitzer,  3  W.  Va.  335 ;  Emmons  z'. 
Barton,  109  Cal.  662,  42  Pac.  303. 

Where  Grantor  Is  Still  in  Posses- 
sion.—  "  Tt  woulrl  he  strange  indeed 
if  one  could  make  declarations  in 
derogation  of  the  title  he  had  already 
conveyed  that  would  he  evidence 
against  his  grantee  and  upon  ihe 
ground  that  the  grantor  had  not  yet 
surrendered  actual  possession  of  the 
premises  to  his  grantee."  Hart  v. 
Randolph.  142  111.  521,  32  N.  E.  517. 

Bxce/'tiott.  But  see  Williamson  v. 
Williams,  11  Lea  (Tenn.)  355,  where 
it  is  held  that  the  admissions  of  the 
grantor  remaining  in  possession  are 
competent  where  the  possession  is  in- 
consistent with  the  deed. 

To  the  same  effect  is  Trotter  7', 
Watson,  6  Humph.  (Tenn.)  500,  in 
which  tile  declarations  are  held  to  be 
competent  as  part  of  the  res  grslar. 
See  also  Robbins  v.  Spencer,  140  lud 
48^.  ?8  N.  E.  52;  Jones  r'.  King,  86 
111.  225. 

Of  Grantor  Remaining  in  Posses- 
sion    Competent In    the    case    of 

Pier?.'.  Duff,  63  Pa.  St.  59,  a  different 
rule  was  declared,  it  being  held  that 
where  the  grantee  permits  the  gran- 
tor to  remain  in  actual  possession, 
the  grantor's  declarations  whilst  so 
in  possession  may  be  given  in  evi- 
dence, but  that  tlie  rule  does  not 
e.xtend  to  a  mere  constructive  posses- 
sion. 

See  to  the  same  effect  Richardson 
V.  Mouncc,  19  S.  C.  477;  Mobile  Sav. 
Bank  7:  McDonnell,  8(3  .Ma.  4,^4,  8 
So.  137. 

Where  the  Question  Is  Whether 
Grant  Was  Made  or  Not In  Rob- 
bins  I'.  S|)eneer,  140  liid.  483,  38  N. 
E.  522,  the  issue  was  as  to  whether 
the  deceased  had  executed  a  deed  to 
certain  property,  reserving  therein  a 
life  estate  to  herself.  It  was  claimed 
in     that     east-    !'  at     as    the    question 

Vol.  I 


whether  a  deed  was  made  or  not  was 
the  very  question  involved,  the 
declarations  of  the  alleged  grantor 
were  competent  to  show  as  against 
the  alleged  grantee  that  no  such  deed 
was,  in  fact,  made,  but  the  court  held 
to  the  contrary. 

But  sec  to  the  contrary.  Know  v. 
Raymond,  ys  Ga.  749 ;  Magee  v. 
Blankenship,  95  N.  C.  563 :  Hilliard 
V.  Phillips,  81  N.  C.  99;  Woodley  v. 
Hassell,  94  N.  C.   157. 

81.  Noyes  z'.  Morris,  56  Hun  501, 
TO  N.  Y.  Supp.  561  ;  Adams  7'.  David- 
son, 10  N.  Y.  309;  Newlin  ?'.  Lynn.  49 
N.  Y.  661  ;  Williams  z'.  Williams,  142 
N.  Y.  156,  36  N.  E.  1053;  Potter  v. 
McDowell,  31  Mo.  62;  Weinrich  v. 
Porter,  47   Mo.  293. 

Where  There  Is  a  Conspiracy  Be- 
tween   Grantor     and     Grantee In 

Daniels  z'.  McGinnis,  97  Ind.  549,  it 
is  said:  "As  a  general  rule  the 
declarations  of  the  grantor  made 
after  he  has  parted  with  his  title 
are  not  admissible  in  evidence  to 
impeach  the  title  of  anyone  claiming 
under  him.  There  arc  exceptions  to 
this  rule.  One  of  the  exceptions 
is  where  the  grantor  and  grantee  con- 
spire together  to  defraud  third  per- 
sons. In  such  case,  the  statemer.t  of 
either  is  admissible  against  the 
other." 

See  also  to  the  same  effect, 
Tedrome   Z'.    Esher,   56   Ind.   443. 

To  Show  Deed  a  Mortgage —  But 
see  Webb  v.  Rice,  I  Hill  (N.  Y.) 
(')06,  where  it  was  held  that  the 
declarations  of  a  grantor  made  sub- 
sequent to  the  conveyance  were  com- 
petent against  the  grantee  to  show 
that  the  deed  was  in  fact  a  mortgage. 

82.  To  Prove  Advancements. 
The  declarations  of  the  testator  are 
admissible  to  show  that  money  re- 
ceived from  him  by  his  children 
were  received  as  advancements  but 
not  to  prove  the  fact  that  they  did 
receive  the  money.  Dilley  z:  Love, 
61     Md.    603;    Cadnms    7'.    Vreeland, 


.IPMrSSlONS. 


517 


(4.)  Of  Ancestor  As  Between  Kis  Iloirs.  —  1  he  tleclarations  ul  an 
ancestor,  affecting;'  tlic  title,  nnist  be  against  his  interest,  and  must, 
where  a  transaction  on  his  part  affecting'  the  title  as  between  his 
heirs  is  involved,  be  made  before  the  transaction,"^  or  if  afterwards 
so  near  the  time  as  to  be  a  part  of  the  res  gestae.^* 

(5.)  By  Tenant  in  Possession.  —  The  rule  making  such  declarations 
competent  is  not  confined  to  owners  of  the  fee,  but  extends  to  a 
tenant  in  possession,  as  well  as  the  owner.*"' 

Writings  Within  the  Rule.  —  The  rule  making  such  admissions 
competent  is  not  ccmfincd  to  oral  admissions,  but  extends  to  maps, 
recitals  in  deeds,  monuments  and  boundaries  of  which  an  owner 
during  his  ownership   was   author  ;**''   including  recitals  in  deeds."' 

d.  To  S/iozv  Character  of  Possession.  —  Such  declarations  are 
competent  as  against  the  party  in  possession  and  those  claiming 
under  him,  to  show  the  character  of  his  possession,  and  by  what 
title  he  claims.'* 


28  N.  J.  Eq.  356;  Boylan  v.  Meeker, 
28  N.  J.  Law  274;  Scliier1)aiim  z: 
Scliemme,   157  Mo.   I,  57  S.  W.  526. 

83.  Harness   f.    Harness.   40    Ind. 

384. 

Where  Question  Is  One  of  Gift  or 
Advancement.  —  In  Thistlewaite  r. 
Thistlcwaitc.  132  Ind.  355.  31  N.  E. 
946,  the  qnestionwas  l)etween  heirs 
in  a  partition  of  real  estate,  as  to 
whether  certain  property  received 
from  the  ancestor  was  liy  way  of 
gift  or  advancement,  and  it  was  held 
that  declarations  of  the  ancestor  that 
the  property  was  made  over  to  the 
respective  respondents  as  an  ahsolute 
gift,  and  not  as  an  advancement, 
made  after  the  transaction,  were  in- 
competent. 

84.  Harness  z:  Harness,  49  Ind. 
384. 

But  see  to  the  contrary,  Woolery 
V.  Woolery,  29  Ind.  249,  95  Am.  Dec. 
630,  in  which  it  was  held  tliat  the 
declarations  of  the  ancestor  made 
after  the  transaction  were  competent. 
Adhered  to  in  Hanilvn  v.  Ncsbit,  37 
Ind.  284. 

85.  Beccher  i'.  Parmelc,  9  Vt.  352. 
By  Tenant   for   Life In   Roe   v. 

Rollings,  7  East  279,  tlie  admission 
sought  to  be  proved  was  contained 
in  a  letter  from  a  confidential  agent 
to  a  tenant  for  life,  indorsed  by  the 
latter  "A  particular  of  my  estate" 
etc.,  and  handed  down  to  the  suc- 
ceeding tenant  for  life,  by  which  it 
was  handed  down  amongst  tlie  muni- 
ments of  the  estate  to  the  first  tenant 


in  tail,  the  said  tenant  for  life  having 
a  limited  power  for  leasing.  It  was 
held  that  tlie  paper  was  evidence  for 
the  tenant  in  tail  against  a  lessee  of 
one  of  the  tenants  for  life,  to  show 
that  the  rent  reserved  was  less  than 
the  ancient  rent  which  was  reserved 
at  the  time  to  which  such  paper  re- 
ferred. 

Not  Against  Claimant  Under  Para- 
mount Title —  But  such  admissions 
are  competent  only  against  the  tenant 
or  one  claiming  under  him  and  not 
against  one  claiming  under  a  para- 
mount title.  Hill  V.  Roderick,  4 
Watts  &  S.  (Pa.)  221;  Grant  v. 
Lcvan,  4  Barr   (Pa.)   393. 

By    Tenant    From    Year    to    Year 

Against  Reversioner Nor  are  the 

adiuissions  of  a  tenant  from  year  to 
year  competent  as  against  the  rever- 
sioner. Papendick  v.  Bridgewater,  5 
E.  &  B.   166,  85  Eng.  C.  L.   166. 

86.  Dunn  v.  Eaton,  92  Tenn.  743, 
2?    S.   W.    163. 

87.  Grulib  z:  Grubb,  74  Pa.  St 
25;  Penrose  f.  Griffith,  4  Biiui.  (Pa.) 
2^1  ;  Noble  v.  Worthy,  i  Ind.  Ter. 
458.  45   S.   W.   137. 

88.  nng!aiid.  —  T)oe  v.  Pettett,  5 
Barn.  &  A.  223,  7  Eng.  C.  L.  129. 

United  States.  —  Dodge  v.  Freed- 
mans  S.  &  T.  Co.,  93  U.  S.  379. 

.-i!/a6nmo.  —  Kirkland  v.  Trott,  66 
.Ma.  417. 

Calif  ornui.  —  Phelps  v.  McGloan, 
42  Cal.  298;  Hayne  v.  Hermann,  97 
Cal.  259,  32  Pac.  171. 

Georgia.  —  White  v.   Moss,  92  Ga. 

Vol.  1 


518 


ADMISSIONS. 


e.  A'ot  Competent  to  Ihspioic  Record  Title.  —  IJut  pari)l  admis- 
sions are  inadmissible  to  prove  or  disprove  a  written  record  title  to 
real  estate;'*"  or  to  vary  or  prove  the  purpose  and  object  of  a  deed 


244,  18  S.  E.  13;  O'Alore  V.  Wood, 
53   Ga.   114. 

Illinois.  —  Hart  v.  Randolpli,  142 
111.  521,  32  N.  E.  517- 

Indiana.  —  Creightoii  v.  Hoppis,  gg 
Ind.  369. 

lo'd'a.  —  Taylor  v.  Lii-.k,  9  Iowa 
444- 

Maine.  —  Peabody  v.  Ilcwelt,  52 
Me.  33,  83  Am.  Dec.  486. 

Michigan.  —  Bower  v.  Earl,  18 
Mich.  367. 

Missouri.  —  Mississippi  Co.  "'. 
Vowles,  loi  Mo.  225,  14  S.  W.  282; 
Martin  v.  Bonsack,  61  Mo.  556;  Har- 
per V.  Morse,  114  Mo.  317,  21  S.  W. 
517;  Gordon  z'.  Ritenour,  87  Mo.  54; 
Sutton  1'.  Casselleggi,  5'  Mo.  App. 
III. 

New  Hampshire.  —  Hunt  v.  Ha- 
vens, s6  N.  H.  87. 

New  Jersey.  —  Outcalt  ;■.  Ludlow, 
32   N.  J.   Law  239. 

New  York.  —  Pitts  x:  Wilder,  i  N. 
Y.  525. 

North  Carolina.  —  Roberts  t.  Rob- 
erts, 82  N.  C.  29;  Melvin  v.  Bullard, 
82  N.  C.  ^3- 

Pennsylvania.  —  Feig  r.  Meyers. 
102  Pa.  St.  10;  Bennett  '•.  Biddle,  150 
Pa.  St.  420,  24  Atl.  738. 

South  Carolina.  —  Turpin  t.  Bran- 
non,  3  McCord  160. 

Te.ras.  —  Mooring  v.  McBride,  62 
Tex.  309;  Hays  i'.  Hays,  66  Tex. 
606,  I   S.  W.  89s. 

Kiv-mon*.  —  Hale  r.  Ricb.  48  Vt. 
217;    Carpenter   v.    Holbstcr,    13    Vt. 

552. 
Tenants  in  Possession mis  rule 

tbat  declarations  cxplainine:  tlic  char- 
acter of  possession  are  admissible  is 
particularly  applicable  to  one  holding 
as  a  tenant.  Peabody  i'.  Hewett,  52 
Me.  33. 

Affecting  Claim  of  Adverse  Pos- 
session  So   where   the   queslinn   is, 

whether  a  holding  is  adverse  or  not, 
declarations  of  the  party  in  posses- 
sion tending  to  show  the  nature  of 
the  possession  and  claiin  are  admis- 
sible. Doe  V.  Pettett,  5  Barn.  &  A. 
223,  7  Eng.  C.  L.  129;  Ontcalt  -e. 
Ludlow.  32  N.  J.  Law  239. 

To  Explain  Nature  01  Possession. 
Speaking     of     the     admissibility     of 

Vol.  I 


declarations  for  this  purpose,  it  was 
said  by  the  supreme  court  of  Mich- 
igan, in  Bower  z'.  Earl,  18  Mich.  367 : 
"  They,  certainly,  could  not  be  any 
proof  of  title.  But  they  were  intro- 
duced for  no  such  purpose.  They 
were  properly  received  to  explain  the 
nature  of  Alundy's  possession,  and 
were  receivable  on  the  same  prmciplc 
which  allows  statements  as  part  of 
res  gestae.  They  create  no  right, 
but  simply  explain  a  fact,  which  is 
not  in  itself  conclusive  of  anything, 
and  which  derives  its  legal  character 
from  its  intent  and  circumstances. 
Voorhees'  claim  while  in  possession 
was  in  disparagement  of  his  own 
title  to  the  strip  in  suit;  but  we 
agree  with  Mr.  Greenleaf.  that  such 
statements  and  claims  to  explain  pos- 
session are  admissible  for  what  they 
are  worth,  whether  in  disparagement 
of  title  or  not." 

See  also,  Martin  v.  Bonsack,  61 
Mo.  556;  Mississippi  Co.  ?■.  Vowles, 
loi   Mo.  225.   14   S:   W.  282, 

Reason  for  Excluding  Such  Decla- 
rations. —  '•  The  fallacy  of  the  idea 
allowing  the  testimony  to  be  received, 
consists  in  looking  upon  the  former 
owner  as  a  witness  in  the  cause.  The 
first  declarations  were  made"  by  him 
while  standing  in  a  condition  the 
same  as  if  a  party  to  the  present 
suit.  His  admissions  against  his  own 
title  were  of  the  same  quality  of  evi- 
dence as  if  spoken  by  the  plaintiff 
himself.  If  a  man's  conversation  in 
his  favor  be  admitted  against  what 
he  has  said  against  his  interest,  then 
he  would  certainly  be  allowed  to 
corroborate  one  statement  by  con- 
sistent statements  made  at  other 
times,  and  no  limit  coidd  be  fixed  in 
respect  to  such  evidence.  .  Opening 
the  door  so  widely  would  lead  to 
mischievous  results."  Royal  v. 
Chandler.  79  Me.  265,  9  .^tl.  615. 

89.  United  States.  —  Boweu  v. 
Chase,  98  U.  S.  254;  Dodge  v. 
Freedmans  S.  &  T.  Co.,  93  U.  S.  379- 

Alabama. — Walker  ?'.  Rlassingame, 
17  Ala.   (N.   S.")   810. 

California.  —  Ord  r.  Ord.  99  Cal. 
523,  34  Pac.  83 ;  Spanagel  7'.  Dellin- 
ger,  '38    Cal.    278;    Bury    r.    Young, 


.IDMISSfONS. 


51'J 


98  Cal.  446,  33  Pac.  338,  35  Am.  Si. 
Rep.   186. 

Georgia.  —  White  -'.  Moss,  92  Ga. 
244,  18  S.  E.  13. 

Illinois.  —  Beiitley  v.  O'Biyaii.  in 
III.  53;  Francis  ?•.  Wilkinsnn,  147 
I"-  370,  35  N.  E.  150;  Hart  v.  Ran- 
dolph. 142  111.  521,  32  N.  E.  517. 

Maine.  —  Richardson  v.  Field.  6 
Green.  303. 

Maryland.  —  Dorsey  z\  Dorsey,  3 
Har.  &  J.  410,  6  Am.  Dec.  506. 

MassacliHsetts.  —  Clark    z:    Waite. 

12  Mass.  438;  Hodges  v.  Hodges,  2 
Gush.  455 ;  Paine  v.  Mclntier,  I 
Mass.  69. 

Missouri.  —  Johnson  z:  Quarlles,  46 
Mo.  423 ;  Sutton  z:  Casselleggi,  5 
Mo.  App.   III. 

Nezu  Haml^shire.  —  Perkins  v. 
Fowle,  59  N.  H.  583. 

Nczv  York. — Jackson  v.  Shearman. 
6  Johns.  19;  Jackson  v.  Vosburgh,  7 
Johns.  186;  Jackson  z'.  ^lillcr,  6  Cow. 
751  ;  Gibney  v.  ^larchay,  .S4  N.  Y. 
301  ;  Jackson  ?•.  McVey,  15  Johns. 
234 ;  Keator  v.  Dimmick,  46  Barb. 
158;  Sanford  v.  Sanford,  61  Barb. 
293;  Tabor  '•.  Van  Tassel,  86  N.  Y. 
642. 

Pennsvlz'ania.  —  Payne  z:  Craft.  7 
Watts  &  S.  458. 

Texas.  —  Mooring  v.  McBride.  62 
Tex.   309. 

I'erniont.  —  Carpenter  z'.  Hollister, 

13  Vt.   552. 

Not  Competent  to  Destroy  Title. 
''The  declarations  of  a  party  in  pos- 
session are  admissible  in  evidence 
against  the  party  making  them,  or 
his  privies  in  blood  or  estate,  not  to 
attack  or  destroy  the  title,  for  that 
is  of  record  and  of  a  higher  and 
stronger  natvire  than  to  be  attacked 
by  parol  evidence.  They  are  com- 
petent simply  to  explain  the  char- 
acter of  the  possession  in  a  given 
case."  Gibney  ;■.  Marchay,  34  N. 
\.    .^01. 

Competent  Only  When  Parol  Evi- 
dence   Would   Be    Competent The 

true  test  is  that  an  admission  of  a 
fact  is  competent  only  when  parol 
evidence  would  be  competent  to 
prove  the  same  fact.  Keator  z:  Dim- 
mick, 46  Barb.    (N.   Y.)    158. 

For  What  Purpose  competent. 
In  Dodge  z'.  Freedman's  S.  &  T.  Co.. 
93  U.  S.  379,  the  court  said ;  "  The 
declarations  of  a  party  in  possession 
of  land  are  competent  evidence:     ist. 


.\s  against  those  claiming  the  land 
under  him.  Warring  v.  Warren,  I 
Jnhns.  340;  Jackson  z:  Cale,  10  Id. 
377.  The  Freedman's  Bank  claim 
nothing  under  Huntington.  They  in- 
sist that  they  arc  the  legal  holders 
of  the  notes,  and  as  such  are 
entitled  to  avail  themselves  of  the 
security  given  for  their  payment. 
2d.  Such  declarations  are  competent 
only  to  show  the  character  of  the 
possession  of  the  person  making 
them,  and  by  wdiat  title  he  holds, 
but  not  to  sustain  or  to  destroy  the 
record  title.  Pitts  ?■.  Wilder,  i  N. 
V.  525 ;  Gibney  Z'.  Marchay,  34  Id. 
301  ;  Jackson  v.  Miller.  6  Covven  751 ; 
Jackson  v.  McVey,  15  J.  R.  234.  To 
show  that  the  party  went  into  posses- 
sion under  the  lessors  is  a  common 
instance  of  the  admissibility  of  such 
declarations.  Jackson  z'.  Dobbin.  3 
Johns.  223." 

Not  to  Disparage  His  Own  Deed. 
The  declarations  nf  a  grantor  made 
subsequently  will  not  be  heard  to 
disparage  or  defeat  his  own  deed. 
Burv  I'.  Young.,  98  Cal.  446,  33  Pac. 
338,"  3J  Am.  St.  Rep.  186 ;  Ord  v. 
Ord,  99  Cal.  523,  34  Pac.  83 ;  Clark  v. 
Waite,  12  Mass.  438;  Guild  v.  Hull, 
127   111.   523,   20   N.   E.   665. 

To  Show  Title  Never  Vested. 
While  the  declarations  and  admis- 
sions of  a  party  are  not  com- 
petent to  divest  a  legal  title  to 
real  estate,  they  may  be  competent 
to  show  that  the  title  never  vested 
for  the  reason  that  the  instrument 
relied  upon  was  void  or  was  never 
delivered,  or  was  delivered  merely  as 
an  escrow,  or  was  obtained  by  fraud 
or  duress  or  the  like.  Jackson  z: 
Titus,    II   Wen.    (N.   Y.)    533. 

.     Not  to  Prove  Title In   Mooring 

z'.  McBride,  62  Te.x.  309,  the  court 
says :  "  We  know  of  no  case  in 
which  such  declarations  were  ad- 
mitted for  the  purpose  of  showing 
title  in  the  declarant." 

By  Tenant  Cannot  Affect  Title  of 
Landlord So  it  is  held  that  dec- 
larations of  a  tenant  in  possession 
caimot  be  heard  to  affect  his  land- 
lord's title.  Mooring  z'.  McBride,  62 
Tex.  309. 

But  Will  Be  Received  to  Sustain 
It.  — Ord  z:  Ord,  99  Cal.  523.  34 
Pac.  83:  Dean  v.  Parker,  88  Cal. 
283.  26  Pac.  91. 

Vol.  I 


520 


.inMISS/ONS. 


I  if  conveyance.'"'     Ihe  lad  that  tl.e  ,i;rantor  is  dead,  at  the  lime  of 
the  trial,  does  not  alter  the  case."' 

f.  To  Hstciblisli  I'raiid  in  Co/ic'cyaiicc.  —  There  are  cases  holding 
that  the  declarations  of  the  grantor  are  inadmissible  to  show,  as 
against'  the  grantee,  that  the  transfer  was  fraudulent."- 


To   Defeat   Title   by    Prescription. 

In  Wliito  -'.  Moss,  92  Ga.  244.  18  S. 
E.  13,  it  was  held  that  admissions 
made  by  a  person  while  owner  of 
five-si.xths  of  a  tract  of  land,  that  the 
remaining  one-sixth  belonged  to 
another,  are  not  binding  npon  bona 
Adc  pnrchasers  for  value  to  whom 
he  subsequently  sold  and  conveyed 
the  entire  tract,  and  wlio  had  no 
knowledge  or  notice  of  the  fact  that 
such  admissions  had  been  made  hy 
their  grantor,  they  standing  now 
upon  his  conveyance  as  color  of  title, 
supported  by  their  own  personal 
possession  for  more  than  seven 
years,  but  it  was  further  held  that 
had  the  defendants  relied  either 
wholly  or  partially  upon  the  posses- 
sion of  such  grantor,  and  not  ex- 
clusively upon  their  own  possession 
to  raise  a  prescriptive  title,  his  ad- 
missions, made  pending  his  posses- 
sion, would  be  evidence  against  them, 
whether  they  liad  notice  of  the  saiuc 
or   not. 

90.  Roberts  r.  Roberts,  82  N.  C. 
29 ;  Claremont  v.  Carlton,  2  N.  H. 
369,  9  Am.  Dec.  88;  Hodge  z:  Thomp- 
son, 9  Ala.  (N.  S.)  131;  Sanford  v. 
Sanford.  61   Barb.  293. 

To  Prove  Purpose  and  Considera- 
tion  But  in   Parkhunt  v.  Higgins, 

38  Hun  113.  it  is  held  that  the  actual 
purpose  and  consideration  of  a  mort- 
gage may  be  proved  by  the  admis- 
sions of  the  mortgagee. 

91.  Clark  v.  Waite,  12  Mass.  438. 

92.  Alabama.  —  Murphy  7'.  But- 
ler, 75   Ala.   381. 

California.  —  Spanagel  v.  Dellin- 
ger,  38  Cal.  278. 

Connecticut. — ^  Pettibonc  v.  Phelps. 
13  Conn.  445,  35  Am.  Dec.  88.  92 
note ;  Partelo  v.  Harris,  26  Conn. 
480;  Beach  v.  Colbin,  4  Day  284,  4 
Am.  Dec.  221 ;  Tibballs  v.  Jacobs. 
31   Conn.  428. 

Georgia.  —  Bush  v.  Rogan,  65  Ga. 
320. 

Indiana.  —  Thompson  v.  Tliomp- 
son,  9  Ind.  323,  68  Am.  Dec.  638. 

Vol.  I 


Kcnl}icky.  —  Boli  i'.  Irwin,  21  Ky. 
Law  366,  51  S.  W.  444. 

Louisiana.  —  Guidry  v.  Grivot,  2 
Mart.  (N.  S.)  13,  14  Am.  Dec.  193. 

Massacliusetts.  —  Stockwell  v. 
Blarney,    129   Mass.    312. 

Xcraila. — Hirschfeld  v.  William- 
son, 18  Nev.  66,  I   Pac.  201. 

Nczii  York. — Williams  v.  Williams, 
142  N.  Y.  156,  36  N.  E..  I0S3;  Bush 
r.  Roberts,  in  N.  Y.  278,  18  N.  E. 
732. 

Pennsylvania.  —  Reichert  7'.  Casta- 
lor.  5  r.inn.   109.  6  .\m.  Dec.  402. 

Declarations  of  Grantor  Inadmis- 
sible  In    Beach   v.    Colbin,  4   Day 

(Conn.)  284,  4  Am.  Dec.  221,  the 
doctrine  against  the  admissibility  of 
such  admissions  is  thus  strongly 
stated ; 

"  It  was  formerly  the  practice  to 
admit  what  was  said  by  a  fraudulent 
grantor  respecting  his  intent  to 
(lefraud  liis  creditors  prior  to  the 
conveyance,  as  evidence  in  an  action 
against  the  supposed  fraudulent 
grantee,  though  he  had  no  knowledge 
of  it,  but  this  practice  can  not  be 
warranted  on  principle,  for  the 
grantee  ought  not  to  be  affected  by 
the  declarations  of  a  grantor  unless 
they  come  to  his  knowledge,  and 
(hough  a  grantor  may  have  a  fraudu- 
lent intent,  this  may  be  wliolly  un- 
known to  the  grantee,  and  the  tran- 
■  sactioti  may  be  bona  fide  on  his 
part." 

.^nd  tliis  statement  of  the  rule  was 
quoted  with  approval  in  the  later 
case  of  Partelo  i'.  Harris,  26  Conn. 
480. 

By  One  Acting  As  a  Medium  of 
Transfer  Only.  —  Tlie  case  of  Stock- 
well  I',  lilamcy,  T29  Mass.  312,  is 
peculiar.  There  the  conveyance  was 
made  by  a  party  to  whom  a  con- 
veyance was  made  by  a  husband  and 
wife,  to  be  by  him  immediately  con- 
veyed to  the  wife,  which  was  done. 
His  declarations  were  offered  to  show 
a  fraudulent  intent  on  the  part  of 
Blamey  and  his  wife,  and  they  were 


.ln^flssroNS. 


wi 


But  others  hold  that  such  aumissions  are  competent  to  prove  the 
one  necessary  fact  of  fraudulent  intent  on  the  part  of  the  grantor, 
but  not  to  show  fraud  or  knowledge  of  the  fraud  on  the  part  of  the 
grantee."'  In  most  of  the  cases,  however,  the  admission  of  such 
evidence  is  limited  to  declarations  made  before  the  transfer  and 
while  the  grantor  was  in  possession  of  the  property."''     But  this  has 


held  to  be  incompetent  for  that  pur- 
pose. 

93.  California.  —  Ross  v.  Well- 
man,    102   Cal.    I,   36   Pac.   402. 

Connectictit.  —  Sisson  v.  Roath,  30 
Conn.  15;  Tibbals  v.  Jacobs,  31  Conn. 
428. 

Indiana.  —  Hall  v.  Bishop,  78  Ind. 
370- 

Iowa.  —  Thomas  v.  McDonald,  102 
Iowa'  564,  71  N.  W.  572. 

Kansas.  —  Sherman  Co.  Bank  v. 
McDonald,  57  Kan.  358,  46  Pac.  703. 

Maine.  —  Fisher  ?•.  Trne,  38  Me. 
535;  Howe  ?'.  Reed,  12  Me.  515; 
White  V.  Chadbourne,  41   Me.   149. 

Massachusetts.  —  Foster  v.  Hall,  12 
Pick.  89;  Bridge  v.  Eggleston,  14 
Mass.  244. 

Missouri.  —  Sammons  7'.  O'Neill, 
60  Mo.  App.  530. 

Nebraska.  —  Armagost  z'.  Rising, 
54  Neb.   763,  75   N.  W.  534. 

Nevada.  —  Gregory  v.  Frothing- 
ham,   I   Nev.  253. 

Neri'  York.  —  Crary  v.  Sprague,  12 
Wend.  41.  ^ 

North  Carolina.  —  Harshaw  z'. 
Moore,  12  Ired.  247;  Burbank  v. 
Wiley,  79  N.  C.  501. 

Pennsylvania.  —  McElfatrick  z<. 
Hicks,  21   Pa.   St.  402. 

Louisiana.  —  Martin  v.  Reeves,  3 
Mart.  (N.  S.)  22,  15  Am.  Dec.  154. 

To    Show    Fraudulent    Intent    of 

Grantor  or  Vendor It  will  be  seen 

that  the  cases  cited  holding  the 
declarations  of  the  grantor  to  be 
competent  are  to  the  effect  that  they 
are  competent  to  prove  his  fraudu- 
lent intent  but  not  to  establish  fraud 
or  knowledge  on  the  part  of  the 
grantee. 

See  "  InTf.nT."  Foster  v.  Hall,  12 
Pick,  89. 

This  is  equivalent  to  holding  that 
the  declarations  of  the  grantor  are 
admissible  against  him,  but  .  not 
against  his  grantee.  Tibbals  v. 
Jacobs,  31  Conn.  428. 

Must  Be  Confined  to  Fraud  of 
Vendor —  In    Sammons    v.    O'Neill, 


60  Mo.  App.  530,  it  is  held  that  the 
admissions  of  the  vendor  made  after 
the  transfer  must  be  confined  strictly 
to  proof  of  the  fraud  of  the  vendor. 

In  Wooley  v.  Honell,  94  N.  C.  157, 
the  admissions  of  the  grantor  are 
held  to  be  admissible  where  the 
grantor  remains  in  possession. 

94.  United  States.  —  Winchester 
&  C.  Alfg.  Co.  V.  Cleary.  116  U.  S. 
161. 

California.  —  Ross  v.  Wellman,  102 
Cal.  I,  36  Pac.  402;  Briswaller  v. 
Palomares,  66  Cal.  259,  5  Pac.  226; 
Spanagel  z'.  Dellinger,  38  Cal.  278. 

Indiana.  —  Kennedy  z:  Divine,  77 
Ind.  490;  Tedrome  v.  Esher,  56  Ind. 
443 ;    Daniels   v.    AIcGinnis,   97    Ind. 

549- 

lozva.  —  Thomas  v.  McDonald,  102 
Iowa  564,  71  N.  W.  572;  Cedar 
Rapids  Nat.  Bank  v.  Lavery.  no 
Iowa  757,  81   N.  W.  775. 

Kansas.  —  Crust  v.  Evans.  37  Kan. 
263,  15  Pac.  214;  Sherman  Co.  Bank 
V.    McDonald,   57   Kan.   358,  46   Pac. 

"0-5- 

Kentucky. — Christopher  v.  Coving- 
ton, 2  B.  Mon.  357. 

Maryland.  —  Glenn  v.  Glover,  3 
Md.   212. 

Alassacltusetts.  —  Taylor  v.  Robin- 
son, 2  Allen  562 ;  Holbrook  v.  Hol- 
brook,  113  Mass.  74;  Aldrich  v. 
Earle,  13  Gray  578;  Bridge  v.  Eg- 
gleston, 14,  Mass.  245 ;  Foster  v. 
Hall,  12  Pick.  89;  Winchester  v. 
Charter,  97   Mass.    140. 

Michigan.  —  Dawson  v.  Hall,  2 
Mich.    390. 

Minnesota.  —  Burt  v.  McKinstry,  4 
Minn.  146. 

Missouri.  —  Sutter  v.  Lackman,  39 
Mo.   91. 

Nezv  Jersey.  —  Boylan  v.  Meeker, 
28  N.  J.  Law  274. 

Nezv  York.  —  Strauss  v.  Murray, 
31  Misc.  69,  63  N.  Y.  SupD.  201. 

North  Carolina.  —  Harshaw  v. 
Moore,  12  Ired.  247;  Ward  v. 
Saunders,   6    Ired.    382 ;    Burbank   v. 

Vol.  I 


522 


.IDMISS/ONS. 


been  limited  to  declarations  conslituiing  a  part  of  the  res  gestae,  and 
not  subsequent  statements  of  the  nature  of  the  transaction.'* 

Where  Grantor  Is  a  Party.  —  If  the  grantor  is  himself  a  party  to 
the  suit,  there  is  no  reason  why  his  admissions  are  not  competent  as 
against  him."" 

g.  Must  Be  lihnte  ll'licn  in  Possession.  —  The  declarations  are 
not  admissible  against  others,  although  the  party  was  a  former 
owner,  unless  made  at  the  time  he  held  possession  and  affecting  his 
then  present  interest.  If  made  either  before  or  after  they  are  incom- 
petent as  against  others."' 


Wiley,  79  N.  C.  501  ;  Williams  v. 
Clayton,   7   Ired.  442. 

Pennsylvania.  —  Souder  v.  Siihech- 
terly,  91  Pa.  St.  83. 

IVest  Virginia.  —  Casto  i'.  Fry,  33 
W.  Va.  449,   10  S.  E.  799. 

Subsequent  Statement  of  a  Party's 
Motives. —  Ill  Dawson  z:  Hall,  2 
Mich.  390,  the  ggneral  rule  is  thus 
stated :  "  Subsequent  statements  of 
party's  motives  or  intentions  will  not 
be  received  to  affect  the  rights  of 
others,  or  to  explain  a  transaction. 
It  is  only  the  intention  declared  at 
the  time  of  such  transaction,  which  is 
a  part  of  the  res  gestae,  and  can  bind 
the  defendants.  An  exception  to  this 
rule  exists  only  when  the  statements 
are  made  to  a  party  to  be  affected  by 
them  under  circumstances  from 
which  his  acquiescence  in  their  truth 
can  be  fairly  inferred,  if  not  ex- 
pressed." 

And  in  some  cases  declarations 
made  after  the  conveyance  are  held 
admissible  where  the  grantor  remains 
in  possession.  Richardson  v.  Mounce, 
19  S.  C.  477;  Pier  V.  Duff,  63  Pa. 
St.  59. 

Distinction  As  to  Effect  of  Admis- 
sions Made  by  a  Grantor  of  Real 
Estate  and  of  a  Vendor  of  Personal 
property But  a  distinction  be- 
tween the  admissions  of  a  grantor  of 
real  estate  and  a  vendor  of  personal 
property  is  made  in  the  case  of 
Kuberls  v.  Medbery,  132  Mass.  lOO, 
111  which  the  court  says:  "How  far 
the  declarations  of  a  former  owner 
and  seller  of  a  chattel  are  in  this 
commonwealth  competent  to  impeach 
liis  sale  to  the  purchaser  as  fraudu- 
lent, is  a  question  which  is  subject 
to  more  apparent  than  real  difficulty. 
His  declarations  in  disparagement  of 
his  grant  of  real  estate  are  never  ad- 
missible. 


"  Where,  however,  a  party  has 
made  conveyance  of  a  nersonal  chat- 
tel, his  relation  to  the  subject  is  dif- 
ferent. The  title  to  a  chattel  may 
pass  without  any  written  grant. 
Mere  delivery,  for  that  purpose, 
passes  the  title,  and  the  possession  of 
the  chattel  is  in  itself,  if  uncon- 
trolled and  unqualified  by  any  evi- 
dence, sufficient  to  prove  title  in  him 
who  has  the  possession.  If  the  seller 
retains  possession,  his  acts  and 
declarations  accompanying  that  pos- 
session and  giving  character  to  it, 
are  often  competent.' 

In  Case  of  Conspiracy  to  Defraud. 
It  is  lield  that  in  case  of  conspiracy 
on  the  part  of  grantor  and  grantee  to 
defraud  creditors,  the  admissions  of 
either  are  admissible  against  the 
other  and  that  admissions  tnade  by 
the  grantor  before  the  parties  became 
actors  in  the  conspiracy  are  com- 
petent. Daniels  v.  McGinnis,  97  Ind. 
549;  Hartman,  v.  Diller,  62  Pa.  St. 
37 ;  bonder  v.  Suhechterly,  91  Pa. 
St.  83 ;  Kennedy  v.  Divine,  77  Ind. 
490;  Tedrome  v.  Esher,  50  Ind.  443. 

95.  To   Show  Grantor's  Condition 

of    Mind The    declarations    of    a 

grantor  near  the  time  of  the  tran- 
saction in  question  may  be  received 
to  show  his  mental  condition  when 
his  capacity  to  contract  is  in  issue. 
But  they  are  not  admissible  to  estab- 
lish the  facts  stated.  Sanford  v. 
Ellithorp,  95  N.  Y.  48;  Waterman  v. 
Whitney,  11  N.  Y.  1^7;  Boylan  v. 
Meeker,  28  N.  J.  Law  274;  Roach  v. 
Zehring,  59   Pa.   St.  74. 

96.  Tibbals  ;■.  Jacobs,  M  Conn. 
428;  Hall  J'.  Bishop,  78  Ind.  370; 
Talliaferro  -e.  Evans  (Mo.,)  61  S. 
W.    185. 

97.  ..ngland.  —  Doe  v.  Pettett,  S 
Barn.  &  A.  223,  7  Eng.  C.  L.   129. 


Vol.  I 


.IDMfSSIONS. 


523 


(1.)  otherwise  As  Agaii.st  ilciis  or  Devisees.  —  1  hoy  arc  cuiiipc'tcnt 
as  atjainst  his  heirs  chiiniint;"  hy  descent  or  devisees  whenever  they 
would  have  l)ecn  competent  against  him,  if  hving,  whether  in  pos- 
session of  the  property  in  controversy  at  tlic  time  or  not,  if  at  the 
time  against  liis  interest.'"* 


Alabama. — Wisdom  7'.  Reeves,  lio 
Ala.  418,   18  So.  13. 

Califin-iiia.  —  Tompkins  v.  Crane, 
50   Cal.   478. 

Georgia.  —  Bowdcn  ;■.  Achor,  95 
Ga.  243,  22  S.  E.  254 ;  Settle  v.  Alison, 
8  Ga.  201  ;  Harrell  v.  Cnlpepper,  47 
Ga.  635. 

Indiana.  —  McSweeney  f.  McMil- 
len,  96  Ind.  298. 

lo'ik'a.  —  Benson  i'.  Lnndy,  52  Iowa 
265,  3  N.   V\'.    149. 

Marvhind.  —  Hurn  f.  Sopcr,  6  liar. 

6  J.  276. 

Massacliusi-lts.  —  Noyes  v.  Morrill, 
108  Mass.  396;   Bartletl  v.   Emerson, 

7  Gray    174;    Lyman    f.    i^.ipson,    18 
Pick.  422;  Dodge  i'.  Nichols,  5  Allen 

548-  . 

Missouri.  —  Davis  v.  Evans.  102 
Mo.  164,  14  S.  W.  875;  Current 
River  L.  Co.  v.  Cravens,  54  Mo.  216. 

Ne2t'  Hampshire.  —  Baker  r.  Has- 
kell, 47  N.   H.  4;9. 

Nezi'  Korfe.  —  Hntchins  r.  Hutch- 
ins,  98  N.  Y.  56. 

North  Carolina.  —  Headen  z'.  Wo- 
mack.  88  X.  C.  468;  Melvin  z:  Bul- 
lard,  82  N.  C.  X'i:  Williams  z:  Clay- 
ton, 7   Ired.  442. 

Te.ras.  —  Ellis  z:  Stone,  4  Te.x. 
Civ.  App.  157,  23  S.  W.  405';  O'Brien 
z\  Hilburn.  22  Tex.  616;  Stephens 
z\  Johnson  (Tex.  Civ.  App.),  4^  S. 
W.  328. 

■I'irginia.  —  Smith  z'.  Betty,  11 
Gratt.   752. 

Mere  Possession  Not  Sufficient. 
In  Noyes  z\  Morrill,  108  Mass.  396, 
it  was  held  that  it  is  not  sufficient 
to  warrant  the  receipt  of  such 
declarations  to  show  that  the  party 
was   the   occupant   of  the   land. 

98.  California.  —  .McFadden  v. 
Wallace,  38  Cal.  51  ;  Tompkins  v. 
Crane,  50  Cal.  478. 

Indiana.  —  Wallis  Z'.  Luhring,  134 
Ind.   447,   34  N.   E.   231. 

/oTca.  —  Davis  V.  Melson,  66  Iowa 
715,  24  N.  W.  526. 

Massaeliitselts. — Hodges  v.  Hodges, 
2  Cush.  455. 


Nez^.'  Jersey.  —  Outcalt  v.  Ludlow, 
i2  N.  J.  Law  239. 

A'l'Ti'  York.  —  Spaulding  v.  Hallen- 
heck,  35  N.  Y.  204;  Belts  Z'.  Jackson, 
0  Wend.  173. 

Pennsylvania. — Hunt's  Appeal,  100 
Pa.   St.   590. 

By  Ancestor  Against  Heir The 

case  of  Hodges  Z'.  Hodges,  2  Cush. 
(Mass.)  455,  was  one  for  the  par- 
tition of  real  estate,  and  involving 
the  question  as  to  whether  a  deed 
delivered  to  a  part  only  of  the 
grantees  therein  was  surrendered  by 
such  grantees  without  the  consent  of 
other  grantees  named  therein,  and 
declarations  of  the  grantor,  then  de- 
ceased, were  offered,  as  against  his 
heirs,  to  show  that  he  had  made  such 
a  deed.  The  court  said ;  "  It  is  true 
that  the  declarations  of  a  grantor 
impeaching  his  grant  are  not  admis- 
sible ;  and  it  may  be  true,  that  his 
declarations  in  support  of  his  grant 
are  only  admissible  against  himself 
and  his  heirs  and  devisees ;  and  then 
only  after  proof  of  the  loss  or 
destruction  of  the  deed.  But  in  the 
present  case,  it  was  proved  that  the 
deed  had  been  given  up  to  the 
grantor,  and  his  declarations  against 
his  interest  were  therefore  clearly  ad- 
missible, after  his  death,  in  an  action 
against  his  heirs  or  devisees.  Such 
declarations  might  have  been  proved 
in  an  action  against  him ;  and  upon 
principle,  and  the  authorities  cited  by 
counsel,  the  same  evidence  was 
rightly  admitted  in  the  present  suit 
against  his  devisees." 

In  an  Action  of  Dower.  —  In  an 
action  of  dower,  by  the  widow,  the 
husband's  declarations  tending  to 
show  that  he  obtained  an  agreement 
barring  the  wife  of  her  right  to 
dower  arc  admissible.  Wentwort  t. 
Went  worth,    71    Me.    72. 

By  Legatee  Against  His  Heir.  —  It 
is  held  that  the  declarations  of  a 
deceased  legatee  as  to  the  capacity 
of  the  testator  to  make  a  will  and 
tending    to     show     undue    influence. 

Vol.  I 


524 


ADMISSIONS. 


li.  Must  lie  .l;^aiiist  I iilcresl.  —  'I'u  warrant  tlie  ailiiiissions  of  a 
previous  owner,  lie  imist  have  hail  an  interest  in  the  controversy 
or  in  the  properly,  title  to  which  is  involved,  and  the  declaration 
must  be  against  such  interest.'"'  Therefore,  declarations  as  to  the 
source  or  manner  of  acquiring  title  or  other  narrations  of  past 
transactions  are  incompetent.' 

i.  Of  Fiduciary  in  Fusscssiuii.  —  To  render  his  admissions  com- 
petent the  party  must  be  in  possession  claiming  title  in  his  own 
right.  He  cannot,  while  in  possession  in  a  fiduciary  capacity,  as 
guardian,  for  example,  make  admissions  alTecting  the  title  of  the 
beneficiary. - 

j.  In  One's  Ozvii  Interest,  When  Admissible.  —  If  declarations  in 
one's  own  interest  are  a  part  of  the  same  conversation  in  which  the 
declarations  against  interest  proved  were  made  and  tend  to  qualify 


being  against  intcresl,  are  admissible 
against  his  heir  made  a  party  in  his 
stead  and  representing  his  interest. 
Wallis  V.  Liihriiig,  134  Ind.  447,  j_i 
N.    E.   231. 

99.  Alabama.  — U^hone  v.  Wil- 
liams, 39  Ala.  202. 

Arkansas.  —  I.eacli  v.  Fowler,  22 
Ark.   143. 

Illinois.  —  Cochran  v.  McDowell, 
15    III.    10. 

Indiana.  —  Thistlewaite  v.  Thistle- 
waile,   132  Ind.  355,  31   N.  E.  946. 

Maine.  —  Ware  v.  Ware,  8  Greenl. 
42. 

Massacliusctts.  —  Blake  i'.  Everett, 
I  Allen  248 ;  Tyler  v.  Mather,  9  Gray 

I//- 

Minnesota.  —  Beard  v.  First  Nat. 
Bank,  41  Minn.  153,  43  N.  W.  8. 

Ni'zv  York.  —  Clason  v.  Baldwin, 
56  Hun  326,  9  N.  Y.   Supp.  609. 

North  Carolina.  —  Enloe  v.  Sherill, 
6  Ired.  212. 

Tcvas.  —  Hays  v.  Hays,  66  Te.x. 
606,  I  S.  W.  895. 

1-  Sec  Declarations;"  Ray  v. 
Jackson  (La.).  7  So.  747;  McBride 
r.  Thompson,  8  Ala.  (N.  S.)  650; 
Ranciim  v.  George,  65  Ala.  259; 
Crcighton  v.  Hoppis,  99  Ind.  369; 
Abney  v.  Kingsland,  10  Ala.  (N.  S.) 
355,  44  Am.  Dec.  491. 

When  Part   of  Res   Gestae But 

the  exception  to  the  general  rule, 
viz.;  that  declarations  made  by  a 
party  explanatory  of  an  act  done 
in  dealing  with  the  property  are  com- 
petent,  as   a   part   of   the  res  gestae, 

Vol.  I 


should  not  be  overlooked.  They  are 
not  competent  as  admissions,  neces- 
sarily, and  belong  to  the  subject  of 
declarations.  Crcighton  v.  Hoppis,  99 
Ind.  369;  Gamble  7'.  Johnston,  9  Mo. 
605. 

2.  By  Guardian  in  Possession. 
In  Westenfelder  v.  Green,  24  Or. 
448,  34  Pac.  23,  it  is  said :  "  The 
general  rule  is  well  settled  that  the 
declarations  of  one  in  possession  of 
real  property,  characterizing  his  pos- 
session, are  admissible  in  evidence 
against  him,  and  those  claiming  under 
him,  where  title  is  asserted  by  ad- 
verse possession,  i  Rice,  Ev.  §  423. 
But  this  action  is  not  against 
Sedlack,  or  any  one  claiming  under 
him.  He  was  not  in  possession  of 
the  property  claiming  any  right  in 
himself,  but  in  a  representative 
capacity,  and  under  his  appointment 
as  guardian,  and  therefore  his  posses- 
sion was,  in  legal  contemplation,  the 
possession  of  his  wards.  A  tenant 
ill  possession  cannot  by  his  admis- 
sions injure  the  title  of  his  land- 
lord, (Hurley  r.  Lockett,  72  Tex. 
261,  12  S.  W.  212;)  nor  can  a 
guardian  the  title  of  his  wards.  Hav- 
ing accepted  the  trust,  and  entered 
into  possession  of  the  property  to 
carry  out  its  provisions,  he  could 
not  dispute  the  title  of  ms  wards, 
or  assert  that  he  is  holding  the  prop- 
erty in  any  other  capacity  so  long  as 
that  relationship  existed,  nor  could 
he  change  the  character  of  his  hold- 
ing by  any  admissions  or  declarations 
he  iniiibt   make." 


ADMISSIONS. 


525 


or  c.\[)laiii  Ihcm,  they  are  ci>ni])etent ;"  but  not  if  tliey  are  a  jjart 
of  a  subsei|ucnt  conversation,  although  explanatory  of  admissions 
made  in  the  first.* 

k.  UliUe  in  Possession  of  Personal  Properly. — (1.)  Generally. 
The  declarations  of  a  party  while  in  possession  of  and  dealing  witii 
personal  property,  in  disparagement  of  title,  are  competent  as  admis- 
sions against  him  and  those  claiming  under  him,''  and  in  explanation 
of  the  possession,  but  not  necessarily  aS  admissions."     If,  however, 


3.  Ellen  V.  Ellen,  i8  S.  C.  489; 
Postens  V.  Postens,  3  Watts  &  S. 
(Pa.)  127;  Wilsnn  v.  Woodruff,  J 
Mo.  40,  31  Am.  Dec.  194. 

4.  Wilson  V.  Woodruff,  5  Mo.  40, 
31  Am.  Dec.  194;  Lewis  v.  Adams, 
61   Ga.   559. 

Subsequent  Conversation  Inadmis- 
sible  In   Perry  v.   Ciraves.    12   .Ma. 

(N.  S.)  246.  it  is  said:  "It  may  be 
the  declarations  made  subsequently 
were  offered  with  a  view  to  explain 
and  do  away  the  force  of  those 
previously  made ;  but  even  in  this 
view  they  were  entirely  inadmissible, 
as  they  were  not  parts  of  the  same 
conversation,  and  as  he  would  be 
directly  interested  to  sustain  the 
right  of  the  plaintiff;  and  also  on  the 
ground  that  these  declarations  were 
more  hearsay." 

Where  Ancestor  Is  Dead —  The 
fact  that  the  prior  owner  is  dead 
does  not  render  such  declarations  ad- 
missible. Smith  V.  Powers,  15  N. 
H.  546. 

5.  f.iiglaiid.  —  Grocers,  etc.  v. 
Donne,  3  Bing.  34.  32  Eng.  C.  L.  25. 

Alabama.  — hide  v.  Lide,  32  Ala. 
449;  Moses  V.  Dunham,  71  Ala.  173; 
Arthur  z:  Gavle,  38  Ala.  259;  Mc- 
Rride'z'.  Thompson,  8  Ala.  (N.  S.) 
650;  Mobley  r.  Barnes,  26  Ala.  (N. 
S.)  718;  Jennings  v.  Blockers,  25 
Ala.    (N.  S.)   415- 

C'o/iyciniia.— Gallagher  v.  Willianis, 

23  Cal.  3,3^.  83  Am.  Dec.  114. 

ruiiiicc/iCK/.  — Avery  v.  Clemons, 
18  Conn.  306,  46  Am.  Dec.  323. 

Georgia.  —  Horn  v.  Ross,  20  Ga. 
210,  65  Am.  Dec.  621 ;  Jones  v.  Mor- 
gan, 13  Ga.  515. 

///iiiDiV— Waggoner  z:  Cooley,  17 
111.  2,^9;  First  Nat.  Bank  z:  Strang, 
138  111.  347,  27  N.  E.  903;  Venmim 
z:  Thompson,  38  111.  143;  Randcgger 
z:   Ehrhardt,   51    111.    lOi. 

hutiana.  —  Kuhns  v.  Gates,  92  Ind. 


66 ;  Bunberry  v.  Brett,  18  Ind.  343 : 
Durliam  z\  Shannon,  116  Ind.  403, 
19  N.  E.  190:  Tyres  v.  Kennedy,  126 
Ind.  523,  26  N.  E.  394:  McConncll  z'. 
Hannah,  96  Ind.  102 ;  Garr,  Scott 
&  Co.  ■;'.  Shaffer,  139  Ind.  119,  38 
N.  E.  811. 
/oii'fl.  —  Taylor    v.    Lnsk,    9    Iowa 

4-t4- 

Kentucky. — Carrel  v.  Early.  4  Bihb 
270. 

Maine.  —  McLanathan  v.  Patten, 
39  Me.  142;  Bcedy  v.  Maconiber,  47 
Me.  451 ;  White  v.  Chadbourne,  41 
Me.    149. 

Missouri.  —  Carin  v.  Smith,  24  Mo. 
221  ;  Burgess  v.  Quimby,  21  Mo.  508; 
Criddle  v.   Criddle,  21    Mo.   522. 

Nczv  Hamf shire.  —  Putnam  <■.  Os- 
good, 52  N.  H.  148. 

North  Carolina.  —  Johnson  v.  Pat- 
terson, 2  Hawks.  183,  II  Am.  Dec. 
756;  Kirbey  v.  Masten,  70  N.  C.  540. 

Pennsylvania.  —  In  re  Gracie's  Es- 
tate, 158"  Pa.  St.  521,  27  Atl.  1083. 

Tennessee.—  Peoples  v.  Devault, 
II  Heisk.  431. 

Tc.ra.s.  —  Fellman  v.  Smith,  20 
Te.x.    99. 

V ermont.  —  M^er  v.  Andrews,  47 
Vt.  238;  Hayward  Rubber  Co.  v. 
Duncklee,  30  Vt.  29;  Downs  v.  Bel- 
den,   46  Vt.   674. 

By  Mortg'agor  of  Chattels Thus, 

it  is  held  that  the  admissions  of  a 
mortgagor  of  personal  property  are 
admissible  against  the  mortgagee  in 
an  action  for  possession  founded  on 
the  mortgage.  Tyres  v.  Kennedy, 
126  Ind.  523,  26  N.  E.  394- 

6.  See  "  DKC^,.^RATI0NS  ;  "  "  Rf.s 
Gestae." 

.Alabama.  —  Webster  v.  Smith,  10 
.Ma.  (N.  S.)  429;  Mobley  Z'.  Barnes, 
26  Ala.  718;  Mohlcy  v.  Bilberry,  17 
Ala.    (N.   S.)    428. 

Colorado.  —  Stone  v.  O'Brien,  7 
Colo.  458,  4  Pac.  792. 

Vol.  I 


226 


ADMISSIONS. 


they  are  in  the  nature  of  admissions  against  liis  title,  they  are 
admissible,  not  only  as  against  the  ]iarty  making  them,  but  against 
one  claiming  under  him.'  They  may  be,  as  in  other  cases,  by 
acquiescence  in  what  is  said  by  another.'  The  fact  that  the  party 
is  not  a  competent  witness  does  not  affect  the  question  of  the  admis- 
sibility of  his  admissions."  They  must,  however,  be  made  while  the 
party  is  in  possession  of  the  property,  or  be  accompanied  by  some 
corresponding  act  relating  "to  the  property.'" 

Must  Be  in  Disparagement  of  Title. — And  they  must,  even  where 
the  party  is  in  possession  at  the  time,  be  either  in  disparagement 
of  his  title  or  explanatory  of  his  possession  to  be  admissible." 

In  some  cases  such  declarations,  made  in  favor  of  the  party  in 
possession  and  not  against  his  interest,  are  held  to  be  whollv  inadmis- 
sible as  hearsay.'-  And  the  rule  allowing  them  seems  to  be  without 
the  shadow  of  reason.'-' 

(2.)  As  Against  the  Vendee.  — If  offered  against  the  vendee  tliev 
must  have  been  made  before  the  sale,"  unless  thev  fall  within  some 


Connecticut.  —  Avery  v.  Clenioiis, 
i8  Conn.  jo6,  46  Am.  Dec.  323. 

Indiana.  —  Garr,  Scott  &  Co.  v. 
Shaffer,   139  Ind.   191,  38  N.   E.  811. 

Iowa.  —  Murray  v.  Cone,  26  Iowa 
276;  Taylbr  v.  Lusk,  9  Towa  444; 
Sweet  V.  Wright,  57  Iowa  510,  10 
N.  W.  870;  Stephens  v.  Williams,  46 
Iowa  540;  Hardy  v.  Moore,  62  Iowa 
65,  17  N.  W.  200;  Blake  v.  Graves, 
18  Iowa  312. 

New  York.  ■ —  Mclntyre  v.  Costello, 
53  Hun  636,  6  N.  Y.  Supp.  397. 

Tf.i-o.y.  ^O'Brien  v.  Hilburn,  22 
Te.x.  616. 

Vermont.  — \Ivl\q  v.  Ricli,  48  Vt. 
217. 

Wisconsin.  —  Roebke  i'.  Andrews, 
26  Wis.  311. 

7.  Connecticut.  —  Avery  v.  Clem- 
ens,  18  Conn.  306,  46  Am.   Dec.  323. 

Illinois.  —  Randegger  v.  Ehrliardt, 
51    111.    lOI. 

Indiana.  —  King  i'.  Wilkins,  11  Ind. 
347;  Bunberry  v.  Brett,   18  Ind.  343. 

Louisiana.  —  Leefe  v.  Walker,  18 
La.   (O.  S.)  362. 

Maine.  —  AlcLanathan  v.  I'atten, 
39  Me.  142 ;  White  v.  Cliadbourne,  41 
Me.  149;  Parker  v.  Marston,  .34  Me. 
386. 

Missouri.  —  Darrett  v.  Donnelly, 
38  Mo.  492. 

Nei<.<  Haml'shire.  —  Pnlnani  ?'.  Os- 
good, 52  N.   II.    148. 

I'cnnesscc. —  llolmark  f.  Molin, 
5  Cold.  4,S.';  Guy  I'.  Hall,  3  Humph. 
150. 

Vol.  I 


I'crmont.  —  Hayward  Rubber  Co. 
I'.  Duncklee,  30  Vt.  29;  Downs  v. 
Belden,  46  Vt.   674. 

Virginia.  —  Walthal  v.  Johnson,  2 
Call  275. 

Only  Against  Him  and  His  Imme- 
diate Representatives.  —  Simpson  v. 
McKay,  3  Hun  (N.  Y.)  316. 

8.  Carrel  v.  Early,  4  Bilil)  (Ky.) 
270. 

9.  Hatcli  7'.  Denis,  10  >,Ie.  244; 
Webster  v.  Smith,  10  .\Ia.  (N.  S.) 
429. 

10.  O'Brien  v.  Hilburn.  22  Te.\. 
616;  Mclntyre  v.  Costello,  53  Hun 
636,  6  N.  Y.  Supp.  397:  -Alexander 
v.  Jennings,  10  Lea  (Tenn.)  419; 
Bunker  v.  Green,  48  111.  243;  Sum- 
ner V.  Cook,  12  Kan.  162:  Benson  i\ 
Lundv,  i2  Iowa  26^,  3  N.  W.  149: 
Mobley  v.  Barnes.  26  Ala.  (N.  S.) 
718:  Vaughan  '•.  Winckler,  4  Munf. 
(Va.)    136. 

11.  .Mobley  v.  Barnes,  26  Ala. 
(  N.  S.)  718;  .Abney  7'.  Kingsland,  10 
.Ala.    (N.   S.)   355.  44  Am.  Dec.  491. 

12.  King  V.  Frost,  28  Minn.  417, 
10  N.  W.  423;  Olsom  7'.  Swenscn,  53 
^linn.  516,  55  N.  W.  596;  McGough 
7'.   Wellington,  4  .Mien    (Mass.)    502. 

13.  Sweet  7'.  Wright,  v  Vms.  sio, 
10   N.   W.   870. 

14.  United  Slates.  —  V.  S.  7'.  Lot 
of  Jewelry,  13  Blatchf.  60,  26  Fed. 
Cas.  No.  15,626;  Winchester  etc.  Co. 
7:   Cleary,   u6  V.  S.   161. 

.Ilabama.  —  Taylor  7'.  Bank  of 
lluntsville,    14   .Ma.   633. 


ADMISSIONS. 


527 


of  the  exceptions  to  the  rule ;  for  example,  where  they  are  part  of 
the  res  gestae,  or  there  is  a  conspiracy  to  defraud  on  the  part  of 


Arh'ciiisas.  —  Smith  t'.  Hanilct.  43 
Ark.  320;  Clinton  v.  Estes.  20  Ark. 
216;  Rector  v.  Danley,  14  Ark.  304. 

California.  —  Colin  v.  Mulford,  15 
Cal.  50;  Hutchings  v.  Castle,  48  Cat 
1.^2;  Visher  v.  Webster.  13  Cal.  58; 
Paige  V.  O'Neal,  12  Cal.  483;  Ban- 
ning V.  Marleau,  121  Cal.  240,  53  Pac. 
692. 

Georgia.  —  James  v.  Kirbey,  29  Ga. 
684. 

Illinois.  —  Randeggcr  v.  Ehrhardt, 
SI  111.  loi ;  Myers  v.  Kinzie,  26  III 
36:  Edwards  1:  Hamilton,  10  III 
App.  340;  Bnnker  r.  Green,  48  III. 
243 ;  Hessing  v.  McCloskey,  37  111. 
341;  Milling  V.  Hillenbrand,  156  111. 
310.  40  N.  E.  941  ;  Miner  i'.  Phillips, 
42  III.   123. 

Indiana.  —  King  v.  Wilkins,  11 
Ind.  347;  Campbell  v.  Coon,  51  Ind. 
76;  Keith  V.  Kerr,  17  Ind.  284;  Gar- 
ner Z'.  Graves,  54  Ind.   188. 

Iowa.  —  Gray  v.  Earl,  13  Iowa  188; 
McCormicks  7'.  Fuller.  56  Iowa  43, 
8  N.  W.  800:  Allen  r.  Kirk,  81  Iowa 
658,  47  N.  W.  go6. 

Kansas. — Sumner  v.  Cook,  12  Kan. 
162. 

Kentucky.  —  Brashear  r.  Burton,  3 
Bibb  9,  6  Am.  Dec.  634;  Gatlif  v. 
Rose,  8  B.  Mon.  629. 

Maine.  —  White  v.  Chadbourne,  41 
Mc.   149. 

.1/ao''a"<'- —  Garther  v.  Martin,  3 
Md.  146;  Cooke  v.  Cooke,  29  Md. 
538;   Hall  r.   Hinks,  21   Md.  406. 

Massacliusctts.  —  Pzrry  v.  Libbey, 
166  Mass.   112,  44  N.  E.  124. 

Michigan.  —  Lewis  r.  Rice.  61 
Mich.  97,  27  N.  W.  867:  Munccy 
V.  Sun  Ins.  Office,  109  Mich.  542,  67 
N.  W.  562. 

Minnesota.  —  Holland  z\  Fuller,  8 
Minn.  50;  Zimmerman  v.  Lamb,  7 
Minn.  421  ;  Beard  J'.  First  Nat.  Bank, 
41  Minn.  153,  43  N.  E.  8;  Derby  v. 
Gallup,  S  Minn.   119. 

Missouri.  — Carin  v.  Smith,  24  Mo. 
221;  Milliken  v.  Greer,  5  Mo.  489; 
Farrar  v.  Snyder,  31  Mo.  App.  93- 

Mcbraska.  —  Farmer's  L.  &  T.  Co. 
V.  Montgomery,  30  Neb.  33,  46  N.  W. 
214;  Williams  v.  Eikenberry,  2.S  Neb. 
721.  41  N.  W.  770;  Zobel  V.  Bauer- 
sacbs,   .=;5   Neb.   20,   7.S    N.   W.   43. 


iVi-tf  F(H-^.  —  Taylor  r.  Marshall. 
14  Johns.  204;  Jacobs  z'.  Remsen,  36 
N.  Y.  668 :  Snragne  v.  Kneeland,  12 
Wend,  161  ;  Hurd  v.  West.  7  Cow. 
7^2:  Roeber  7'.  Borne.  ,30  Hun  370; 
German- Am.  Bank  v.  Slade,  1=;  l\Iisc. 
287,   36  N.   Y.   Supp.   983- 

North  Carolina.  —  Hicks  7'.  For- 
rest. 6  Ired.  528. 

South  Carolina.  —  Land  v.  Lee.  2 
Rich.  168;  Crawley  p.  Tucker,  4  Rich. 
560. 

Tennessee. — McClellan  v.  Cornwell, 
2  Cold.  298 ;  McCasIand  i'.  Carson, 
I  Head  117;  Holmark  v.  Molin,  5' 
Cold.  482. 

Texas.  —  Hinson  v.  Walker,  65 
Tex.  103 ;  Garrahv  v.  Green.  32  Tex. 
202;  Grooms  v.  Rust.  27  Tex.  231; 
Copn  r.  Swift  (Tex.  Civ.  App..)  26 
S.  W.  438;  Smith  V.  Dunham  (Tex. 
Civ.  App..")  29  S.  W.  713:  D'Arrigo 
7'.  Tex.  Produce  Co.  (Tex.  Civ. 
App.,)  31  S.  W.  713;  Dallas  Nat. 
Bank  v.  Davis,  78  Tex.  362,  14  S. 
W.  706. 

Vermont.  —  Bullard  v.  Billings.  2 
Vt.  .309. 

IVisconsin.  —  Selsby  v.  Redlon.  19 
Wis.  18;  Grant  v.  Lewis,  14  Wis. 
487.  30  Am.   Dec.  785. 

ll'voniing.  —  Toms  z:  Whitmore.  6 
Wyo.    220.    44    Pac.    ,s6. 

■When  Vendor's  Statements  Admis- 
sible  In   Orr  &   Lindsley   Shoe   Co. 

z\  Needles.*  67  Fed.  990,  the  court 
said:  "It  is  undeniable  that  declar- 
ations made  to  third  parties  by  a 
vendor  of  property  after  the  sale 
and  delivery  thereof  have  been  con- 
suiumated,  are  not  admissible  against 
the  vendee  to  impair  the  latter's  title, 
unless  there  is  independent  evidence 
to  show  that  the  vendor  and  vendee 
have  entered  into  a  fraudulent  con- 
spiracy of  some  sort,  so  that  the 
statements  of  one  are  admissible 
against  the  other,  or  unless  the  ven- 
dor's statements  are  authorized,  or 
subsequentlv  ratified  by  the  vendee." 

Where  They  Accord  With  Those  of 
Vendee.  —  But  see  Hunter  v.  Jones, 
6  Rand.  (Va.),  in  which  it  is  held 
that  the  declarations  of  the  vendor 
made  after  the  sale  are  competent 
where  they  accord  with  the  ackm^wl- 

Vol.  I 


528 


ADMISSIONS. 


the  vendor  and  vendee  or  other  relations  between  them  rendering 
the  admissions  of  one  binding  upon  the  other  ;'^  and  in  some  cases,  it 
is  lield  to  be  the  general  rule  that  declarations  of  a  vendor  of  per- 
sonal property  going  to  defeat  the  title  are  not  admissible  against  his 
vendee  in  good  faith  and  for  value  whether  made  before  or  after  the 
sale.^" 

(3.)  By  Donor  Against  Donee.  —  So  it  is  held  that  the  declarations 
of  a  donor,  in  case  of  a  gift  of  personal  property,  for  the  purpose 
of  showing  the  gift  to  be  fraudulent,  are  inadmissible  against  the 
donee  if  made  after  the  gift;''  so  if  offered  to  defeat  the  gift  on 
other  grounds.'' 

(4.)  To  Show  Fraud  in  the  Transfer.  —  The  rule  as  to  the  compe- 
tency of  admissions  of  the  vendor  to  show  fraud  in  the  transfer  is 
the  same,  generally,  as  the  case  of  grantor  and  grantee  of  real 
estate,  considered  above,  some  cases  holding  such  admissions  to  be 
inadmissible  ;'"  others  holding  them  to  be  competent  to  show  fraudu- 


edgments    of    the    vendee    previously 
made. 

15.  See  "  Declarations  ; "  Res 
Gestak  :  "  Allen  r.  Kirk,  8i  Iowa 
658.   47    \.   \\'.   90(1. 

For  Purpose  of  Impeachment.  —  It 
should  be  borne  in  mind  also,  that 
such  declarations  may  be  admissible, 
the  foundation  being  laid,  for  the 
purpose  of  impeaching  the  vendor 
if  he  becomes  a  witness.  Rut  in  such 
case,  they  are  not  admissible  as  ad- 
missions. Williams  z:  Eikenberry,  25 
Neb.  721,  41  N.  W.  770;  Selsby  v. 
Rcdlon,  19  Wis.  18. 

16.  Uitited  States.  —  Dodge  7: 
Freedmen's  S.  &  T.  Co.,  93  U.  S. 
379;  Orr  &  Lindsley  Shoe  Co.  v. 
Needles,  67  Fed.  990.       • 

Alabama. — Walker  v.  Blassingame, 
17  Ala.  Sio;  Garner  v.  Bridges,  38 
Ala.  (N.  S.)  276;  Murphy  v.  Bntler, 
75  Ala.  381 ;  McKenzie  v.  Hunt,  i 
Port.  37 ;  Smith  v.  Rogers,  I  Stew. 
&  P.  317;  Weaver  v.  Yeatman,  15 
Ala.  539;  Borland  v.  Mayo,  8  Ala. 
(N.  S.)    104. 

California.  —  Spanagel  v.  Dellin- 
ger,  38  Cal.  278;  Silva  v.  Serpa,  86 
Cal.  241,  24  Pac.  1013;  Walden  v. 
Purvis,  7Z  Cal.  518,  15  Pac.  91 ;  Gar- 
lick  V.  Bowers,  66  Cal.  122,  4  Pac. 
1 138;  Briswaller  v.  Palomaris,  66 
Cal.  259,  5   Pac.  226. 

Maiiu'.  —  Hatch  v.  Dennis.   10  Me. 

2<  I. 

Massachusetts.  —  Short  v.   Tinslcy, 
I   Mete.  397,  71   Am.  Dec.  482. 
y\/u.m.?i7'/'/.--Wilkeson   v.   MofTelt- 

Vol.  I 


West  Drug  Co.   (Miss.),  21   So.  564. 

New  York.  —  Flannery  v.  Van 
Tassel,  127  N.  Y.  631,  27  N.  E.  393; 
Paige  V.  Cagwin.  7  Hill  361,  42  Am. 
Dec.  68;  Bnllis  ;■.  Montgomery,  50  N. 
Y.  352 ;  Gardner  t:  Barden,  34  N. 
\ .  433 ;  Tilson  v.  Terwilliger,  56  N. 
Y.  273;  Hart  v.  West,  7  Cow.  752; 
Morris  v.  Wells,  54  Hun  634,  7  N. 
Y.  Supp.  61. 

•Vermont.  —  Sherwin  i',  Bugbee,  17 
Vt.   337- 

Except  Where  Part  of  the  Res 
Gestae.  —  Squire  v.  Greene,  47  App, 
Div.  636,  62  N.  Y.  Supp.  48. 

17.  Walden  v.  Purvis,  73  Cal. 
518,    15    Pac.   91  ;    Strong  v.    Brewer, 


17  Ala.  706. 

18.  Julian     v 
(N.  S.)   680. 

19.  Whiting 
&   R.    (Pa.)    328; 


Reynolds,    8    Ala. 

Johnson,  11  Serg. 
14  Am.  Dec.  633; 
Winchester  Alfg.  Co.  v.  Creary,  116 
L'.  S.  161  ;  Paige  v.  O'Neal,  12  Cal. 
483 ;  Tapley  v.  Forbes,  2  Allen 
(Mass.)  20;  Parry  ?'.  Libbey,  166 
Mass.  112,  44  N.  E.  124;  Orr  etc.  v. 
Needles,  67  Fed.  990. 

By  Mortgagor  Against  Mortgagee. 
The  declarations  of  a  mortgagor  made 
after  the  execution  of  the  mortgage 
tending  to  show  its  fraudulent  char- 
acter are  inadmissible  as  against  the 
mortgagee.  Silva  v.  Serpa,  86  Cal. 
241,  24  Pac.  1013 ;  Farmer's  L.  &  T. 
Co.  7'.  Montsfonierv.  .V>  Neb.  33,  46 
S.   W.  214. 

By  Vendor  of  Personal  Property, 
hi    Garner   v.    Bridges,   ,?8   Ala.   276, 


.in.MISSIOXS.  52') 

lent  intent  on  the  ]);irt  (if  the  N-endor  only,  leaving  knowledge  of  or 
partici])ation  in  the  fraud  hy  the  vendee  to  l)e  estalilished  by  other 
evidence,'-'"  and  others  limiting  the  rnle  to  admissions  made  before 
tlie  transfer.-' 


it  was  held  that  the  (lecl.'iralioiis  of 
the  vendor  of  a  slave  made  several 
months  before  the  sale  not  explana- 
tory of  his  position  or  tiile  and  noi 
made  in  the  presence  of  the  pnr- 
chaser  were  not  competent  evidence 
against    the    purchaser. 

20.  Gallagher  v.  Williams,  23  Cal. 
3.3r,  83  .\m.  Dec.  114;  Foster  v.  Hall, 
12  Pick.  (Mass.)  8g;  Guidry  v. 
Grivot,  2  Mart.  (La.)  (N.  S.)  13, 
14  Am.  Dec.  193:  Hinson  v.  Walker. 
65  Tex.   103. 

For  What  Purpose  Admissible, 
bi  a  note  to  Horton  f.  Smith,  S 
Ala.  73,  42  Am.  Dec.  628,  the  editor 
makes  this  statement,  followed  hv 
the  citation  of  nnnierons  authori- 
ties: "The  declarations  and  acts  of 
a  vendor  made  or  done  before  the 
execution  of  a  conveyance  which  is 
attacked  on  the  ground  of  fraud  are 
admissible  in  evidence  .against  the 
vendee  to  show  such  fraud  on  the 
part  of  the  vendor;  but  to  render  the 
same  operative  against  the  vendee, 
such  evidence  must  be  followed  by 
testimony  tending  to  prove  knowl- 
edge or  notice  of  the  vendor's  fraud- 
ulent intent  by  the  vendee.  This  rule 
is  one  of  frequent  application,  and 
although  decisions  may  be  found  to 
the  contrary,  its  correctness  is 
established  by  an  overwhelming 
weight  of  authorities." 

21.  United  Stales.  —  Winchester 
etc.  Mfg.  Co.  I'.  Creary,  116  U.  S. 
161. 

Alabama.  —  Bilberry  i'.  Mobley,  21 
Ala.  277;  Weaver  v.  Veatnians,  i^ 
Ala.    (N.   S.)   539- 

California.  —  Cohn  v.  ^hilford,  15 
Cal.  50;  Jones  i'.  Morse,  36  Cal. 
205;  Paige  V.  O'Neal,  12  Cal.  483; 
Visher  t.  Webster,  13  Cal.  58. 

Illinois.  —  Wheeler  r.  McCorristen, 
24   111.  41. 

Jiii\.a.  —  Fowler  Co.  i\  .McDowell. 
100  Iowa  526,  6g  N.  W.  873. 

Kansas.  —  Smith  v.  Wilson,  5  Kan. 
App.  379,  48  Pac.  4,36. 

Maine.  —  Dennison  "■.  I'enner.  41 
Me.  332. 

34 


Massaclmsells.  —  Horrifian  v. 
Wright,  4  .Mien  514. 

.l//;;».-.v,i/<;.  — Holland  ?■,  Fuller,  S 
Minn.  50. 

.Vez'adii. —  llirschfelil  ''.  William- 
son,  18  Nev.  66,   I    Pac.  201. 

Ohio.  —  Ohio  Coal  Co.  r.  Daven- 
port, 37  Ohio  St.  194. 

Pennsylvania.  —  Hartley  v.  Weide- 
nian,  175  Pa.  St.  309,  34  Atl.  625. 

South  Carolina. — Kittles  i'.  Kittles, 
4   Rich.  422. 

irisconsin.  —  Bogerl  ?'.  Phelps,  14 
Wis.  88. 

Except    in    Case    of    Independent 

Evidence  of  Conspiracy bi  the  case 

of  Winchester,  etc.  Mfg.  Co.  v. 
Creary,  116  U.  S.  161,  the  rule  is 
thus  stated: 

"  It  is,  however,  insisted  that 
Webb's  declarations  after  the  sale 
were  admissible  in  support  of  the 
charge  of  combination  or  conspiracy 
to  defraud  the  defendants  Hayner 
&  Co.,  and  other  creditors.  Without 
extending  this  opinion  by  a  review 
of  the  adjudged  cases  in  which  there 
was  proof  of  concert  or  collusion 
between  vendor  and  vendee  to  de- 
fraud creditors,  and  in  which  ihe 
subsequent  declarations  of  the  ven- 
dor were  otTered  in  evidence  against 
the  vendee  to  prove  the  true  char- 
acter of  the  sale,  it  is  sufficient  to 
say  that  such  declarations  are  not 
admissible  against  the  vendee,  unless 
the  alleged  common  purpose  to  de- 
fraud is  first  established  by  inde- 
pendent evidence,  and  unless  they 
have  such  relation  to  the  execution 
of  that  purpose  that  they  fairly  con- 
stitute a  part  of  the  res  gestae. 
There  was  no  such  independent  evi- 
dence in  this  case,  and  there  is  no 
foundation  for  the  charge  of  a  con- 
spiracy between  the  vendors  and  the 
vendee  to  hinder  creditors,  outside  of 
certain  statements  which  Webb  is 
alleged  to  have  made  after  his  firm 
had  parted  with  the  title  and  surren- 
dered possession." 

See  also,  Caldwell  r.  Williams,  i 
bid.  405;  Ewing  <■.  Gray.  12  bid.  64; 

Vol,  I 


bM) 


IPMISSfONS. 


By  Debtor  As  Between  Purchaser  and  Attaching  Creditor.  —  Declara- 
tions of  a  debtor  cannot  be  received  to  sliow  a  fraudulent  intent  on 
the  part  of  such  debtor  in  an  action  between  a  purchaser  for  value 
without  notice  and  an  attaching'  or  execution  creditor,  where  such 
declarations  were  made  anterior  to  the  sale  claimed  to  have  been 
fraudulent ;-'-  nor  can  the  admissions  of  the  execution  jilaintiff  or 
defendant  made  pending-  the  proceedings  for  sale  under  attachment 
or  execution,  be  received  to  defeat  the  title  of  the  purchaser;-''  nor 
to   show    a   valuable   consideration    for   the   purchase."''     But   ordi- 


Wcaver  v.  Yeatman,  15  Ala.  (N.  S.) 
5,30. 

■Where  the  Vendor  Retains  Pos- 
session of  the  Property The  effect 

upon  the  rule  excluding  such  fleclar- 
atious  made  after  the  sale  of  the 
retention  of  the  property  by  the 
vendor  is  thus  stated  in  McCIellan 
7'.  Cornwell,  2  Cold.  (Tenn.)  298: 
"  But,  in  cases  where  the  transaction 
itself  is  attacked,  upon  the  ground  of 
fraud,  if  the  vendor  retains  the  pos- 
session of  the  property,  inconsistently 
with  the  terms  of  the  contract,  and, 
consequently,  in  hostility  to  the 
rights  of  the  purchaser,  this  rule  is 
rela.xed,  and  liis  statements  in  the 
absence  of  the  purchaser,  in  refer- 
ence to  the  ownership,  or  contract, 
or  terms  upon  which  he  holds  pos- 
session of  the  property,  may  be  re- 
ceived as  evidence  against  the  pur- 
chaser, as  part  of  the  res  gestae,  be- 
cause such  possession  of  the  prop- 
erty is  a  badge  of  fraud,  which,  of 
itself,  connects  him  with  the  pur- 
chaser, in  the  suspicion  of  a  con- 
federate to  defeat  creditors.  But  the 
bare  fact  of  possession  by  the  vendor, 
is  not,  of  itself  sufficient;  for  if  his 
possession  be  consistent  with  the 
rights  of  the  purchaser,  and  accord- 
ing to  the  terms  of  the  contract, 
his  statements,  in  the  absence  of  the 
purcliaser,  are  inadmissible  as  against 
the  purchaser." 

See  also  Boyd  1'.  Jones,  60  Mo. 
454;  Grant  v.  Lewis,  14  Wis.  487,  30 
Am.  Dec.  785. 

To  Explain  the  Nature  of  His 
Possession. —  In  Mobley  r.  Bilberry, 
17  .A.la.  4j8,  it  is  held  that  subsequent 
declarations  of  the  vendee  while  re- 
taining possession  arc  admissible  to 
explain  tlie  nature  of  his  possession. 

■Where  'Vendor  Remains  in  Pos- 
session  P.iu   it   is   luld  that   where 

the     vendor     remains     in     possession 

Vol.  I 


after  the  sale  his  declarations  are  ad- 
missible. Gallick  V.  Bordeaux,  22 
Mont.  470,  56  Pac.  961  ;  Lehmann  ?'. 
Cliapel.  70  Minn.  496,  73  N.  W.  402. 

22.  Waggoner  Z'.  Cooley,  17  III. 
239;  Tabor  r.  Van  Tassel,  86  N.  Y. 
642;  Jones  V.  Norris,  2  Ala.  526; 
Murphy  v.  Butler.  75  .\la.  381. 

Admissions  of  Debtor Thus  it  is 

said  in  Muses  f.  Dunliam,  71  Ala. 
173;  "Out  of  this  has  grown  a 
well  considered  and  well  settled  prin- 
ciple of  evidence,  namely :  That  in 
such  contests,  which  most  usually 
arise  in  "  trials  of  the  right  of  prop- 
erty ' — a  proceeding  under  our  stat- 
utes— the  adiuissions  and  declarations 
of  the  debtor,  made  anterior  to  the 
sale,  under  which  the  claimant  as- 
serts title,  are  not  admissible  evi- 
dence against  him  to  show  a  fraud- 
ulent intent  on  tlie  part  of  such 
debtor  in  luaking  the  sale,  provided 
the  sale  was  on  valuable  consider- 
ation, and  the  purchaser  is  not 
chargeable  with  knowledge  of  the 
fraiululent   intent." 

Of  Bankrupt  Against  His  As- 
signee  It   is  held   that   in  ref'levin 

by  the  assignee  of  a  bankrupt  the 
defendant  may  give  in  evidence  the 
statements  of  the  bankrupt,  made 
before  his  application  for  the  benefit 
of  the  bankrupt  law,  to  prove  the 
property  to  be  in  a  stranger,  but  that 
the  assignee  could  not  prove  admis- 
sions of  such  stranger  that  the  prop- 
erty belonged  to  the  bankrupt. 
Complon  V.  Fleming,  8  Blackf.  (hid.) 

15,3- 

23.  ■Vandyke  r.  Bastedo,  15  N.  J. 
Law  224;  Renshaw  v.  Steamboat 
Pawnee,  19  Mo.  532 ;  Brown  v.  Up- 
ton,  12  Ga.  505. 

24.  Berry  v.  Hardman,  12  .\la. 
(N.  S.)  604;  Falkner  v.  Leilli,  ig 
.\la.    (N.   S.)   9. 

Of   Debtor  to   Show   Consideration 


IPMfSSfOXS. 


531 


iiarily  tlui'c  is  no  ilittcrcncc  Ijctwccn  unc  claimiui;-  under  an  exe- 
cution and  a  QTantee  of  the  prior  owner,  in  this  respect,  and  the 
admissions  of  the  possessor  of  property  made  while  in  possession 
are  admissiiile  asj^ainst  an  attacliing  or  execution  creditor.-' 

Must  Be  Made  Before  Lien  Attaches.  —  I, ike  the  case  of  a  s'de  hy  tlie 
owner,  tlie  admission  to  he  competent  as  a^'ainst  the  attachinij  cred- 
itor must  have  hecn  made  heforc  the  lien  attaches  either  hy  levy  or 
judgment.-" 

Of  Debtor  to  Show  Bona  Fides  of  Transaction. —  Where  the  cpiestion 
arises  between  two  creditt)rs  the  admissions  of  the  debtor  in  support 
of  the  good  faith  of  the  transaction  with  one  of  the  claimants  may 
be  admissible.-' 


of    the     Purchase In     Hooper    t'. 

Edwards,  i8  .\la.  (N.  S.)  280,  it  was 
held  that  in  a  contest  between  the 
existing  creditor  and  a  pnrchaser 
from  the  delitor,  the  statements  of 
such  debtor  were  not  admissible  to 
prove  the  consideration  of  the  pur- 
chase. 

To  Establish  a  Demand  Against 
Property  Attached —  In  Ren-.liaw  r. 
Steamboat  Pawnee.  ly  .Mo.  532,  it 
was  held  that  the  demands  of  the 
owner  of  the  boat,  made  after  the 
l)oat  had  been  seized  and  ordered 
to  be  sold,  were  not  competent  to  es- 
tabhsh  a  demand  presented  for  al- 
lowance) as  a  lien  upon  the  proceeds 
of  the  sale  of  the  boat. 

25.  Alabama.  —  liubosc  i'.  Voung. 
14  Ala.    139. 

Arkansas. — Allen  v.  McGaughey,  31 
Ark.  252. 

California. — Gallagher  v.  Williams, 
23  Cal.  331,  83  Am.  Dec.  114. 

Georgia.  —  Horn  v.  Ross,  20  Ga. 
210,  65  Am.  Dec.  621. 

Indiana.  —  King  i'.  Wilkins,  11  Ind. 

Massachusetts.  —  Pickering  i'.  Rey- 
nolds, 119  Mass.  III. 

iVcie  Hampshire.  —  Putnam  v.  Os- 
good,; 52  N.  11.  148. 

Pennsylvania.  —  Biddle  <'.  IMoore, 
3  Pa.  St.  161  ;  Magee  v.  Raiguel,  64 
Pa.   St.   no. 

South  Carolina.  —  Crawley  i'.  Tuc- 
ker, 4  Rich.  560. 

Tennessee.  —  Mnlholland  7'.  Ellit- 
son,   I   Cold.  307. 

Te.vas. — JMartel  j'.  Somcrs,  26  Tex. 
551- 

By  Debtor  Against  Execution 
Creditor.  —  Mulhohand  -•.  Ellitson,  i 


Cold.  (Tenn.)  307,  was  an  action  of 
trespass  brought  by  the  plaintiff 
against  the  defendant  who  had  re- 
covered judgment  and  sold  property 
claimed  by  each  of  the  parties.  The 
plaintiff  offered  to  prove  admissions 
against  the  execution  defendant  to 
the  effect  that  he  had  sold  the  prop- 
erty in  question  to  the  plaintiff  prior 
to  the  levying  of  tlie  execution.  The 
evidence  was  excluded  by  the  court 
below,  and,  in  passing  upon  the  ques- 
tion on  appeal,  the  court  said : 
"  Manifestly,  in  a  contest  between 
the  plaintiff  and  the  said  Michael,  in 
regard  to  the  title  of  this  property, 
these  admissions  would  be  competent 
against  him.  upon  the  principle  of  a 
declaration  against  his  interest;  and 
also  in  a  contest  Ijetween  the  plain- 
tiff and  a  third  party,  claiming  this 
property  under  a  purchase  made  by 
him  of  said  Michael,  at  a  period 
subsequent  to  the  admissions,  tlicy 
would  be  admissible,  because  the  pur- 
chaser is  in  privity  with  his  vendor, 
and  takes  the  property  encumbered 
with  his  declarations.  They  are  of- 
fered as  coming  from  a  privy  in 
estate,  and,  therefore,  in  laic,  from 
the  party  himself." 

Against     Attaching      Officer In 

Hayward  Rubber  Co.  v.  Duncklee,  ,p 
Vt.  29.  it  was  held  that  adiuissions 
made  by  one  while  in  possession  of 
personal  property  against  his  title 
w^ere  admissible  against  the  officer 
attaching  the  property  in  an  action 
of  trespass  involving  the  title  to  the 
property. 

26.  .\lulholland      r.      Ellitson.      i 
Cold.    (Tenn.)    307. 

27.  Lambert    v.    Craig.    12    Pick. 
(.Mass.)    199. 

Vol.  I 


.IPMISSIOXS. 


In  Case  of  Collusion  Between  Debtor  and  His  Vendee.  —  The  rule 
making  the  admissions  of  one  eo-cunspirator  admissible  against 
another  is  ap])Iicalilc  liere.-" 

By  Officers  of  Corporations.  — And  the  mle  extends  to  deelarations 
made  Ijv  offieers  of  a  corjjoration  in  the  performance  of  their  duties 
in  respect  of  the  title  to  property  in  the  possession  of  the  corpora- 
lion.-"' 

C.  Assignors  .\.\1)  Assio.nkks.  —  a.  Of  Assi^^nor  Before  Assigii- 
menP  Admissible.  —  The  admissions  of  an  assignor  made  before  the 
assignment  are  admissible  against  his  assignee  or  others  claiming 
under  him."" 

(1.)  Exception Negotiable  Paper.  —  An    exception    to    the    rule    is 

made  in    favor  of  the  holder  df  negotialile  paper, ■''   but  not  where 


Of  Debtor  to  Establish  Good  Faith 
of  Transaction.  —  Tliu.>i,  in  Strong  v. 
W'hoolor,  5  Pick.  (Ma.ss. )  410.  where 
two  creditors  of  tlic  defendant  attach 
the  same  property,  the  second  attacli- 
ing  creditor  lieing  admitted  under  the 
statute  providing  therefor  to  defend 
against  the  first  suit,  it  was  held 
that  "  the  plainlifif  might  give  any 
evidence  and  confession  of  the  debtor 
that  his  demand  was  bona  fide,  and 
for  a  valuable  consideration." 

28.  O'Neil  -■.  Glover,  :;  Grav 
(Mass.)    144. 

29.  Piingliam  v.  Hyland,  5.1  llun 
6?!,  6   N.   Y.   Supp.   75. 

30.  Connecticut. — Bulkley  v.  Lan- 
don.  3   Conn.   76. 

Illinois.  —  Merrick  v.  Hulbert,  15 
111.  App.  606;  Thorp  V.  Goewcy,  85 
111.  611;  Saudifer  v.  Hoard,  59  111. 
246;  Williams  v.  Judy.  .•?  Gilm.  282, 
44  Am.  Dec.  699 ;  Anderson  v.  So. 
Chicago  Brewing  Co.,  17^  111,  213,  so 
N.   E.  655. 

Indiana.  —  Abbott  v.  .Muir,  5  Ind. 
444;  Stoncr  V.  Klbs,  6  Ind.  152; 
Blount  7'.   Riley,  j   Ind.  471. 

Kentucky.  —  Scott  ''.  Coleman.  5 
l.itt.   .349,    15   Am.    Dec.    71. 

Louisiana.  —  Smith  ?■.  McWaltcrs. 
7  La.  Ann.   144. 

.Maine.  —  Parker  i'.  Marsion,  34 
.\lc.    386. 

.Maryland.  —  Clarv  7'.  Grimes,  12 
'".ill  &  J.  31;  Robinett  v.  Wilson,  8 
Gill    179. 

.Massachusetts.  —  Bond  i'.  l'"ilzpal- 
rick,  4  Gray  89. 

.Minnesota.  —  Anderson  v.  Lee,  73 
.Minn.  397,  76  N.  W.  21. 

.Mississipfii. —  Brown    ',■.    McGraw, 

Vol.  I 


12  Smcd.  &  M.  267;  Millsaps  v.  M. 
Bank,  71    .Miss.  361,   13   So.  903. 

Missouri.  —  Murray  r.  ^nver,  iS 
.Mo.  405 ;  Rol)l)  f.  Schmidt,  35  Mo. 
290;  Hazcll  r.  Bank  of  Tipton,  95 
Mo.  60,  8  S.  W.   173- 

Neii'  York.  —  Merklc  ?•.  Beidleman, 
30  App.  Div.  14,  51   N.  Y.  Supp.  916, 

Pennsylvania.  —  Magee  -'.  Raiguel, 
64  Pa.   St.   no;   Kellogg  v.   Krauscr, 

14  Serg.  &  R.  137;  Brindle  7'.  -Mc- 
I lvalue,    10   Serg.   &   R.   282. 

.'iouth     Carolina.  —  McClendon     f. 
Wells,  20  S.  C.  514;  Craylou  z:  Col 
lins,  2  McCord  271  ;  Sharp  v.  Smith, 
7  Rich.  2;  Westburv  "■.  Simmons,  57 
S.  C.  467.  35  S.  E.  764. 

■Vermont.  —  Alger  v.  .Andrews,  47 
Vt.  238. 

To  Show  Illegal  Consideration. 
In  Sharp  v.  Smith,  7  Rich.  (S.  C.) 
2,  the  payee  had  on  the  day  after  the 
note  bore  date  admitted  that  it  was 
given  for  a  gaming  consideration  and 
this  admission  was  held  to  be  com- 
petent where  the  action  was  by  the 
transferee. 

31.  iingland.  —  Smith  v.  De 
Wrintz,  R.  &  M.  212,  21  Eng.  C.  L. 
735 ;  Beauchamp  j'.  Parry,  i  Barn. 
&  A.  89,  20  Eng.  C.  L.  408;  Barough 
V.  White.  4  Barn.  &  C.  325,  to  Eng. 
C.  L.  600;  Shaw  V.  Broom,  4  D.  &  R. 
730,  16  Eng.  C.  L.  220. 

Connecticut.  —  Roe  v.  Jerome,  18 
Conn.    138. 

Illinois.  —  Merrick  v.  Hulbert,  15 
111.  .-Vpp.  606;  Williams  v.  Judy,  3 
Gilm.  282,  44  Am.  Dec.  699. 

Massachusetts.  —  Butler  v.  Damon, 

15  Alass.  222;  Produce  Ex.  Trust 
Co.  V.  Bciberbach,  177  Mass.  137,  58 
N.   E.    162. 


.iPM/ssioxs.  s:-:-. 

tlu-  transfer  and  adinissiors  are  maile  after  maturitx.''-     In  some  of 
the  states,  tliis  exception  has  been  removed  bs'  statntc.''" 

And  the  general  rule  that  admissions  of  the  assi,sj;nor  or  endorser 
against  his  title  or  rij^ht  to  recover  are  admissible  against  his 
assignee   is   denied   in    nnnierors   cases, ■'''   and   in   some   the   rule   is 


Mississif'fi.  —  Brown  t.  McGrnw, 
12   Smcd.   &  M.  267. 

Missduri.  —  Murray  'r.  Oliver,  t8 
Mo.  40t;  niaiu-jniir  v.  Tatt,  JJ  Mn. 
576. 

•Vi'ii'  Vorl:. — Smilli  v.  Scluinck,  18 
Barb.   ,U4. 

32.  Iln^land.  —  Bcaucliamp  v. 
Parrv.  i  Barn.  &  C.  8y.  jo  Ena;.  C. 
L.  408. 

Illiiiiiis.  —  Sandifer  ■;■.  Hoard-  59 
111.  246;  Williams  x\  Judy.  ,?  v'.ilm. 
282,  44  Am.  Dec.  609:  Kane  '■.  Tor- 
bit,  23  III.  App.  311;  Cnrtivs  r.  Mar- 
tin, 20  III.   557. 

Indiana.  —  Blouni  ?•.  Rilev,  ^  Ind. 
471- 

Maine.  —  Hatch  v.  Dennis.  10  Me. 
244;  Eaton  V.  Corson,  59  Me.  sro; 
Merrick  t'.  Parknian,  18  Me.  407 ; 
Shirley  z'.  Todd,  9  Greene    83. 

.Massachusetts.  —  Bond  i'.  Fitzjiat- 
rick,  4  Gray  89. 

.\fissouri.  —  Robh  i'.  Schniidl,  35 
Mo.  290. 

jVcit'  )'(irk.  —  Paige  ?'.  Cagwin,  7 
Hill  361,  42  Am.  Dec.  68. 

I'crmont. — Miller  ?•.  Bingliani,  29 
\'l.  J 27. 

Assigned  After  Admissions  Before 
Maturity. —  In  Robb  v.  Schmidt,  35 
Mo.  290,  it  is  held  that  where  the 
assignment  is  made  after  maturity 
but  the  admissions  were  made  before, 
they  are  admissible  against  the  as- 
signee. 

33.  Brown  v.  McGraw,  12  Snicd. 
&  M.  (Miss.)  267;  Sloner  t'.  Ellis, 
6  Ind.  152;  Millsaps  v.  M.  Bank, 
71   Miss.  361,   13  So,  903. 

34.  United  States.  —  Dodge  i'. 
Freednian's    Sav.    &    Trust    Co.,    9? 

u.  s.  379. 

Alabama.  —  Jones  'i\  Norris,  2  .\la. 
(N.   S.)    526. 

IdaluK  —  Deasey  v.  Tliurnian.  i 
Idalio    775. 

.Massachusetts.  —  Holbrook  f.  llol- 
brook,  113  Mass.  74. 

Montana.  —  Slmber  r'.  Jack.  3 
.Mont.    351. 

.Vt'it'    York.  —  Paige   v.    Cagwin.   7 


Hill  361,  42  Am.  Dec.  68;  Trnax  r. 
Slater,  86  N.  Y.  6to:  Flannery  f. 
\'an  Tassel,  127  N.  Y.  631,  27  N.  K. 
,Vli:  Bullis  c'.  Montgomery,  50  N.  Y, 
^S^■,  Gardner  v.  Barden,  .u  N.  Y. 
433;  Whitaker  v.  Brown,  8  Wend. 
490;  Jones  V.  East  Society,  21  Barb. 
161:  Bristol  V.  Daiin,  12  Wend.  142: 
Booth  V.  Swezcy,  8  N.  Y.  276;  Top- 
ping V.  Van  Pelt,  HofF.  545;  Tousley 
V.  Berry,  16  N.  Y.  497;  Foster  i'. 
Beals,  21  N.  Y.  247;  Edingtou  v. 
Mut.  Life  Ins.  Co.,  67  N.  Y.  i8.s; 
Kent  T.  Walton,  7  Wend.  256;  Clews 
V.  Kehr,  90  \.  Y.  633;  Stark  v. 
Boswell,  6  Hill  405,  41  Am.  Dec. 
752;,  Barhydt  v.  Valk,  12  Wend.  145. 
27  .\m.  Dec.  124;  Smith  v.  Webb,  i 
Barb.  230;  Van  Aernam  i'.  Granger, 
86  Hun  476,  a  N.  Y.  Supp.  885;  Os- 
born  V.  Robbins,  37  Barb.  481. 

Pennsylvania. — Eckert  v.  Cameron. 
43   Pa.   St.    120. 

Of  Assignor  Not  Admissible 
Against  Assignee.  —  In  Trau.x  i'. 
Slater,  80  X.  Y.  (130,  it  is  said : 
■'  The  conversation  inquired  about 
does  not  appear  to  have  been  a  part 
of  any  res  gestae,  and  it  was  clearly 
incompetent  to  bind  or  affect  the 
plaintiff.  The  mere  declarations  of  an 
assignor  of  a  chose  in  action,  forming 
no  part  of  any  res  gestae,  are  not 
competent  to  prejudice. the  title  of  his 
assignee,  whether  the  assignee  be 
one  for  value,  or  merely  a  trustee  for 
creditors,  and  whether  such  declar- 
ations be  antecedent  or  subseciuent 
to  the  assignment." 

And  again  in  Flannery  t.  Van 
Tassel,  127  N.  Y.  631,  27  N.  E.  393- 
■■  Ordinarily  the  declaration  of  a  ven- 
dor, when  not  a  party,  made  to  a 
stranger  in  the  absence  of  the  vendee, 
is  not  competent  as  evidence  affecting 
tlie  title  of  a  purchaser  of  personal 
property,  in  good  faith  and  for  value, 
either  before  or  after  its  transfer. 
To  this  rule  there  are  exceptions,  as, 
for  instance,  where  a  cons|)iracy  be- 
tween the  vendor  and  vendee  lo  de- 
fraud is  first  shown  to  have  existed ; 

Vol.  I 


534 


.IPMISSIONS. 


(leclart'd   to  be  that   such  achnissions  arc  not   a<hiiissi1)le  against  a 
su1isef|ucnt  purcliascr  or  assignee  for  vahie.''"' 


(ir  where  tlie  party  liokis  as  a  privy 
I)y  representation,  or  in  such  a  rep- 
resentative character  as  helwcen 
whom  and  the  declarant  there  is  a 
community  of  interest  in  the  event 
of  the  suit :  or  when  the  vendor 
after  the  sale  still  continues  in  pos- 
session, exercising  acts  of  ownership 
over  the  property,  thus  raising  the 
presumption  that  the  sale  was  fraud- 
ulent." 

So  in  Dodge  7'.  Freedman's  Sav.  & 
Trust  Co..  o.?  U.  S.  .370.  the  court 
.said:  "Evidence  of  this  character 
was  given  by  each  party,  and  admit- 
ted, notwithstanding  the  objection  of 
the  other.  No  principle  can  he  found 
to  justify  the  admission  of  this  evi- 
dence. It  has  long  been  settled  that 
the  declarations  made  by  the  holder 
of  a  chattel  or  promissory  note, 
while  he  held  it,  are  not  competent 
evidence  in  a  suit  upon  it,  nr  in  re- 
lation to  it,  by  a  subsequent  owner. 
This  was  settled  in  the  state  of  New 
York  in  the  case  of  Paige  v.  Cag- 
win,  7  Hill  .361,  and  is  now  admitted 
to  be  sound  doctrine ;  and  that  the 
party  is  since  deceased  makes  no 
difference  (Beach  7:  Wise.  I  Hill 
612)  ;  or  that  the  transfer  is  made 
after  maturity  (Paige  v.  Cagwin. 
supra).  The  same  is  true  of  the 
declarations  of  a  mortgagor  (Earl  7' 
Chite.  2  Abb.  Ct.  App.  Dec.  i")  ;  or  of 
the  assignor  of  a  judgment  (16  N.  Y. 
497)  ;  or  of  an  indorser  (Anthon's 
N.  P.  141")  ;  or  of  a  judgment  debtor 
(i  Denio  202').  .Assuming  that 
Hunter  was  the  owner  or  holder  of 
these  notes,  his  declarations  are  not 
thereby  made  competent  evidence." 

Where  Part  of  Res  Gestae.  —  But 
the  exception  authorizing  proof  of 
such  declarations  when  a  part  of  the 
res  gestae,  and  particularly  wdien 
they  tend  to  show  fraud  in  the  trans- 
fer, should  be  kept   in  mind. 

See  "  Declar.m'ions  ;  "  "  Res  Ces- 
t.\e;"  Loos  v.  Wilkinson.  I  TO  N.  Y. 
10,=;,  18  N.  E.  00.  I  L.  R.  A.  250; 
.•\dams  V.  Davidson,  10  N.  Y.  .^og ; 
Newlin  v.  Lyon.  40  N.  Y.  661. 

But  not  admissions  of  fraudnUnt 
intent    by    I'"'    r-ssignor    not    part    of 

Vol.  I 


tile   res   gestae.     Jones   v.    Norris,   2 
Ala.  526. 

In  Case  of  Conspiracy.  —  So  the 
declarations  may  be  admissible  on 
the  showing  of  conspiracy  between 
thd  assignor  and  assignee.  Noyes  v. 
^forris.  56  Hun  TOi,  10  N.  Y.  Supp.  ■ 
.S6i. 

Assigned  As  Collateral  Security. 
In  Miller  t.  Bingham.  20  Vt.  82,  the 
assignment  was  as  collateral  securitv 
for  becoming  surety  for  the  assignor 
who  had  paid  nothing  as  such  se- 
curity, and  the  admissions  of  the 
assignor  were  held  competent  as 
against  such  assignee. 

35.  Schenck  t:  Warner.  37  Barb. 
2=;8;  Paige  t'.  Cagwin,  7  Hill  .s6i.  42 
Am.  Dec.  68;  Von  Sachs  7'.  Kretz,  72 
N.  Y.  mS;  Crews  v.  Kehr,  00  N.  Y. 
6.-?3;  AIcKean  7'.  Adams.  11  Misc. 
.•?87,  32  N.  Y.  Supp.  281;  Truax  7'. 
Slater.  86  N.  Y.  630;  Vidvard  7'. 
Powers.   34   Hun   221. 

Not  Competent  As  Against  a  Sub- 
sequent Purchaser  or  Assignee  for 
Value. —  The  law  is  thus  stated  in 
Schenck  7'.  Warner.  ^  B-irb.  (N.  Y.) 
258 : 

"  Our  courts  in  this  state,  how- 
ever, have  uniformly  held  that  the 
admissions  of  a  former  owner  of 
chattels,  or  choses  in  action,  are  not 
admissible,  as  against  a  subsequent 
purchaser  or  assignee,  from  such 
owner  for  value,  whether  such  owner 
were  living  or  dead  at  the  time  the 
evidence  was  offered.  This  is  the 
extent  to  which  the  courts  have  gone, 
and  all  the  cases  are  of  this  charac- 
ter. (Foster  7'.  Beals,  21  N.  Y.  R. 
247;  Tousley  7'.  Barry,  16  Id.  497; 
Booth  7'.  Swezey,  4  Seld.  276;  Smith 
7'.  Webb.  I  Barb.  230 ;  Paige  v.  Cag- 
win. 7  Hill  .361  ;  Beach  7'.  Wise.  I  Id. 
612 ;  Whitaker  7'.  Brown.  8  Wend. 
J-OO;  Kent  v.  -Walton,  7,  Id.  256.) 
There  are  several  other  cases,  but 
they  are  all  of  this  description ;  and 
no  case  can  be  found  in  our  reports 
carrying  the  rule  of  exclusion,  or 
rather  limiting  the  excention,  beyond 
this  precise  point.  And  even  this  has 
lu'cn  said  by  several  of  our  judges  to 
be    a    departure    from    a    well    estab- 


ADMfSSfOXS.  535 

b.  To  Show  Fraud  in  the  Transfer.  —  So  it  is  held  in  some  of  the 
cases  that  where  the  question  of  good  faith  in  the  transfer  arises, 
the  admissions  of  the  indorser  or  assignor  are  competent  to  show 
fraud  or  fraudulent  intent  on  his  part,  hut  that  the  fraud  or 
knowledge  of  the  fraud  on  the  part  of  the  assignee  must  be  estab- 
lished by  other  evidence.'" 

c.  By  Assig)ior  After  Assii^nnicnt  Inadmissible.  —  The  declara- 
tions of  an  assignor  after  he  has  made  the  assignment  and  thus 
parted  with  his  interest,  are  not  competent  as  against  the  assignee 
as  admissions,"''  and  this  is  true  although  the  action  is  brought  in  the 


lishcd  rule,  and  to  liavc  carried  tlie 
doctrine  quite  far  enougli.  fP.ron^on. 
J.,  in  Beach  v.  Wise.  suf<ra.  Wal- 
worth, Ch..  in  Christie  7'.  Bishop,  i 
Barh.  Ch.  R.,  115.  116.  Ruegles.  Ch. 
T-  in  Jcrmain  T.  Denniston.  2  Seld. 
278.  V 

36.  Roe  V.  Jerome.  iS  Conn.  138 ; 
Peck-ham  v.  Potter,  t  Car.  &  P.  232, 
12  Eng.  C.  L.  lii;  Frankel  7'.  Coots, 
41  Mich.  75.  I   N.  W.  940. 

Knowledge  of  Assignee  Must  Be 
Shown.  —  So  it  is  iield  that  if  the 
jury  is  instructed  that  the  declar- 
ations cannot  atTect  the  assignee  un- 
less it  is  shown  hy  other  evidence 
that  he  had  knowledge  of  the  fraud, 
the   case   is   properly   presented. 

Where  Common  Purpose  Is  Shown 
If  a  coninion  purpose  on  the  part  of 
tlie  vendor  and  vendee  to  defraud 
others  by  the  transfer  is  shown,  then 
the  admissions  of  one  are  admissible 
against  the  other.  Weinrich  7'.  Por- 
ter. 47  Mo.  203- 

Assignee's  Knowledge  Must  First 
Be  Shown. —  But  it  is  held  in  Pliil- 
lips  7'.  Cole,  10  Ad.  &  E.  106,  37  Eng. 

C.  L.  79,  that  before  the  declarations 
of  the  former  holder  can  be  heard, 
the  knowledge  of  the  assignee,  or  his 
then  identification  in  interest  with 
such  holder  must  be  established  by 
other  evidence  than  that  of  such  ad- 
missions. Ncwlin  7'.  Lyon,  49  N.  Y 
661. 

37.  Hiigland.  —  Shaw  7'.  Broom,  4 

D.  &  R.  730.   16  Eng.  C.  L.  220. 
United  Stales. — Clements  v.  Moore, 

6  Wall.  2gg ;  Many  v.  Jagger,  i 
Blatchf.  372,  16  Fed.  Cas.  No.  9055. 

Arkansas.  —  Patton  7'.  Gee,  36  Ark. 
506;  Galleft  7'.  Lamberton,  6  ,\rk. 
109;  Humphries  7'.  McCraw,  9  .\rk. 
91  ;   State  v.  Jennings,  5  Eng.  428. 


Californin.  —  Taylor  t'.  Cent.  Pac. 
Ry.  Co.,  67  Cal.  615.  8  Pac.  4.36. 

Conncctirut.  —  Scripture  7'.  New- 
comb,  16  Conn.  588. 

Georgia,  —  Nat.  Bank  7'.  Excliange 
Bank,   no  Ga.  602,  36  S.  E.  26;. 

Illinois.  —  Dazey  7'.  Mills.  >;  Gihn. 
67;  Thorp  V.  Goewev.  8>  111.  611; 
Myers  v.  Kinzie,  26  III.   -^6. 

Indiana.  —  Wynne  7'.  Glidewell.  17 
Ind.  446;  Proctor  7'.  Cole,  T04  Ind. 
.373,  .■?  N.  E.  106;  Harcourt  7'.  Har- 
court,  8q  Ind.  104;  Lister  7'.  Baker, 
6  Blackf.  439 ;  Fleming  7'.  Newman, 
5  Blackf.  220. 

Kentucky.  —  Crane  7'.  G\mn,  4  B, 
Mon.    ID. 

Louisiana.  —  Dowty  7'.  Sullivan,  ig 
La.  .\nn.  448. 

Maine. —  Hatch  7'.  Dennis,  10  Me. 
244 ;  Mathews  7'.  Houghten,  10  Me. 
420;    Hackett    7'.    Martin,    8    Greene 

77- 

Massachusetts.  —  Bond  7'.  Fit?pat- 
rick,  4  Gray  89. 

Michigan.  —  Frankel  7'.  Coots.  41 
Mich.   75,   I   N.  W.  940. 

Missouri.  —  Wemrich  v.  Porter,  47 
Mo.  293;  Garland  7'.  Harrison.  17 
Mo.  282:  Porter  7'.  Moore,  6  Mo. 
48;  Eyermann  v.  Piron,  i;i  Mo.  107. 
52  S.  W.  229;  Enders  7'.  Richards,  i:>, 
Mo.  598. 

New  HanifsJiire.  —  Forsaith  -■. 
Stickney,  16  N.  H.  575. 

A''c7i'  Jersey.  —  Kinna  7'.  Smith,  3 
N.  J.   Eq.    14. 

A''('7i'  Me.vico.  —  Pcarce  7'.  Stricklcr. 
9  N.  M.  467,  54  Pac.  748. 

.Vc7f  York.  —  Holmes  7'.  Roper.  141 
N.  Y.  64,  36  N.  E.  180;  Van  Gelder 
7'.  Van  Gelder,  81  N.  Y.  625;  Christie 
7'.  Bishop,  I  Barb.  Ch.  105;  Feare 
7'.  F.vcrtson.  20  Johns.  142;  Coyne 
7'.  Weaver.  84  N.  Y.  386;  Ogdcn  v. 
Peters,  15  Barb.  560;  Peck  7'.  Crouse. 

Vol.  I 


536 


.IPMfSSIONS. 


name  of  the  assignor  if  prosecuted  for  the  benefit  of  the  assicjnee  ;■''' 
but  it  is  otherwise  if  the  assignment  is  merely  colorable  and  the 
assignor  still  remains  the  owner  of  the  thing  assigned  as  between 
the   parties.      In    that    case   his    admissions    are   competent/'''     And 


4(1  I'.arlh  151;  People  v.  Grattan,  50 
TIovv.  Pr.  14.V.  Harlan  v.  Green.  31 
Misc.  26T.  64  N.  Y.  SiipD.  "o:  Flagler 
f.   Sclinffel,  40  Hnn   178. 

Xiirlli  Carolina.  —  Wootcn  ■:•.  Out- 
law, 113  N.  C.  281.  t8  S.  E.  25.'; 
Maddox  v.  Ml  &  N.  C.  Ry.  Co.,  115 
N.  C.  624,  20  S.  E.  190. 

Pcinisvlz'aiiia.  —  Fbv  7'.  Eby.  ^  Pa. 
St.  43=;;'  Camp  V.  Walker,  5  Watts 
^82;  Morton  v.  Morton,  13  Serg.  & 
R.  107;  Bailey  v.  Clayton,  20  Pa. 
St.  205;  Prinsfle  r.  Pringle,  ^9  Pa. 
St.  281. 

Soufli  Cai;i!i}ia.  —  Clayton  v.  Col- 
lins. 2  AlcCord  (Law)  27T  :  De 
Buhl   f.    Patterson.    12   Ricli.    (Law) 

Texas.  —  Reed  v.  Herrin.e;,  37  Tex. 
1(10;  Ricker  Nat.  Bank  7'. .  Brown 
(Tex.  Civ.  Anp.),  43  S.  W.  909. 

Vermont. — Washburn  v.  Ramsdell. 
17  Vt.  299 ;  Halloran  v.  Whitcomb, 
43   Vt.  306. 

Virginia.  —  Gintcr  7'.  Breeden,  90 
Va.  sfii;'.  19  S.  E.  656;  Strother  r. 
^litchcll,  80  Va.  149. 

IVisconsin.  —  Welch  7'.  Town  of 
Sugar  Creek,  28  Wis.  618. 

By  Assignor  After  Assignment. 
In  Molnifs  7'.  Roper,  14T  N.  Y.  64, 
,^5  N.  E.  180,  the  court  said:  "The 
general  rule  is  that  a  former  owner 
of  a  chattel  or  a  chose  in  action,  who 
has  transferred  his  interest  to 
another  by  an  absolute  sale  or  assign- 
ment, cannot,  by  his  subsequent  a<l- 
missions,  atTect  the  right  of  the  ptir- 
chaser.  In  some  cases  such  admis- 
sions may  be  admissible,  but  only 
where  there  is  an  identity  of  interests 
between  the  assignor  and  assignee 
which  is  deemed  to  exist  where  the 
transfer  is  merely  colorable  or  nom- 
inal, and  where  a  party  claims 
through  another  by  representation, 
and  llie  declaration  is  not  excluded 
by  some  other  rule  of  evidence." 

Inadmissible  for  Any  Purpose. 
In  tlie  case  of  Many  ':  Jagger,  i 
r.latchf.  .?72.  16  Fed.  Cas.  No.  9055. 
it  was  held  in  broad  terms  tliat  the 
declarations  a'ul  admissions  of  an  as- 

Vol.  I 


signor.  after  he  had  parted  with  hi.s 
interest  in  personal  property,  are  in- 
admissible either  to  show  a  want  of 
title  in  him,  or  to  affect  the  quality 
of  the  article,  or  to  impair  the  right 
of  (he  purchaser  in  any  resncct. 

But  see  on  this  subject,  Carncs  v. 
White,   15  Gray   (Mass.)   378. 

By  Assignor  After  Assignment. 
In  Morton  7'.  Morton,  13  Serg.  &•  R. 
(Pa.)  107.  it  is  held  that  declarations 
made  by  an  assignor  before  the  as- 
signment are  competent,  but  not  such 
as  are  made  after  the  assignment, 
and  in  that  case,  the  action  was 
lirought  in  the  name  of  the  assignor 
for  the  use  of  the  assignee. 

Where  Assiajnor  Continues  in  Pos- 
session. — Such  admissions  have  been 
admitted  when  made  after  the  as- 
sigimient  where  the  question  of  the 
good  faith  of  the  assignmert  was  in 
question  and  the  assignor  remained 
in  continuous  possession.  Adams  v. 
Davidson,  10  N.  Y.  309;  McKean  v. 
Adams,  11  Mi.sc.  .387,  32  N.  Y.  Supp. 
281  ;  Frankel  ?'.  Coots,  41  Mich.  75. 
I  N.  W.  940;  Dodge  -'.  Goodell,  16 
K.  I.  48,  12  Atl.  2,36:  Morrissey  v. 
Broomal  37  Neb.  766,  56  N.  W.  38?. 

38.  Morton  7-.  Morton,  M  Serg.  & 
R.  (Pa.)  107;  Sargeant  7'.  Sargeant. 
18  Vt.  371  ;  Frear  v.  Everston,  20 
Johns.  "(N.  Y.)  142;"  Halloran  7'. 
Whitcomb,  43  Vt.  306.  But  see  Gib- 
son V.  Winter.  5  Barn.  &  .A.  96,  27 
Kng.   C.   L.   50. 

39.  Where  Assignment  is  Merely 
Colorable. —In  Ganlncr  7'.  Bardcn.  34 
N.  Y.  433,  it  was  held  that  the  dec- 
larations of  the  assignor  were  not  ad- 
missible against  the  assignee;  and 
further,  that  such  declarations  are 
only  admissible  where  the  interests 
of  the  parties  remain  unchanged  by 
ll;c  apparent  transaction  and  where 
an  "identity  of  interest  exists  be- 
tween the  assignor  and  the  assignee." 
the  court  saying:  •The  principle  is 
no  doubt  sound,  that  where  a  trans- 
fer is  made  to  a  nominal  party 
iherely,  and  the  interests  of  llie  par- 
lies   remain    unchanged    by    the    ap- 


.in.\[[ssinxs.  5.'^/ 

wliere  the  (|ucstion  whether  there  has  heen  an  assignment  or  not  is 
involved,  the  admissions  shouUl  be  received  and  the  question  left 
to  the  jury.""' 

While  Held  by  Another  for  Value.  —  The  rule  excludino  such 
admissions  apjjlies  to  a  case  where  the  paper  is  held  by  another  as 
collateral  security  or  otherwise  leaving-  a  contingent  interest  in  the 
payee.-" 

d.  Bv  Jssii^iior  in  Bankruptcy.  —  The  rule  is  that  the  admissions 
of  an  assignor  in  Imnkrujitcy  made  before  the  Act  of  Bankruptcy  are 
comix-tent  against  the  assignee.''-  And  they  may  be  competent 
against  one  claiming  adversely  to  the  assignee  in  bankruptcy. ''•■'  F.ut 
they  are  not  admissible  if  made  after  the  assignment." 

For  Benefit  of  Creditors.  —  The  same  rule  is  applicable  to  assign- 
ments for  the  benefit  of  creditors,''^  and  has  been  extended  to  decla- 


parent  transaction,  where  an  '  iden- 
tity of  interest  exists  between  the 
assignor  and  the  assignee.'  the  party 
making  the  transfer  is  still  the  party 
in  interest,  and  his  declarations  are 
admissible."  See  also  McKean  t. 
.Adams,  1 1  Misc.  387,  32  N.  Y.  Snpp. 
281. 

40.  Where  the  Assignment  Is 
Controverted. — In  Hogan  7'.  Sherman, 
5  Mich.  60,  the  court  said:  ''But  we 
do  not  regard  the  law  as  in  any  way 
establishing  the  doctrine  that  the  ad- 
missions of  a  plaintiff  of  record  are 
to  be  excluded,  even  where  there  is 
evidence  of  an  assignment.  Tlie 
declarations  of  a  party  in  interest 
are  always  admissible  in  derogation 
of  his  own  title.  The  plaintiff  of 
record  generally  .stands  (except  in 
official  suits  and  like  cases)  as  the 
ostensible  party  in  interest.  If  it  is 
objected  to  the  admissibility  of  his 
declarations  that  he  has  parted  with 
his  interest  that  fact  is  open  to  con- 
troversy, and  its  decision  belongs,  not 
to  the  court,  but  to  the  jurv.  If  the 
fact  of  such  assignment  appears  in 
his  admissions,  it  is  for  the  jury  to 
determine  how  much  of  the  admis- 
sion is  credible,  and  how  much  to  be 
disregarded.  i  Greenl.  Ev.  §  201. 
If  a  court  assumes  to  reject  his  state- 
ments because  there  is  evidence  that 
hd  has  parted  with  his  interest,  it  is 
encroaching  upon  the  province  of  the 
jury,  by  deciding  upon  .a  fact  which 
is  important  in  arriving  at  a  verdict. 
There  are,  it  is  true,  some  cases 
which  seem  to  hold  that  such  dec- 
larations are  inadmissible,  and  should 


be  rejected;  but  we  do  not  perceive 
the  force  of  their  reasoning.  No 
such  ruling  is  necessary  to  save  the 
rights  of  assignees.  That  object  may 
be  fully  obtained  by  leaving  all  the 
facts  to  the  jury,  under  instructions 
from  the  court,  that  if  they  find  a 
proper  and  valid  transfer  of  interest 
to  have  been  made,  they  shall  dis- 
regard all  subsequent  declarations  of 
the  assignors.  This  is  the  only  way 
whereby  the  rights  of  all  parties  can 
be  preserved." 

41.  Russell  ?•.  Doyle,   15  Me.   i!2. 

42.  Von  Sachs  v.  Kretz,  72  N.  Y. 
548.  But  see  Flagler  f.  SchofTel,  40 
"Hun    (N.    Y.)    178. 

43.  In  Favor  of  Assignee Thus 

it  has  been  held  that  the  admissions 
of  a  bankrupt  are  competent  against 
one  claiming  adversely  to  the  as- 
signee, where  a  conspiracy  to  de- 
fraud as  between  such  adverse  claim- 
ant and  bankrupt  is  shown.  lit  re 
Clark.  9  Blatchf.  379.  5  Fed.  Cas. 
No.  2802. 

44.  Barber  r.  Terrell,  54  Ga.  156; 
Brock  J'.  Schradsky.  6  Colo.  .\pp. 
402.  41    Pac.  512. 

45.  ,\dams  v.  Davidson,  10  N.  Y. 
.^og:  Ogden  v.  Peters.  15  Barb.  (N. 
Y.)  .s6o;  Carleton  z\  Baldwin.  27 
Tex.  572;  Savery  v.  Spaulding,  8 
Iowa  2,?Q,  74  .Am.  Dec.  300;  Brock  t'. 
Schradsky,  6  Colo.  App.  402.  41  Pac 
512;  Vidvard  f.  Powers,  .34  Hun  (N. 
v.)   221. 

Held  Inadmissible.  —  But  there  are 
cases  holding  that  there  is  no  such 
identity  of   interest   between   the  as- 

Vol.  I 


538 


ADMISSIONS. 


rations  made  after  the  assignment  where  the  assignor  has  remained 
in  possession  ;^'  but  the  general  rule  is  that  declarations  made  by 
the  assignor  after  the  assignment  are  inadmissible.*' 

4.  By  Agents  or  Other  Representatives.  —  A.  Gener.m.ly.  —  The 
declarations  of  an  agent  or  other  authorized  representative  of 
another  are.  within  the  scope  of  his  authority,  and  while  acting 
as  such,  the  declarations  of  the  per.son  represented,  and  if  against 
interest,  may  be  proved  as  admissions.*' 


signor  and  assignee  for  the  benefit 
of  creditors  as  will  render  the  ad- 
missions of  the  former  competent  as 
against  the  latter.  Bnllis  v.  Mont- 
gomery. 50  N.  Y.  .•^ja :  Vidvard  <■. 
Powers.  34  Hun  22T. 

48.  Adams  r.  Davidson,  to  N.  Y. 
.30q. 

47.  Wynne  f.  Glidewell.  17  Ind. 
446;  Burt  V.  McKinstry  4  Minn.  146: 
Myers   t.   Kinzic.   26   III.   36. 

Except  in  Case  of  Collusion. — The 
rule  does  not  apply  whore  a  fraud- 
ulent combination  on  the  part  of  the 
assignor  and  assignee  is  shown.  Cuy- 
ler  V.  :McCartnev.  31,  Barb.  (N.  Y.) 
165. 

Or    Where    Assignor    Remains    in 

Possession Dodge    v.    Goodcll.    16 

R.  I.  48,  12  Atl.  236. 

48.  United  States. — American  Fur 
Co.  V.  U.  S.,  2  Pet.  358;  Aiken  v. 
Bemis,  3  Woodb.  &  M.  .348,  l  Fed. 
Cas.  No.  log. 

Alabama.  —  Buchanan  7'.  Collins, 
42  Ala.  419;  Williams  t.  Shackel- 
ford, 16  Ala.  (N.  S.)  318. 

Connecticut.  —  Thill  v.  Perkins 
Elec.  L.  Co.,  63  Conn.  478,  29  .^tl. 
13 ;  Mather  v.  Phelps,  2  Root  150.  i 
Am.  Dec.  65;  Arnold  v.  Lane,  71 
Conn.  61,  40  Atl.  921. 

Georgia.  — CentrA\  R.  R.  &  B.  Co. 
V.  Skellie,  86  Ga.  686,  12  S.  E.  1017; 
Banks  7\  Gidrot,  19  Ga.  421. 

Illinois.  —  Hungate  v.  Rankin,  20 
III.  639;  Merchants'  Dispatch  Trans. 
Co.  V.  Leyser,  89  III.  43 ;  Cook  ?■. 
Hunt,  24  111.  536;  Miles  v.  Andrews, 
153  III.  262,  38  N.  E.  644;  Prickett 
V.  Madison  Co.,  14  111.  App.  454 ; 
Cheney  7;.  Beaty,  56  111.  App.  90. 

Indiana.  —  Grand  Rapids  &  R.  Co. 
I'.  Diller.  no  Ind.  223,  9  N.  E.  710; 
Hudspeth  v.  Allen,  26  Ind.  165;  To- 
ledo &:   Wabash   R.    '\,.   v.   Goddard, 

Vol.  I 


2?;  Ind.  18;:  Pavcy  v.  \\  introde.  87 
Ind.  379;  Crowder  7'.  Reed.  80  Ind.  I. 

lotca.  —  Kelly  7'-  Norwich  F.  Ins. 
Co.,  82  Iowa  137,  S7  N.  W.  986: 
Gaidt  T.  Sickles,  8q  Iowa  266,  ^2  N. 
W.  206. 

Kentnckv.  —  Covingt-ou  &  Co.  R. 
Co.  7'.  Ingles.  15  B.  Mon.  637. 

Maine.  —  Lamb  7'.  Barnard.  t6  Me. 
V'l';  Hammalt  7'.  Emeron.  27  Me. 
30S. 

Maryland  —  Citv  Bank  7'.  Bate- 
man.  7  Har.  &  T.  104 :  Thomas  ?■. 
Sternhcimer.  29  Md.  268. 

}fassachusetts. — Cooley  7'.  Norton. 
4  Cnsh.  93. 

Missouri.  —  Peck  7'.  Ritcliey.  66 
Mn  TTi:  ATalecek  7'.  Tower  Grove 
i*v-  Co.  R.  Co,,  S7  Mo.  T7. 

.Vr7('  Haint>sliire.  —  Webster  7'. 
Clark.  30  N.  H.  245;  Town  of  Alton 
7'.  Town  of  Gilmanton,  2  N.  H.  .sao. 

Ne7V  Jersey.  —  Sussex  Co.  Mut. 
Ins.   Co.  7'.  Woodruff,  26  N.  J.  Law 

Nc'ii'  York.  —  Epnens  &•  Co.  1:  Lit- 
tlejohn,  27  .\pp.  Div.  22.  50  N.  Y. 
Sunp.  2^1. 

North  Carolina.  —  Prinnix  ?■.  Mc- 
Adoo.  68  N.  C.  =;6;  McComb  7'.  N. 
C.  R.  Co..  70  N.  C.  178. 

On-go/i.  —  North  Pac.  Lum.  Co.  7'. 
Willamette  S.  M.  L.  &  Co..  29  Or. 
2iq.  44  Pac.  286. 

Pennsvlvania.  —  Grim  v.  Bomiell, 
78  Pa.  St.  T5;2;  Baker  7'.  Westmore- 
land &  C.  Nat.  Gas  Co..  157  Pa.  St. 
593,  27  .\tl.  789;  Stockton  7'.  De- 
niuth,  7  Watts  39,  32  Am.  Dec.  73.S ; 
Union  R.  &  Trans.  Co.  7'.  Ricgel,  73 
Pa.  St.  72;  O'Toole  7'.  Post  Printing 
&  Pub.  Co.,  179  Pa.  St.  271.  ,?6  Atl. 
288. 

Tennessee.  —  Scnance  Min.  Co.  v. 
McMahon,  i  Head  582. 

r<'.n7.y.  —  Western  U.  Beef  Co.  v. 
Kirchevalle   (Tex.  Civ.  App.,)   26  S. 


ADMISSIONS. 


539 


B.  Agents  and  Employees. — The  g^eneral  rule  is  that  admis- 
sions made  by  agents  or  employees  in  the  reg;ular  course  of  dutv 
arc  competent  as  agrainst  the  principal  if  they  would  be  competent 
and  material  if  made  by  the  principal  himself.'"' 


\V.  IJ7;  Barliee  v.  Spivey  (Tex.  Civ. 
.\rn..~)  ,^2  S.  W.  j,T,s. 

Statement  of  the  Rule The  treii- 

cral  rule  is  jvell  cxnressed  in  Cov- 
ington, etc..  R.  R.  Co.  V.  Tngles,  T^ 
B.  IVfon.  CKy.')  6x7.  i"  which  it  is 
said  :  "  The  doctrine  is  well  settled 
that  where  the  acts  of  the  ascent  will 
hind  the  principal,  there  his  repre- 
sentations and  statements  respecting 
the  snhiect  matter  will  also  hind 
him,  if  made  at  the  same  time,  and 
constitnting  a  part  of  the  res  gestae. 
Wherever  what  the  agent  did  is  ad- 
missible in  evidence,  then  whatever 
he  said  on  the  subject  while  doing 
it  is  also  evidence  against  the  prin- 
cipal." 

49.  Alabama.  —  Williams  v. 
Shackelford,   ifi  Ala.    TN.   S.")    .liS. 

Colorado.  — 'Denver  &•  R.  0.  R. 
Co.  V.  Wilson,  4  Col.  .\pp.  .3,=;,=;,  i^ 
Pac.  67. 

Georgia.  —  Hines  v.  Poole,  s6  Oa. 
638. 

Illinois.  —  Wagoner  T'.  Cooley,  17 
Til.  2.TO;  Cook  f.  Hunt,  24  111.  5.36: 
Tlollev  T'.  Knan.  45  Til.  App.  372. 

Indiana.  —  Grand  Rapids  &  Co.  R 
Co.  V.  Diller,  no  Tnd.  223,  9  N.  E. 
71b;  Rahm  t.  Deig,  121  Tnd.  2S3,  23 
N.  E.  iJi ;  Cleveland  C.  C.  &  T.  Rv. 
Co.  V.  Closser,  126  Tnd.  348.  26  N.  E. 

159- 

/oK'(7.  —  Home  Machine  Co.  ?'. 
Snow,  32  Towa  433 ;  Black  7'.  Des 
Moines  Mfg.  &  S.  Co.  (Towa,")  77 
N.  W.  504. 

Kentneky.  —  Plotz  v.  Miller,  21 
Ky.  Law  257,  51  S.  W.  176. 

Maryland.  —  City  Bank  v.  Bate- 
nian.  7  Har.  &  J.  104. 

Massaelntsctts.  —  Baring  v.  Clark, 
19  Pick.  220;  Allin  7'.  Whittemore, 
171   Mass.  259,  50  N.  E.  618. 

Minnesota.  —  Cumbey  f.  T^ovctt, 
76  Minn.  227,  79  N.  W.  99. 

Missouri.  —  Hpwk  v.  Applegate, 
37  Mo.  App.   32. 

Nev  Jersey.  —  Cifford  7'.  T.andrine, 
.V   N-  J.  Eq^   127. 

AVji'   York.  —  Seymour  t'.    .Matter- 


son,  42  How.  Pr.  496;  Miller  v. 
King,  84  Hun  ,308,  32  N.  Y.  Supp. 
332:  !\Iorgan  v.  Short,  \\,  Misc.  279, 
34  N.  Y.  Supp.  10. 

Ohio.  —  Globe  Tns.  Co.  r'.  Bovle,  21 
Ohio  St.  no. 

Te.vas.  —  Hinson  7".  Walker,  65 
Tex.  103. 

Vermont.  —  Churchill  r'.  Smith,  16 
Vt.  s6o. 

Washington.  —  Selher  7:  Spring- 
brook  Trout  Farm,  19  Wash,  49,  52 
Pac.  2.38. 

IViseonsin.  —  Smith  f.  Wallace,  25 
Wis.  5=;. 

Where  Agent  Is  Competent  Wit- 
ness. —  The  fact  that  the  agent  is 
competent  and  might  be  called  as  a 
witness  does  not  affect  the  right  to 
prove  his  admissions.  Baring  7'. 
Clark,   ig  Pick,    (Mass.")   220. 

By  Contractor  to  Construct  Build- 
ing  Tn       Dickinson       College       t'. 

Church,  T  Watts  &  S.  (Pa.")  462,  it 
was  held,  in  an  action  to  enforce  a 
mechanic's  lien  against  the  owner  of 
a  building,  that  the  declarations  of 
the  contractor  for  the  construction  of 
the  building,  as  to  the  material  re- 
ceived and  amount  due,  were  compe- 
tent, but  should  be  received  with 
great  caution. 

But  in  Philibert  7:  Schmidt,  57  Mo. 
21 T,  a  contrary  rule  is  declared.  See 
also  Happy  7\  Moslier.  48  N.  Y.  313 ; 
Grace  7'.  Nesbitt,  109  Mo.  0,  18  S.  W. 
1 1 18;  Carthage  Marble  &  Co.  7:  Bau- 
man,  5t  AIo.  App.  204:  Treusch  7'. 
Slirvock,  51  INId.  162. 

Of   the   Architect The   architect 

of  a  building  is,  as  a  rule,  the  agent 
of  the  owner,  and,  as  such,  his  admis- 
sions are  competent  evidence  against 
the  owner  as  in  other  cases.  Wright 
7\  Reuscns,  13.3  N.  Y.  298,  31  N.  E. 
2T5. 

Master  of  Vessel,  —  The  master  of 
a  vessel  is  the  general  agent  of  the 
owner,  and  as  such,  his  admissions 
are  competent  evidence  against  such 
owner.  Eads  7:  Bacon,  r  Newb.  274, 
8  Fed.  Cas.  No.  4232;  Gerke  7'.  Cali- 

Vol.  I 


540 


ADMISSIONS. 


Rule  Applies  to  Criminal  As  Well  As  Civil  Cases. — The  nik'  thai  the 
declarations  of  the  agent,  within  his  authority,  and  while  acting'  as 
such,  are  tlie  declarations  of  the  ]irincipal.  and  liinding  ujdou  him. 
applies  as  well  to  criminal  actions  and  criminal  liability  as  tn  civil 
cases. ^" 

a.  Must  Be  U'ltilc  .Jr/nit;  As  Such  anil  U'itliiii  .lutliority.  —  To 
render  one's  admissions  admissible  as  an  agent  they  must  be  made 
as  such,  and  while  acting  for  the  jirincipal  and  within  his  authority 
as  such  agent.''' 


fornia  S.  Nav.  Co..  9  Cal.  251.  70 
Am.  Dec.  650;  Collins  ?■.  Davis,  32 
Ohio  St.  76. 

50.  Cliquot's  Cliampagiio.  3  Wall. 
114;  American  Fur  Co.  ■;■.  U.  S.,  2 
Pet.  358. 

51.  United  67<i(c-.s. —Packet  Co.  -■. 
Clough,  20  Wall.  =;28;  Vicksbiirg  & 
M.  R.  Co.  J'.  O'Brien,  119  U.  S.  99. 
7  Sup.  Ct.  118;  .Maltbv  I'.  The  R.  R. 
Kirkland.  48  Fed.  760;  Goddard  r. 
Crefield  Mills,  73'  Fed.  8x8. 

Alabama.  —  Ricketts  1:  Birming- 
ham St.  R.  Co.,  8s  Ala.  600,  5  So. 
^53 ;  Mitcham  v.  Schnessler,  98  Ala. 
6.35.  13  So.  617:  Danner  Land  Co.  v. 
Stonewall  Ins.  Co.,  77  .-Ma.  184; 
Huntsville  Belt  Line  Co.  7\  Corpen- 
ing,  97  Ala.  681,   12  So.  29s;   Mobile 

6  ^L  R.  Co.  v.  Ashcroft,  48  Ala.  15; 
Smith  V.  Tallahassee  Branch,  etc.,  30 
Ala.  (N.  S.)  6so;  Winter  -■.  Burt,  31 
Ala.  33;  Memphis  &  C.  R.  Co.  v. 
Maples,  63  .-Ma.  601  ;  Bohannan  v. 
Chapman.  13  .\la.  641. 

Arlcaiisas.  —  Levy  7'.  Mitclull.  6 
.\rk.  138;  (iould  J'.  Talnin.  21  .\rk. 
329;    Byers  v.   Fowler.    14   .Ark.  86. 

California.  —  Piirch  v.  Hale,  99  Cal. 
299,  3i  Pac.  1088;  Hewcs  v.  Germain 
Fruit  Co.,  106  Cal.  441,  39  Pac.  853; 
Hutchin.son  f.  Castle,  48  Cal.  i,=;2; 
Beasley  i'.  San  Jose  F.  P.  Co..  92  Cal. 
388,  28  Pac.  485 ;  Garfield  r.  Knight's 
Ferry  W.  Co.,  14  Cal.  35;  Clunie  v. 
Sacramento  Lumber  Co.,  67  Cal.  313, 

7  Pac.  708. 

Colorado.  —  Edmunds  v.  Curtis,  8 
Colo.  605,  9  Pac.  793;  T.  &  H. 
Pueblo  Bldg.  Co.  7'.  Klein,  i  Colo. 
App.  348,  .38  Pac.  608. 

Connecticut.  —  Charter  i'.  Lane,  62 
Conn.  121,  25  ,\{\.  4^4;  Fairfield  Co. 
T.  Co.  V.  Thorp.   13  Conn.   T73. 

Georgia.  —  Small  v.  Williams.  87 
Ga.  6S1,   13  S.  F..  58r);   Ilenialite   Min. 

Vol.  I 


Co.  V.  East  Tennessee  &  G.  R.  Co., 
92  Ga.  268,  18  S.  E.  24;  Claflin  v. 
Ballance,  91  Ga.  411.  18  S.  K.  309; 
.■\dams  7'.  Humphries,  54  Ga.  496: 
Newton  Mfg.  Co.  v.  White,  53  Ga. 
?,()$;  Mason  v.  Croom,  24  Ga.  211; 
GrifFen  v.  Montgomery,  26  Ga.  iii; 
East  Tenn.  &  G.  R.  Co.  v.  Duggan, 
51    Ga.  212. 

Illinois.  —  Jenks  v.  Burr.  56  111. 
450;  Hovey  v.  Middleton,  56  III.  468; 
School  Directors  7'.  Wallace,  9  III. 
.A.pp.  312;  Cleveland  C.  C.  &  St.  L.  R. 
Co.  7'.  Jenkins,  75  111.  .■\pp.  17;  Bens- 
ley  7'.  Brockway,  27  III.  App.  41a: 
Central  Warehouse  Co.  7'.  Sargeant. 
40  111.  App.  438:  Bernstein  7'.  Bern- 
stein, II  111.  .App.  238;  Covenar.t 
-Mut.  B.  A.  7'.  Conway,  10  111.  App. 
3.18;  Ehrler  7'.  Worthern.  47  111.  App. 
5So:  Chicago  B.  &  Q.  R.  Co.  7'.  Lee. 
60  111.  501  ;  Whiteside  7'.  Margarcl. 
31  111.  507;  Michigan  Cent.  Ry.  Co. 
7'.  Gougar,  5s  111.  ^03;  Waterman  '<.■. 
Peet,    II    1117648.   ' 

Indiana.  —  Rowcll  7'.  Klien,  44  Iml. 
2ip,  i_s  .Am.  Rep.  235;  Lafayette  K. 
Co.  7'.  Ehman.  .<o  Ind.  83:  Bellefon- 
tain  R.  Co.  7'.  Himter,  i},  Ind.  335,  5 
.\m.  Dec.  201  ;  LaRose  7'.  Logansport 
Xal.  Bank,  102  Ind.  332,  i  N.  E.  805. 

lo;ca.  — Osgood  v.  Bander,  82  Iowa 
171,  47  N.  W.  looi  ;  Phelps  7'.  James, 
S6  Iowa  398,  .i3  N.  W.  274,  41  .Am. 
St.  Rep.  497:  Vordy  !'.  Marshall  Co.. 
113  Iowa  340,  53  N.  W.  298;  Wig- 
gins 7'.  Leonard,  9  Iowa  194:  .Ayres 
7'.  Hartford  Fire  Ins.  Co.,  17  Iowa 
176,  85  .Am.  Dec.  553;  Wood  Mow- 
ing Mach.  &•  R.  Co.  7'.  Crow,  70  Iowa 
3)0,  30  X.  W.  609;  Verry  7'.  B.  C.  R. 
&  M.  R.  Co.,  47  Iow!i  349;  Osgood  7'. 
Bringolf.  ;i2  Iowa  265;  McPherin  7'. 
Jennings,  66  Iowa  622,  24  N.  W.  242. 

Kansas.  —  Kilpatrick-Koch  Dry 
Goods  Co.  7'.   Kahn,  53  Kan.  274.  36 


.IDMISS/OXS. 


541 


b.    irinil  Is  ['art  of  Res  Crstuc. 


As  III  what  will  be  resrarded 


Pac.  327;  Swcngon  ;■.  Aultman,  14 
Kan.  273;  Uonnell  v.  Clark,  12  Kan. 
154;  Acme  Harvester  Co.  v.  Madden. 
4  Kan.  App.  708,  46  Pac.  319. 

Kentucky.  —  Clay  r.  Smitli,  4  Bilil) 
255 ;  Davis  v.  Whitesidcs,  i  Dana 
177,  25  Am.  Dec.  138;  Parker  r. 
Green,  8  Mete.  137:  Roberts  i'.  Borks, 
Litt.  Sel.  Cas.  411,  12  Am.  Dec.  325; 
Mnrphy  r.  May,  9  Bush  33;  Stiles  v. 
Western  R.  Co.,  8  Mete.  44. 

Louisiana.  —  Reynolds  f.  Rnwk-y, 
2  La.  Ann.  8go. 

Maine.  —  Gooch  v.  Bryant,  13  Me. 
386;  Craig  f.  Gilbrctli,  47  Me.  416; 
Fianklin  Bank  v.  Steward,  37  Me. 
519;  Heath  v.  Joaquith,  68  Me.  433; 
Merrow  i'.  Goodrich,  92  Me.  393,  42 
Atl.   797,  69  Am.    St.    Rep.   512. 

Marvland.  —  Franklin  Bank  ;■.  Pa. 
D.  &  M.  Steam  Nav.  Co.,  11  Gill.  & 
J.  28,  33  Am.  Dec.  687;  Owings  v. 
Low,  5  Gill  &  J.  134;  Mayor  etc.  '■. 
Lobe.   90   Md.   310,   45   All.    192. 

Massachusetts.  —  Geary  j'.  Steven- 
son, 169  Mass.  23,  47  N.  E.  508;  Ty- 
ler V.  Old  Colony  R.  Co.,  157  .Mass. 
336.  32  N.  E.  227;  Wilson  V.  Bovvden, 
113  Mass.  422;  Cooley  v.  Norton,  4 
Cush.  93 ;  Blanchard  z'.  Blackstone. 
102  Mass.  343;  Creed  v.  Creed,  161 
Mass.  107,  36  N.  E.  739;  Wellington 
V.  Boston  &  M.  R.,  15  Mass.  185.  33 
N.  E.  393;  Dome  f.  Southwork  Mfg. 
Co.,  II  Cush.  205;  Gilmore  v.  Mil- 
lineague  Paper  Co.,  169  Mass.  471, 
48  N.  E.  623. 

Michigan.  —  Pittsburg  &  L.  S.  Iron 
Co.  z'.  Kirkpatrick,  92  Mich.  252,  52 
N.  W.  628;  Patterson  v.  Wabash  etc. 
R.  Co..  54  Mich,  gi,  19  N.  W.  761  ; 
North  V.  Metz,  57  Mich.  612,  24  N. 
W.  759 ;  Converse  v.  Blumrich,  14 
Mich.  109,  90  Am.  Dec.  230;  Mabley 
V.  Kittleberger,  37  Mich.  360 ;  An- 
drews V.  Tamarack  Min.  Co.,  114 
Mich.  375,  72  N.  W.  242. 

Minnesota.  —  Van  Doren  r.  Bailey, 
48  Minn.  305,  51  N.  W.  375;  Lerny 
V.  Harris,   12  Minn.  255. 

Mississif'l^i.  —  Doe  j.  Robinson,  44 
M.ss.   688. 

Missouri.  —  Caldwell  v.  Garner,  31 
Mo.  131  ;  Price  v.  Thornton,  10  Mo. 
i3=,:  Rogers  v.  McCunc,  19  .\lo.  557; 


.McDermott  v.  Hannibal  &  St.  J.  R. 
Co.,  73  Mo.  516,  39  Am.  Rep.  526; 
Scoville  V.  Glassner,  79  Mo.  449; 
Ready  v.  Steamboat  Highland  Mary, 
20  Mo.  264;  Kelly  z:  Chicago  &  A. 
R.  Co.,  88  Mo.  534;  Lackey  z: 
Schreiber,  17  Mo.  146;  Midland  L. 
Co.  z\  Kreeger,  52  Mo.  418 ;  Hawk 
z\  Applegate,  37  Mo.  App.  32. 

Nebmsha.  —  McCormick  z\  Den- 
nary,  10  Neb.  515',  7  N.  W.  283; 
Bowman  v.  Griffith,  35  Neb.  361,  53 
.\.  W.   140. 

.\'ezc  Hampshire. — Low  v.  Railroa  1, 
.45  N.  H.  370;  Batchelder  z\  Emery, 
20  N.  H.  165;  Demeritt  ''.  Meservc. 
39  N.  H.  521. 

iVcic  Jersey.  —  Runk  v.  Ten  Eyck, 
24  N.  J.  Law  756;  Ashmore  v.  Penn. 
S.  &  T.  Co.,  38  N.  J.  Law   13. 

iVcic  York.  —  Anderson  v.  Rome 
N.  &  O.  R.  Co.,  54  N.  Y.  334;  Wake- 
lield  Rattan  Co.  ?'.  Tappan,  70  Hun 
405,  24  N.  y.  Snpp.  430 ;  Gutcbers 
z\  Gutcbers,  66  Barb.  483 ;  Morgan 
f.  Short,  13  Misc.  279,  34  N.  Y. 
Supp.  10 ;  Thallhimer  v.  Brincker- 
boff,  4  Wend.  394,  21  Am.  Dec.  155; 
Eogg  V.  Child,  13  Barb.  246;  White 
V.  Miller,  71  N.  Y.  118:  Thompkins 
V.  Sheehan,  82  Hun  345,  31  N.  Y. 
Supp.  225;  Strong  v.  Union  Trans. 
&  S.  Co.,  II  Misc.  430,  32  N.  Y.  Supp. 
124;  Warner  v.  Warner,  i  N.  Y.  228; 
Kelly  7'.  Morehouse,  25  App.  Div.  359, 
49  N.  Y.  Supp.  552 ;  Fimm  z'.  Rose 
Co.,  21  iMisc.  337,  47  N.  Y.  Supp. 
150;  Vail  V.  Judson,  4  E.  D.  Smith 
165;  Clark  V.  Anderson,  14  Daly  464. 

North  Carolina.  —  Williams  ;■. 
Southern  Bell  T.  &  T.  Co.,  116  N.  C. 
558,  21  S.  E.  298;  McComb  V.  N.  C. 
li.  C,  70  N.  C.  178;  Smith  V.  N.  C.  R. 
Co.,  68  N.  C.  107;  Stenhouse  &  Co. 
z:  Charlotte  C.  &  C.  R.  Co.,  70  N.  C, 

54-;. 

Pennsylvania.  —  Hough  i'.  Doyle, 
4  Rawl.  291 ;  Jordan  Z'.  Stewart.  23 
I'a.  St.  244;  Woodvvell  z\  Brown.  44 
Pa.  St.  121  ;  Clark  z:  Baker,  2  Whart. 
340;  Huntingdon  R.  &  C.  Co.  z: 
Decker,  82  Pa.  St.  119;  Hannay  v. 
Stewart,  6  Watts  487;  Glaser  z\ 
Reno,  6  Serg.  &  R.  206 ;  Fawcett  v. 
Riglcy,  59  Pa.  St.  411;  Pennsylvania 

Vol.  I 


542 


.IDMISSIONS. 


R.  Co.  v.  Books,  57  Pa.  St.  339, 
98  Am.  Dec.  229;  Grim  1'.  Boniiell, 
78  Pa.  St.  152;  Rigley  v.  Williams, 
80  Pa.  St.  107;  Am.  S.  S.  Co.  v. 
Landreth,  102  Pa.  St.  131 ;  Bank  of 
Nortliern  Liberties  v.  Davis,  6  Watts 
285;  Roberson  r.  Schuylkill  Nav. 
Co.,  3  Grant  186;  Fatten  z:  Aline- 
singer,  25  Pa.  St.  393;  Brigley  v. 
Williams,  80  Pa.  St.  107;  North- 
western Mut.  L.  Ins,  Co.  7'.  Roth, 
87  Pa.   St.  409. 

South  Carolina.  —  Patterson  Z'. 
Railroad  Co.,  4  S.  C.  153;  Raiford 
V.    French,    11    Rich.   367. 

South  Dakota.  —  Plymouth  Co. 
Bank  z:  Gilman,  3  S.  D.  70,  52  N.  W. 
869;  Wendt  z'.  Chicago,  St.  P.  &  JNI. 
O.  R.  Co.,  4  S.  D.  476,  57  N.  W.  226. 

Tennessee.  —  Cobb  z:  Johnson,  2 
Sneed  73,  62  Am.  Dec.  457. 

Texas.  —  McAlpin  i'.  Cassidy,  17 
Tex.  449;  Hinson  z:  Walker,  65  Te.x. 
103;  Atchison  T.  &  S.  F.  R.  Co.  z: 
Bryan  (Tex.  Civ.  App.),  28  S.  W. 
98;  Goodhar  z:  City  Nat.  Bank,  78 
Tex.  461,  14  S.  W.  851;  Belo  z: 
Fuller,  84  Tex.  450,  19  S.  W.  616,  31 
Am.  St.  Rep.  75;  Gulf  C.  &  S.  F. 
R.  Co.  V.  Southwick  (Tex.  Civ. 
App.),  30  S.  W.  592;  Laughlin  v. 
Fidelity  Mut.  L.  Ins.  Assn.,  8  Tex. 
Civ.  App.  448,  28  S.  W.  411. 

P'crnwnt.  — Warner  v.  McGary,  4 
Vt.  507;  Styles  V.  Town  of  Danville, 
42  Vt.  282. 

Virginia.  —  Smith  v.  Betty,  11 
Graft.  752. 

Washington.  —  Wcidcman  v.  Ta- 
coma  R.  &  M.  Co.,  7  Wash.  517,  35 
Pac.  414. 

Wisconsin.  —  Hazelton  z\  Union 
Bank,  32  Wis.  34. 

When    Admissible Tlic    rule    is 

thus  stated  in  Vcrry  f.  P..  C.  R.  81 
M.  R.  Co.,  47  Iowa  549 : 

"To  make  the  declarations  of  an 
agent  admissible  against  his  prin- 
ciple, such  admissions  must  be  a  part 
of  the  res  gestae.  It  is  said  the 
doctrine  is  well  settled  that  where 
the  acts  of  the  agent  will  bind  the 
principal,  there  his  representations 
and  statements  respecting  the  subject 
matter  will  also  bind  him,  if  made  at 
the  same  time,  and  constituting  a  part 
of  the  res  gestae." 

Vol.  I 


.\nd  in  Hough  t'.  Doyle,  4  Rawl. 
(.I'a.)    291,   it    is   said: 

"  The  general  rule  is  this :  When 
it  is  proved  that  one  is  the  agent  of 
another,  whatever  the  agent  docs,  or 
says,  or  writes,  in  the  makitig  of  a 
contract,  as  agent,  is  admissible  in 
evidence  against  the  principal,  be- 
cause it  is  part  of  the  contract  which 
he  makes  for  his  principal,  and  whicli, 
therefore,  binds  him,  but  it  is  not 
admissible  as  the  agent's  account  of 
what  passes.  For  example,  the 
declaration  of  a  servant,  employed 
to  sell  a  horse,  is  evidence  to  charge 
the  master  with  warranty,  if  made 
at  the  time  of  sale;  if  made  at  any 
other  time,  the  facts  must  be  proved 
by  the  servant  himself.  The  admis- 
sions of  an  agent,  not  made  at  the 
time  of  the  transaction,  but  sub- 
sequently, are  not  evidence.  Thus, 
the  letters  of  an  agent  to  his  prin- 
cipal, containing  a  narrative  of  the 
transaction,  in  which  he  had  been 
employed,  are  not  admissible  in  ev- 
idence against  the  principal." 

Rule  Applies  to  Written  the  Same 
As  to  Parol  Admissions.  —  The  rule 
that  the  admissions,  to  be  admissible, 
must  be  made  at  the  time  the  agent 
is  acting,  and  within  his  authority, 
is  just  as  applicable  to  written  ad- 
missions made  by  him  as  to  those 
resting  in  parol.  Hematite  Min.  Co. 
V.  East  Tennessee  B.  &•  G.  R.  Co.,  92 
Ga.  2O8,   i8  S.  li.  24. 

Accounts  Subsequently  Rendered 
to  Principal. —  Letters  written  In 
the  agent  to  the  principal  giving  an 
account  of  a  past  transaction  or  sub- 
sequent accounts  rendered  of  his 
previous  acts  are  inadmissible.  Bal- 
lard V.  Bevcridge,  44  App.  Div.  477, 
01    N.   Y.   Supp.  O4S. 

By  Officers  of  a  Bank  Holding  Note 
for  Collection.  —  It  is  held  in  Wilson 
J',  liowden,  113  Mass.  422,  that  the 
declarations  of  an  officer  of  a  bank 
in  which  a  note  has  been  lodged  for 
collection,  made  before  its  maturity, 
are  not  admissible  to  afifect  the  title 
of  the  holder  on  the  ground  that  the 
bank  officers  were  agents  for  the 
purpose  of  collection  only,  and  that 
such  declarations  could  not  bind  the 
holder  of  a  note  unless  expressly  au- 
thorized by  him. 


.IDMISSIONS. 


543 


as  a  part  of  the  res  gestae  in  respect  of  this  question  of  letting  in 
achnissions  of  the  agent,  see  anthorities  cited  below/'- 


Must  Be  Part  of  Res  Gestae —  To 

say  that  admissions  must  be  made 
while  acting  as  agent  is  equivalent  to 
saying  that  it  must  be  a  part  of  the 
res  gestae,  and  it  has  been  so  held. 
Lowry  V.  Harris.  12  Minn.  255;  Bon- 
nell,  78  Pa.  St  152;  Bensley  z:  Brock- 
way,  27  111.  App.  410;  Anderson  v. 
Rome  N.  &  O.  R.  Co..  54  N.  Y.  334- 

Not  if  Made  Before  or  After. 
The  declarations  if  made  before  the 
agency  was  created  or  after  its  ter- 
mination  are   inadmissible. 

United  States.  —  Blight  -•.  Ashley. 
3   Fed.   Cas.   No.    1541- 

Ca/i/oniia.  — Mutler  r.  I.  X.  L. 
Lime  Co.   (.Cal.),  42  Pac.   1068. 

Georgia.  — Gnffin  v.  Montgomery, 
26    Ga.    hi;    Harris    v.    Collins,    75 

Ga.  97- 

/Hmou.  — Wallace  '■.  Goold,  91  111. 
15;  Union  Nat.  Bank  v.  Post,  64 
III.  App.  404- 

Iowa.  —  Phelps  r.  James,  86  Iowa 
398,  53   N.  W.  274- 

Kansas.  —  Greer  z:  Higgms,  8  Kan. 

519- 

Lowi'j-iaJia.  — Reynolds    -'.    Rowley, 

3  Rob.  201,  38  Am.  Dec.  233. 

Nezv  York.  —  Tinum  z\  Rose  Co., 
21  Misc.  337.  47  N.  Y.  Supp.  150; 
Morris  v.  Brooklyn  Heights  R.  Co., 
20  App.  Div.  557,  47  N.  Y.  Supp.  242 ; 
Niles   Tool  Works   Co.   v.   Reynolds, 

4  App.  Div.  24,  38  N.  Y.  Supp.  1028; 
Congdon  Co.  v.  Sheehan,  11  App. 
Div.  456,  42  N.  Y.  Supp.  255;  Vail 
?■.  Judson,  4  E.   D.   Smith   165. 

North  Carolina.  —  Craven  z:  Rus- 
sell, 118  N.  C.  564.  24  S.  E.  361; 
Darlington  z\  Western  Union  Tel. 
Co.,  127  N.  C.  448,  37  S.  E.  479; 
Stenhouse  Co.  v.  Charlotte  C.  &  A. 
R.  Co.,  70  N.  C.  542. 

Pennsylvania.  —  Clark  j'.  Baker,  2 
Whart.  340;  Fawcett  z\  Rigley,  59 
Pa.  St.  411. 

Soulli  Dakota. — Estey  z'.  Birnbaum. 
9  S.  D.   174.  68  N.  W.  290. 

Texas.  —  Brigham  z:  Carr,  21  Te.x. 
142. 

In    Case    of    Alleged    Fraud An 

apparent    exception     to    the    general 


rule  will  be  found  in  Jones  v.  Jones, 
120  N.  Y.  589,  24  N.  E.  1016.  where 
the  transaction  was  tainted  with  fraud 
growing  out  of  the  confidential  rela- 
tions of  the  agent  with  the  other 
parties. 

In  Connection  With  Act  of  Agent. 
It  has  been  held  tliat  where  the  ques- 
tion is  whether  an  act  has  been  done 
by  an  agent  or  not,  his  declaration 
previously  made  that  he  was  going 
to  do  the  act  is  competent  but  not  as 
an  admission.  Dodge  z:  Bache,  57 
Pa.  St.  421. 

52.  England.  —  Laughom  v.  All- 
nutt,  4  Taunt.  511,  13  Rev.  Rep.  663. 

United  States.  —  Anvil  Min.  Co.  -'. 
Humble.  153  U.  S.  540,  14  Sup.  Ct. 
876;  Zenia  Bank  -■.  Stewart,  114  U. 
S.  224;  Packet  Co.  v.  Clough,  20 
Wall.  S28;  Dentz  v.  The  Faunood, 
61  Fed?  523;  St.  Louis  &  S.  F.  K.  Co. 
z:  McClelland,  62  Fed.  116;  Vicks- 
burg  &  M.  R.  Co.  z:  O'Brien,  119  U. 
S.  99,  7  Sup.  Ct.  118. 

Alabama.  —  Mobile  &  M.  R.  Co.  v. 
Ashcraft,  48  Ala.  15;  Williams  v. 
Shackelford,  16  Ala.  (N.  S.)  318; 
Baldwin   z'.    Ashby.   54    Ala.   82. 

Arkansas.  —  Carter  ;•.  Burnham,  31 
Ark.  212. 

California.  —  Geake  z\  California  S. 
Nav.  Co.,  9  Cal.  251,  70  Am.  Dec. 
650;  Abbott  V.  The  Seventy-six  Land 
Co.,  87  Cal.  323,  25  Pac.  693;  Sil- 
veira  v.  Iverson,  128  Cal.  187,  60 
Pac.  687. 

Colorado.  —  Union  Pac.  Ry.  Co.  Z'. 
Hepner,  3  Colo.  App.  313,  3i  Pac. 
72;  T.  &  H.  Pueblo  Bldg  Co.  z: 
Klein,  5  Colo.  App.  348,  33  Pac.  608; 
Edmunds  v.  Curtis,  8  Colo.  605,  9 
Pac.  793. 

Connecticut.  —  Rockwell  v.  Taylor, 
41  Conn.  55 ;  Charter  v.  Lane,  62 
Conn.  121,  25  Atl.  464;  Toll  Bridge 
Co.  V.  Betsworth,  30  Conn.  380. 

Georgia.  —  Central  R.  Co.  v.  Skel- 
lie.  86  Ga.  686,  12  S.  E.  1017;  South- 
ern Ex.  Co.  v.  Duflfey.  48  Ga.  358; 
Galceran  v.  Noble,  66  Ga.  367 ;  Rob- 
inson V.  Lane,  ig  Ga.  337;  Small  z'. 
Williams,  87  Ga.  681,  13  S.  E.  589; 
Claflin   V.    Ballance,   91    Ga.   411,    18 

Vol.  I 


544 


IDMISSIUXS. 


c.  Agency  and  Authority  Must  Be  Proved.  —  Of  course  to  render 
admissions   competent  on  the  ground  of  agency,   it   must  first  be 


S.  E.  309;  Akers  v.  Kirke.  Qi  Ga. 
590,    18    S.    E.   366. 

Illinois.  —  Bernstein  v.  Bernstein, 
II  111.  .\pp.  238;  Mix  V.  Osby,  62 
111.  193;  Chicago  B.  &  Q.  R.  Co.  v. 
Lee,  60  111.  501 ;  Mobile  &  O.  R.  Co. 
7'.  Klein.  43  111.  App.  63. 

Indiana.  —  Toledo  &  Wabash  Ry. 
Co.  ■i'.  Goddard,  25  Ind.  185 ;  JLafayette 
R.  Co.  V.  Ehman,  30  Ind.  83;  Belle- 
fontaine  R.  Co.  v.  Hunter,  ^t,  Ind. 
335,   5    Am.   Dec.   201. 

loiva. — Pray  %:  Farmers'  Cream- 
ery, 89  Iowa  741,  56  N.  W.  443;  Des 
Moines  &  D.  L.  &  T.  Co.  v.  Polk  Co, 
Homestead  &  T.  Co.,  82  Iowa  663,  45 
N.  W.  773 ;  Golden  v.  Newbrand,  52 
Iowa  59,  2  N.  W.  537,  35  .\m.  Rep. 

257- 

Kansas.  —  St.  Louis  &  S.  F.  R.  Co. 
z'.  Weaver,  35  Kan.  412,  II  Pac.  408, 
57  Am.  Rep.  176;  St.  Louis  Wire- 
Mill  Co.  V.  Consolidated  Barb  Wire 
Co.,  46  Kan.  77i,  27  Pac.   118. 

Kcntitcky.  —  Louisville  &  N.  R.  Co. 
V.  Foley,  94  Ky.  220,  21  S.  W.  866; 
Louisville  H.  &  St.  L.  R.  Co.  v. 
Beauchamp    (Ky.),  55   S.   W.   716. 

Maine.  —  Franklin  Bank  i'.  Stew- 
ard, 37   Me.   519. 

Mar\land.  —  Franklin  Bank  v.  Pa. 
D.  &  M.  Steam  Nav.  Co.,  11  Gill  & 
J.  28,  ,u  Am.  Dec.  687;  Dietrich  v. 
Baltimore  &  H.  S.  R.  Co.,  58  Md.  347. 

.Massacliusctts. — Wellington  v.  Bos- 
ton &  M.  R.,  158  Mass.  185,  33  N.  E. 
393;  McGenners  v.  .Adriatic  Mills,  116 
Mass.   177. 

.Minnesota.  —  Cumbcy  j'.  Lovett,  76 
.Minn.  227,  79  N.  W.  99. 

Missouri.  —  Beardslee  v.  Stein- 
mcsch,  38  Mo.  168;  Price  v.  Thorn- 
ton, 10  Mo.  135;  Northrup  v.  Miss. 
Valley  Ins.  Co.,  47  Mo.  435,  4  Am. 
Hep.  337. 

Neze  York.  —  Miller  v.  King,  84 
Hun  308,  32  N.  Y.  Supp.  332 ;  Mor- 
gan V.  Short,  13  Misc.  279,  34  N.  Y. 
Supp.  10;  Eisner  v.  Prudential  Ins. 
Co.,  13  Misc.  395,  34  N.  Y.  Supp. 
246 ;  Wakefield  Rattan  Co.  v.  Tappan, 
70  Hun  405,  24  N.  Y.  Supp.  430; 
McCotter  v.  Hooker,  8  N.  Y.  497; 
Price  -'.  Powell,  3  N.  Y.  433;  .\ndcr- 

Vol,  I 


son  V.  Roiue  N.  &  O.  R.  Co.,  54  N. 
^  ■  334 ;  Thompkins  v.  Sheehan,  82 
Hun  345,  31  N.  Y.  Supp.  225;  Hy- 
land  V.  Sherman,  2  E.  D.  Smith  234; 
Carrere  v.  Dun.  18  Misc.  18,  41  N.  Y. 
Supp.  34;  Ballard  v.  Beveridge,  44 
App.  Div.  477,  61  N.  Y.  Supp.  648. 

North  Dakota.  —  Short  z'.  Northern 
Pac.  Elev.  Co.,  i  N.  D.  159,  45  N.  W. 
706. 

Pennsyhania.  —  Baker  z\  West- 
moreland &  C.  Nat.  Gas.  Co.,  157  Pa. 
St.  593.  27  Atl.  789;  Stockton  v. 
Demuth,  7  Watts  39,  32  Am.  Dec. 
73s;  Hanover  Ry.  Co.  z:  Coyle,  55 
Pa.  St.  396;  Brigley  z:  Williams,  80 
Pa.  St.  107;  \m.  S.  S.  Co.  •:•.  Land- 
retli,  102  Pa.  St.  T31.  48  .\m.  Rep. 
196. 

Sonth  Carolina.  —  Mars  v.  Virginia 
Home  Ins.  Co.,  17  S.  C.  514;  Pat- 
terson z:  Railroad  Co.,  4  S.  C.  153. 

South  Dakota.  —  Plymouth  Co. 
Bank  i'.  Gilman,  ?  S.  D.  170,  52  N. 
W.  869. 

Tennessee.  —  Moore  v.  Bettis,  II 
Humph.   67    Am.    Dec.   771. 

Te.ras.  —  Gilmour  z:  Heinze,  85 
Te.x.  76,  19  S.  W.  1075;  Atchison  T. 
&  S.  F.  Ry,  Co.  v.  Bryan  (.Tex.  Civ. 
App.),  28  S.  W.  98;  Western  U.  Beef 
Co.  z:  Kirchevalle  (Tex.  Civ.  App.), 
26  S.  W.  147;  Laredo  Elec.  L.  &  M. 
Co.  v.  U.  S.  Elec.  L.  Co.  (Tex.  Civ. 
App.),  26  S.  W.  310;  Tuule  z: 
Turner,  28  Tex.  759;  Belo  i'.  Fuller, 
84  Tex.  450,  19  S.  W.  616,  31  Am. 
St.  Rep.  75;  Texas  &  P.  Ry.  Co.  z: 
Lester,  75  Tex.  56,  12  S.  W.  955. 

Utah.  — Marks  v.  Taylor  (Utah), 
63  Pac.  897. 

West  Virginia.  — Coy\e  z:  B.  &  O. 
R.   Co.,    II   W.   Va.  94. 

U'isconsin.  —  Smith  z\  Wallace,  25 
Wis.  S5;  Hooker  z:  Chicago  M.  &  St. 
P.    R.    Co.,   76    Wis.   542,   44   N.    vV. 

When  Acts  Are  Binding:,  So  Are 
Admissions.  —  The  general  rule  is 
that  where  the  acts  of  the  agent 
will  bind  the  principal  then  his  admis- 
sions relating  thereto  and  made  at 
the  time  will  also  bind  him.  Lin- 
blom   z'.    Ramsey,  75    111.   246;    Dick- 


ADA^ISSIONS. 


545 


shown  by  competent   and   sufficient  evidence,   that  he  was,  at   tlie 
time,  the  agent  of  the  party  against  whom  they  are  offered.'*^     And 


man  v.  Williams,  so  Miss.  5CX);  Kas- 
son  V.  Mills,  8  How.  Pr.  (N.  Y.) 
377 ;  Strawbridge  z\  Spann,  8  Ala. 
(N.  S.)  820;  Hinson  v.  Walker,  65 
Te.x.  103;  Covington  etc.  R.  R.  Co. 
V.  Ingles,  15  B.  Mon.  (Ky.)  637. 

53.  United  Stah's. — Southern  Exp. 
Co.  V.  Todd,  56  Fed.  104. 

Alabama.  —  Galbreath  v.  Cole,  61 
Ala.  (N.  S.)  139;  Wailes  v.  Neal, 
6s  Ala.  59. 

Calif  urnia.  —  Smith  t'.  Liverpool 
etc.  Ins.  Co.,  107  Cal.  432,  40  Pac. 
540;  Grigsby  v.  Clear  Lake  Water 
Co.,  40  Cal.  396:  Garfield  v.  Knight's 
Ferry  W.  Co.,  14  Cal.  35 ;  Durkee 
V.  Central  Pac.  R.  Co.,  69  Cal.  533, 
II  Pac.  130,  58  Am.  Dec.  562;  Union 
Transp.  Co.  v.  Bassctt,  118  Cal.  604, 
50  Pac.  754. 

Connecticut. — Bnnis  v.  Fredericks, 
37  Conn.  86. 

Georgia.  —  East  Tenn.  \'.  &  G.  R. 
Co.   v.    Duggan,   51    Ga.   212. 

Illinois.  —  Rouse  z:  Mohr,  29  111. 
App.  321,  81  Am.  Dec.  310;  Reynolds 
V.  Ferree,  86  111.  570;  Fairbanks 
Canning  Co.  z\  Weill,  35  111.  App. 
366;  Whiteside  i'.  Margarel,  51  111. 
507;  Schoenhofen  Brewing  Co.  v. 
Wengler,    57    111.   App.    184. 

Indiaini.  —  Coon  v.  Gurley,  49  Ind. 
199;  Ohio  &  M.  Ry.  Co.  I'.  Levy, 
134  Ind.  343,  34  N.  E.  20;  Breckin- 
ridge V.  McAfee,  54  Ind.   141. 

Kansas.  —  McCormick  i'.  Roberts, 
36  Kan.  552,  13  Pac.  827. 

Louisiana. — Dawson  ;■.  Landreaux, 
29  La.  Ann.  363. 

Maine.  —  Bennett  v.  Talboi,  90 
Me.  229,  38  Atl.   112. 

Maryland.  — AtweU  z:  Miller.  11 
Md.  348,  69  Am.   Dec.  206. 

Massacliusetts. — Manilla  z'.  Hough- 
ton, 154  Mass.  465,  28  N.  E.  784; 
Johnson  v.  Trinity  Church,  11  Allen 
123 ;  Haney  v.  Donnelly,  12  Gray 
361. 

Minnesota.  —  Lowry  v.  Harris,  12 
Minn.  255;  Woodbury  Z'.  Earned,  5 
Minn.   339. 

Missouri.  —  Caldwell  i'.  Henry,  76 
Mo.  254;  Ahern  z'.  Boyce,  26  Mo. 
App.  558. 

35 


Nebraska. —  Chicago  B.  &  Q.  R. 
Co.  V.  Starmer,  26  Neb.  630,  42  N. 
W.  706. 

Nezv  Hainl'sliirc.  —  Low  v.  Rail- 
road, 45  N.  H.  370. 

New  Jersey.  —  Gifford  r.  Landrine, 
37  N.  J.  Eq.  127. 

Nezv  Mexico. — Kirchner  z\  Laugh- 
lin,  5  N.  M.  365,  23  Pac.   175. 

North  Carolina.  —  Williams  z'.  Wil- 
liamson, 6  Ired.  (Law)  281,  45  Am. 
Dec.  494;  Francis  z:  Edwards,  77  N. 
C.  271. 

Pennsylvania.  —  Long  v.  North 
British  &  M.  F.  Ins.  Co.,  137  Pa. 
St.  335,  20  Atl.  1014,  21  Am.  St.  Rep. 
879;  Robeson  z\  Schuylkill  Nav.  Co., 
3  Grant  186. 

South  Carolina. — Renneker  t.  War- 
ren,   17   S.   C.    139. 

Soutli  Dakota.  —  Roberts  -'.  Min- 
neapolis etc.  Co.,  8  S.  D.  579,  67  N. 
W.  607,  59  Am.  St.  Rep.  777. 

Tennessee.  —  Moore  r.  Bettis,  11 
Humph.  67,  53  Am.  Dec.  771. 

Te.vas.  —  Walker  v.  Leonard,  89 
Tex.   507,  35   S.   W.   1045. 

Order  of  Proof  in  Discretion  of 
Court.  —  But,  although  proof  of 
agency  should  precede  evidence  of 
the  admissions,  the  court  may,  in  its 
discretion,  permit  the  admissions  to 
be  proved  first  and  the  agency  after- 
wards. Woodbury  v.  Earned,  5 
Minn.   339. 

May  Be  Proved  By  Circumstances. 
In  Galbreath  v.  Cole,  61  Ala.  i,?9,  it 
is  held  that  "  the  declarations  or 
conduct  of  one  professing  to  act  as 
the  agent  of  another,  are  inadmis- 
sible evidence  against  the  principal, 
without  independent  proof  of  his  au- 
thority. The  authority  may,  like 
any  other  fact,  be  proved  by  circum- 
stances. Express,  direct  evidence, 
that  it  was  conferred,  is  not  indis- 
pensable. The  circumstances  must  be 
such  as  are  capable  of  affording  a 
reasonable  presumption  of  it;  and  if 
they  are  not,  they  are  not  only  in- 
sufficient,  but    inadmissible." 

Error  Cured  by  Subsequent  Proof 
of  Agency.  — While  it  is  well  settled 
that  the  agency  must  first  be  proved. 

Vol.  I 


546 


ADMISSIOXS. 


that  the  agency  was  such  as  to  anthorii^e  the  makint;-  of  the  admis- 
sions sought  to  1ie  proved/* 

(1.)  Cannot  Be  Proved  by  Admissions  of  Agent.  —  It  follows  that 
the  fact  of  agency  or  the  extent  of  his  authority  cannot  be  established 
by  the  admissions  or  declarations  of  the  party  alleged  to  be  such 
agent.^^     Nor  by  his  acts  done  without  the  knowledge  of  his  prin- 


before  admitting  evidence  of  the  ad- 
missions, it  is  held  that  error  in 
receiving  snch  admissions  first  is 
cured  by  subsequent  proof  of  the 
agency.  Rowell  v.  KUen,  44  Ind. 
290,  15'  Am.  Rep.  235 ;  Trustees  of 
Wabash  Canal  v.  Bledsoe,  5  Ind. 
132;  McCormick  v.  Roberts,  36  Kan. 
552,  13  Pac.  827;  Mix  7'.  Osby,  62  111. 

193- 

When  Authority  Will  Be  Pre- 
sumed  In  Peden  z'.  Chicago  R.  I. 

&  P.  R.  Co.,  78  Iowa  131,  42  N.  W. 
625,  an  ofifer  was  made  of  records 
in  two  other  cases  in  which  admis- 
sions were  made  by  the  agents  of 
the  corporation  defendant.  It  was 
objected  that  the  admissions  in  those 
cases  were  made  by  agents  of  the 
defendant,  and  could  not  be  used  in 
any  other  case.  But  it  was  held  by 
the  court  that  it  must  presume,  until 
the  contrary  appears,  that  the  agents 
were  duly  authorized  to  make  the 
admissions  in  the  other  cases,  and 
that  they  were  in  efifect  the  admis- 
sions of  their  principals,  and  as  such, 
admissible    in    other    cases. 

See  also  Richmond  Iron  Works  v. 
Hayden,   132   Mass.   igo. 

As  Between  Husband  and  Wife. 
In  Rowell  i'.  Klien,  44  Ind.  290,  15 
Am.  Rep.  235,  where  it  was  claimed 
that  the  husband  had  acted  as  the 
agent  of  the  wife,  it  was  held  that 
the  wife  might  constitute  the  husband 
her  agent,  but  that  to  establish  this, 
the  evidence  must  be  clear  and  satis- 
factory, and  sufficiently  strong  to  ex- 
plain and  remove  the  equivocal  char- 
acter in  which  she  is  placed  by  rea- 
son of  her  relation  of  wife. 

54.  United  Slates.  —  Chicago,  St. 
1-.  M.  &  O.  R.  Co.  z:  Belli  with,  83 
Fed.  437. 

Illinois.  —  Schocnhofen  Brewing 
('".  z'.  Wengler,  57  111.  App.   184. 

Indiana.  —  Cnon  ?'.  Gurley,  49  Ind. 

Vol.  I 


Massacliusctts. — McGregor  z\  Wait, 
10   Gray   72,   69   Am.    Dec.    305. 

Nebraska.  —  Bowman  z'.  Griffith,  35 
Neb.  361,  53  N.  W.  140. 

Oregon.  —  Mattis  z'.  Hosnier.  37 
Or.  523,  62  Pac.   17. 

Pennsylvania.  —  Hough  z\  Doyle, 
4  Rawl.  291 ;  Farmers'  Bank  z'.  Mc- 
Kee,  2  Pa.  St.  318. 

South  Carolina.  —  Mars  ;■.  Virginia 
Home  Ins.  Co.,  17  S.  C.  514. 

Te.vas.  —  Latham  v.  Pledger,  1 1 
Tex.  439 ;  Goodbar  z\  City  Nat.  Bank, 
78  Tex.  461,  14  S.  W.  851  ;  Missouri 
Pac.  Ry.  Co.  v.  Sherwood,  84  Tex. 
125,  19  S.  W.  455-,  17  L.  R.  A.  643. 

55.  United  States.  —  James  v. 
Stookey,  i  Wash.  C.  C.  330,  13  Fed. 
Cas.  ISO.  7184;  Mechanics'  Bank  v. 
Banks  of  Columbia,  5  Wheat.  326. 

Alabama.  —  Strawbridge  v.  Spann, 
8  Ala.   (N.  S.)  820. 

California.  —  Smith  v.  Liverpool 
etc.  Ins.  Co.,  107  Cal.  432,  40  Pac. 
540;  Grigsby  t:  Clear  Lake  Water 
Co.,  40  Cal.  396;  Savings  &  L.  Soc. 
z\  Gerichten,  64  Cal.,  520,  2  Pac.  405. 

Colorado.  —  L'nion  Coal  Co.  v.  Ed- 
man,  16  Colo.  438,  27  Pac.  1060. 

Connecticut. — Fitch  z\  Chapman,  10 
Conn.  8. 

Georgia.  —  Haris  Loan  Co.  z'.  El- 
liot Typewriter  Co.,  no  Ga.  302,  34 
S.  E.  1003. 

Illinois.  —  Whiteside    Z'.    Margarel, 

51  111.  507;  Proctor  v.  Tows,  115  111. 
'38,  3  N.  E.  569;  Osgood  V.  Pacey, 
23  111.  App.  116;  Mellor  v.  Carithers, 

52  111.  App.  86 ;  Schocnhofen  Brew- 
ing Co.  z\  Wengler,  ^7  111.  App.  184; 
Cleveland  C.  C.  &  St.  L.  R.  Co.'  v. 
Jenkins,  75  III.  App.    17. 

Indiana.  —  Trustees  of  Wabash 
Canal  i'.   Bledsoe,  5   Ind.    132. 

/oii'fl.  —  Wood  Mowing  Mach.  Co. 
z\  Crow,  70  Iowa  340,  30  N.  W.  609. 

Kansas.  —  Donaldson  v.  Everhart, 
50  Kan.  718,  32  Pac.  405;  Howe 
.Machine  Co.  v.  Clark,   15  Kan.  492; 


ADMISSIONS. 


547 


cipal/'"  (Otherwise  if  his  acts  as  ag^ent  are  known  anil  acted  upon 
by  the  princi]3al.^'  Nor  by  declarations  of  another  agent  of  the 
same  principal  unless  such  assent  is  authorized  to  make  them  and  is 
acting;,  at  the  time  within  his  authority. •''' 

Where  Alleged  Agent  Denies  the  Jfaet  As  a  Witness.  —If  the  alleged 
agent  is  called  as  a  witness  and  denies  the  agcncw  his  previous 
admissions  of  the  fact  may  be  proved,  not  to  establish  the  fact,  but 
to  impeach  the  witness,  tJie  proper  foundation  having  been  laid.**" 

(2.)  Proof  of  Agency  for  the  Court.  — The  evidence  to  establish 
the  agency  being  the  foundation  for  proof  of  the  admission  of  tlie 
alleged  agent,  is  for  the  court  and  not  for  the  jury.'"' 


McCormick  f.  Roberts,  36  Kan.  552, 
13  Pac.  827 ;  i\Iissouri  Pac.  Ry.  Co.  v. 
Johnson,  55  Kan.  344,  40  Pac.  641. 

Maryland.  —  Marker  v.  Dement,  q 
Gill   7,   52  Am.   Dec.   670. 

Massachusetts. — Brighani  v.  Peters, 
I  Gray  139 ;  Haney  v.  Donnelly,  12 
Gray   361. 

Michigan.  —  Bacon  v.  Johnson,  =;6 
Mich.  182,  22  N.  W.  276;  Hatch  V. 
Squires,  11  Mich.  185;  North  v.  Melz, 
57  Mich.  612,  24  N.  W.  759. 

Minnesota.  —  Sencerbox  v..  Mc- 
Grade,   6   Minn.   484. 

Mississippi.  —  ?\Iemphis  &  V.  R. 
Co.  T'.  Cocke,  64  Miss,  713,  2  So.  495: 
Kinnave  v.  Gregory,  55  Miss.  612. 

Missouri.  —  Craighead  v.  Wells.  21 
^[o.  404;  Peck  V.  Ritchey,  66  Mo. 
144. 

Nezc  York.  —  Ellis  i'.  Messervil,  11 
Paige   Ch.   467. 

Oregon.  —  Wictonvitz  j'.  Farmers' 
Ins.  Co.,  31  Or.  569,  51  Pac.  75. 

Pennsylvania.  —  Grim  v.  Bonnell, 
78  Pa.  St.  152;  Central  Pennsylvania 
T.  &  S.  V.  Thompson,  112  Pa.  St. 
118,  3  All.  436;  Jordan  '■.  Stewart, 
23   Pa.   St.  244. 

Texas.  —  Latham  ^'.  Pledger,  1 1 
Te.x.  439:  Waller  v.  Leonard,  89  Tex. 
507.  35   S.  W.   1045. 

When  Part  of  Res   Gestae But 

declarations  of  his  own  as  to  his 
authority  have  been  held  admissible 
when  they  formed  a  part  of  the  res 
gestae.  Boone  f.  Thompson,  17  Tex. 
603'. 

Must  Be  Proved  by  Independent 
Evidence. —  Wailes  v.  Neal,  65  Ala. 

59- 

Accompanied  by  Acts.  —  The  fact 
that  the  declarations  are  accompanied 


by  acts  does  not  render  them  admis- 
sible to  prove  the  extent  of  his  au- 
thority. Brigham  i'.  Peters,  I  Gray 
(  Mass.)    139. 

By  Admissions  of  Principal The 

agency  may  be  proved  by  the  ad- 
missions of  the  principal.  Mix  v. 
Osby,  62  111.  193. 

56.  United  States.  —  Mechanics' 
Bank  i'.  Bank  of  Columbia,  5  Wheat. 
.^26. 

Kansas.  —  St.  Louis  &  S.  F.  R.  Co. 
7'.  Brown,  3  Kan.  App.  260,  45  Pac. 
118. 

Michigan.  —  North  v.  Metz,  57 
.Mich.  612,  24  N.  W.  759- 

Missouri.  —  Craighead  ^■.  Wells,  21 
Mo.  404. 

Pennsylvania.  —  Whiting  t'.  Lake, 
<)i  Pa.  St.  349;  Central  Pennsylvania 
T.  &  S.  Co.  V.  Thompson,  112  Pa. 
M.    118,   3  Atl.  436. 

57.  Woodwell  v.  Brown,  44  Pa. 
St.    121. 

58.  Hirsch  v.  Oliver,  91  Ga.  =;^4, 
18  S.  E.  354. 

59.  Strawbridge  ?'.  Spann,  8  Ala. 
(N.  S.)  820;  Shafer  v.  Lacock,  168 
Pa.   St.  497,  32  Atl.  44,  29  L.  R.  A. 

Other  Means  of  Proving  Agency. 

The  means  by  which  the  existence  of 
the  relation  of  principal  and  agent 
may  be  established  other  than  by  ad- 
missions of  the  fact,  do  not  fall 
within  the  scope  of  this  article,  but 
will  be  found  under  "  Principal  and 

.A.CENT." 

60.  Porter  v.  Robertson,  34  111. 
.\pp.  74 ;  Cliquot's  Champagne,  3 
Wall.  114;  Munroe  v.  Stutts,  9  Ired. 
Law   (N.  C.)   49- 

But   see  to  the  contrary  Robinson 

Vol.  I 


548 


ADMISSIONS. 


(3.)  Degree  of  Proof  Required.  — The  general  rule  is  that  if  some 
evidence  of  the  agency  is  produced,  the  admissions  will  be  received 
and  the  Cjuestion  left  to  the  jury."' 

d.  Proof  of  Ratification  Sufficient.  —  If  the  alleged  principal,  with 
full  knowledge  of  the  facts,  subsequently  ratifies  the  acts  of  the 
party  assuming  to  act  for  him,  this  is  equivalent  to  a  prior  authoriza- 
tion.«= 

C.  General  Agents.  —  The  rvde  that  the  admissions  of  an  agent 
are  admissible  against  his  principal,  only  when  acting  as  such,  and 
within  his  authority,  applies  to  general  agents."''  But  in  case  of  a 
general  as  distinguished  from  a  special  agent,  the  principal  may  be 
bound  by  his  acts,  and  therefore  b\'  his  admissions  alsn,  against  his 
private  instructions."^ 

In  respect  of  the  admissibility  of  his  admissions,  he  dilTcrs  from  a 
special  agent  only  in  the  extent  of  his  authority,  and  the  consequent 
enlargement  of  the  scope  of  his  power  to  bind  his  principal."^ 


V.  Walton,  58  Mo.  ,!8o ;  Wendell  v. 
Abbott.  45  N.  H.  349. 

Whether    Agency    Has    Ceased    or 

Not Where  proof   has   been   made 

of  the  agency  and  the  admissions 
received,  it  is  held  that  the  question, 
whether  the  agency  had  ceased  before 
the  admissions  were  made,  must  be 
left  to  the  jury  with  instructions  to 
disregard  such  admissions  if  the 
agency  had  terminated.  Stewartson 
V.  Watts,  8  Watts   (Pa.)   392. 

61.  Stewartson  z:  Watts.  8  Watts 
(Pa.)  392;  Central  Pennsylvania  T. 
&  S.  Co.  V.  Thoiupson,  112  Pa.  St. 
118,  3  Atl.  436;  Wendell  v.  Abbott, 
45  N.  H.  349;  Cole  v.  Bean,  I  Ariz. 
377;  Minard  v.  Stillman,  35  Or.  259, 
5'7  Pac.  1022. 

62.  Union  Gold  Al.  Co.  v.  Rocky 
Mountain  Nat.  Bank,  2  Colo.  565; 
Woodbury  v.  Lamed,  5  Minn.  339; 
Bacon  v.  Johnson,  56  Mich.  182,  22 
N.  W.  276;  Hatch  V.  Squires,  11 
Mich.  185;  Chattanooga  R.  &  C.  Co. 
V.  Davis,  89  Ga.  708,  15  S.  E.  626; 
Neely  v.  Naglee,  23  Cal.   152. 

Ratification  by  Acquiescence.  — 
And  the  ratification  may  be  estab- 
lished by  proof  of  acquiescence  on 
the  part  of  the  alleged  principal  in 
the  acts  done  or  declarations  made 
for  him  or  in  his  name.  Kelsey  v. 
National  Bank,  69  Pa.  St.  426. 

Sec  "  Principal  .and  Agent." 

63.  Mitcham  v.  Schnessler,  98 
Ala.    63s,    13    So.    617;    Willard    v. 

Vol.  I 


Buckingham,  36  Conn.  395 ;  White  v. 
Miller,  71  N.  Y.  118;  Randall  v. 
Northwestern  Tel.  Co.,  54  Wis.  140, 
II  N.  W.  419;  Hauen  v.  Brown, 
7  Greenl.  (Me.)  421;  Ashmore  v. 
Pennsylvania  S.  &  T.  Co.,  38  N.  J. 
Law  13;  Smith  v.  N.  C.  R.  Co.,  68 
N.  C.  107;  Louisville  Ins.  Co.  i'. 
Monarch,  18  Ky.  Law  444.  36  S.  W. 

563- 

64.  Mussey  v.  Beechcr.  3  Cush. 
(Mass.)  511;  Lobdell  t.  Baker,  i 
Mete.   (Mass.)   193,  35  Am.  Dec.  358. 

65.  Willard  v.  Buckingham,  36 
Conn.  395 ;  Lohnes  v.  Lis.  Co.  of 
N.  A.,  121  Mass.  439;  Swanee  v. 
McMahon,  l  Head  (Tenn.)  582; 
Louisville  &  N.  R.  Co.  v.  Tift.  100 
(^a.  86.  27  S.  E.  765. 

By  General  Agent  Made  Subse- 
quently    May     Be     Admissible A 

different  rule  is  declared  with  respect 
to  general  agents  in  the  case  of 
Webb  v.  Smith,  6  Colo.  365,  in  which 
it  is  said,  with  respect  to  the  power 
of  the  superintendent  and  secretary 
of  a  mining  company  to  bind  the 
company  by  admissions  made  sub- 
sequent to  the  transaction  in  enntro- 
versy : 

"  The  declarations  objected  to  had 
reference  to  a  past  transaction.  They 
were  admissions  of  a  debt  previously 
contracted ;  therefore  they  were  not 
admissible  as  a  part  of  the  res  gestae. 
They  could  not  bind  the  company 
in  the  way  of  an  estoppel,  but   being 


ADMISSIONS. 


549 


D.  Special  Agents.  —  If  one  is  appointed  for  a  special  purpose, 
his  declarations,  amounting  to  admissions,  are  competent  only  so 
far  as  they  are  within  this  special  authority  and  relate  thereto."" 

E.  Public  Officers  or  Agents.  — a.  Generally.  — Public  officers 
are  but  agents  of  the  state  or  municipality  they  serve,  and  admissions 
made  by  them,  in  the  performance  of  their  duties  and  within  their 
authority,  are  admissible  against  such  state  or  municipality."^  But 
not   admissions   made  in   conversation   not   in   the  presence  of  the 


made  by  its  general  agents  and  rep- 
resentatives concerning  an  indebted- 
ness clearly  within  their  power  to 
contract  and  pay,  they  were  admis- 
sible under  an  exception  to  the  rule 
e.Kcluding  the  declarations  of  an 
agent  made  subsequent  to  the  tran- 
saction  to   which   they   related." 

66.  United  States.  —  Lambert  v. 
Smith,  I  Cranch  C.  C.  361,  14  Fed. 
Cas.    No.   8028. 

Alabama. — Wailes  v.  Neal,  65 
Ala.  59;  Singer  Mfg.  Co.  f.  McLean, 
105  Ala.  316,  16  So,  912. 

Arkansas.  —  Carter  j'.  Burnham,  31 
Ark.  212. 

California.  —  Hutchinson  Z'.  Castle, 
48  Cal.   152. 

Georgia.- — Akers  r.  Kirke,  gi  Ga. 
590,  18  S.  E.  366;  Lewis  r.  Equitable 
M.  Co.,  94  Ga.  572,  21  S.  E.  224. 

Illinois.  —  Reynolds  v.  Ferree,  86 
111.  570 ;  Central  Warehouse  Co.  v. 
Sargeant,  40  111.  App.  438;  Thomas 
-■.  Rutledge,  67  111.  213. 

Indiana.  —  Rowell  v.  Klien,  44  Ind. 
290,  15  Am.  Rep.  235;  Baker  v.  Carr, 
100    Ind.    330. 

Kansas.  —  Kilpatrick-Koch  Dry- 
goods  Co.  v.  Kahn,  53  Kan.  274,  36 
Pac.  327. 

Massachusetts.  —  Blanchard  v. 
Blackstone,  102  Mass.  343 ;  Rowe  v. 
Canney  (Mass.),  29  N.  E.  219; 
Manilla  v.  Houghton,  154  Mass.  465, 
28  N.  E.  784;  Creed  v.  Creed,  161 
Mass.  107,  36  N.  E.  749;  Johnson  v. 
Trinity  Church,  11  Allen  123;  Loh- 
nes  V.  Ins.  Co.  of  N.  A.,  121  Mass. 
439- 

Michigan.  —  Hogsett  v.  Ellis,  17 
Mich.  351. 

Missouri.  —  Pomeroy  v.  Fullerton, 
131   Mo.  581,  33  S.  W.   173. 

iVfb)-a.s^a.  —  Chicago    B.    &   Q.    R. 


Co.  V.  Starmer,  26  Neb.  630,  42  N. 
W.  706. 

Nnv  Hampshire.  —  Demeritt  v. 
Meserve,  39  N.   H.  521. 

Neiv  York. — Hyland  v.  Sherman,  2 
E.    D.    Smith   234. 

Pennsylvania.  —  Monocacy  Bridge 
Co.  V.  American  Iron  Co.,  83  Pa.  St. 
5I7- 

Authority  Can  Not  Be  Enlarged 
by  Agent's  Declarations.  —  If  the 
agency  is,  in  fact,  limited,  the  prin- 
cipal is  not  bound  by  any  admissions 
or  declarations  of  the  agent's 
enlarging  such  authority.  Thus  it  is 
said  in  Mussey  v.  Beecher,  3  Cush. 
(Mass.)  511 : 

"  But  an  agent  can  not  enlarge 
his  authority  any  more  by  his  declar- 
ations than  by  his  other  acts,  and 
the  rule  is  clear  that  the  acts  of  an 
agent  not  within  the  scope  of  his 
authority  do  not  bind  the  principal." 

See  also  Bacon  v.  Johnson,  56 
Mich.  182,  22  iN.  W.  276;  Stollen- 
werck  v.  Thatcher,  115  Mass.  224. 

S?"  England. — Reg.  r.  Inhabitants 
of  Adderbury  East,  5  Ad.  &  E.  (N. 
S.)    187,  48  Eng.   C.   L.    186. 

United  States.  • —  Los  Angeles  City 
Water  Co.  v.  City  of  Los  Angeles, 
88  Fed.  720. 

Connecticut.  —  Sharon  v.  Salisbury, 
29  Conn.  113. 

Iowa.  —  Yordy  v.  Marshall  Co.,  113 
Iowa  340,  53  N.  W.  298. 

Massachusetts.  —  Blanchard  v. 
Blackstone,   102   Mass.   343. 

Missouri.  —  Blackmore  v.  Board- 
man,    28    Mo.    420. 

New  Hampshire.  —  Gray  v.  Rol- 
lingsford,  58  N.  H.  253;  Glidden  v. 
Town  of  LTnity,   a   N.   H.   571. 

Ohio.  —  Youngstown  v.  Moore,  30 
Ohio  St.  133. 

Vol.  I 


550 


.IDMISSIONS. 


others  where  the  officer  is  only  authorized  to  act  with  others  as  a 
body.'^'' 

b.  Admissible  Only  W'litlc  Within  Antliority.  —  The  achiiissions 
of  a  piibhc  officer  are  admissible  only  when  made  in  the  performance 
of  his  dnty  as  such  officer,  and  within  his  authority.'*" 

c.  Must  Be  About  the  Act  Done.  —  It  is  not  enough  that  he  is 
still  in  office  when  the  admission  is  made.  The  rule  that  it  mu.'^t  Ije 
a  part  of  the  res  gestae  applies.  Therefore,  the  declaration,  tu  he 
admissible,  must  be  made  in  connection  with  and  must  relate  to  the 
official  act  in  question.'" 


68.  La  Salle  Co.  i>.  Simmons,  5 
Gill  (Md.)  S13;  Yordy  v.  Marshall 
Co.,  113  Iowa  340,  S3  N.  W.  298; 
Keough  V.  Scott  Co.,  28  Iowa  337 ; 
West  Jersey  Trac.  Co.  v.  Camden 
Horse  R,  Co.  (N.  J.  App.),  35  .\tl. 
49;  Thornton  v.  Campton,  17  N.  H. 
338;  Chicago  V.  Greer,  9  Wall.  (U. 
S.)  726;  Davis  V.  Town  of  Rochester, 
66  Hun  629,  21  N.  Y.  Supp.  215; 
Walker  v.  Dunspaugh,  20  N.  Y.  170; 
Jex  V.  Board  of  Education,  i  Hun 
(N.  Y.)  157;  Weir  v.  Borrough  of 
Plymouth,  148  Pa.  St.  566,  24  Atl.  94; 
Salado  College  v.  Davis,  47  Tex. 
131;  Low  V.  Perkins,  10  Vt.  532.  2>i 
Am.   Dec.   217. 

69-  United  States.  — Lee  v.  .\Iun- 
roe,  7  Cranch  366;  U.  S.  f.  Martin, 
2  Paine  68,  26  Fed.  Cas.  No.  15,732. 

Illinois.  —  County  of  La  Salle  v. 
Simmons,   S   Gilm.   513. 

Indiana.  —  Holton  v.  Board  of 
Com'rs,  55  Ind.   194. 

IozkV.  —  Yordy -■.  Marshall  Co.,  113 
Iowa  340,  53  N.  W.  298;  Peters  v. 
City  of  Davenport,  104  Iowa  625,  74 
N.  W.  6. 

Maine.  —  Brighton  i'.  St.  Alhans,  77 
Me.  177;  Mitchell  v.  Rockland,  41 
Me.  363,  66  Am.  Dec.  252;  Smith  v. 
Bangor,  72  Me.  249;  Corinna  v. 
Exeter,  13  Me.  321 ;  Foss  v.  White- 
house,  94   Me.  491,  48  Atl.   log. 

Massachusetts. — Burgess  v.  Ware- 
ham,  7  Gray  345;  Weeks  v.  Inhab- 
itants of  Needham,  156  Mass.  289, 
31   N.  E.  8. 

New  )'o/7i-.  — Cortland  Co.  v.  Her- 
kimer Co.,  44  N.  Y.  22;  Stone  v. 
Town  of  Poland,  58  Hun  21,  11  N.  Y. 
Supp.  498. 

Pennsylvania.  —  Green  v.  North 
Buffalo  Tp..  56  Pa.  St.   no. 

Vol.  I 


I'ernivnt.  —  Green  z\  -'Town  of 
Woodbury,  48  Vt.  5. 

Only    Competent    to    Explain    the 

Acts  of  Officers In  Brighton  r.  St. 

.•Mhans,  77  Me.  177,  it  is  held  that  it 
is  the  acts  and  not  the  words  of 
the  officer  that  arc  evidence,  and  that 
their  words  are  only  admissible  when 
accompanying  and  as  a  part  of  their 
acts,  and  therefore  the  mere  casual 
remark  of  an  officer  unconnected 
with  any  act  is  not  competent  as  an 
admission. 

Must  Be  at  The  Time  of  Doing  the 
Acts.  —  Tlio  admission  must  be  at 
the  time  of  and  connected  with  the 
act  done.  Burgess  v.  Inhabitants  of 
Wareham.    7    Gray    (Mass.)    345. 

Contractor  for  City. —Declarations 
of  a  contractor  for  a  public  cor- 
poration as  to  the  character  of  the 
work  done,  where  a  question  of  neg- 
ligence is  involved,  are  inadmissible 
against  the  corporation.  ^loore  v. 
Hazelton  Tp.,   118   .Mich.  42:^,   76  N. 

w.  977. 

70.  Cortland  Co.  -■.  Herkimer  Co.. 
44  N.  Y.  22;  Blanchard  ;■.  Black- 
stone,   102   Mass.  343. 

By  Public  Officer.  When  Compe- 
tent.—  In  Burgess  7'.  Inhabitanls  of 
Wareham,  7  Gray  (Mass.)  345,  the 
offer  was  made  to  prove  the  declar- 
ations of  a  surveyor  of  a  highway 
uttered  while  he  was  still  in  office, 
but  some  time  after  the  work  to 
which  the  declarations  related  was 
done,    and    the   court    said ; 

"  And  when  it  is  said  that  his 
declarations  are  competent  made 
whilst  his  agency  continues,  wc  un- 
derstand it  to  mean  not  whilst  he 
continues  to  hold  the  office  in  respect 
to   which   he  made  the  contract,  but 


.IDMISSJONS. 


SF^l 


d.  Of  Dc[<iity  Against  His  Principal.  —  Where  a  public  officer  is 
sought  to  be  made  Hable,  the  admissions  of  his  deputy  by  whom 
he  was  represented  in  the  transaction  are  provable  atjainst  him  like 
that  of  any  other  agent,  acting  within  his  authority,  but  not  other- 
wise.'' Tiut  if  the  default  or  wrongful  act  was  that  of  the  deputy 
himself  for  which  the  officer  is  sued,  the  admissions  of  the  deputy 
are  competent  as  a  party  in  interest. " 

e.  By  Part\  to  Action  Against  Sheriff.  — There  are  cases  in  which 
a  sheriff  failing  in  his  duty  under  a  writ  is  held  bound  by  admis- 
sions made  by  a  party  to  the  suit." 

F.  Officeks  and  Employees  of  Pkix'ate  Cokpuuations.  —  a. 
Generally.  —  The  rule  that  the  admission  of  the  agent  is  the  admis- 
sion of  the  principal  is,  with  like  limitations,  applicable  to  private 
corporations.'^ 


during  the  negotiation  or  execution 
of  the  contract.  After  the  particular 
negotiation  or  transaction  out  of 
which  the  controversy  grows  lias 
ceased  and  terminated,  though  the 
agent  continues  to  hold  the  same 
office  and  the  same  delegated  au- 
thority, the  declarations  of  the  agent 
are  not  hinding  on  the  principal.  His 
declarations  would  be  mere  hearsay, 
like  those  of  any   other." 

After  Term  Expires The  admis- 
sions of  a  public  officer  made  after 
the  expiration  of  his  term  of  office 
are  inadmissible.  School  Directors 
I'.  Wallace,  9  111.  App.  312. 

'i'l-  England.  —  Snowball  z:  Good- 
ricke,  4  Barn.  &  A.  541,  24  Eng.  C. 
L,.  112;  Underbill  z:  Wilson,  6  Bing. 
697,    19  Eng.   C.    L.   208. 

Maine.  —  Smith  z'.  Bodfish,  39  Me. 
136;  Savage  z\  Balch,  8  Greenl.  27. 

Maryland.  —  Sonierville  v.  Hunt,  3 
H.  &"McH.   113. 

Massachusetts.  —  Tyler  ?'.  Ubner, 
12  Mass.  163. 

Neze  Yorlt.  —  Barker  f.  Binniger, 
14  N.  Y.  270. 

Pennsylvania.  —  Wheeler  v.  Ham- 
bright,  9  Serg.  &  R.  390. 

■Vernionl.  —  Lyman  v.  Lull,  20  Vt. 
349- 

Must  Be  While  Acting'  As  Deputy. 
Statements  made  by  the  deputy  after 
he  has  ceased  to  be  such  are  inad- 
missible. Smith  :■.  Bodfish,  39  Me. 
136;  Barker  v.  Brinniger,  14  N.  Y. 
270. 


And     Within     His     Authority.  — 

Grimshaw  v.   Paul,  76  111.   Iti4. 
78.     Tyler  v.  Ulmer,  12  Mass.   164. 

73.  Williams  v.  Bridges,  2  Stark. 
42,  3  Eng.  C.  L.  235. 

74.  United  States. —  Ze\mi  -Bank 
V.  Stewart,  114  U.  S.  224;  Anvil 
Min.  Co.  %•.  Humble,  153  U.  S.  5'40, 
14  Sup.  Ct.  876;  St.  Louis  &  S.  F. 
R.  Co.  V.  McLelland,  66  Fed.  116; 
Vicksburg  &  M.  R.  Co.  v.  O'Brien, 
119  U.  S.  99,  7  Sup.  Ct.  118;  In  re 
Oregon  Pub.  Co.,  13  N.  B.  R.  503,  18 
Fed.  Cas.  No.  10,559;  Walrath  i'. 
Champion  Min.  Co.,  63  Fed.  552 ;  At- 
diison  T.  &  S.  F.  R.  Co.  V.  Parker, 
55  Fed.  595 ;  Insurance  z\  ]Mahone, 
21  Wall.  152. 

Alabama.  —  Ricketts  z'.  Birming- 
ham St.  Ry.  Co.,  85  Ala.  600,  5  So. 
353;  Smith  v.  Tallahassee  Branch 
etc.,  30  Ala.  650;  Danner  Land  Co. 
V.  Stonewall  Ins.  Co.,  77  Ala.  184; 
Huntsville  Belt  Line  Co.  v.  Corpen- 
ing,  97  Ala.  681,  12  So.  295;  Alabama 
Great  S.  R.  Co.  v.  Hill,  76  Ala.  303; 
Mobile  &  M.  R.  Co.  v.  Ashcraft,  48 
Ala.  15. 

Arlcansas.  —  St.  Louis  &  S.  F.  R. 
Co.  z:  Barger,  52  Ark.  78,  12  S.  W. 
156;  St.  Louis  &  M.  S.  R.  Co.  V. 
Sweet,  57  Ark.  287,  21  S.  W.  587; 
St.  Louis  I.  M.  zi.  Kelley,  61  Ark.  52, 
31  _S.   W.  884. 

California.  —  Bullock  z\  Consu- 
mers Lumber  Co.  (Cal.),  31  Pac. 
367;  Green  v.  Ophir  C.  S.  &  G.  AI. 
Co.,  45  Cal.  522;  Abbott  v.  The 
Seventy-six  Land  Co.,  87  Cal.  322,  25 

Vol.  I 


552  ADMISSIONS. 

b.  Narratiuiis  of  Past  Transactions  IiiaJiiiissiblc.  —  Uut  the  rule 


Pac.  693 ;  Geake  v.  Cal.  S.  Nav.  Co., 
9  Cal.  251,  7  Am.  Dec.  650;  Beasely 
V.  San  Jose  F.  P.  Co.,  92  Cal.  388,  28 
Pac.  48s ;  Durkee  v.  Central  Pac.  R. 
Co.,  69  Cal.  533,  II  Pac.  130,  58  Am. 
Dec.  562. 

Colorado.  —  Denver  &  R.  G.  R.  Co. 
V.  Wilson,  4  Colo.  App.  355,  36  Pac. 
67;  Union  Pac.  R.  Co.  v.  Hepner, 
3  Colo.  App.  313,  33  Pac.  72. 

Connecticut.  —  Toll  Bridge  Co.  v. 
Betsworth,  30  Conn.  380;  Norwich  & 
W.  R.  Co.  V.  Cahill,  18  Conn.  484. 

Ftondo.  — Jacksonville  T.  &  K.  R. 
Co.  V.  Lockwood,  33  Fla.  573,  15  So. 
327. 

Georgia.  —  Hematite  Min.  Co.  v. 
East  Tennessee  V.  &  G.  R.  Co.,  92 
Ga.  268,  18  S.  E.  24;  Chattanooga  R. 
&  C.  R.  Co.  V.  Davis,  89  Ga.  708,  15 
S.  E.  626;  East  Tenn.  V.  &  G.  R. 
Co.  v:  Maloy,  77  Ga.  237,  2  S.  E.  941 ; 
East  Tenn.  V.  &  G.  R.  Co.  v.  Dnggan. 
51  Ga.  212;  Southern  E.x.  Co.  i>. 
Duffey,  48  Ga.  358;  Georgia  R.  R. 
Co.  V.  Smith,  76  Ga.  634. 

Illinois.  — Lake  Shore  &  M.  S.  R. 
Co.  V.  Baltimore  &  O.  C.  R.  Co.,  149 
111.  272,  37  N.  E.  91 ;  Chicago  B.  &  Q- 
R.  Co.  V.  Coleman,  18  111.  297,  68 
Am.  Dec.  544;  Chicago  B.  &  Q.  R. 
Co.  V.  Lee,  60  111.  SOI ;  Chicago  B. 
&  Q.  R.  Co.  v.  Riddle,  60  111.  534; 
Grand  Prairie  Ass'n  v.  Riordan,  61 
III.  App.  457;  Merchant's  Dispatch 
Co.  V.   Leysor,  89  111.  43. 

Indiana.  —  Miit.  Benefit  L.  Ins.  Co. 
V.  Cannon,  48  Ind.  264;  Cleveland  C. 
C.  &  I.  R.  Co.  V.  Closser,  126  Ind. 
348,  26  N.  E.  159,  9  L.  R.  A.  754; 
Heller  v.  Crawford,  37  Ind.  279; 
Bellefontaine  R.  Co.  z'.  Hunter,  33 
Ind.  335,  5  Am.  Dec.  201  ;  Lafayette 
R.  Co.  V.  Ehman,  30  Ind.  83 ;  Ohio  & 
M.  R.  Co.  V.  Stein,  133  Ind.  243,  31 
N.  E.  180,  19  L.  R.  A.  733;  Tipton 
Fire  Ins.  Co.  v.  Barnheisel,  92  Ind. 
88;  Adams  Ex.  Co.  v.  Harris,  120 
Ind.  73,  21  N.  E.  340,  7  L.  R.  A.  214; 
Indianapolis  R.  Co.  v.  Jewett,  16 
Ind.  273;  Pennsylvania  R.  Co.  v. 
Weddle,  100  Ind.  138. 

lozi'a.  —  Peden  z'.  Chicago  R.  I.  & 
P.  R.  Co.,  78  Iowa  131.  42  N.  W. 
625,  4  L.  R.  A.  lOi ;  Ayres  v.  Hart- 
Vol.  I 


ford  Fire  Ins.  Co.,  17  Iowa  176,  85 
.A^m.  Dec.  553 ;  Verry  v.  B.  C.  R.  & 
M.  R.  Co.,  47  Iowa  549;  Sioux  Val- 
ley Bank  v.  Kellogg,  81  Iowa  124,  46 
N.  W.  859;  Deere  v.  Wolf,  77  Iowa 
115,  41  N.  W.  588;  Des  Moines  &  D. 
L.  Co.  V.  Polk  Co.  H.  &  T.  Co.,  82 
Iowa  663,  45  N.  W.  773. 

Kansas.  —  Donnell  v.  Clark,  12 
Kan.  154;  Union  Pac.  R.  Co.  v.  Fray, 
35  Kan.  700,  12  Pac.  98;  Atchison  T. 
&  S.  F.  R.  Co.  V.  Wilkinson,  55 
i^an.  83,  39  Pac.  1043 ;  Amazon  Ins. 
Co.  V.  Briesen,  i  Kan.  App.  758,  41 
Pac.    11x6. 

Kentucky.  —  Louisville  &  N.  R.  Co. 
?'.  Foley,  94  Ky.  220,  21  S.  W.  866; 
Chesapeake  &  O.  R.  Co.  v.  Reeves, 
II  Ky.  Law  14,  II  S.  W.  464;  Mc- 
Lead  v.  Ginther,  80  Ky.  399. 

Maine.  —  Barnham  v.  Grand  Trunk 
R.  Co.,  63  Me.  298;  Linne  Rock 
Bank  v.  Hewett,  52  Me.  531 ;  Franklin 
Bank  v.  Steward,  37  Me.  519. 

Maryland.  —  Merchants'  Nat.  Bank 
V.  Marine  Bank,  3  Gilm.  96,  43  Am. 
Dec.  300;  Baltimore  &  O.  R.  Co.  v. 
State,  62  Md.  479. 

Massachusetts.  —  Blanchard  v. 
Blackstone,  102  Mass.  343 ;  Rich- 
mond Iron  Works  v.  Hayden,  132 
Mass.  190;  Wellington  v.  Boston  M. 

6  R.  Co.,  158  Mass.  185,  23  N.  E. 
393 ;   Robinson  v.   Fitchburg  R.   Co., 

7  Gray  92;  Grinnell  v.  Western  U. 
Tel.  Co.,  113  Mass.  299,  18  Am.  Rep. 
485 ;  Tripp  V.  New  Metallic  Pac.  Co., 
137  Mass.  499;  Lane  v.  Boston  &  A. 
R.   Co.,   112   Mass.  455. 

Michigan.  —  McCammon  v.  Detroit 
L.  &  N.  R.  Co.,  66  Mich.  442,  33  N. 
W.  728;  Sisson  V.  Cleveland  R.  Co., 
14  Mich.  489,  96  Am.  Dec.  252 ;  Peek 
V.  Detroit  Novelty  Works,  29  Mich. 
313;  Kalamazoo  M'f'g  Co.  v.  McAl- 
ister,   36  Mich.   327. 

Mississipfi-  —  Moore  -■.  Chicago  R. 
Co.,    59   Miss.    243. 

Missouri.  —  Northrup  v.  Miss.  Val- 
ley Ins.  Co.,  47  Mo.  435,  4  .'^m.  Rep. 
337;  Malecek  v.  Tower  Grove  R.  Co., 
57  Mo.  17;  Kelly  v.  Chicago  &  A.  R. 
Co.,  88  Mo.  534 ;  Western  Boatmen's 
B.  A.  V.  Kribben,  48  Mo.  37 ;  Costigan 


ADMISSIONS. 


553 


:■.  Michael  Trans.  Co.,  38  Mo.  App. 
Jig. 

Ncii'  Hampshire.  —  Low  "'.  Rail- 
road, 45  N.  H.  370;  Pemigevvassett 
Bank  v.   Rogers,    18   N.   H.  255. 

New  Jersey.  —  Halsey  v.  Lehigh 
Valley  R.  Co.,  45  N.  J.  Law  26; 
Stults  V.  East  Brunswick  Tp.  Co.  (N. 
J.),  9  Atl.  193;  Agricultural  Ins.  Co. 
V.   Potts,  55   N.  J.  Law   158,  26  Atl. 

27- 

Neiv  York.  —  Bingham  v.  Hyland, 
53  Hun  631,  6  N.  Y.  Supp.  75;  JMc- 
Cotter  V.  Hoaker,  8  N.  Y.  497;  An- 
derson V.  Rome  N.  &  O.  R.  Co.,  54 
X.  Y.  334;  First  Nat.  Bank  v.  Ocean 
Xat.  Bank,  60  N.  Y.  278;  White  v. 
Miller,  71  N.  Y.  118;  Com'rs  v.  Plank 
Road  Co.,  7  How.  Pr.  94;  Luby  v. 
Hudson  River  R.  Co.,  17  N.  Y.  131  ; 
Furst  V.  Second  Ave.  R.  Co.,  72  N. 
Y.  542;  Pierson  v.  Atlantic  Nat. 
Bank,  yy  N.  Y.  304;  Bank  of  New 
York  V.  American  Dock  Co.,  148  N. 
Y.  339,  38  N.  E.  713;  Alexander  v. 
Caldwell,  83  N.  Y.  480;  Niagara 
Falls  Co.  z:  Bachman,  66  N.  Y.  261 ; 
Wild  V.  New  York  Min.  Co.,  59  N. 
Y.  644;  Matteson  v.  N.  Y.  Cent.  R. 
Co.,  62  Barb.  364;  Trustees  First 
Baptist  Church  v.  Brooklyn  Fire  Ins. 
Co.,  18  Barb.  69. 

North  Carolina.  —  Porter  v.  Rich- 
mond &  D.  R.  Co.,  97  N.  C.  46,  2 
S.  E.  374- 

Oregon. — Nichols  v.  Southern  Pac. 
Co.,  23  Or.  123,  31  Pac.  296,  18  L.  R. 
A.  55. 

Pennsylvania.  —  Long  v.  North 
British  &  M.  F.  Ins.  Co.,  137  Pa.  St. 
3iS,  20  Atl.  1014,  21  Am.  St.  Rep. 
879;  Stewart  v.  Huntingdon  Bank,  11 
Serg.  &  R.  267,  14  Am.  Dec.  628; 
Spalding  v.  Bank  of  Susquehanna,  9 
Pa.  St.  28;  Hanover  R.  Co.  v.  Coyle, 
55  Pa.  St.  396;  Huntingdon  R.  Co.  v. 
Decker,  82  Pa.  St.  119;  Pennsylvania 
R.  Co.  V.  Books,  57  Pa.  St.  339,  98 
Am.  Dec.  229;  Magill  v.  Kaufman,  4 
Serg.  &  R.  317,  8  Am.  Dec.  713; 
Pennsylvania  R.  Co.,  v.  Titesville  Co., 
71  Pa.  St.  350;  Erie  &  W.  V.  R.  Co. 
v.  Smith,  125  Pa.  St.  259,  17  Atl.  443 ; 
Custar  v.  Titesville  G.  &  W.  Co.,  63 
Pa.  St.  38;  Harrisburg  Bank  v.  Ty- 
ler, 3  Watts  &  S.  373- 

South  Carolina.  —  Simmons  Hard- 
ware Co.  V.  Bank  of  Greenwood,  41 


S.  C.  177,  19  S.  E.  502;  Aiken  v. 
Telegraph  Co.,  5  Rich.  358;  Beckham 
V.  So.  R.  Co.,  50  S.  C.  25,  27  S.  E. 
611. 

South  Dakota. — Wendt  t.  Chicago, 
St.  P.  M.  &  M.  O.  R.  Co.,  4  S.  D.  476, 
57  N.  W.  226. 

-Tennessee.  —  Sewell  i:  McMahon, 
1   Head  582. 

Te.vas.  —  Laredo  Elec.  L.  &  AI.  Co. 
-c'.  U.  S.  Elec.  L.  Co.  (Tex.  Civ. 
App. J,  26  S.  W.  310;  Texas  Pac. 
R.  Co.  V.  Lester,  75  Tex.  56,  12  S.  W. 
955;  Gulf  C.  &  S.  F.  R.  Co.  V. 
Soulhvvick  (.Te.x.  Civ.  App.),  30  S. 
W.  592;  Blain  v.  Pac.  Ex.  Co.,  09 
Tex.  74,  6  S.  W.  679;  Western  Union 
Tel.  Co.  V.  Bennett,  i  Tex.  Civ.  App. 
558,  21  S.  W.  699;  Houston  E.  &  W. 
T.  R.  Co.  z:  Campbell,  gi  Tex.  551,  45 
S.  W.  2. 

Utah.  —  Idaho  Forwarding  Co.  v. 
Fireman's  Fund  Ins.,  8  Utah  41,  29 
Pac.  826;  17  L.  R.  A.  586;  Burton  v. 
Winsor  &  U.  S.  M.  Co.,  2  Utah  240. 

I'lrginia.  —  Baltimore  &  O.  R.  Co. 
V.  Gallahue,  12  Gratt.  655,  65  Am. 
Dec.   254. 

IVashington.  —  Weideman  v.  Ta- 
coma  R.  &  M.  Co.,  7  Wash.  517,  35 
Pac.   414. 

IVest  Virginia.  —  Mulheman  v.  Na- 
tional Ins.  Co.,  6  W.  Va.  508. 

Wisconsin. — Hooker  v.  Chicago  M. 
&  St.  P.  R.  Co.,  76  Wis.  542,  44  N. 
W.   1085. 

Wyoming.  —  Rock  Spring  Nat. 
Bank  v.  Luman,  5  Wyo.  159,  38  Pac. 
678. 

By  Agent   of  a   Corporation In 

Denver  &  R.  G.  R.  Co.  v.  Wilson,  4 
Colo.  App.  355,  36  Pac.  67,  it  is  said: 
"  A  corporation  can  act  only  through 
its  officers  and  agents.  Their  acts 
done  within  the  scope  of  their  au- 
thority, are  its  own  acts.  The  origi- 
nal book  was  made  by  the  defend- 
ant's agent  in  the  course  of  his  duties. 
In  the  same  capacity  he  made  the 
time  sheet,  and  sent  it  to  the  superin- 
tendent, who  made  the  copy  for 
preservation  in  his  office,  as  pertain- 
ing to  the  affairs  of  his  division,  and 
it  is  immaterial  whether  it  was  made 
by  a  letter-press,  or  by  a  slower  and 
more  tedious  process.  It  was  still  a 
copy  made  by  him  as  superintendent 
of     the     company.     The    time    book, 

Vol.  I 


554 


ADMISSIONS. 


time  sheet  and  impression  book  were 
therefore  the  time  book,  time  sheet 
and  impression  book  of  defendant ; 
and  either  might  be  nsed  in  evidence 
as  the  defendant's  admission  of  the 
same  fact." 

Admissions  by  Acquiescence Tlie 

failure  of  an  officer  of  a  corporation 
having  authority  in  the  premises  to 
deny  a  material  fact  stated  in  his 
presence  will  amount  to  an  admission 
by  acquiescence.  Paulson  Mercan- 
tile Co.  r.  Seavcr.  8  N.  D.  215.  77  N. 
W.  looi. 

By  President  of  a  Corporation. 
The  case  of  Ricketts  i'.  ISirniingham 
St.  R.  Co.,  85  Ala.  600,  5  So.  353, 
was  to  recover  for  personal  injuries 
charged  to  have  resulted  from  the 
negligence  of  the  defendant.  Certain 
declarations  of  the  president  of  the 
company  made  after  the  injury  was 
inflicted  were  offered  as  admissions 
against  the  company.  In  passing 
upon  the  question  as  to  the  admissi- 
bility of  this  evidence,  the  court  said: 
"  The  declarations  of  Morris,  the 
president  of  the  defendant  corpora- 
tion, are  not  shown  to  have  been 
made  while  he  was  in  the  perform- 
ance of  his  duties  as  such  officer,  or 
while  acting  for  the  company,  or 
while  transacting  any  business  con- 
temporaneous with  the  declarations, 
which  they  served  to  elucidate  or  ex- 
plain. The  declarations  were  not 
within  the  scope  of  his  authority,  and 
are  not  binding  on  the  defendant." 

And  in  Danner  Land  Co.  i\  Stone- 
wall Ins.  Co.,  77  Ala.  184,  it  is  said : 
"  The  declarations  of  Danner,  who 
was  president  and  business  manager 
of  the  Danner  Land  and  Lumber 
Company,  made  to  Davis  and  others, 
several  days  after  the  delivery  of  the 
deed  in  question,  were  inadmissible 
against  either  the  company  or  the  de- 
fendant Strong,  its  assignee,  for  the 
purpose  of  showing  that  the  contract- 
ing parties  intended  such  deed  to 
operate  either  as  a  mortgage  or  a 
conditional  sale.  The  declarations 
and  admissions  of  an  agent  of  a  cor- 
poration stand  clearly  on  the  same 
footing  with  those  of  an  agent  of  a 
natural  person.  '  To  bind  the  prin- 
cipal, they  must  be  within  the  scope 
of  the  a\ithority  confided  to  the  agent. 

Vol.  I 


and  must  accompany  the  act  or  con- 
tract which  he  is  authorized  to 
make.'  " 

United  States. — Goetz  %'.  Bank  of 
Kansas  City.  119  U.  S.  551,  7  Sup.  Ct. 
J 18;  Tuthill  Spring  Co.  v.  Shaver 
Wagon  Co.,  35  Fed.  644 ;  Jesup  z: 
111.  Cent.  R.  Co.,  43  Fed.  483. 

Alabama.  —  Henry  z\  Xorthern 
Bank,  64  .•\la.  527. 

////jio/,s.  — Chicago  B.  &  Q.  Co.  v. 
Coleman,  18  111.  297,  (18  .\m.  Dec. 
544;  Lake  Shore  &  M.  S.  R.  Co.  v. 
Baltimore  &  O.  and  C.  R.  Co.,  149 
111.  272,  37  N.  E.  91. 

lozi'a.  —  Hamilton  Buggy  Co.  t'. 
Iowa  Buggy  Co.,  88  Iowa  364,  55  N. 
W.  496;  First  Nat.  Bank  v.  Booth. 
102  Iowa  333,  71  N.  W.  238. 

Maine.  —  Lime  Rock  Bank  v.  Hcw- 
ett,  52  Me.  51. 

Maryland.  —  City  Bank  v.  Bate- 
man,  7  Har.  &  J.   104. 

Massaehnsetls. — Robinson  r.  Fitch- 
burg,  etc.  R.  Co.,  7  Gray  92. 

MissDuri.  —  Northrnp  v.  Miss.  Val- 
ley Ins.  Co.,  47  Mo.  435,  4  Am.  Rep. 
.3.37 ;  Costigan  z'.  Michael  Trans.  Co., 
.38  Mo.  App.  219. 

New  Hani/'shire.  —  Low  v.  Rail- 
road, 45  N.  H.  370. 

Nciv  Jersey.  —  Halsey  z:  Lehigh 
Valley  R.  Co.,  45  N.  J.  Law  26. 

Pennsylvania. —  Spalding  v.  Bank 
of   Sns(|uehanna,  9   Pa.   St.  28. 

South  Carolina.  —  Charleston  &  S. 
R.  R.  Co.  V.  Blake,  12  Rich.  634. 

Tennessee.  — Ward  Courtney  &  Co. 
r.  Tennessee  C.  &  I.  R.  Co.'(Tenn. 
App.),  57  S.  W.  193. 

U'isconsin.  —  Hazelton  !■.  Union, 
,^2  Wis.  34. 

Must  Be  Engaged  in  Performance 

of   His   Duty The   president    of   a 

corporation  may  bind  the  company 
by  his  admissions  only  when  engaged 
in  the  performance  of  his  duties  as 
such  president  as  in  case  of  other 
agents.  Flour  City  Nat.  Bank  v. 
Grover,  88  lliui  4.  34  N.  V.  Snpp. 
496. 

Must  Be  Authorized  by  the  Board 
of  Directors In  the  case  of  Stew- 
art T.  Huntingdon  Bank,  11  Scrg.  & 
R.  (Pa.)  267.  14  .'\m.  Dec.  628,  it 
was  held  that  the  declarations  of  the 
officers  of  a  bank  were  not  evidence 
against     it     if     unauthorized    by    the 


ADMISSIONS.  555 

excludes    narrations    uf    past    transactions.     Such    declarations    are 


board  of  directors.  God/,  i'.  Bank 
of  Kansas  Cil}',  iig  U.  S.  551,  7  Sup. 
Ct.  318;  Cunningham  v.  Cochran,  18 
Ala.  479,  52  Am.  Dec.  230;  Tuthill 
Spring  Co.  z\  Shaver  Wagon  Co.,  35 
Fed.  O44.  See  also  as  to  the  author- 
ity of  the  president  of  a  corporation 
to  make  admissions  admissible 
against  his  company,  Chicago  B.  & 
Q.  R.  Co.  V.  Coleman,  18  111.  297,  68 
Am.  Dec.  544;  Farmers'  Bank  v.  Mc- 
Kee,  2  Pa.  St.  318;  Halsey  i:  Lehigh 
Valley  R.  Co.,  45  N.  J.  Law  26.  But 
see  Costigan  v.  Michael  Trans.  Co., 
38  -Mo.  App.  219;  First  Nat.  Bank  v. 
Booth,   102  Iowa  533,  71    X.   W.  238. 

Ordinary  Affairs  of  Corporation. 
The  rule  that  the  president  must  be 
authorized  by  the  board  of  directors 
does  not  apply  to  the  ordinary  busi- 
ness affairs  of  the  company  that  fall 
within  the  duties  of  the  president, 
and  are  usually  performed  by  him. 
Chicago  B.  &  Q.  R.  Co.  z\  Coleman, 
18  111.  297,  68  Am.  Dec.  544. 

By  Conductor  of  Railroad  Train. 
In  .Mobile  &  .\1.  R.  Co.  t:  .\shcraft, 
48  Ala.  15.  an  action  for  damages  for 
injury  to  the  plaintiff  alleged  to  have 
resulted  from  the  negligence  of  the 
defendant  railroad  company,  it  was 
offered  to  prove  the  statements  of 
the  conductor  of  the  train  to  a  pas- 
senger a  moment  before  the  accident, 
of  the  bad  condition  of  the  road,  and 
that  his  train  had  run  off  the  track 
five  consecutive  times  ne.xt  preceding 
the  present  trip;  but  the  court  held 
the  evidence  to  be  inadmissible,  say- 
ing: "It  is  true  there  is  a  differ- 
etice  between  the  agent  of  a  corpora- 
tion and  the  agent  of  an  individual, 
because  the  corporation,  if  it  act  or 
speak  at  all,  can  do  so  only  through 
an  agent.  Some  of  its  agents  are,  in 
some  instances,  the  corporation  itself, 
and  others  its  mere  employees  or 
servants.  It  would  be  equally  unjust 
to  charge  it  with  all  the  statements 
of  its  agents,  or  to  relieve  it  entirely 
from  responsibility  for  such  declara- 
tions. If  the  statements  of  the  con- 
ductor had  been  made  the  day  before 
the  accident,  they  would  not  be  sup- 
posed   to    be   the   admissions    of    the 


defendant,  or  to  be  a  part  of  the  res 
gestae.  Their  coincidence  alone, 
without  other  connection,  can  not 
change  their  character."  See  also 
Moore  v.  Chicago  R.  Co.,  59  Miss. 
243;  Furst  V.  Second  Av.  R.  Co..  72 
N.  V.  54^ ;  Gulf  C.  &  S.  F.  R.  Co.  v. 
Southwick,  tTex.  Civ.  App.),  30  S. 
W.  592. 

It  is  otherwise  if  the  declarations 
are  made  while  engaged  in  and  as  a 
part  of  his  duty  as  conductor.  Sis- 
son  V.  Cleveland,  etc,  R.  Co.,  14  Mich. 
489.  90  .Vm.  Dec.  252. 

After  an  Accident. — The  same  rule 
applies  if  statements  are  made  by  a 
conductor  after  an  accident  has  oc- 
curred. Jammison  z:  Chesapeake  & 
O.  R.  Co.,  92  \-a.  327,  23  S.  E.  758; 
Nebonne  z:  Concord  R.  Co.,  67  N.  H. 
S3I,  38  Atl.  17;  Reem  v.  St.  Paul 
City  R.  Co.,  77  Minn.  503,  80  X.  W, 
638. 

The  Rule  Extends  to  Ticket  Agents. 
Acts  and  admissions  of  ticket  agents 
within  the  scope  of  their  authority, 
and  while  acting  therein,  are  within 
the  rule.  Burnham  v.  Grand  Trunk 
R.   Co.,  63   Me,  298. 

By  a  Brakeman.  —  In  Patterson  v. 
Wabash,  etc.  R.  Co.,  54  Mich.  91,  19 
N.  W.  761,  it  was  held  that  a  brake- 
man's  admission  that  he  caused  a 
railway  accident,  was  inadmissible  in 
an  action  arising  therefrom  against 
the  company  by  which  he  was  em- 
ployed, where  the  statement  was  not 
made  in  the  execution  of  his  duty,  or 
while  the  act  to  which  it  referred 
was  in  progress,  and  that  such  an  ad- 
mission could  not  bind  the  company 
where  it  did  not  appear  that  the  act 
done  was  in  the  line  of  his  duty. 
See  also  Kelly  f.  Chicago  &  .A..  R. 
Co.,  88  Mo.  534. 

Subsequent  Statement  Sometimes 
Admissible. —  In  Malecek  z'.  Tower 
Grove  etc.  R.  Co.,  57  Mo.  17,  it  was 
held,  in  a  case  for  damages  for 
ejecting  a  passenger  from  a  street 
car,  that  the  statements  of  the  super- 
intendent of  the  street  car  company, 
made  three  days  later,  admitting  and 
justifying  the  act  of  the  driver  were 
competent. 

Vol.  I 


55b 


ADMISSIONS. 


inadmissible. '° 

c.  Reports  Made  to  Superior  Officers.  —  The  fact  that  the  state- 
ments of  employees  are  contained  in  reports  made  to  superior  officers 
prepared  after  the  transaction,  although  required  by  the  company 
to  be  made,  does  not  chaufje  the  rule.  They  are  inadmissible  as 
admissions.'" 

d.  Must  Be  Acting  As  Agent.  —  The  admission  of  an  officer  of  a 
corporation  is  not  admissible  merely  because  he  sustains  that  relation 
to  the  company.  He  must  be  acting  in  the  capacity  of  an  agent  with 
authority  to  bind  it,  and   in  the  line  of  his  dutv." 


75.  United  States.  —  Goetz  v. 
Bank  nf  Kansas  City,  119  U.  S.  S51, 
7  Sup.  Ct.  318. 

Alaba>na.  —  Commercial  F.  Ins. 
Co.  V.  Morris,  105  Ala.  498,  18  So.  34. 

Arkansas.  —  St.  Louis,  I.  M.  &  S. 
R.  Co.  V.  Kelley,  61  Ark.  52,  31  S.  W. 
884;  St.  Louis,  L  M.  &  S.  R.  Co.  v. 
Sweet,  57  Ark.  287,  21  S.  W.  587. 

California.  —  Durkee  v.  Cent.  Pac. 
R.  Co.,  69  Cal.  533,  II  Pac.  130,  58 
Am.  Dec.  562 ;  Silversa  v.  Iverson, 
128  Cal.  187.  60  Pac.  687;  Hewes  v. 
German  F.  Co.,  106  Cal.  441,  39  Pac. 
853.  . 

Georgia.  —  Hermatite  Min.  Co.  v. 
East  Tenn.,  V.  &  G.  R.  Co..  92  Ga. 
268,  18  S.  E.  24. 

Indiana.  —  Bellefontaine  R.  Co.  v. 
Hunter,  a  bid.  •^ss.  5  Am.  Dec.  201  ; 
Ohio  &  M.  R.  Co.  V.  Stein,  133  Ind. 
243,  31  N.  E.  180.  19  L.  R.  A.  733. 

Kansas.  —  LTnion  Pac.  R.  R.  Co.  v. 
Fray,  38  Kan.  700.  12  Pac.  98;  Acme 
Harvester  Co.  v.  Madden.  4  Kan. 
App.  598,  46  Pac.  319. 

lientuelcy.  —  Graddy  f.  Western 
Union  Tel.  Co.,  19  Ky.  Law  1455.  43 
S.  W.  468;  Chesapeake  &  O.  R.  Co. 
V.  Reeyes,  11  Ky.  Law  14,  i  S.  W. 
464;  East  Tenn.  Tel.  Co.  v.  Simms, 
18  Ky.  Law  761,  3S  S.  W.   131. 

Maine.  —  Franklin  Bank  v.  Cooper, 
36  Me.  179. 

Micliigan.  —  Hall  v.  Murdock,  119 
Mich.  389.  78  N.  W.  329;  Peck  v. 
Detroit  Noyelty  Works,  29  Mich.  313. 

Nezv  Hamf shire.  —  Pemigewassett 
Bank  v.  Rogers.  18  N.  H.  255. 

North  Carolina.  —  Branch  t.  Wil- 
mington &  W.  R.  Co.,  88  N.  C.  573; 
Williams  v.  Williams,  6  Ired.  (Law) 
281. 

I'ennsyliHviia.    —    Pennsylvania    R. 

Vol.  I 


Co.  V.  Books,  57  Pa.  St.  339,  98  Am. 
Dec.  229. 

76.  Reports  to  Superior  Officers. 
The  case  of  Carroll  v.  East  Tennes- 
see, V.  &  G.  R.  Co.,  82  Ga.  452,  10 
S.  E.  163,  was  an  action  for  damages 
for  personal  injuries  received  in  an 
accident.  Reports  of  the  accident 
were  made  to  the  general  manager  of 
the  defendant  company  by  the  super- 
intendent, by  the  conductor,  sup- 
ported by  his  affidavit,  and  others, 
embracing  engineer,  fireman,  flag- 
man, brakenian,  and  another  conduc- 
tor, the  latter  reports  being  trans- 
mitted from  the  superintendent  and 
along  with  his  report  to  the  general 
manager.  It  was  held  by  the  court 
that  these  reports  having  had  their 
origin  many  days  after  tlie  happen- 
ing of  the  event  to  which  they  re- 
lated, were  no  part  of  the  res  gestae 
of  the  cause  of  action  on  trial,  but 
mere  narrative  touching  past  occur- 
rences, and  were,  therefore,  inadmis- 
sible. But  see  to  the  contrary,  Rog- 
ers V.  Trustees  of  N.  Y.  &  B.  Bridge, 

11  App.  Diy.  141,  42  N.  Y.  Supp.  1046, 
afHrmed,  54  N.  E.  1094. 

77.  United  States.  —  Fidelity  & 
Dep.  Co.  V.   Covirtney,   103  Fed.  599. 

Alabama.  —  Huntsville  Belt  Line, 
etc.    Co.    V.    Corpcning,   97   Ala.   681, 

12  So.  295;  Mobile  &  G.  R.  Co.  v. 
Cogsbill,  85  Ala.  456,  5  So.  188; 
Ricketts  v.  Birmingham  St.  R.  Co., 
85  .Ma.  600,  5  So.  353;  Postal  Tel. 
Co.  V.  Lenoir.  107  Ala.  640.  18  So. 
266. 

Arl,-ansas.  —  Pacific  Mut.  L.  Ins. 
Co.  f.  Walker,  67  Ark.  147,  53  S.  W. 

675- 

California.  —  Green  v.  Ophir  C.   S. 

&  G.  M.  Co.,  45  Cal.  522. 


ADMISSIONS. 


557 


G.  Attorneys- at-Law".  —  a.  Arc  Agents  of  Clients. — Attorneys- 
at-law  are  the  agents  of  their  cHents  and  may,  unless  restrained  by 
statutory  Hmitations,  bind  them  by  their  admissions  the  same  as 


Colorado.  —  Emerson  v.  BiirnoU, 
II  Colo.  App.  86,  52  Pac.  752. 

Connecticut.  —  Hartford  Bank  v. 
Hart,  3  Day  491. 

Georgia.  —  Hematite  Min.  Co.  v. 
East  Tenn.,  V.  &  G.  R.  Co.,  92  Ga. 
268,  18  S.  E.  24. 

Illinois.  —  Hodgerson  z:  St.  L..  C. 
&  St.  P.  R.  Co.,  160  111.  430.  43  N.  E. 
614. 

Indiana.  —  Lafayette  R.  Co.  i'.  Eh- 
man,  30  Ind.  83. 

/oica.  —  ^h^ndlleck  v.  Cent.  Iowa 
R.  Co.,  57  Iowa  718,  11   N.  W.  656. 

Kentucky.  —  Bank  of  Kentucky  v. 
Todd,  I  A.  K.  Marsh.  116;  Chesa- 
peake &  O.  R.  Co.  V.  Smith,  18  Ky. 
Law  1079,  39  S.  W.  832;  Graddy  v. 
Western  Union  Tel.  Co.,  19  K3'.  Law 
1455,  43  S.  W.  468. 

Maine.  —  Pallets  v.  Ocean  Ins.  Co., 
14  Me.  141. 

Maryland.  —  Merchants'  Bank  v. 
Marine  Bank.  3  Gill.  964,  43  Am. 
Dec.  300;  Rowe  %'.  Baltimore  &  O.  R. 
Co.,  82  Md.  493,  33  Atl.  761  ;  Balti- 
more &  O.  R.  Co.  V.  State.  62  Md. 
479 :  Phelps  z:  George's  Creek  &  C. 
R.  Co..  60  Md.  536:  Dietrich  r.  Balti- 
more &  H.  S.  R.  Co..  58  Md.  347- 

Massacliusetts.  —  Pratt  J'.  Ofdens- 
bnrg  &  L.  C.  R.  Co.,  102  Mass.  557; 
Boston  &  M.  R.  Co.  v.  Ordway.  140 
Mass.  510,  5  N.  E.  627. 

Micliigan.  —  Grand  Trunk  R.  Co. 
V.  Nichols,  18  Mich.   170. 

Minnesota. — Halverson  z:  Chicago, 
M.  &  St.  P.  R.  Co.,  57  Mimi-  UA  58 
N.  'W.  871 ;  Doyle  v.  St.  Paul  &  M. 
R.  Co.,  42  Minn.  79,  43  N.  W.  787. 

Missouri.  —  Midland  Lumber  Co.  v. 
Kreegcr,  52  Mo.  App.  418;  Bangs 
Milling  Co.  f.  Burns,  152  Mo.  350,  53 
S.  W.  923. 

Ncbraslca.  —  Columbia  Nat.  Bank 
V.  Rice.  48  Neb.  428,  67  N.  W.  165. 

Nevada.  —  Meyer  z\  Virginia  &  T. 
R.  Co.,   16  Nev.  341. 

Nezi'  Yorli.  —  Comrs.  i\  Plank 
Road  Co.,  7  How.  Pr.  74;  Hay  v. 
Piatt,  66  Hun  448.  21  N.  Y.  Supp. 
.362:  Saper  z\  Buffalo  &  R.  Co..  19 
Barb.  310;  Van  Wagenan  z\  Genesee 


Falls  S.  S.  Ass'n.,  88  Hun  43,  34  N. 
Y.  Supp.  491  ;  Drake  !■.  New  York 
Cent.  &  H.  R.  Co.,  80  Hun  490,  30 
N.  Y.  Supp.  671  ;  Strong  v.  Wheaton, 
38  Barb.  616. 

North  Carolina.  —  Branch  v.  Wil- 
mington &  VV.  R.  Co.,  88  N.  C.  573- 

Oregon. — Wicktorwitz  v.  Farmers' 
Ins.  Co.,  31  Or.  569,  51  Pac.  75;  First 
Nat.  Bank  v.  Linn  Co.  Nat.  Bank.  30 
Or.  296.  47  Pac.  614. 

Pennsylvania.  —  Baltimore  &  O.  R. 
.Vss'n.  V.  Post,  122  Pa.  St.  579.  15 
Atl.  885,  2  L.  R.  A.  44- 

South  Carolina.  —  Waldrop  v. 
Greenville  L.  &  S.  R.  Co.,  28  S.  C. 
57,  5  S.  E.  471  ;  Mars  v.  Va.  Home 
Ins.  Co.,  17  S.  C.  514. 

South  Dalzota.  —  Plymouth  Co. 
Bank  v.  Gilman,  3  S.  D.  170.  S2  N. 
W.  869. 

Tc.vas.  —  Salado  College  v.  Davis, 
47  Tex.  131  ;  Long  v.  Moore,  19  Tex. 
Civ.  App.  363,  48  S.  W.  43. 

Wisconsin.  —  Scott  v.  Home  Ins. 
Co.,  53  Wis.  238.  10  N.  W.  387. 

Different  Rule  'Where  Question 
One  of  Notice. —  The  rule  that  an 
officer  of  a  corporation  must,  in  or- 
der to  make  his  admissions  admissi- 
ble against  the  corporation,  be  act- 
ing in  the  line  of  his  duty,  does  not 
apply  where  the  question  is  one  of 
notice  to  the  corporation.  There  it 
is  immaterial  as  to  any  conversations 
with  such  officer  relating  to  the  mere 
question  of  notice  or  knowledge, 
whether  he  was  then  acting  in  his 
official  capacity  and  in  the  line  of  his 
duty  or  not.  Garretson  z'.  ?ilerchants' 
&  Bankers'  Ins.  Co..  92  Iowa  293,  60 
N.  W.  540;  Hopkins  v.  Boyd.  18  Ind. 
App.  63.  47  N.  E.  480.  See  also  Rog- 
ers V.  Trustees  N.  Y.  &  B.  Bridge 
Co..  II  App.  Div.  141.  42  N.  Y.  Supp. 
1046. 

But  in  such  case  the  officer  must 
be  one  having  authority  in  the  prem- 
ises. Ohio  &  M.  R.  Co.  V.  Levy,  134 
Ind.  343,  32  N.  E.  815;  Nelson  v. 
Southern  Pac.  Co..  15  L^tah  325,  49 
Pac.  644. 

■When  Authority  Will  Be  Presumed. 

Vol.  I 


558 


.IDMISSrONS. 


otlier  agents."*     Tlieir  autliorit\-   in   respect  of  judicial   admissions 


Sometimes  the  authority  of  the  agent 
to  bind  the  corporation  by  his  admis- 
sions will  be  presumed.  Peden  ■:■. 
Chicago.  R.  I.  &  P.  R.  Co..  78  Iowa 
131,  42  N.  W.  625,  4  L.  R.  A.  401 ; 
Amazon  Ins.  Co.  i'.  Briesen,  i  Kan. 
App.  75S,  41   Pac.   II 16. 

By  Director  or  Stockholder "The 

next  question  presented,  relates  to 
the  admission  of  the  declarations  of 
Benjamin  Knight,  a  stockholder  and 
one  of  the  directors  of  the  company. 
The  declaration  was  not  made  while 
acting  in  the  business  of  the  com- 
pany, but  after  the  loss  happened ; 
and  it  purports  to  state  the  knowl- 
edge of  the  company  at  the  time  the 
insurance  was  effected.  Such  declara- 
tions cannot  be  received  as  coming 
from  an  agent  of  the  company,  when 
he  was  not  acting  in  that  character. 
Haven  v.  Brown,  7  Greenl.  421. 
The  rights  of  all  corporate  bodies 
would  be  wholly  insecure,  and  at  the 
mercy  of  each  corporator,  if  the  ad- 
missions or  declarations  of  one  cor- 
porator could  charge  the  corporation. 
The  principle  cannot  be  admitted. 
And  the  testimony  must  be  regarded 
as  improperly  received.  2  Stark  Ev. 
580:  3  Day,  491,  Hartford  Bank  v. 
Hart."  Polleys  i'.  Ocean  Ins.  Co.,  14 
Me.   141. 

By  Organizers  of  Corporation  Be- 
fore They  Became  Officers State- 
ments made  by  persons  proposing  to 
organize  a  corporation,  and  who  sub- 
sc(|uently  become  its  officers,  are  in- 
admissible against  the  corporation  or- 
ganized subsequent  to  the  making  of 
such  statements.  Fogg  7'.  Pew.  10 
Gray   (Mass.)   409,  71   Am.  Dec.  662. 

78.  United  States.  — The  Harry, 
9  Ben.  524,  II  Fed.  Cas.  No.  6147. 

Alabama.  —  McRea  t'.  Ins.  Bank, 
16  Ala.  (N.  S.)  755;  Rosenbaum  !■. 
State,  33  Ala.  354. 

California.  —  People  v.  Garcia,  25 
Cal.  531. 

Connecticut.  —  Perry  v.  Simpson 
Waterproof  Mfg.   Co.,  40  Conn.  313. 

Illinois.  —  Wilson  v.  Spring,  64  111. 
14- 

Indiana.  —  Blessing    ?'.    Dodds,    53 

Vol.  I 


Ind.  95;  Miller  v.  Palmer,  25  Ind. 
App.  357,  58  N.  E.  213. 

Kansas.  —  Central  Branch  V.  P.  R. 
Co.  Z'.  Shoup,  28  Kan.  394,  42  Am. 
Rep.    163. 

Massachusetts.  —  Loomis  v.  New 
York  etc.  R.  Co.,  159  Mass.  39,  34 
N.  E.  82. 

Ncxc  Hampshire.  —  Hanson  v. 
Hoitt,    14  N.   H.   56. 

New  York.  —  Tredwell  z'.  Don 
Court,  18  App.  Div.  219,  45  N.  Y. 
Supp.  946;  Stinesville  etc.  Co.  v. 
White,  32  Misc.  135',  65  N.  Y.  Supp. 
609. 

Pennsylvania. — Douglass  v.  Mitch- 
ell,_35  Pa.  St.  440- 

South  Carolina.  —  Cooke  <■.  Rem- 
ington, 7  S.  C.  385. 

Wisconsin.  —  Knapp  v.  Runals,  37 
Wis.    135. 

Not    an    Agent    in    the    Ordinary 

Sense In  Anderson  v.  McAleenan, 

29  N.  Y.  St.  Rep.  406,  8  N.  Y.  Supp. 
483,  it  is  said :  "  The  rule  that 
declarations  of  an  agent,  made  within 
the  scope  of  his  authority,  will  bind 
the  principal,  has  no  application  here. 
.\  man's  counsel  is  in  one  sense 
his  agent,  but  the  special  work  which 
the  counsel  has  to  perform  is  to  make 
the  most  favorable  showing  possible 
upon  facts  as  well  as  law.  He  is  an 
advocate  with  unlimited  powers  of 
discretion.  He  is  not  like  an  or- 
dinary agent  whose  express  duties 
and  methods  of  procedure  are  laid 
out  beforehand,  so  that  the  principal 
may  justly  be  held  liable  for  what  he 
originates,  though  its  execution  be 
intrusted  to  another.  An  advocate's 
statements  are  always  supposed  to  be 
adapted  to  the  exigencies  of  the  case 
on  trial,  and  colored  by  what  he  con- 
ceives his  client's  best  interests  de- 
mand at  that  particular  time,  and 
under  those  peculiar  circumstances. 
.■\cts  and  statements  that  would  seem 
ilisingenious,  or  even  culpably  mis- 
leading, in  other  relations  of  life 
are  pardoned  in  a  professional  ad- 
vocate because  of  his  necessary  atti- 
tude towards  his  client  and  towards 
the  enemy.  There  is  every  reason, 
therefore    whv    the    (U'al    statements 


.-IDM/SSfOXS.  559 

lias  been  somewhat  considered.'''  .And  the  general  authoritv  of 
attorneys  as  it  relates  to  evidence,  will  he  considered  under  the  head 
of  "  Attorney  and  Client."*" 

b.  Admissions  .Competent  Only  When  Within  T/ieir  Anthoritv. 
Their  power  to  bind  by  their  admissions,  is  confined,  like  that  of 
other  agents,  to  admissions  made  in  and  as  a  part  of  the  perform- 
ance of  their  duties  and  within  the  scope  of  their  authority.*" 


of  counsel  upon  a  judicial  inquiry 
of  any  sort,  no  matter  wliat  tlieir 
purport  may  be,  should  not  be  taken 
as  solemn  admissions  of  fact  which 
the  client  may  not  afterwards  gain- 
say." 

Acts  as  Attorney  and  Ordinary 
Agent  Distinguished — liurraston  v. 
First  Nat.  Bank,  22  Utah  328,  62  Pac. 

425- 

79.  Ante,  p.  426. 

80.  See  "Attorney  and  Client." 

81.  England.  —  Doe  ?'.  Richards, 
3  Car.  &  K.  216,  61  Eng.  C.  L.  215  ; 
Watson  V.  King,  3  M.  G.  &  j.  60S, 
54  Eng.  C.  L.  608;  Wagstaff  z:  Wil- 
son, 4  Barn.  &  A.  339.  24  Eng.  C. 
L.  7. 

Alabama.  —  Floyd  f.  Hamilton,  i,,^ 
Ala.    235. 

California.  —  Wilson  v.  Southern 
Pac.  R.  Co.,  53  Cal.  725. 

Connecticut.  —  Rockwell  v.  Taylor, 
41   Conn.  55. 

Georgia.  —  Cassels  v.  Usry  Sturgis 
&  Co.,  51  Ga.  621 ;  Thomas  f.  Kin- 
sey,  8  Ga.  421. 

Illinois.  —  Chicago  City  R.  Co.  v. 
McMeen,  70  111.  App.  220. 

Indiana.  —  Morley  v.  Hineinan,  6 
Ind.   App.  240. 

Maryland.  —  Dorsey  v.  Gassaway, 
2  Har.  &  J.  402,  3  Am.  Dec.  557. 

Massachnsctts.  —  Saunders  v.  Mc- 
Carthy, 8  Allen  42;  Proctor  v.  Old 
Colotiy  R.  Co.,  154  Mass.  251,  28  N. 
E.  13 ;  Murray  v.  Chase,  134  Mass. 
92. 

Michigan.  —  Fletcher  v.  Chicago 
&  N.  W.  R.  Co.,  109  Mich.  363,  67 
^'-  W'.  330;  Fanners'  Mut.  F.  Ins.  Co. 
V.  Bowen,  40  Mich.  147.   • 

Minnesota.  —  Gray  v.  Minn.  Trib- 
une Co.,  81  Minn,  m,  84  N.  W.  113. 

Missouri.  —  Walden  z\  Bolton,  55 
Mo.  405 ;  Nichols.  Shepard  v.o.  i'. 
Jones,  32   Mo.  App.  657. 


-Vc7i'  Jersey.  —  Janeway  v.  Sker- 
ritt,   30   N.   J.   Law   97. 

Nezi'  York.  —  Lewis  i'.  Duane,  6g 
Hun  28,  23  N.  Y.  Supp.  433;  O'Brien 
r.  Weiler,  68  Hun  64,  22  N.  Y.  Supp 
627 ;  Breck  v.  Ringler,  56  Hun  623, 
13  N.  Y.  Supp.  501  ;  Adee  v.  Howe, 
15  Hun  20;  Smith  i'.  Bradhurst,  18 
.Misc.   S46,  41    N.   Y.   Supp.    1002. 

■Vermont.  —  Underwood  v.  Hart, 
23   Vt.   120. 

Wisconsin.  —  Weisbrod  v.  Chicago 
&  N.  W.  R.  Co.,  20  Wis.  419- 

Limitation  of  Authority  to  Make 
Admissions.  —  In  Wilson  v.  S.  P.  R. 
Co.,  S3  Cal.  725,  the  action  was 
brought  in  conformity  with  a  stat- 
utory provision  to  recover  the  value 
of  property  alleged  to  have  been 
stored  in  the  defendant's  warehouse. 
.\fter  the  defendant  had  answered, 
the  plaintiff  served  upon  the  attor- 
ney of  the  defendant  a  demand  to  be 
informed  of  the  circumstances  under 
which  the  count  for  injury  mentioned 
in  the  complaint  grew.  In  reply  to 
this  demand  the  attorney  of  the  de- 
fendant addressed  a  letter  to  the 
attorney  for  the  plaintiff  which  was 
offered  in  evidence.  In  passing  upon 
the  question  of  the  adinissibility  of 
the  statements  of  attorneys  as  ad- 
missions, the  court  said  :  "  The  sec- 
tion authorizes  a  written  or  oral 
demand  for  information  upon  the 
depositary.  It  provides  for  a  state- 
ment iti  pais  which  inay  be  taken 
before  or  after  an  action  has  been 
coiumenced,  and  it  is  not  within  the 
province  or  authority  of  an  attorney 
at  laii.'  employed  by  the  depositary 
to  defend  an  action  brought  by  the 
depositor  for  the  destruction  of  the 
deposit  to  make  in  pais  admissions 
or  statements  in  respect  to  the  cir- 
cumstances under  which  the  destruc- 
tion occurred  which  are  binding  upon 
the   depositary." 

Vol.  I 


560 


ADMISSIONS. 


c.  Not  Competent  to  Prove  That  He  ll'as  Attorney.  —  The  admis- 
sions of  the  alleged  attorney  are  not  competent  to  prove  that  he  was 
attorney  for  the  party  against  whom  they  are  offered.'^ 

d.  By  General  Attorney.  —  The  fact  that  an  attorney  is  employed 
generally  does  not  change  the  rule.  To  warrant  proof  of  his 
admissions,  they  must  have  been  made  in  and  about,  and  while 
engaged  in  the  transaction  in  controversy.*^ 

e.  Oral  Admissions  Out  of  Court.  —  As  a  rule,  mere  oral  admis- 
sions made  out  of  court  are  inadmissible  to  bind  the  client.*''  There 
are  authorities  holding  that  such  statements,  within  the  scope  of 
his  employment,  are  admissible.*^  In  some  cases,  the  rule  excluding 
such  admissions  has  been  extended  to  oral  admissions  in  court.*" 
But  the  authority  to  make  them  must  be  confined  to  admissions  made 
for  the  purposes  of  the  action  in  which  the  attorney  is  engaged.*' 

f.  Made  in  One  Case  Inadmissible^  in  Another  B.veeption. — There- 
fore, it  is  generally  held  that  an  admission,  made  in  one  case,  is  not 
admissible  in  another,  usually  upon  the  ground  that  no  authority 
existed  by  reason  of  his  employment  in  one  case,  to  make  admissions 


82.  Morley  v.  Hiiieman,  6  lad. 
App.  240. 

83.  Ohio  &  M.  R.  Co.  v.  Levy, 
134  Ind.  343,  34  N.  E.  20. 

By  a  County  Attorney —  In  Hol- 
ton  V.  Board  of  Com'rs.,  55  Ind.  194, 
an  offer  was  made  to  prove  the 
declarations  of  the  county  attorney, 
but  it  was  held  that  as  the  general 
attorney  of  the  county,  such  attorney 
had  no  power  to  make  any  promise 
binding  upon  the  county. 

84.  Saunders  v.  AlcCarthy,  8 
Allen  (Mass.)  42;  Underwood  v. 
Hart,  23  Vt.  120;  Chicago  City  Ry. 
Co.  V.  McMeen,  70  111.  App.  220; 
Smith  V.  Bradhurst,  18  Misc.  541,  41 
N.  \.  Supp.  1002;  Cassells  v.  Usry, 
51   Ga.  621. 

Admissions  Made  Out  of  Court. 
In  Smith  v.  Bradhurst,  18  Misc.  546, 
41  N.  Y.  Supp.  I002,  it  is  said: 
"  His  admissions  could  only  bind  his 
client  in  matters  relating  to  the  prog- 
ress of  the  trial.  The  statements 
which  he  made  out  of  court,  in  con- 
versations with  the  opposing  counsel, 
although  they  may  have  related  to 
the  facts  in  controversy,  were  not 
admissible  in  evidence  against  Mrs. 
Bradhurst.'  The  reason  of  the  dis- 
tinction is  that  the  attorney  .1  au- 
thority extends  only  to  the  manage- 
ment  of  the  cause   in   court,  and   he 

Vol.  I 


has  no  right  to  go  beyond  that  au- 
thority, unless  expressly  authorized 
liy    his    client." 

Narrative  of  Events  by,  Not  Com- 
petent. —  In  Chicago  City  R.  Co.  v. 
McMeen,  70  111.  App.  220,  it  was 
held  that  what  an  attorney  says  is 
not  evidence  against  his  client  unless 
it  be  in  the  nature  of  a  stipulation 
as  to  the  conduct  of  the  cause,  and 
that  even  then  it  is  not  his  narrative 
of  events  or  his  opinion  as  to  any- 
body's rights  or  disabilities  that  binds 
his  client,  but  his  agreement  as  to 
the  conduct  of  the  cause. 

Letters  Written  in  the  Conduct  of 

Business But   in    Stinesville   &   B. 

Stone  Co.  V.  White,  32  Misc.  135,  65 
N.  Y.  Supp.  609,  it  is  held  that  let- 
ters written  by  an  attorney  in  the 
conduct  of  business  within  his  au- 
thority are  competent  as  admissions 
against  his  client.  See  also  Holdcr- 
ness  V.   Baker,  44   N.   H.  414. 

Authority     to     Write     Must     Be 

Shown Cassells    v.    Usry,    51     Ga. 

621. 

Lord    i'.    Bigelow,    124    Mass. 


85. 

i8s. 

86. 
N.  Y. 

87. 


,\nderson    v.    McAleenan,    29 
St.  406,  8  N.  Y.  Supp.  483. 
Wilson    V.    Southern    Pac.    R. 


Co..  53  Cal.  725. 


.IDMISS!0\'S. 


5(.l 


for  the  purposes  of  another  case.** 

Exception  Where  Made  With  Express  Authority  of  Client.  —  Rut  if  the 
admission  is  made  without  limilalion  and  with  the  authorization  or 
acquiescence  of  the  chent,  it  will  he  admissible  for  all  purposes,  as 
if  made  directly  by  the  client.'*'' 

g.  Must  Be  Distinct  and  Formal.  —  The  general  rule  is  that 
admissions,  made  by  an  attorney,  to  be  available  against  his  client, 
must  be  distinct  and  formal.'"' 

h.  Generally  Not  Conclusive.  —  Admissions  of  an  attorney  have 
no  greater  binding  effect  than  those  of  other  agents.  Therefore, 
unless  they  are  of  such  a  nature  as  to  be  conclusive,  they  are  not  so 
when  macle  by  an  attorney,  but  may  be  explained  or  disproved  by 
other  evidence."^ 

i.  Made  to  Attorney.  —  Admissions  made  to  an  attorney,  if  made 
to  him  by  a  client  and  while  acting  as  attorney,  are  inadmissible  to 
be  proved  bv  the  attorney  the  same  as  other  confidential  communica- 
tions."- 

H.  Persons  Refekred  to  eor  Informatiox.  —  a.  Generally. 
A  party  by  referring  to  another  for  information  thereby,  in  effect, 
authorizes  such  person  to  state  the  facts,  and  any  admissions  made 
within  the  scope  of  the  reference  are  competent  to  be  proved  against 
hiiTi,  as  his  own."^ 


88.  Dawson  z:  Schloss,  g,^  Cal. 
194,  29  Pac.  ,?i  ;  Wilkins  z\  Stidger, 
22  Cal.  2JI,  83  Am.  Dec.  64;  Nichols. 
Shepard  Co.  v.  Jones,  32  AIo.  .App. 
6s7:  State  '•.  Buchanan,  Wriglit 
(Ohio)   2ii. 

Admissions  at  Former  Trial  Ad- 
missible  In   Scaife  f.   Western   X. 

C.  Land  Co..  90  Fed.  238,  it  is  held 
that  distinct  and  formal  admissions 
of  fact  signed  by  an  attorney  of 
record  on  a  trial,  are  competent  evi- 
dence on  a  subsequent  trial  of  the 
same  case. 

Where  Intended  to  Be  General. 
So  in  Central  Branch  U.  P.  R.  Co.  v. 
Shoup,  28  Kan.  394,  42  Am.  Rep. 
163,  it  is  held  that  an  oral  admission 
made  by  an  attorney  binds  the  client 
on  a  second  trial  if  it  appears  to 
have  been  intended  to  be  general. 

89.  City  of  Rockland  v.  Farns- 
worth,  89  Me.  481,  36  .Atl.  989. 

90.  Treadway  z:  S.  C.  &  St.  P. 
R.  Co.,  40  Iowa  526;  McKeen  r, 
Gammon,  33  Me.  187 ;  Ferson  v. 
Wilco.x,  19  Minn.  449 ;  Davidson  v. 
Gifford,  100  X.  C.  18.  6  S.  E.  718; 
Adee  z\  Howe.   15  Hun   (X.   V.)   20. 

Incidental    Statement   of    Counsel. 

36 


In  Lake  Erie  &  \V.  R.  Co.  r.  Rooker, 
13  Ind.  App.  600,  41  N.  E.  470,  it  is 
held  that  the  incidental  statement  of 
counsel,  in  opening  a  case,  of  a  fact 
as  he  expects  to  prove  it,  is  not  an 
admission  of  such  fact  so  as  to  relieve 
the  opposite  party  of  the  burden  of 
proof  if  that  fact  is  relied  on  by 
him. 

91.  Douglass  V.  Mitchell.  35  Pa. 
St.  440;  McRea  v.  Ins.  Bank,  16  Ab. 
(X.   S.)    755- 

92.  City  of  Indianapolis  Z'.  Scott, 
72   Ind.    196; 

93.  I  Greenl.  Ev.,  i6th  Ed.  182. 
lingland.  —  Hood  z\  Reeve,  3  Car. 

&  P.  Si2.  14  Eng.  C.  L.  432;  Wil- 
liams V.  Innes,  i  Camp.  364,  10  Rev. 
Rep.  702 ;  Daniel  v.  Pitt,  i  Camp. 
366,  10  Rev.  Rep.  706. 

Connecticut.  —  Cbadseye  v.  Green, 
24  Conn.  562. 

Kansas.  —  Linton  v.  Housh,  4  Kan. 

535- 

Kentucky.  —  Sullivan  v.  Kuyken- 
dall,  82  Ky.  483,  56  Am.  Rep.  901. 

Maine.  —  Chapman  v.  Twitchell, 
i7  Me.  5'9.  58  Am.  Dec.  773- 

Missouri.  —  Price  z'.  Lederer,  33 
Mo.   App.  426. 

Vol.  I 


562 


.  IDMISSJOXS. 


h.  Must  Be  Siic/i  Reference  As  to  Make  Referee  an  Agent.  —  It 
is  not  every  reference  to  another  for  information  that  will  have  the 
effect  stated.  It  must  be  such  a  reference  as  will  authorize  the 
referee  to  make  the  admission  offered  to  be  proved  for  and  on  behalf 
of  the  party. ''^ 

c.  Must  Be  \]'ithi)i  Authority  Given.  —  And  the  admission  to  be 
competent  must  be  within  the  authority  given  by  the  reference."'^ 

I.  Husband  .\nd  Wife. — a.  Generally.  —  There  is  no  difference 
as  to  the  aclmissibilitA'  of  admissions,  because  of  the  existins:  relation 


New  Haiiipshirr.  —  Folsom  v.  Bat- 
chelder,  22  N.  H.  47. 

iVeii'  Yorl:.  —  Lehman  z:  Frank,  19 
App.  Div.  442.  46  N.  Y.  Supp.  761. 

SoutJi  Carolina.  —  Click  v.  Hamil- 
ton, 7  Rich.  65;  Deleshire  v.  Green- 
land. I   Bay  458. 

IVisconsin.  —  Nadeau  z'.  White 
River  Lum.  Co.,  76  Wis.  120,  43  N. 
W.   1 1 35,  20  Am.   St.  Rep.  29. 

Statement    of    the     Rule After 

stating  that  the  admissions  of  a  third 
person  are  receivable  in  evidence 
against  the  party  who  had  expressly 
referred  another  to  him  for  infor- 
mation in  regard  to  an  uncertain  or 
dispnted  matter,  Mr.  Greenleaf  states 
tlic   rule  thus: 

"  In  such  cases,  the  party  is  bound 
by  the  declarations  of  the  person 
referred  to  in  the  manner  and  to 
the  same  extent  as  if  they  were  made 
1)y  himself."     i   Greenl.   Ev.,  §  182. 

Limitation      of      the      Rule In 

connnenting  upon  this  statement  of 
the  rule  by  Mr.  Greenleaf,  it  is  said, 
in  Rosenbury  v.  Angell,  6  Mich. 
508 : 

"  It  is  observable  that  Mr.  Green- 
leaf entirely  ignores  the  idea  of  any 
agency  of  the  party  referred  to,  and 
yet  he  calls  the  declarations  of  the 
persons  referred  to  '  admissions  of 
third  persons.'  Now,  this  term  'ad- 
missions' in  such  a  connection  would 
seem  to  imply  that  the  person  making 
the  admissions  must  stand  in  some 
confidential  relation  to  or  be  inter- 
ested for  or  represent  the  interests 
of  the  party  making  the  reference ; 
in  short,  to  have  authority  in  the 
nature  of  an  agency  to  speak  for  the 
party  making  tlic  reference.  Upon 
any  other  hypotlicsis  it  would  seem 
to  he  a  confusion  of  ideas  to  call  the 
declarations    of    such    third    persons 

Vol.  I 


his  admissions,  or  the  admissions  of 
the   party   referring  to   him." 

Interpreter.  —  In  Nadeau  v.  White 
River  Lum.  Co.,  76  Wis.  120,  43  i\. 
W.  1 135,  20  Am.  St.  Rep.  29,  state- 
ments made  by  an  interpreter  were 
held  to  be  within  the  rule,  the  court 
saying : 

"  The  person  speaking  through  an 
interpreter  virtually  says  to  such 
other  person  :  '  You  listen  to  what  the 
interpreter  says  and  he  will  tell  you 
what  I  say,'  and  what  the  interpreter 
says  is  to  be  taken  as  the  language 
of  the  person  speaking  through  him, 
and  may,  therefore,  be  admitted  in 
evidence  against  him  under  the  rule 
that  the  statement  of  a  third  person 
is  receivable  in  evidence  against  the 
party  who  has  e.xpressly  referred 
another  to  him  for  information  as  to 
any  matter." 

But  not  where  the  interpreter  is 
one  appointed  by  the  court  to  in- 
terpret for  a  witness.  Schearer  v. 
Harber,    36    Ind.    536. 

Not  the  Admissions  of  an  Agent. 
In  Linton  v.  Housh,  4  Kan.  535,  it  is 
held  that  such  statements  are  not 
admitted  on  the  ground  of  agency 
but  "  by  adoption  of  tlie  representa- 
tions." 

94.  Barnard  v.  Macy,  11  Ind.  536; 
Rosenbury  v.  Angell,  6  Mich.  508; 
Hood  V.  Green,  3  Car.  &  P.  532,  14 
Eng.  C.  L.  432 ;  Allen  v.  Killinger, 
8  Wall.  480;  Lehman  v.  Frank,  19 
App.  Div.  442,  46  N.  Y.  Supp.  761 ; 
Robertson  v.  Hamilton,  16  Ind.  App. 
328,   45    N.    E.   46,   59   ,'\.m.    St.    Rep. 

319- 

95.  Duval  I'.  Covcnhoven,  4  Wend. 
561;  Allen  V.  Killinger,  8  Wall.  480; 
Cohn  V.  Goldman,  76  N.  Y.  284 ; 
Adler-Goldman  Com.  Co.  v.  Adams 
Ex.   Co.,  S3   Mo.   App.   284. 


ADMISSIONS. 


563 


of  husband  and  wife.  They  are,  in  respect  of  this  question,  the 
same  as  strangers,  unless  the  declarations  offered  as  admissions  are 
confidential  communications  and  for  that  reason  inadmissible."'' 

And  the  rule  as  to  the  admissibility  of  a  wife's  admissions  against 
the  husband  is  not  changed  by  the  fact  that  they  were  married  after 
the  declarations  were  made."' 

b.  Must  Be  Otlierwisc  Competent.  —  The  mere  fact  that  the  rela- 
tion of  husband  and  wife  exists  does  not  render  the  admissions  of 
one  competent  as  against  the  other.  They  must  be  competent  for 
some  other  reason  to  be  admissible."* 


96.  .JZobumo.— Walker  v.  Elledge, 
65  Ala.  51  ;  Lide  v.  Lide.  32  Ala.  449; 
Rochelle  v.  Harrison,  8  Port.  351  ; 
^hlrpllree  v.  Singleton,  yj  Ala.  412; 
Brunson  v.  Brooks,  68  Ala,  248; 
Davis  I'.  Orme,  36  Ala.  540. 

.Arkansas.  —  Burnett   z:    Burkhead, 

21  .Ark.  77,  76  Am.  Dec.  358. 
California.  —  Brennan    ?■.    Wallace, 

3S  Cal.   108. 

Connecticut.  —  Turner  v.  Coe,  5 
Conn.  94. 

Georgia.  —  Ernest  r.  Merritt,  107 
Ga.  61,   32   S.   E.  898. 

Illinois.  —  Pierce  X'.  Harbsouck,  49 
111.  23. 

Indiana.  —  Coryell  j'.  Stone,  62 
Tnd.  307 :  Kingen  i'.  State,  50  Ind. 
557- 

/oti'fl.  —  Claussen  v.  La  Franz,  i 
Clarke  226;  Whitescarver  c'.  Bonny, 
9  Iowa  480;  Cedar  Rapids  Nat.  Bank 
V.  Lavery,  no  Iowa  575,  81  N.  W. 
775,   80   Am.    St.    Rep.   325. 

Kansas.  —  Donaldson  z\  Everhart, 
30  Kan.  718,  32  Pac.  405 ;  Van  Zandt 
''.  Schuyler,  2  Kan.  App.  118,  43  Pac. 
295- 

Kentucky.  —  Cook  v.  Burton,  5 
Busli  64;  Bonney  ?■.  Rearden,  6  Bush 
34 :  Manhattan  L-  Ins.  Co.  t'.  Myers, 

22  Ky.  Law  875,  59  S.  W.  30;  Burgen 
t'.  Tribble,  2  Dana  383. 

Massachusetts.  —  Aldrich  %'.  Earle, 
13  Gray  578;  Hunt  t'.  Poole,  139 
Mass.  224;  Broderick  ?'.  Higginson, 
169  Mass.  482,  48  N.  E.  269,  61  Am. 
St.  Rep.  296. 

Micliigan.  —  Hunt  v.  Strew,  33 
.Mich.  85;  Dawson  v.  Hall,  2  Mich. 
390 ;  Rose  v.  Chapman,  44  Mich.  312, 
6  N.  W.  681  ;  Burns  v.  Kirkpatrick, 
Qi  Mich.  364,  51  N.  W.  89^,  30  .\m. 
St.  Rep.  48s. 


Minnesota. — ^  Keller  v.  Sioux  City 
&  St.   P.  R.  Co.,  27  Minn.   178. 

Mississippi.  —  Cameron  v.  Lewis, 
59  Miss.  134;  Sharp  v.  Ma.xwell,  30 
Miss.   589. 

.Missouri.  —  Fo.x  v.  Windes,  127 
Mo.  502,  30  S.  W.  323 ;  Bruce  v. 
Bombeck,  79  Mo.  App.  231. 

Nebraslia.  —  Norfolk  Nat.  Bank  v. 
Wood,  3i  Neb.  113,  49  N.  W.  958. 

Netv  York.  —  Dewey  i'.  Goode- 
nough,  16  Barb.  54 ;  Platner  r.  Plai- 
ner, 78  N.  Y.  90;  Keenan  v.  Get- 
singer,  I  App.  Div.  172.  37  N.  Y. 
Supp.  826. 

Pennsylvania.  —  Smith  i'.  Scudder, 
II  Serg.  &  R.  325;  Martin  v.  Rutt, 
127  Pa.  St.  380,  17  Atl.  993;  Evans 
T.  Evans,  155  Pa.  St.  572,  26  .\tl 
755;  Lee  v.  Newell,  107  Pa.  St.  283; 
Hackman  v.  Flory,  16  Pa.  St.   196. 

Soutli  Carolina.  —  Williams  v 
Cockran,  7  Rich.  45. 

Tennessee.  —  Fidelity  Mul.  L.  Ins. 
.\ss'n  V.  Winn,  96  Tenn.  224,  33  S. 
W.    1045. 

Te.x-as.  —  McKay  v.  iVeadwell,  8 
Tex.  176;  Clapp  V.  Engledow,  82 
Tex.  290,  18  S.  W.  146;  Hurley  v. 
Lockett,  72  Tex.  262,  12  S.  W.  212. 

I'ernwnt.  —  Curtis  v.  Inghain,  2 
Vt.  287;  Murray  v.  Mattison,  67  Vt. 
553,  32  Atl.  479;  Gilson  'e.  Gilson,  16 
Vt.  464. 

97.  Churchill  v.  Smith,  16  Vt. 
560. 

98.  Georgia.  —  Virgin  %:  Dun- 
wody.  93  Ga.  104,  19  S.  E.  84. 

Indiana.  —  Stanfield  v.  Stilz,  93 
Ind.  249;  Allen  i'.  Davis,  loi  Ind. 
187 ;  City  of  Indianapolis  i'.  Scott, 
72  Ind.   196. 

Iowa.  —  Cedar  Rapids  Nat.  Bank 
V.  Lavery,  no  Iowa  575,  81  N.  W. 
775- 

Vol.  I 


564 


ADMISSIOXS. 


c.  Dues  Competency  .Is  Witness  Affect  the  Question.  —  There 
are  cases,  however,  in  which  the  admissibihly  of  the  husband's  or 
wife's  admissions  is  niatlc  to  turn  U])on  the  question  whether,  if 
called  as  witnesses,  they  wnuld  lie  ct)nipetent  to  testif\-  to  the  admit- 
ted facts. ^^ 


Michigan.  —  Rose  v.  Chapman,  44 
Mich.  312,  6  N.  W.  681 ;  Glover  v. 
Alcott,  n  Mich.  470;  Whelpley  v. 
Stoughton,  112  Mich.  594,  70  N.  \V. 
1098. 

MississijJpi.  —  Cameron  v.  Lewis, 
59  Miss.  134. 

Missouri.  —  Fox  v.  Windes,  127 
Mo.  502,  30  S.  W.  32,^ ;  State  f.  Chat- 
ham Nat.  Bank,  10  Mo.  App.  482. 

Nebraska. — Woodruff  v.  White,  25 
Neb.  745,  41  N.  W.  781. 

New  Korfe.  —  Stillwell  :'.  New 
York  Cent.  R.  Co.,  34  N.  Y.  29;  Post 
V.  Smith,  54  N.  Y.  648;  La  Grae  v. 
Peterson,  2  Sandf.  338;  Gillespie  v. 
Walker,  56  Barb.   185. 

North  Carolina.  —  Towles  v.  Fish- 
er, 77  N.  C.  437- 

Pennsylvania.  —  Jones  v.  McKee, 
3  Pa.  St.  496,  45  Am.  Dec.  661  ; 
Fleming  v.  Parry,  24  Pa.  St.  47 ; 
Gardner's  Appeal  (Pa.  St.),  8  .\tl. 
176. 

South  Carolina. — Park  v.  Hopkins, 
2  Bailey  408. 

Te.vas.  —  Clapp  v.  Engledow.  82 
Tex.  290,  18  S.  W.  146;  McKay  v. 
Treadwell,  8  Tex.  176;  Owens  ■:'. 
New  York  &  T.  Land  Co.,  11  Tex. 
Civ.  App.  284,  32  S.  W.  189;  La 
Master  v.  Dickinson,  17  Tex.  Civ. 
App.  473,  43  S.   W.  911. 

Vermont.  —  Pierce  z'.  Pierce,  66 
Vt.   369,  29  Atl.  364. 

99.  United  States.  —  Vnyton  v. 
Brenell,  i  Wash.  C.  C.  46/,  28  Fed. 
Cas.   No.   17,026. 

Alabama.  —  Hussey  v.  Elrod,  2 
Ala.  339,  36  Am.   Dec.  420. 

Arkansas.  —  Funkhouser  J'.  Pogiie, 
13  .Ark.  295;  Burnett  v.  Burkhead, 
21   Ark.  77.  76  Am.  Dec.  358. 

Indiana.  —  Bevins  v.  Clino.  21  Ind. 
37;  Laselle  v.  Brown,  8  Blackf.  221; 
Casteel  v.  Casteel,  8  Blackf.  240,  44 
Am.  Dec.  763;  Brown  z'.  Laselle,  6 
Blackf.   147,  38  Am.   Dec.   135. 

Ioii.'a.  —  Cedar  Rapids  Nat.  Bank 
V.  Lavery,  no  Iowa  575,  81  X.  \V. 
775- 

Vol.   I 


Maine.  —  White  tv  Hohnan.  12  Me. 

157- 

Micliigan.  —  Dawson  t.  Hall,  2 
Mich.  390. 

Missouri.  —  Fourth  Nat.  Bank  v. 
Nichols,  43  Mo.  App.  385. 

New  Jersey.  —  Ross  •;■.  Winners,  6 
N.   J.    Law   366. 

New  York.  —  Hopkins  -e.  Clark.  90 
Hun  4,  35  N.  Y.  Supp.  360;  La 
Grae  r.  Peterson.  2  Sandf.  338;  Ma- 
condray  i'.   Wardle,  7  Abb.   Pr.  3. 

North  Carolina.  —  May  Z'.  Little, 
3   I  red.  Law  27,  38  Am.  Dec.  707. 

Ohio.  —  Thomas  -e.  Hargrave. 
Wright   595. 

Soutli  Carolina.  —  Hawkins  r.  Ilat- 
ton.   2   Nott   &   McC.   ,^74. 

Where  Husband  or  Wife  Is 
Incompetent  as  a  Witness — In 
Macondray  -'.  Wardle.  7  .-Vbb.  Pr. 
(N.  Y.)  3,  the  court  after  holding 
that  the  wife  was  incompetent  as  a 
witness  to  testify  to  certain  facts, 
says  further :  "  The  admissions  of 
the  wife  to  the  same  effect  were 
offered  in  evidence.  The  objection 
which  has  been  considered  to  her  tes- 
timony under  oath  would  apply  with 
much  greater  force  to  admissions 
made  not  under  oath.  The  point  has 
been  considered  in  La  Grae  v.  Peter- 
son, 2  Sandf.  338.  in  which  we  con- 
cur." 

,\nd  in  Underwood  z\  Linton,  44 
Ind.  72,  it  is  said  that  "  it  is  a 
general  rule  that  the  declarations  or 
admissions  of  the  wife  are  not  legal 
evidence  for  or  against  the  husband." 

Admissions  by  Acquiescence —  In 
Fourth  Xat.  Bank  ■:■.  Xichols,  43 
Mo.  App.  385.  it  is  held  thai  state- 
ments made  by  the  wife  in  the  pres- 
ence of  the  husband  and  not  denied 
by  him  cannot  be  proved  to  show 
his  acquiescence  in  the  fact  stated, 
placing  the  ruling  on  the  ground  of 
her  incompetency  tn  testify  against 
him. 

General    Rule    Stated.— In    Daw- 


ADMISSIONS. 


505 


d.  As  Agents  for  Bach  Other.  —  If  the  relation  of  principal  and 
agent  exists  between  them,  their  admissions  are  competent  as  in 
other  cases  of  agency.^ 

(1.)  Must  Be  Within  Scope  of  Authority.  —  But  as  in  case  of  any 
other  agency  their  admissions  are  competent  only  when  made  in  and 
about  the  acts  done  as  such  agent  and  within  the  scope  of  their 
authority." 


son  V.  Hall,  2  Mich.  390,  it  is  held 
10  be  the  well  settled  rule  that  the 
declarations  of  husband  and  wife 
are  subject  to  the  same  rules  of  ex- 
clusion which  govern  their  testi- 
mony as  witnesses. 

Where  Wife  Is  Administratrix  of 

Husband's    Estate The    fact    that 

the  husband  has  since  died  and  the 
wife  is  the  administratrix  of  his  es- 
tate does  not  render  her  admissions 
made  Lefore  his  death  competent, 
there  being  no  proof  of  agency.  May 
I.  little,  3  Ired.  Law  (N.  C.)  27, 
.l?^   .\m.   Dec.   707. 

Of  Matters  Occurring  Before  Mar- 
riage. —  The  fact  that  the  wife  is 
incompetent  to  testify  does  not  render 
competent  admissions  made  by  her 
after  marriage  relating  to  business 
transacted  by  her  before  marriage. 
Churchill    V.    Smith,    ib    \'t.    559. 

Made  Before  Marriage Admis- 
sions made  before  marriage,  if  other- 
wise competent,  are  admissible.  Wil- 
lis z:  Snelling,  6  Rich.   (S.  C.)  280. 

1-     England.  —  Clifford   v.   Burton, 

1  Bing.   igg,  8  Eng.  C.   L.  294. 
Alabama.  —  Mitcham  v.  Schnessler, 

98  Ala.  635,  13  So.  617. 

Indiana.  —  Casteel  v.  Casteel,  8 
Blackf.  240,  44  Am.  Dec.  763;  Under- 
wood I'.   Linton,  44   Ind.   72. 

Ioii.'a.  —  Gault  v.  Sickles,  85  Iowa 
266,  52  N.  W.  206. 

Kansas.  —  Van   Zandl  t:   Schuyler, 

2  Kan.  App.  118,  43  Pac.  295. 
Louisiana.  —  Smalley  f.   Lawrence, 

9  Rob.  211. 

Maine.  —  White  i'.  Holman,  12  Me. 
157- 

Massaclnisetts.  —  Barker  v.  Mac- 
kay,  175  Mass.  485,  56  N.  E.  614. 

Missouri.  —  Bates  v.  Holladay,  31 
Mo.  App.  162. 

Nei^'  Hampshire.  —  Chamberlain  v. 
Davis,  33  N.  H.  121  ;  Pickering  v. 
Pickering,  6  N.  H.  120. 


Neiv  York.  —  Riley  v.  Suydam,  4 
Barb.  222;  Fenner  v.  Lewis,  to  Johns. 
38;  Barton  z:  Lynch,  6g  Hun  i,  23 
N.  Y.  Supp.  217;  La  Grae  z\  Peter- 
son, 2   Sandf.   338. 

North  Carolina.  —  State  z'.  Lemon, 
92  N.  C.  "go;  Hughes  v.  Stokes,  i 
Hayw.    372. 

.  Ohio.  —  Thomas      v.       Hargrave, 
Wright     595. 

Oregon.  —  Minard  v.  Stilhnan,  35 
Or.  259,  57  Pac.   1022. 

Pennsylvania. — Murphy  !■.  Hubert, 
16  Pa.  St.  50. 

South  Carolina.  —  Colgan  z\  Phil- 
ips, 7  Rich.  359. 

I'cnnont.  —  Churchill  v.  Smith,  16 
V't.  560 ;  Felker  v.  Emerson,  16  Vt. 
653,  42  Am.  Dec.  532 ;  Gilson  Z'.  Gil- 
son,   16  Vt.  464. 

2.  Goodrich  v.  Tracy,  43  Vt.  313; 
Livesley  v.  Lasalette,  28  Wis.  38; 
Jordan  v.  Hubbard,  26  Ala.  433 ; 
Mitcham  v.  Schnessler,  98  Ala.  635, 
13  So.  617;  Underwood  v.  Linton, 
44  Ind.  72 ;  Evans  v.  Purinton,  12 
Tex.  Civ.  App.  158,  34  S.  W.  350; 
Logue  V.  Link,  4  E.  D.  Smith  (N. 
V.)    63. 

Must  Be  Within  Scope  of  Au- 
thority. —  In  Goodrich  z'.  Tracy,  43 
Vt.  314,  it  is  said ; 

"  The  only  ground  upon  which  it 
can  be  claimed  that  the  acts  or  ad- 
missions of  !Mrs.  Goodrich  could  be 
given  in  evidence  against  the  plaintiff 
is  that  she  was  the  agent  of  the 
plaintiff,  so  as  to  be  competent  to 
bind  him  by  such  acts  and  admis- 
sions. We  do  not  think  the  evi- 
dence shows  any  such  agency.  Her 
agency  only  extended  to  the  per- 
formance of  certain  specific  acts, 
and  the  admissions  sought  to  be 
proved  were  not  so  connected  with 
ti.e  performance  of  those  acts  as  to 
make  them  binding  upon  her  prin- 
cipal.      Her    authority     was     special 

Vol.  I 


=>(,(, 


.IPMLSSJONS. 


e.  Confidential  Conunumcations  Inadmissible.  —  If  the  statcnicnl 
offered  to  be  proved  as  an  admission  constitutes  a  confidential  com- 
nuinication  between  husband  and  wife,  it  is,  of  course,  inadmissible.* 

J.  Trustees  and  Beneficiaries.  —  a.  Of  Trustee  When  Adniis- 
sible  Agai}ist  Cestui  Que  Trust.  —  A  trustee  may  make  admissions, 
provable  against  the  beneiiciary  for  whom  he  acts,  if  made  in  the 
transaction  of  the  trust  business  and  within  his  anllmritx-  as  such 
trustee.^ 

b.  Of  Trustee  Without  Benetieial  Interest.  —  But  this  rule  does 
not  extend  to  a  mere  trustee  to  sell  property  under  a  mortgage  or 
trust  deed  f  or  to  one  who  has  no  beneficial  interest  in  the  property.*^ 


and  limited,  and  when  she  exceeded 
that  authority,  llie  principal  was  not 
bound." 

In  Action  for  Wages  of  Wife. 
In  an  action  by  husband  and  wife 
for  her  wages  which  belong  to  the 
husband,  her  admission  of  payment 
foj"  the  services  rendered,  made 
after  the  suit  was  commenced,  was 
held  inadmissible.  Jordan  v.  Hub- 
bard,  26   Ala.   43J. 

3.  Greenl.  Ev.,  §254;  Van  Zandt 
V.  Schuyler,  2  Kan.  App.  118,  43  Pac. 

29S- 

4.  England.  —  Gibson  v.  Winter, 
5  Barn.  &  A.  96,  27  Eng.  C.  L.  47- 

Georgia.  —  Know  v.  Raymond,  ys 
Ga,   749. 

Maine.  —  Franklin  Bank  %■.  Cooper, 
36  .Me.   179. 

Michigan.  —  Hogan  v.  Sherman,  5 
Mich.  60 ;  Chipman  v.  Kellogg,  60 
Mich.   438,   27   N.    W.    592. 

Nnv  Hampsturc.  —  Tenney  v. 
Evans,  14  N.  H.  343,  40  Am.  Dec. 
194. 

Tennessee.  —  Helm  v.  Steele,  3 
Humph.  472. 

Of  Deceased  Trustee.  —  In  Chip- 
man  V.  Kellogg,  60  Mich.  438,  27  N. 
VV.  592,  it  was  held  that  books  of  a 
tru.st  kept  by  a  deceased  trustee  and 
his  declarations  and  admissions  on 
the  subject  were  admissible  to  show 
the  condition  of  the  fund,  and  the 
recognition  of  the  claim  if  not  barred. 

As  Part  of  the  Res  Gestae. 
Such  admissions  are  received  as  con- 
stituting a  part  of  the  res  gestae. 
Know  V.  Raymond,  y2  tia.  749. 

5.  Eitelgeorge  v.  Mutual  etc. 
Ass'n,   69   Mo.    52. 

6.  I'nited   .'Stales.  —  Waterman    v. 


Wallace,  13  Blatchf.  128,  29  Fed.  Cas. 
No.    17,261. 

Alabama.  —  Graham  v.  Lockhart,  8 
Ala.  (N.  S.)  9;  Thompson  -:  Drake. 
32  Ala.  99. 

Arkansas.  —  Ludlow  '■.  Flournoy. 
34  .\rk.  451;  Fargison  v.  Edrington, 
49  Ark.  207,  4  S.  W.  763. 

Connecticut.  —  Townsend  Sav. 
Bank  r.   Todd,  47  Conn.   190. 

Illinois.  —  Bragg  ;■.  Geddes,  93  111. 
39 ;  Thomas  v.  Bowman,  30  111.  84. 

Kentucky.  —  Allen  v.  Everett,  12 
B.  Mon.  371. 

.Massachuselis.  —  stratton  f.  Ed- 
wards, 174  Mass.  374,  54  N.  E.  886. 

Missouri.  —  Eitelgeorge  v.  Mut. 
House  B.  Ass'n,  69  Mo.  52. 

Vermont.  —  Sargeant  v.  Sargeant, 
18  Vt.  371 ;  Barber  v.  Bennett,  62  Vt. 
50.   19  Atl.  978.   I   I,.   R.  A.  224. 

West  I'irginia.  —  Caldwell  v.  Prin- 
dle,   19  W.   Va.  604. 

Admissions  Incompetent.  —  In 
Bragg  v.  Geddes,  93  111.  39,  it  is  held 
that  a  party  defending  as  a  trustee 
cannot  make  any  admission  to  the 
prejudice  of  the  trust  fund  and 
against  the  cestui  que  trust.  See  to 
the  same  effect  Thomas  v.  Bowen,  29 
111.  426;  Sargeant  ~e.  Sargeant,  18 
Vt.  371- 

"  As  a  general  rule,  the  naked  ad- 
missions of  a  trustee  having  no  bene- 
ficial interest  in  the  property  con- 
veyed to  him,  cannot  be  given  in 
evidence  to  affect  his  cestui  que 
trust.  It  is  his  duty  to  protect  the 
interest  of  his  cestui  que  trust,  and 
he  will  not  be  allowed  to  betray 
that  interest  and  the  confidence 
placed  in  him.  Not  having  any  bene- 
ficial     interest,     his     admissions     or 


Vol.  I 


.IDMISSIONS. 


567 


But  his  declarations  are  competent,  as  against  him,  to  show  that  he 
has  an  interest." 

c.  Must  Be  Part  of  Res  Gestae.  —  The  mere  fact  that  one  is  a 
trustee  holding  title  to  property  gives  him  no  right  to  make  admis- 
sions respecting  or  affecting  it.  To  make  his  admission  competent 
he  must,  like  any  other  agent,  be  then  doing  some  act,  as  such 
trustee,  and  the  declaration  must  be  connected  with  and  relate  to 
such  act.' 

d.  WTrratkr  of  Fast  Transactions  Inadniissihlc.  —  Therefore  a 
mere  narrative  by  the  trustee  of  past  transactions  connected  with  the 
trust  is  inadmissilile  as  against  the  cestui  que  trust." 

e.  When  Party  to  Record.  —  As  we  have  seen  some  cases  hold 
that  the  admissions  of  the  party  of  record  are  always  admissible  to 
defeat  his  action  or  defense,"  which  would  of  course  include  trus- 
tees." But  a  distinction  is  made  between  trustees  made  so  by  volun- 
tary act  of  the  parties,  and  such  as  become  trustees  by  operation 
of  law.'- 


declarations  not  made  in  the  interest 
of  his  beneficiary  are  hearsay.     Far- 
gison   V.    Edrington,   49   Ark.    207,   4 
S.    W.    763. 
Not  to  Enlarge  His  Own  Right  or 

Estate A  written  declaration  of  a 

trustee  in  a  conveyance  to  a  third 
person  of  property  which  has  been 
previously  conveyed  to  the  trustee 
in  trust,  cannot  be  used  against  the 
cestui  que  trust  to  determine  the 
intent  of  the  parties  in  making  the 
original  conveyance,  or  to  show  the 
extent  of  tlie  interest  which  the 
cestui  que  trust  intended  to  convey 
thereby.  Waterman  v.  Wallace,  13 
Blatchf.  128,  39  Fed.  Cas.  No.  17,261. 

7.  Thompson  v.  Drake,  32  Ala. 
99. 

8.  Fargison  f.  Edrington.  49  Ark. 
207,  4  S.  W.  763 ;  Hogan  v.  Sherman, 
5   Mich.   60. 

Where  Party  Has  Voluntarily 
Made  Trustee  the  Ostensible  Prin- 
cipal  In     Hogan    v.     Sherman,    5 

Mich.  60,  it  is  held  that  where  a 
party  has  voluntarily  made  his  trus- 
tee or  agent  the  ostensible  principal, 
and  the  only  one  capable  of  legal 
action,  he  will  be  bound  by  the  ad- 
missions   of    such    trustee    or    agent. 

9.  Ludlow  V.  Flournoy,  34  Ark. 
451  ;  Fargison  z'.  Edrington,  49  Ark. 
-'07,  4   S.   W.   763. 

10.  Ante.  p.  509:  Beatty  v.  Davis. 


9  Gill.   (Md.)  211;  Tenney  v.  Evans, 
14    N.    H.    343. 

11.  Beatty  v.  Davis,  9  Gill.  (Md.) 
211  ;  Dent  v.  Dent,  3  Gill,  (Md.)  482. 

12.  By  Executor.  —  Thus  in  Plant 
z\  McEwen,  4  Conn.  544,  where  declar- 
ations of  an  executor,  made  before 
his  appointment  as  such  were  of- 
fered, the  court  said :  "  On  general 
principles,  the  declarations  and  acts 
of  the  party  on  record,  whether  he 
had,  or  had  not  an  interest  in  the 
subject,  at  the  time  of  making  or 
performing  them,  are  admissible  in 
evidence  against  him.  There  is 
hardly  any  rule  so  vmiversal  as  to 
be  free  from  exception ;  for  a  case 
without  the  reason  of  the  rule,  cannot 
be  considered  as  embraced  within 
the  provision.  The  declarations  or 
acts  of  a  person,  who  has  become  a 
party  to  the  record,  ought  to  affect 
him  personally ;  and  upon  the  same 
principle,  it  is  reasonable,  that  they 
should  act  upon  those  who  derive 
their  property  through  him,  or  wha 
have  confided  their  interests  to  his 
care.  The  latter  comprises  the  cas< 
of  a  trustee,  whose  acts  and  declar- 
ations are  operative  against  the 
cestui  que  trust.  But  Charles  Mc- 
Ewen is  not  the  trustee  of  the  heirs 
or  creditors  of  his  deceased  father, 
nor  is  the  estate  derived  through 
him  to  the  heirs :  he  is  merely  the 
agent  of  the  law.     To  them  he  is  as 

Vol.  I 


568 


.WMISSIOXS. 


f.  By  Party  Creating  the  Trust.  —  The  admissions  of  a  party  con- 
veying in  trust  made  before  the  conveyance  was  executed,  are  com- 
petent as  against  the  cestui  que  trust.'-'  But  not  if  made  after  the 
execution  of  the  trust  deed." 

vl.)  To  Establish  Trust.  —  Independently  of  any  statutory  provis- 
ion to  the  effect  that  a  trust  can  be  created  only  by  writing,  such 
trust  may  be  established  by  proof  of  admissions.'^  But  not  where 
the  trust  is  required  to  be  created  by  writing." 

g.  By  Cestui  Que  Trust.  —  Whether  the  admissions  of  the  cestui 
que  trust  may  be  received  to  affect  the  title  of  the  trustee  has  been 
doubted.''  And  it  has  been  expressly  held  that  the  admissions  of 
one  of  several  beneficiaries  under  the  trust  are  inadmissible  against 
another.'* 

K.  Guardians. — a.  Against  Theinsclz'cs.  —  Guardians  are  held 
like  others  by  admissions  made  against  their  own  personal  interests 
in  matters  between  them  and  their  wards.'" 

b.  Against  the  IVarcl,  Not  Admissible.  —  We  have  seen  that  guar- 
dians cannot  bind  their  wards  by  judicial  admissions.-" 


much  a  stranger  as  a  creditor  would 
be  who  had  taken  out  administration 
on  the  estate  of  the  deceased ;  and 
upon  any  principle  which  would  au- 
thorize the  proof  of  an  act  or  con- 
tract of  his,  anterior  to  the  accep- 
tance of  the  trust  of  executor,  to 
alt'ect  the  estate  committed  to  his 
care,  a  similar  act  or  contract  of  a 
creditor  would  be  equally  admissi- 
ble, and  with  equal  effect,  if  he 
should   become   an   administrator." 

See  also  Sargeant  i'.  Sargeant,  i8 
Vt.    371. 

13.  Head  v.  Halford,  5  Rich.  (S. 
C.)  128;  Gidney  v.  Logan,  79  N.  C. 
214. 

To  Show  the  Trust  Deed  Fraud- 
ulent. _  Thus  it  is  held  that  the 
admissions  of  the  grantor  in  trust 
made  before  the  conveyance  are  com- 
petent to  show  that  the  transaction 
was  fraudulent.  Head  7'.  Halford, 
5  Rich.  (S.  C.)  128.  But  see  to  the 
contrary,  Hodge  v.  Thompson,  9 
Ala.  (N.  S.)   131. 

14.  Ante,  p.  514;  Weaver  v.  Yeat- 
nians,  15  Ala.    (N.   S.)   539. 

Where  Trustor  Remains  in  Pos- 
session—  But  see  Gidney  v.  Logan, 
79  N.  C.  214,  in  which  it  is  held  that 
where  the  trustor  remains  in  posses- 
sion, his   declarations   are  competent 

Vol.  I 


to    prove    and    qualify    the    fact    and 
purpose    of    the    possession. 

15.  Williard  z:  Williard,  56  Pa. 
St.  119;  Lide  T'.  Lide,  32  Ala.  449; 
Hamsburg  Bank  z\  Tyler,  3  Watts 
&   S.    (Pa.)   373- 

But  see  Phillips  '•.  South  Park 
Com'rs,  119  111.  62b,  10  N.  E.  230, 
where  the  adinissions  contained  in 
letters  were  held  to  be  insufficient 
to  establish  the  alleged  trust. 

16.  Hayne  v.  Herman,  97  Cal.  259. 

17.  Pope  V.  Devereux.  5  Gray  409. 

18.  Pope  I'.  Devereux,  5  Gray  409; 
Doan  -'.  Dow,  8  Ind.  App.  324. 

19.  Admission  by  a  Guardian. 
In  an  action  by  a  ward  against  his 
guardian  to  set  aside  certain  allow- 
ances made  the  guardian,  it  was  held 
that  the  presiding  judge  was  com- 
petent to  testify  concerning  the  state- 
ments made  by  the  guardian  to  pro- 
cure the  allowance  of  his  claims, 
and  also  that  the  same  facts  might 
be  proved  by  an  attorney  who  was 
not  at  tlie  time  of  the  transaction 
testified  to,  but  had  been  the  attorney 
of  the  guardian,  and  that  the  declar- 
ations of  the  guardian  as  to  the 
amount  of  the  ward's  estate,  or  what 
he  expected  it  to  be,  were  adinissible 
in  evidence  against  him.  Doan  v. 
Dow,  8  Ind.  App.  324. 

20.  .-lute.  p.  460. 


JDMISSJOXS. 


569 


It  is  likewise  true  that  they  cannot,  as  a  rule,  bind  their  wards  by 
non-judicial  admissions.-^ 

(1.)  Exception Res  Gestae. —  But  where  the  guardian  is  engaged 

in  the  transaction  of  business,  as  such,  his  admissions,  made  at  the 
time,  and  a  part  of  the  res  gestae,  are  admissible. '-- 

c.  When  Party  to  the  Record.  —  Under  the  rule  laid  down  in 
some  of  the  cases  that  the  admissions  of  a  party  to  the  record  are 
always  admissible,  it  is  held  that  where  the  guardian  is  a  party,  his 
admissions  are  competent. -■' 

d.  Atfcctiiig  li'ard's  Title  to  Land  Iiunhnissiblc.  —  The  guardian 
in  possession  of  land,  as  such,  cannot  bind  the  ward  by  admissions 
made  in  disparagement  of  title  thereto.-* 

L.  Guardians  Ad  Litem.  —  Admissions  made  by  the  guardian 
ad  litem  are  not  binding  upon  the  infant  for  whom  he  acts.-^ 

M.  Persox.\l  Rki'RESENtativES.  —  a.  Of  Executors  and  Admin- 
istrators lllicn  Admissible.  —  Admissions  by  executors  or  adminis- 
trators made  in  the  transaction  of  their  business,  as  such,  are  com- 
petent to  be  proved  against  the  estate  represented  by  them.""     But 


21.  Westenfelder  v.  Green,  24  Or. 
448,  34  Pac.  23 ;  Chisholm  z'.  Newton, 
I  Ala.  371  ;  Neal  v.  Lapleinc,  48  La. 
Ann.  424,  19  So.  261. 

22.  Tenney  v.  Evans,  14  l^.  H. 
343,  40  Am.  Dec.  194. 

Made  Before  His  Appointment  In- 
admissible  .-Vdmissions  made  hy  a 

guardian  before  his  appointment  as 
sucli  cannot  be  proved  against  the 
ward.  Phillips  i'.  Herndon,  78  Tex. 
378.  14  S.  W.  857;  Moore  v.  Butler. 
48    N.    H.    161. 

23.  Ante,  p.  509;  Tenney  v.  Evans, 
14  N.  H.  343,  40  Am.  Dec.  194. 

24.  Westenfelder  -■.  Green,  24  Or. 
448,  34  Pac.  23. 

25.  Ante,  p.  460;  Mathews  v. 
Dowhing,  54  Ala.  202;  Cooper  v. 
Mayhew.  40  Mich.  528;  Cochran  v. 
McDowell.  15  111.  10;  Hiatt  v. 
Brooks,  II  Ind.  508;  Hammer  v. 
Pierce,  5  Harr.  (Del.)  304;  Buck  r. 
Maddock,   167  III  219,  47  N.  E.  208. 

By  Prochien  Ami  Before  Acting 
as  Such.  _Iu  Metz  r.  Detweiler,  8 
Watts  &  S.  ( Pa. )  376,  the  court 
below  admitted  the  admissions  of  the 
proclticn  ami  made  before  he  became 
such,  which  was  held  error. 

Admissions  of  "  Next  Friend " 
Inadmissible.  _  Buck  v.  Maddock, 
167  III.  219,  47  N.  E.  208. 

26.  Georgia.  —  Planters   and  Min- 


ers' Bank  v.  Neel,  74  Ga.  576; 
Horkan  v.  Benning,  iii  Ga.  126,  36 
S.    E.   432. 

Indiana.  —  Eckert  z'.  Triplett,  48 
Ind.   174. 

hn^'a.  —  Schmidt  v.  Kriesmer,  31 
Iowa  479. 

Massacliuselts. — Heywood  v.  Hey- 
wood,  10  Allen  105;  Hill  v.  Buck- 
minister,  S  Pick.  390;  Faunce  f.  Gray 
21   Pick.  243. 

A'c'a'  ]'orl;.  —  Whiton  v.  Snyder, 
88    N.    Y.    299- 

Oliio.  —  Matoon  v.  Heirs  of  Clapp. 
8  Ohio  248. 

Pennsylvania.  —  Lobb  v.  Lobb,  26 
Pa.  St.  327;  Hunt's  Appeal,  100  Pa. 
St.  590. 

Soutli  Carolina.  —  Haylyburton  v. 
Kershaw,  3  Des.   Eq.   104. 

Tennessee.  —  Helm  v.  Steele,  3 
•Humph.  472 ;  Lashlee  v.  Jacobs,  28 
Tenn.  718. 

Not  Admissible  Against  Joint 
Contractor  With  Intestate Mar- 
shall r.  .'N.danis.  11  III.  sy. 

Appraisement  by  Administratrix 
Inadmissible  Against  Estate —  In 
Morrison  z\  Burlington,  C.  R.  &  N. 
R.  Co..  84  Iowa  663,  51  N.  W.  75, 
it  was  held  that  the  appraisement  of 
the  property  .of  the  estate  returned 
by  the  administratrix  was  not  com- 
petent  as   evidence   of   the   value   of 

Vol.  I 


570 


ADMISSIOXS. 


there  are  cases  holding  to  the  contrary.-"  And  against  them  person- 
ally when  sought  to  be  held  liable."**  Rut  the  declarations  of  an 
administrator  of  a  predecessor  in  title  to  real  estate  are  not  com- 
petent, as  admissions,   against  the  present  claimant  to  the  title."" 

b.  Must  Be  Made  When  Traiisaeting  Business  of  Estate. — The 
admission  to  be  admissible  must  be  made  in  and  about  the  settlement 
01  the  estate.     If  it  is  not,  it  is  incompetent.'" 

c.  Respecting  Claims  Against  the  Estate.  —  The  admissions  of  an 
executor  or  administrator  may  be  received  to  establish  a  claim 
against  the  estate.'^ 

d.  Affecting  Title  to  Land.  —  The  admissions  of  an  administrator 
cannot  be  heard  to  affect  the  title  to  property  of  the  intestate. ■'- 

e.  By  One  of  Sez'eral,  Admissible.  —  An  admission  made  by  one 
administrator  of  an  estate  where  there  is  more  than  one,  is  admis- 


the   property   appraised   in   an   action 
against  the  estate. 

Made  Before  Appointment.' — Ad- 
missions made  by  an  administrator 
or  executor  before  his  appointment 
as  such  are  inadmissible,  even  as 
against  him,  after  his  appointment, 
and  in  his  representative  capacity. 
Prudential  L.  Ins.  Co.  v.  Fredericks, 
41  in.  App.  419;  Gooding  f.  U.  S.  L. 
Ins.  Co.,  46  111.  App.  307;  Brooks 
V.  Goss,  61  Me.  307 ;  N  iskern  v. 
Haydock,  23  App.  Div.  175',  48  N.  Y. 
Supp.  895. 

27.  Allen  v.  Allen,  26  Mo.  327; 
Leeper  v.  McGuire,  57  Mo.  360. 

28.  Potter  v.  Ogden,  136  N.  Y. 
384,  :i3  N.  E.  228;  Cayuga  Co.  Bank 
z:  Bennett,  5  Hill  (N.  Y. )  236; 
Taylor  z'.  Adams,  2  Serg.  &  R.  (Pa.) 
534,  7  Am.  Dec.  665 ;  Church  i'. 
Howard,  79  N.  Y.  415. 

29.  Lawrence  ?'.  Wilson.  160 
Mass.  304,  35  N.  E.  858. 

30.  I  Greenl.  Ev.,  §  179. 
.ilabama,  —  Roberts  v.  Trawick,  13 

Ala.  68. 

Connecticut.  —  Knapp  v.  Hanford, 
6  Conn.  170;  Plant  v.  McEwen,  4 
Conn.  544. 

Illinois.  —  Gooding  v.  U.  S-  L.  Ins. 
Co.,  46  111.  App.  307:  Prudential  L. 
Ins.  Co.  :■.  Fredericks,  41  111.  App. 
419. 

Nei\.'  York.  —  Church  v.  Howard, 
79  N.  Y.  415;  VVhiton  v.  Snyder,  88 
N.  Y.  299;  Dan  v.  Brown,  4  Cow. 
483,  15  Am.  Dec.  395. 

Vol.  I 


Oliio.  —  Hueston  v.  Hueston,  2 
Ohio  St.  489. 

J'crniont. — Wheelock  v.  Wheelock, 
5   Vt.  433. 

Thus  if  the  admission  relates  to  the 
validity  of  the  will  and  is  offered  in 
a  proceeding  to  determine  its  validity 
in  which  the  executor  has  no  interest, 
his  admission  is  not  admissible,  al- 
though he  is  the  nominal  plaintifif  in 
the  action.  Roberts  -■.  Trawick,  13 
Ala.  68;  Shailer  '■.  Bumstead,  99 
Mass.   112. 

Otherwise  Where  Executor  Is 
Party  in  Interest.  —  Atkins  v.  San- 
ger, I  Pick.  (Mass.)  192;  Peeple  v. 
Stevens,  8  Rich.  Law  ( S.  C.)  198, 
64  Am.  Dec.  750. 

Must  Relate  to  His  Own  Acts. 
It  is  held  that  his  admissions  are 
only  competeiU  evidence  of  his  own 
acts,  after  he  became  clothed  with 
the  trust,  and  not  to  prove  what  was 
told  hiin  by  his  testator  during  life, 
(iodbee  i'.   Sapp.  53   Ga.  283. 

Not  Where  the  Declarations  Were 
Made  Before  His  Appointment  As 
Such —  Plant    v.    McEwen,    4    Conn. 

.=;44- 

31.  Lashlcc  V.  Jacobs.  28  Tenn. 
718;  Hueston  v.  Hueston,  2  Ohio  St. 
489;  Hill  r.  Buckminster,  5  Pick. 
(Mass.)  390:  Fannce  v.  Gray,  21 
Pick.  (Mass.)  243;  Heywood  v. 
Heywood,  10  Allen  (Mass.)  105. 
But  see  discussion  of  this  point  in 
.Mien  V.   Allen,  26  Mo.  327. 

32.  Lawrence  v.  VVilson,  160 
Mass.  304.  35  N.  E.  858. 


ADMISSIONS. 


571 


sible.''''  Uut  it  is  not  conclusive  upon  the  other  administrator  or 
the  estate,  but  may  be  disproved."* 

(1.)  Of  Sxecutor  Against  Co-Executor,  Held  Inadmissible.  —  In  some 
cases,  it  is  held,  broadly,  that  the  admissions  of  an  executor  or 
administrator  cannot  be  received  in  evidence  against  his  co-execu- 
tors or  co-administrators,^^  or  the  estate  he  represents,  if  made  in 
the  absence  of  his  co-e.xecutor.''" 

(2.)  Must  Be  About  Their  Joint  Interests,  and  Within  Their  Authority. 
The  admission  of  one  executor  or  administrator  to  be  admissible 
against  another  must  be  within  their  joint  authority  and  about  their 
joint  interests.^' 

f.  5v  Former  Administrator.  —  So  it  is  held  that  admissions  of  a 
former  administrator  are  competent  against  his  successor  in  litiga- 
tion affecting  the  estate.'''* 

g.  As  Against  Heirs  and  Devisees  Inadmissible.  —  Generally 
speaking  the  executor  or  administrator  does  not  represent  either  the 
heirs  or  devisees  of  the  estate,  has  no  joint  interest  with  them,  and 
his  admissions  cannot  be  proved  .  against  either  of  them."''  But 
where  he  does  represent  such  heirs  or  devisees  in  the  settlement  of 
the  estate  his  admissions  are  competent  as  against  them.*" 

h.  By  Testator  or  Intestate.  —  In  actions  for  or  against  an  estate 
the  admissions  of  the  deceased  are  competent  as  against  his  executor 
or  administrator  in  all  cases  where  they  would  have  been  competent 


33.  Mclntire  v.  Morris,  14  Wend. 
(N.  Y.)  90,  12  N.  Y.  Com.  L.  548; 
James  r.  Hackley,  16  Johns.  (N.  Y.) 
2736  N.  Y.  Com.  L.  138;  Cayuga 
Co.  Bank  v.  Bennett,  5  Hill  (N. 
Y.)   236,  16  N.  Y.  Com.  L.  115. 

Not  to  Establish  Original  De- 
mand  In    Haniiiion    ;■.    Huntley,   4 

Cow.  (N.  Y.)  493,  it  is  held  that  in 
matters  which  relate  to  the  delivery, 
gift,  sale,  payment,  possession  or  re- 
lease of  the  testator's  goods,  the  acts 
or  admission  of  one  e.xecutor  is 
deemed  the  act  of  all,  but  not  to 
establish  an  original  demand  against 
the  estate. 

34.  James  v.  Hackley,  16  Johns. 
(N.  Y.)  273,  6  N.  Y.  Com.  L.  138. 

35.  El  wood  V.  Deifendorf,  5  Barb. 
(N.  Y. )  398;  Cavuga  Co.  Bank  f. 
Bennett,  5  Hill  (N.  Y.)  236;  Ham- 
mon  V.  Huntley,  4  Cow.  (N.  Y.)  493; 
Potter  V.  Green.  N.  Y.  Supp.  605 ; 
Finnem  v.  Hinz,  38  Hun  (N.  Y.) 
465. 

36.  Berden  7:  Allan.  10  111.  App. 
91  ;    Potter  r.   Greene,  20   N.   Y.    St. 


410,  3  N.  Y.  Supp.  605;  Bruyn  v. 
Russell,  22  N.  Y.  St.  374,  4  N.  Y. 
Supp.  784 ;  Cayuga  Co.  Bank  i'.  Ben- 
nett, 5  Hill  (N.  Y.)  236;  Hammon 
z\  Huntley,  4  Cow.  (N.  Y.)  493. 

37.  Fox  V.  Waters.  12  Ad.  &  E. 
43.  40  Eng.  C.  L.  18 ;  Church  v. 
Hiiward,  79  N.  Y.  415. 

38.  Eckcrt  -:  Triplett,  48  Ind.  174, 
17  .^.m.  Rep.  735:  Newhouse  v.  Red- 
wood. 7  Ala.  598;  Lashlee  v.  Jacobs, 
9  Humph.  (Tenn.)  718;  Emerson  v. 
Thompson,   16   Mass.  429. 

But  see  to  the  contrary  Rogers  v. 
Grannis,  20  Ala.  247,  in  which  it  is 
held  that  the  admissions  of  the  ad- 
ministrator in  chief  were  not  com- 
petent as  against  the  administrator 
dc  bonis  iioii. 

See  also  McLaughlin  v.  Nelms.  9 
.\la.  (N.  S.)  925;  More  v.  Finch,  48 
N.  Y.  St.  23,  20  N.  Y.   Supp.   164. 

39.  Elwood  f.  Deifendorf,  5  Barb. 
(N.  Y.)  398;  Osgood  I'.  Manhattan 
Co.  3  Cow.  (N.  Y.)  612.  15  .\m.  Dec. 
304:  Jennings  v.  Kee,  5  Ind.  257; 
Prater  i'.  Frezier,  6  Eng.  (Ark.)  249. 

40.  I   Greenl.   Ev.,  §  179. 


Vol.  I 


572 


ADMISSIONS. 


against  him  if  living.'"     But  not  in  his  favor  unless  thcv  are  a  part 
of  the  res  gestae.^'- 

N.  Insured  and  Rexeficiarv.  —  a.  Of  Insured  Against  Bene- 
ficiary. —  The  admissions  of  the  insured,  made  after  the  issuance  of 
the  policy,  are  not  admissible  to  aiTect  the  rights  of  the  beneficiary 
under  the  policy.^' 


41.     England.  —  Grocers     etc.     v. 

Doiine.  3  Biiig.  34,  32  Eng.  C.  L.  25. 

Alabama.  —  Lide   v.    Lide,   32   Ala. 

449- 

California.  —  Byrne  v.  Reed,  75 
Cal.  277,  17  Pac.  201. 

Connecticut.  —  Wainwriglit  v.  Tal- 
cott,  60  Conn.  43,  22  Atl.  484 ;  Allen 
V.  Hartford  Ins.,  Co..  72  Conn.  693, 
4t  Atl.  9t=;';  Rowland  v.  Philadel- 
phia &  B.  R.  Co.,  63  Conn.  415.  28 
Atl.   102. 

Illinois.  —  Riggs  ?'.  Powell,  142  111. 
4=;3.  .^2  N.  E.  482 ;  Penn  7'.  Oglesbv, 
89   111.    no. 

Indiana.  —  Slade  v.  Leonard.  75 
Ind.  171  ;  Bevins  v.  Cline,  21  Ind.  37; 
Knight  J'.  Knight,  6  Ind.  App.  268, 
•'J  N.  E.  456;  Kettry  v.  Thumma,  g 
Ind.  .\pp.  498,  36  N.  E.  919 ;  Clouser 
T.  Rickman.  104  Ind.  588,  4  N.  E. 
202. 

Maine.  —  Dale  v.  Gower.  24  Me. 
563;  Wentworth  ?•.  Wentworth,  71 
Me.  72. 

Massachusetts.  —  Fellows  v.  Smith. 
130  Mass.  378;  Grossman  v.  Fuller, 
17  Pick.  171  ;  Heywood  i'.  Heywood. 
10  Allen  105. 

Minnesota.  —  Hosford  v.  Hosford, 
41    Minn.   245,  42   N.   W.    1018. 

Missouri.  —  McLaughlin  v.  AIc- 
Laughlin,  16  Mo.  242. 

New  Hani/'shire.  —  Morrill  r.  Fos- 
ter, 33  N.  H.  379. 

New  York.  —  Baird  v.  Baird,  14^ 
N.  Y.  659,  40  N.  E.  222,  28  L.  R.  A. 
375 :  Swan  v.  Morgan.  88  Hun  378, 
,34  N.  Y.  Supp.  829 :  Ackley  v.  Ack- 
iev,  66  Hun  636,  21  N.  Y.  Supp.  877 : 
Hurlbart  v.  Hurlbart.  128  N.  Y.  420. 
eS  N.  E.  650. 

North  Carolina .—Y\\.\g\\e^  v.  Boone, 
102  N.  C.  137,  9  S.  E.  286. 

Pennsylvania. — Gordner  v.  Hcffley, 
49  Pa.  St.  163 ;  Hunt's  Appeal,  100 
Pa.  St.  590;  Albert  v.  Ziegler,  29 
Pa.  St.  50;  Johnson  v.  McCain,  145' 
Pa.   St.  531,  22  Atl.  979;   Perkins  v. 

Vol.  I 


Harbrouck.  155  Pa.  St.  494,  26  .\tl. 
695- 

/(?.vaj.  —  Schmidt  v.  Huff  (Te.x.), 
19  S.  W.  131. 

Vermont.  —  Wheeler  r.  Wheeler, 
47  Vt.  637. 

Wisconsin.  —  Pritchard  v.  Pritch- 
ard.  69  Wis.  373,  34  N.  W.  506. 

By  Intestate  Against  Administra- 
tor—  In  Slade  v.  Leonard,  75  Ind. 
171,  it  was  held  in  general  terms  that 
the  declarations  of  an  intestate  are 
admissible  against  the  administrator 
of  his  estate  or  any  other  claiming 
in  his  right.  And  in  Dale  z\  Gower, 
2J  Me.  563.  that  if  the  declarations 
of  an  intestate  would  be  good  evi- 
dence against  him,  were  he  hiring, 
and  the  action  brought  by  him,  they 
i;re  admissible  when  the  action  is 
brought   by  his  administrator. 

42.  See  "  Declarations." 
Illinois.  —  Treadway  r.   Treadway, 

5   111.   App.  478. 

Maine.  —  Holmes  r.  Sawtellc,  53 
Me.  179. 

Massachusetts.  —  Fellows  v.  Smith, 
i.^o    Mass.    378. 

Michigan.  —  Wilson  7'.  Wilson,  6 
Mich.   9;   Ward   -■.    Ward,   37    Mich. 

253- 

Missouri.  —  Perry  7'.  Roberts,  17 
Mo.  36. 

New  y'ork.  —  Graves  r.  King,  15 
Hun  367. 

Ohio.  — Ky\e  v.  Kyle.   15  Ohio  St. 

i.S- 

Washington.  —  Reese  v.  Murman, 
5  Wash.  :i-3,  31  Pac.  1027. 

West  J'irginia. — Crothers  v.  Croth- 
ers,  40  W.  Va.  169,  20  S.  E.  927. 

IFisconsin.  —  Jilsun  v.  Stebbins,  41 
Wis.  235-. 

43.  See  "  Declarations  ;  "  Res 
Gestae;  "  Brown  ?'.  Kenyon,  108  Ind. 
283.  9  N.  E.  283. 

Sec  "  Executors  and  Ad.ministra- 

TORS." 


.IDMISSIOXS. 


573 


b.  Exception.  —  Where  Jiisured  May  Cliaiigc  Beneficiary.  —  A 
different  rule  is  declared  where  the  insured  has  the  right  under  tlie 
poHcy  to  change  the  beneficiary  at  his  will.^* 

c.  Made  Before  Insurance  Is  Affected.  —  And  it  is  held  that 
admissions  made  by  the  insured  before  the  insurance  is  procured 
are  admissible/^ 

d.  By  Beneficiary. — The  beneficiary,  being  the  real  party  in 
interest,  his  admissions  are  of  course  admissible  against  him.^'' 

5.  By  Strangers. — A.  Gener.xlly  Inadmissible.  —  The  general 
rule  is  that  declarations  of  strangers,  having  no  interest  in  the 
action  or  its  subject  matter,  although  against  their  interest,  are 
hearsay  and  incompetent. ■"' 


44.  Indiana.  —  Pennsylvania  Mnt. 
L.  Ins.  Co.  z\  Wiler,  lOO  Ind.  g>,  50 
Am.  Rep.  769. 

Iowa.  —  Goodwin  v.  Providence 
Sav.  L.  A.ssur,  Soc.,  97  Iowa  266,  66 
N.  W.  157,  59  Am.  St.  Rep.  411,  32 
L.  R.  A.  473- 

Kansas.  —  Washington  L.  Ins.  Co. 
V.  Hanev,  10  Kan.  525. 

Nt-.c  i'or/?.  — McGinley  z:  U.  S.  L. 
Ins.  Co.,  8  Daly  390. 

Tennessee.  —  Southern  L.  Ins.  Co. 
V.  Booker,  9  Heisk.  606,  24  .Am.  Rep. 
344- 

Te.x-as.  —  Thies  v.  Alut.  L.  Ins. 
Co.,  13  Tex.  Civ.  App.  280,  35  S.  W. 
676. 

West  Virginia.  —  Schwarzhacli  7'. 
Ohio  Valley  P.  U..  25  W.  Va.  622, 
52  Am.  Rep.  227. 

Contrary  Rule  Declared.  —  In 
Manhattan  L.  Ins.  Co.  v.  Myers.  22 
Ky.  Law  87c.  59  S.  W.  30.  it  is  held 
that  the  acts  and  declarations  of  the 
insured  in  regard  to  the  payment  of 
the  premium  and  his  final  conclusion 
not  to  pay  it  but  to  let  the  policy 
lapse  were  clearly  competent  against 
the  beneficiary. 

Unless  Part  of  Res  Gestae. 
Mobile  L.  Ins.  Co.  ;'.  Morris.  3  Lea 
(Tenn.)    loi.  31   .\m.   Rep.   63  r 

Not  to  Contradict  Statements  in 
Application.  —  Schwarzbach  v.  Ohio 
Valley  P.  U.,  25  W.  Va.  622.  52  Am. 
Rep.  227 ;  Steinhansen  z\  Preferred 
Mut.  Ace.  Ass'n,  13  N.  Y.  Supp.  .^6; 
Smith  V.  Nat.  Ben.  Soc,  22  N.  Y.  St. 
852,  4  N.  Y.  Supp.  521,  25  N.  E.  197. 

Where  Insured  May  Change  Bene- 

nciary It    is    provided    by    statute 

in    New   York   that   "  membership   in 


any  corporation,  association  or  so- 
ciety transacting  the  business  of  life 
or  casualty  insurance  or  both,  upon 
the  co-operative  or  assessment  plan 
shall  give  to  any  member  thereof 
the  right  at  any  time,  with  the  con- 
sent of  such  corporation,  association 
or  society  to  make  a  change  in  his 
payee  or  payees,  beneficiary  or  bene- 
ficiaries, without  requiring  the  con- 
sent of  such  payee  or  beneficiary." 

Lender  this  statute  it  is  held  that 
the  original  beneficiary  named  gets 
no  separate  standing  by  his  desig- 
nation as  such  in  the  policy  before 
the  date  of  the  death,  and  that  by 
designating  such  beneficiary  the  de- 
ceased did  not  make  a  case  to  exclude 
evidence  of  his  declarations.  Stein- 
housen  z:  Preferred  Mitt.  Ace.  .Ass'n, 
13    N.   Y.    Supp.   36. 

45.  To  Show  Falsity  of  State- 
ments in  Application.  —  In  ;Mc- 
Gowaii  T'.  Supreme  Court  of  the 
I.  O.  O.  F.,  104  Wis.  173,  80  N.  W. 
603,  it  was  held  that  the  declarations 
and  admissions  of  the  insured  made 
prior  to  the  application  were  com- 
petent to  show  his  knowledge  of  the 
falsity  of  his  answers  in  his  demand 
for   the    insurance. 

46.  Allen  z:  Hartford  Ins.  Co.,  72 
Conn.  693,  45   Atl.  955. 

Where    Policy    Payable   to    Estate 

of    Insured Where    the    policy    is 

payable  to  the  estate  of  the  insured, 
an  heir  of  the  insured  is  not  such  a 
party  in  interest  as  to  render  his 
admissions  competent.  Merchants' 
Life  Ass'n  z:  Yoakum,  98  Fed.  251. 

47.  See  "  Declarations." 
Connecticut.  —  Filcli    z\    Chapman, 

Vol.  I 


574 


ADMISSIONS. 


B.  Exception  to  Rulk.  —  a.  Deceased  Persuiis.  —  An  exception 
to  the  rule  that  the  declarations  of  one  having  no  interest  in  the 
suit  or  its  subject  matter  are  incompetent,  is  made  in  case  of  one 
deceased  who,  having  peculiar  means  of  knowledge,  has  made  decla- 
rations against  his  interest/*'  The  exception  extends  to  book 
accounts  of  deceased  persons.'"' 

b.  One  Who  Cannot  Be  Compelled  to  Testify.  —  The  exception 
has  also  been  extended  to  persons  so  situated  that  they  could  not  be 
witnesses  or  could  not  be  compelled  to  testify/" 

c.  Interest  M ust  Be  Pecuniary.  —  But  to  render  such  admissions 
admissible  they  must  be  against  the  pecuniar}-  interest  of  the  party 
making  them.^' 

6.  Persons  Jointly  Interested. — A.  Gen  ek ally.  —  The  rule  is 
that  where  a  number  of  persons  have  a  joint  interest  or  privity  of 
design,  or  are  jointly  liable,  the  admission  of  one  relating  to  such 


10  Conn.  8;  Town  of  Nortli  Stoning- 
ton,  31    Conn.   412. 

Illinois.  —  Montgomery  v.  Brush, 
121   111.  513,  13  N.  E.  230. 

loiea.  —  Ibbitson  v.  Brown,  5  Iowa 
532. 

Maryland.  —  Atwell  v.  Miller,  11 
Md.  348,  69  Am.  Dec.  206. 

Massachusetts.  —  Lyman  v.  Gipson, 
18  Pick.  422. 

Minnesota.  —  Lundberg  x\  North- 
western E.  Co.,  42  Minn.  37,  43  N. 
W.  685. 

Missouri.  —  Bain  v.  Clark,  39  Mo. 
252. 

48.       I   Greenl.  Ev.,  §  147. 

England.  —  Higham  v.  Ridgway,  10 
East  log;  Roe  -e.  Rawlings,  7  East 
279. 

Alabama.  — iis.n  v.  Kendall.  82 
Ala.    144,  3   So.  41. 

Georgia.  —  Lamar  v.  Pearre,  90  Ga. 
377.  17  S.  E.  92;  Cnnningham  v. 
Schley,  41    Ga.  426. 

Illinois.  —  Friberg  v.  Donovan,  23 
111.  .\pp.  58. 

hn\.<a.  —  Connty  of  Mahaska  v.  In- 
gall.s,   16  Iowa  81. 

Nc7v  York.  —  Lyon  v.  Ricker,  141 
N.  Y.  225-.  36  N.  E.  189. 

Pennsylvania.  —  Taylor  v.  Gould, 
57   Pa.   St.   152. 

Vermont.  —  Warner  f.  McGarrv.  4 
Vt.  507. 

To  Establish  Identity.  —  In  Rey- 
nolds 7'.  Staines.  2  Car.  &  K.  745,  61 
Eng.  C.  L.  744,  it  was  held  that 
where  a  witness  went  to  a  tavern  and 
asked  the  waiter  for  a  certain  person. 

Vol.  I 


and  on  the  person's  coming  out  to  the 
witness,  the  latter  asked  him  who 
he  was,  and  he  said  his  name  was 
S ;  that  such  proof  of  this  state- 
ment was  competent  and  some  evi- 
dence of  the  fact  that  the  party  was 
the  person  that  he  acknowledged  him- 
self to  be. 

49.  See  "Book  Accounts;"  Las- 
sone  V.  Boston  &  L.  R.  Co.,  66  N.  H. 
345,  24  Atl.  902,  17  L.  R.  A.  525. 

No    Difference    Between    Written 

and  Oral  Admissions There  is  no 

distinction  between  books  of  account 
or  other  written  admissions,  and  such 
as  are  oral,  merely,  in  respect  of 
their  competency.  County  of  Ma- 
haska I'.  Ingalls,  16  Witn.  (Iowa) 
81  ;  Cunningham  j'.  Schley.  41  Ga 
426. 

50.  Fitch  i\  Chapman,  10  Conn.  8. 

51.  By  Deceased  Person In  Fri- 
berg t',  Donovan,  23  111.  App.  58.  the 
court  say  :  "  One  of  the  exceptions 
to  the  rule  excluding  hearsay  evi- 
dence is  the  case  of  declarations  of  a 
deceased  person's  having  peculiar 
means  of  knowing  a  fact,  made 
against  his  pecuniary  interest,  the 
law  being  that  such  declarations  are 
admissible  even  in  suits  in  which 
neither  such  deceased  person  nor 
those  claiming  under  him  was  or  is 
a  party,  provided  such  deceased  per- 
son could  have  been  examined  in 
regard  to  the  matter  in  his  life- 
time." 


ADMISSIONS.  575 

joint  matter  is,  in  the  absence  of  frauil,  competent  against  all/-    But 
not  admissions  made  after  the   joint   interest  has  been  severed  by 


52.  United  States.  —  Forsyth  r. 
Uolittle,  120  U.  S.  73,  7  Sup.  Ct.  408; 
Howard  v.  Cobb,  3  Day  309,  12  Fed. 
Ciis.   No.  6755. 

.-Ilabama.  —  Camp  -■.   Dill,  27  .\Ia. 

553- 

Arkansas.  —  Dudney  v.  State,  22 
.\rk.  251;  Rolan  v.  Nichols,  22  Ark. 
244, 

California.  —  Kilbiirn  v.  Ritcliie,  2 
Cal.  145.  56  Am.  Dec.  326. 

Florida.  —  Bacon  v.  Green,  36  Fla. 
313,   18   So.  870. 

/;/i»oi.f.  — McMillan  v.  McDill,  no 
III.   47. 

Indiana.  —  Wonderly  v.  Booth,  19 
hid.  169;  Chapel  v.  Washburn,  :i 
Ind.  393. 

Louisiana.  —  State  v.  Hogan,  3  La. 
,\nn.  714. 

Maine.  —  Davis  r.  Keene.  23  Me. 
tig. 

Maryland.  —  Pierce  v.  Roberts 
(Md.),   17  Atl.   275. 

.Massachusetts.  —  Martin  v.  Root, 
17  Mass.  222. 

.Michigan.  —  Mathews  i'.  Phelps.  61 
Mich.  327,  28  N.  W.  108. 

.Missouri. — Hurst  7'.  Robinson,  ij 
Mo.  82,  53  Am.  Dec.  134;  Armstrong 
<•.  Farrar,  8  Mo.  627 :  St.  Louis  Paint 
Co.  V.  Mepham,  30  Mo.  App.  15. 

.V«i'  Hampshire.  —  Burnham  v. 
Sweatt.  16  N.  H.  418;  Lee  v.  Lamp- 
rey, 43   N.   H.   13. 

Nn^.'  Jersey.  —  Black  :■.  Lamb.  12 
X.  J.  Eq.  108;  Walling  v.  Rosevelt, 
16  N.  J.  Law  41. 

New  Me.xico.  —  Lockhart  v.  Wills. 
9  N.  M.  263,  so  Pac.  318. 

Neii'  York.  — •  Barrick  v.  Austin,  21 
Barb.  241 ;  Costelo  v.  Care,  2  Hill 
528.  27  Am.  Dec.  404;  Brandt  v. 
Van  Cortlandt,  17  Johns.  335 ;  Jack- 
son J'.   McVey.   18  Johns.  330. 

North  Carolina. — Knight  v.  Hough- 
tailing,  85  N.  C.  17;  Young  V.  Crif- 
fith.  79  N.   C.  201. 

Penns\lvania.  —  Souder  v.  Schlech- 
terly,  91'  Pa.   St.  83. 

South  Carolina.  —  Bell  '•.  Coiel.  2 
Hill  Ch.  108.  27  Am.  Dec.  448.  DH- 
lard  r.   DiHard.  2  Strob.  89. 

Te.vas.  —  Hardy  v.  DeLeon,  5  Tex. 


Vermont.  —  Bank  of  U.  S.  v.  Ly- 
man, 20  Vt.  666. 

West  Virginia.  —  Dickinson  v. 
Clarke,   5   W.   Va.   280. 

By     One     Not     a     Party    to     the 

Record In  Dickinson  v.   Clarke,  5 

W.  Va.  280,  it  is  intimated  that  ad- 
missions made  by  one  jointly  inter- 
ested, but  not  a  party  to  the  record, 
are  inadmissible. 

Not    to    Create    New    Contract    or 

Enlarge  the  Old The  power  of  a 

joint  contractor  is  confined  to  admis- 
sions affecting  the  liability  of  all  of 
the  contractors  upon  their  joint  con- 
tract and  his  admissions  will  not  be 
heard  to  create  a  new  contract  or 
enlarge  or  extend  the  old  one.  Bank 
of  U.  S.  V.  Lyman,  20  Vt.  666; 
Thompson  v.  Richards,  14  Mich.  172. 
The  Lussex  Peerage,  11  C.  &  F. 
(Eng. )  8i ;  Corleleys  v.  Ripley,  22 
W.  Va.  154. 

Of  Persons  Without  Interest. 
But  in  some  cases  it  is  held  to  be 
enough  if  the  party  in  possession 
was  without  interest  one  way  or  the 
other  or  where  nothing  appears  to 
show  an  interest  to  deceive  or  mis- 
represent. Corleleys  v.  Ripley,  22  W. 
Va.  154;  Bartlett  v.  Emerson,  7  Gray 
(Mass.)  174;  Daggett  v.  Shaw.  5 
Mete.  (Mass.)  223;  Long  v.  Colton, 
116  Mass.  414. 

Respecting  Boundaries Many,  if 

not  most  of  the  cases,  bearing  upon 
this  subject  relate  to  boundaries  antl 
will  be  considered   under  that   head. 

See  "  Boundaries." 

It  is  generally  held  that  such 
declarations  are  competent  only 
when  accompanied  by  the  act  of 
pointing  out  the  boundary  in  dispute. 
Long  V.  Colton,  116  Mass.  414. 

Party  Without  Interest.  —  "  In 
regard  to  this  exception,  many  au- 
thorities have  been  cited  by  the  coun- 
sel for  the  demandant,  to  prove  that 
these  declarations  are  only  to  be 
received  as  admissions  of  a  party  in 
possession,  when  made  against  his 
interest.  But  we  think  the  rule,  as 
it  has  been  practiced  upon  in  this 
commonwealth,  is   not   so  restricted ; 

Vol.  I 


576 


.ADMISSIONS. 


(leatli  or  otherwise,"'''  or  before  the  joint  hability  attached.'""*  And  in 
some  cases  it  is  directly  held  that  such  admissions  are  not  competent 
if  made  by  one  obligor  who  is  bound  to  indemnify  or  contribute  to 
the  others. °^ 

B.  IjY  (jNii  OF  Sic\  i-:k-\l  (  )Wi\"1-:ks  Lnwdmissible.  —  The  rule  that 
the  admissions  of  one  jointly  interested  is  admissible  against  others 
jointly  interested  with  him  must  be  limited  to  those  acting  together 
and  not  those  merely  owning  property  jointly.^"' 


and  that  the  declarations  of  ancient 
persons,  made  while  in  possession  of 
land  owned  by  them,  pointing  out 
their  boundaries  on  the  land  itself, 
and  who  are  deceased  at  the  time 
of  the  trial,  are  admissible  in  evi- 
dence, where  nothing  appears  to  show 
that  they  were  interested  to  mis- 
represent in  thus  pointing  out  their 
boundaries ;  and  it  need  not  appear 
affirmatively  that  the  declaration;; 
were  made  in  restriction  of,  or 
against,  their  own  rights,"  Daggett 
■:•.   Shaw.  5   Mete.    (.Mass.)   223. 

■Where    Jointly    Sued It    is    not 

enough  that  the  parties  be  jointly 
sued.  There  must  be  a  joint  liability 
or  interest  to  render  their  admissions 
competent  for  or  against  each  other. 
Koplan  V.  Boston  Gas  L.  Co.,  177 
Mass.   15,  58  N.   E.   18,3. 

Only  'Where  the  Relation  of 
Agency  Exists.— In  Wallis  ■:■.  f'taii- 
dall,  81  N.  Y.  164,  it  is  held  that  a 
joint  debtor  has  no  authority  to  bind 
any  person  jointly  liable  with  him  by 
his  statements  or  admissions,  unless 
he  is  the  agent,  or.  in  some  other 
way,  the  representative  of  such  per- 
son ;  and  that  the  mere  fact  that  he 
is  a  joint  debtor  never  gives  the 
authority.  See  also  Baker  v.  Briggs, 
8  Pick.  (Mass.)  121,  19  Am.  Dec. 
311;  Osborne  v.  Bell,  62  Mich,  214, 
28  N.  W.  841  ;  Warner  v.  Price,  3 
Wend,    (N.  Y.)   397. 

Joint  Liability  Must  First  Be 
Shown — To  render  the  admission 
competent,  the  joint  liability  must 
first  be  established.  Stringfellow  7', 
Montgomery,    57    Tex.    .349. 

53.  Lane  r.  Doty,  4  Barb,  (N.  Y.) 
530;  Blakeney  ?■,  Ferguson,  14  Ark. 
640;  Hitt  V.  Allen,  13  III,  592. 

54.  Eckert  T',  Cameron,  43  Pa.  St, 
120. 

Vol.  I 


55.  Rapier  v.  Louisiana  Eq.  L. 
Ins.  Co.,  57  Ala.  lOO. 

56.  Connecticut.  —  Dale's  .\ppfal. 
57  Conn,  127,  17  Atl.  757. 

Illinois.  —  McMillan  7'.  ?iIcDill.  no 
111.  47. 

Indiana.  —  Hayes  v.  Burkam,  67 
Ind.  359. 

Iowa.  —  Ames  j'.  Blades,  51  Iowa 
596,  2  N.  W,  408 ;  Dye  z\  Young,  55 
Iowa  433,  7  N.  W.  678. 

Massaciinsctls.  —  Phelps  v.  Hart- 
well,  I  Mass.  71  ;  Shailer  1:  Bum- 
stead,  99  Mass.   112. 

Michigan.  —  O'Connor  f,  Madison. 
98   Mich.    183.   57   N.   W.    105. 

Mississif<fii.  —  Prewctt  f.  Coop- 
wood,  30  Miss,  369, 

Pennsylvania.  —  Boyd  z:  Eby,  8 
Watts  66;  Clark  v.  Morrison.  25  Pa. 
St.  453;  Nussear  v.  Arnold,  13  Serg. 
&  R.  323. 

South  Carolina.  —  Dillard  v.  Dil- 
lard,  2  Strob.  89. 

West  Virginia.  —  Forney  v.  Fcr- 
rell,  4  W.  Va.  729, 

But  see  to  the  contrary  .-Mien  v. 
Allen,  26  Mo.  327;  Milton  z\  Hunter, 
13  Bush  (Ky.)  163;  Beal  v.  Cunning- 
ham, I  B,  Mon,  (Ky,)  399:  Arm- 
strong V.   Farrar,  8  Mo.  627. 

By    Acquiescence But    one    may 

be  bound  by  acquiescence  in  what  is 
said  by  the  other  owner.  Caldwell 
V.  Augur.  4   .Minn.  217,  77  .\\w.  Dec. 

515- 

Identity   of  Interest.  —  The   rule 

is  sometiiues  broadly  declared  that 
if  there  be  an  identity  of  interest  in 
respect  to  the  subject  matter  of  the 
suit,  the  admission  of  one  party  with 
relation  thereto  is,  in  general,  evi- 
dence against  all  the  parties.  Irby 
V.  Brigham,  28  Tenn.  750;  Tuttle  v. 
Turner,  28  Tex,  759, 

Interest    Must    Be    Joint It    is 

not  enough  10  sliow  a  community  of 


.-iDMISSIONS. 


577 


a.  By  Stockholders  of  a  Corporation.  —  The  ailniissioiis  of  stock- 
holders or  members  of  a  corporation  are  not  aihiiissible  against  such 
corporation.^' 

C.  To  Take  Debt  Out  of  Statltk  of  Limitations. —  L'pon 
the  question  whether  the  admissions  or  acknowledg-ments  of  one 
joint  obligor  ma}-  be  received  as  against  another,  to  take  the  debt 
out  of  the  Statute  of  Limitations,  the  authorities  are  conflicting, 
some  holding  that  they  may,^*  others  that  they  may  not.^' 


interest.  The  interest  must  be  joint 
to  admit  the  admissions.  Shailer  v. 
Bumstead,  99  Mass.  112. 

57.  Hartford  v.  Hart.  .?  Day 
(Conn.)  491,  3  Am.  Dec.  274;  Fair- 
field Co.  Tp.  Co.  V.  Tkorp,  13  Conn. 
173- 

Admissions  of  Each  Competent  as 
Against  Him.  —  But  the  athnissions 
of  each  is  competent  as  against  him 
and  the  admissions  of  all  may  estab- 
lish the  case  against  all.  Trego  j'. 
Lewis,  58  Pa.  St.  463. 

58.  England.  —  Perham  v.  Raynal, 

2  Bing.  306,  9  Eng.  C.  L.  4I3- 
Connecticut.  —  Bound    v.    Lathrop, 

4  Conn.  336,  10  Am.  Dec.  147 ;  Cald- 
well V.  Sigourney,  19  Conn.  36;  Aus- 
tin V.  Bostwick,  9  Conn.  496,  25  Am. 
Dec.  42. 

Georgia. — Cox  v.  Bailey,  9  Ga.  467, 
54  Am.  Dec.  358. 

Maine.  —  Dinsmore  v.  Dinsmorc. 
21  Me.  433;  Getchell  v.  Heald,  7 
Greenl.  26;  Lincoln  Academy  v.  New- 
hall,  38  Me.  179;  Shepley  v.  Water- 
house,   22    Me.   497. 

Massacliusetts.  —  White  i'.  Hale,  3 
Pick.  291,  15  Am.  Dec.  209;  Hunt  v. 
Bridgham,  2  Pick.  581 ;  Sigourney  v. 
Drury,   14  Pick.  387. 

Minnesota.  —  Whitaker  v.  Rice.  9 
Minn.  9. 

Ne%v  York.  — Johnson  v.  Beardslee, 
15  Johns.  3,  5  N.  Y.  Com.  L.  990. 

Pennsylvania.  —  Houser   v.    Irvine, 

3  Watts  &  S.  345- 

South  Carolina.  —  Beitz  v.  Fuller, 
I    McCord   541. 

Vermont.  —  Bank  of  U.  S.  v.  Ly- 
man, 20  Vt.  666;  Wheelock  v.  Doo- 
little,  18  Vt.  440.  46  Am.  Dec.  163; 
Carlton  v.   Coffin,  27  Vt.  496. 

Reason  for  the  Rule The  cases 

holding  that  one  joint  obligor  may 
continue  the  liability  in  force  by  his 
acknowledgment  of  the  debt  proceed 

37 


upon  the  ground  of  agency  between 
the  parties.  Those  holding  the  con- 
trary maintain  that  the  acknowledg- 
ment is  a  new  promise  that  the  joint 
contractor  has  no  power  to  make  as 
agent  or  otherwise.  Shoemaker  ;•. 
Benedict,  11   N.  Y.  176,  62  Am.  Dec. 

95- 
Must  Be  Express  and  Unequivocal. 

Holme  V.  Green,  i  Stark.  488,  2  Eng. 

C.  L.  479. 

59.  United  States.  — 'BM  v.  .Mor- 
rison, I  Pet.  351. 

Connecticut.  —  Coit  v.  Tracy,  8 
Conn.  268,  20  Am.   Dec.   no. 

Kansas. — Steele  v.  Bonder,  20  Kan. 

39- 

Neiv  York. —  Shoemaker  t.  Bene- 
dict, II  N.  Y.  176,  62  Am.  Dec.  95; 
Littlefield  r.  Littlefield,  91  N.  Y.  203; 
Dunham  Z'.   Dodge,   10  Barb.  566. 

North  Carolina.  —  Rogers  v.  Clem- 
ents, 92  N.  C.  81. 

Ohio.  —  Hance  v.  Hair,  25  Ohio 
St.  349. 

Pennsylvania.  —  Bush  v.  Stowell, 
71  Pa.  St.  208;  Coleman  v.  Fobes,  22 
Pa.  St.  156;  Meade  v.  McDowell,  5 
Binn.   195. 

See  on  this  subject  note  to  Cliar- 
don  V.   Oliphant,  6  Am.   Dec.   572. 

Admissible  if  Party  to  the  Action. 
In  Coit  V.  Tracy,  8  Conn.  268,  20  Am. 
Dec.  no,  the  admissions  were  held 
to  be  admissible  because  the  party 
making  them  was  a  party  to  the 
record  but  that  they  were  insufficient 
to  prevent  the  bar  of  the  statute  as 
against  the  other  joint  contractor. 

Where  Joint  Liability  Has  Ceased. 
It  is  held  that  where  the  liability 
has  ceased  to  be  joint  by  the  death 
of  one  of  the  parties  the  admissions 
of  the  survivor  made  thereafter  are 
inadmissible.  Bloodgood  i'.  Bruen, 
8  N.  Y.  362;  Lane  v.  Doty,  4  Barb. 
(N.  Y.)  530. 

Vol.  I 


578 


ADMISSIONS. 


D.  Partnuks.  —  a.  Admissible  At^aiiist  the  Junn.  —  The  rule  is 
that  the  admissions  of  one  co-partner  in  respect  of  the  joint  business, 
are  competent  against  the  firm  and  its  members."" 


Admissions    by    Administrator    of 

Estate An     admiiiistratt)r     cannot 

by  his  admissions  or  default  in  mak- 
ing defense,  deprive  other  makers  of 
a  note  of  the  right  of  defense  of  the 
statute  of  hmitations.  Dawes  v. 
Shed,  15  Mass.  6,  8  Am.  Dec.  80; 
Bloodgood  z'.  Bruen,  8  N.  Y.  362 ; 
Hathaway  v.  Haskell,  9  Pick.  (Mass.) 
42. 

Rule    Changed    by    Statute In 

some  of  the  states,  it  is  provided 
by  statute  that  declarations  of  one 
promissor  shall  not  have  the  effect 
of  taking  the  case  out  of  the  statute 
of  limitations.  Amherst  Bank  v. 
Root,  2  Mete.  (Mass.)  522;  Lincoln 
Academy  i'.  Newhall,  38  Me.  179; 
Shepley  v.  Waterhouse,  22  Me.  497; 
Marienthal  r.  Mosler,  16  Ohio  St. 
566;  Hance  1'.  Hair,  25  Ohio  St. 
349;  Rogers  i'.  Anderson,  40  Mich. 
290;  Faulkner  v.  Bailey,  123  Mass. 
588;  Carlton  v.  Coffin,  27  Vt,  496; 
Bailey  v.  Corlis,  51  Vt.  366;  Steele 
z\    Souder,  20  Kan.   39. 

60.  United  States.  —  Van  Reims- 
dyk  V.  Kane,  i  Gall.  630,  28  Fed.  Cas. 
No.  16,872 ;  Garrett  v.  Woodward,  2 
Cranch  C.  C.  190,  10  Fed.  Cas.  No. 
.S253. 

Alabama.  —  Fail  v.  McArtluu",  31 
.\la.  (N.  S.)  26;  Smitha  v.  Cureton, 
31  Ala.  (N.  S.)  652;  Kenan  v.  Star- 
kie,  6  Ala.  (N.  S.)  77.U  Fricklin  v. 
Minor,  34  Ala.  t,3\  Hutchins  -'.  Child- 
ress, 4  Stew.  34 ;  Clark  v.  Taylor,  68 
Ala.  453 ;  Cochran  v.  Cunningham, 
16   .-Ma.   448,   50  Am.   Dec.    186. 

California.  —  Dennis  v.  Kohm.  131 
Cal.  91,  63  Pac.   141. 

Co/o)-flrf().  —  Kindel  v.  Hall,  8  Colo. 
App.  63,  44  Pac.  781. 

Connecticut.  —  Pierce  v.  Roberts, 
57  Conn.  31,  17  Atl.  275;  Munson  i'. 
Wickwire,  21  Conn.  513;  Brown  v. 
Lawrence,   5  Conn.  397. 

Georgia.  —  Thompson  v.  Mallory, 
108  Ga.  797,  a  S.  E.  986;  Perry  v. 
Butt,  14  Ga.  699;  Dennis  v.  Ray,  g 
Ga.  449. 

Illinois.  —  llurd  f.  Haggerlv,  24 
111.    172. 


Indiana.  —  Britton  v.  Britton,  19 
Ind.  App.  638,  49  N.  E.   1076. 

Kentncky.  —  Boyce  f.  Watson,  3  J. 
J.    Marsh.   498. 

Maine.  —  Frickett  z:  Swift.  41  Me. 
65',  66  Am.  Dec.  214;  Davis  v.  Keene, 
23  Me.  69;  Phillips  v.  Purington,  15 
Me.  425 ;  Stockwell  r.  Dillingham,  50 
Me.  442,  79  Am.  Dec.  621 ;  Gilmore 
T.  Patterson,  36  Me.  544;  Foster  v. 
Fifield,  29  Me.   136. 

Maryland.  —  Folk  v.  Wilson,  21 
Md.  538,  83  Am.  Dec.  599. 

.}[assachusetts.  —  Vinal  z'.  Burrill, 
16  Pick.  401:  Cady  v.  Shepherd,  11 
Pick.  400;  Odiorne  v.  Maxcy,  15 
Mass.  39;  CoUett  v.  Smith,  143 
Mass.  473,  10  N.  E.  173;  Shaw  v. 
Stone,  I  Cush.  228;  Chapin  z'.  Cole- 
man, II  Pick.  330;  Nickerson  !'.  Rus- 
sell, 172  Mass.  584,  53  N.  E.  141. 

Micliigan.  —  Towle  Z'.  Dunham.  84 
Mich.  268,  47  N.  W.  683. 

AMinnesola.  —  Lindhjean  v.  Mueller, 
42  Minn.  307,  44  N.  W.  203;  Coleman 
Z'.  O'Neil,  26  Minn.  123,  i  N.  W. 
846. 

Mississippi.  —  Lea  v.  Guice,  13 
Smed.  &  M.  656. 

Missouri.  —  Dowzelot  t.  Rawlings, 
58  Mo.  75;  Cunningham  z\  Sublette,- 
4  Mo.  224 ;  Rainwater  v.  Burr,  55 
Mo.  App.  468:  Henslee  z'.  Cannefax, 
49   Mo.   295 ;    Cady   f.    Kyle.   47   Mo. 

346- 

AVii'  Hampshire.  —  Rich  v.  Flan- 
ders, 39  N.  H.  304 ;  Pierce  z\  Wood, 
23  N.  H.  519;  Tucker  v.  Pearlee, 
36  N.  H.  167 ;  Webster  v.  Stearns, 
44  N.  H.  498. 

Neze  Jersey.  —  Rucknian  v.  Decker, 
23  N.  J.  Eq.  283;  Dunnell  v.  Hender- 
.son,  23  N.  J.  Eq.  I74- 

Nezi.'  Me.vico.  —  First  Nat.  Bank  -'. 
Lesser,  9  N.  M.  604,  58  Pac.  345. 

Nczv  York.  —  Schroeder  v.  Frey,  37 
N.  Y.  St.  945,  14  N.  Y.  Supp.  71; 
Hotopp  V.  Huber,  16  App.  Div.  327, 
44  N.  Y.  Supp.  617;  Klock  V.  Beek- 
man,  18  Hun  502 ;  Randall  v.  Kne- 
vals,  27  .^pp.  Div.  146,  50  N.  Y.  Supp. 

748- 

Xiirtli     C  arohna.  —  Brown     Chem. 


Vol.  I 


ADMISSIONS. 


579 


(1.)  Must  Be  Acting  As  a  Partner. — But  to  render  such  adinissions 
competent  he  must  be  acting  as  a  partner  about  a  partnership  mat- 


Co.  V.  .Atkinson,  gi  N.  C.  389;  Hall 
t:  Younts,  87  N.  C.  285. 

Ohio.  —  McKee  v.  Hamilton,  S3 
Oliin  St.  - ;  Goodenow  v.  Duffield. 
Wright  4S6;  Benninger  v.  Hess,  41 
Ohio  St.  64. 

Tennessee.  —  Fisk  f.  Copclaiid.  i 
Tenn.  383. 

Te-vas.  —  Wills  Point  Bank  r. 
Bates,  72  Te.x.  137,  10  S.  W.  348; 
American  F.  Ins.  Co.  v.  Stuart  (Tex. 
Civ.  .■\pp.^,  38  S.  W.  39s:  Hunter  v. 
Hulibard.  26  Te.x.  537. 

Wisconsin.  —  Western  Assurance 
Co.  z:  Towle,  65  Wis.  247,  26  N.  W. 
104;  Fisk  V.  Tank,  2  Wis.  276,  78 
Am.  Dec.  737. 

To  Be  Admissible  Need  Not  Be 
Party  to  Suit.  —  In  Mnnson  z'.  Wick- 
wire.  21  Conn.  513.  evidence  of  the 
admissions  of  a  partner  was  objected 
to  on  the  ground  that  the  said  part- 
ner was  not  a  party  to  the  suit,  but 
it  was  held  that  this  did  not  affect 
the  competency  of  his  admissions,  the 
court  saying: 

"  But  we  think  that  the  question 
of  their  admissibility  is  not  varied 
by  the  circumstance  that  he  has  thus 
ceased  to  be  a  party.  The  rule  as  to 
the  admissions  of  partners  is  not 
confined  to  those  wdio  are  parties  to 
the  suit.  The  declarations  of  one 
partner  are  not  received  against 
another  because  he  is  a  joint  party 
in  the  suit,  but  on  the  ground  that 
their  unity  of  interest  constitutes 
them,  for  this  purpose,  virtually  one 
person.  Therefore,  the  admission  by 
one  partner  may  be  received  against 
another  though  he  be  not  served  with 
process  or  a  nolle  froscqiii  be  entered 
against  him." 

Sec  also  Cady  %'.  Kyle,  47  Mo. 
346:  Bovce  z:  Watson,  3  J.  J.  ^larsh. 
(Ky.)  498. 

Answer  in  Chancery  Competent. 
.\n  answer  in  chancery  of  one  of  the 
partners  is  admissible  as  in  case  of 
other  admissions.  Hutchins  r.  Child- 
ress, 4  Stew.  &  P.   (A!a.)   34. 

Letter  by  One  Partner  to  Another. 
In  Wills  Point  Rank  z\  Bates.  72 
Tex.   137.  10  S.  W.  348,  the  question 


was  as  to  the  admission  of  a  letter 
w-ritten  by  one  partner  to  another, 
and  in  passing  upon  the  admissibility 
of  such  letter  as  evidence,  the  court 
said : 

"  The  letter  was  an  adinission, 
made  by  one  member  of  the  firm, 
shown  to  have  been  present  at  the 
time  the  transaction  with  Gugenheim 
&  Co.  was  consummated,  tending  to 
show  what  its  real  nature  was,  and 
in  reference  to  which  either  partner 
could  be  compelled  to  testify.  Such 
declarations  or  admissions,  made  by 
one  partner  to  another,  have  never 
been  recognized  as  privileged  com- 
numications.  The  fact  of  partnership 
being  shown  to  have  existed  at  the 
time  the  letter  was  written,  and  at 
the  time  the  transaction  to  which  it 
referred  occurred,  the  writing  of  the 
letter  and  its  contents  might  be 
proved  bj'  any  person  having  knowl- 
edge of  those  facts.  The  fact  that 
Williams  testified  after  the  dissolu- 
tion of  the  partnership  does  not 
affect  the  admissibility  of  the  evi- 
dence, showing  an  admission  or 
declaration  made  by  one  member  of 
the    firm    prior    to    dissolution." 

The  Rule  Applies  to  Silent  Part- 
ners. —  Weed  z\  Kellogg.  6  McLean 
44,  29  Fed.  Cas.   No.   17,345. 

One  Cannot  Change  Contract  of 
Firm.  —  Moore  z\  Gano,  12  Ohio  300. 

To  Show  Claim  to  Be  a  Partner- 
ship Debt While  the  adntissions  of 

an  alleged  partner  cannot  be  heard 
to  establish  the  partnership,  they  are 
competent  to  show  that  the  claiiu 
sued  on  is  a  partnership  debt.  Lea 
z:  Guice.  13  Smed.  &  M.  (Mass.) 
656 ;  Garrett  z\  Woodward,  2  Cranch 
C.  C.  190,  10  Fed.  Cas.  No.  5253; 
Phillips  z\  Purington,  15  ^le.  425; 
Dodds   z'.   Rogers,  68  Ind.    no. 

But  it  has  been  held  directly  to  the 
contrary.  Ostrom  z\  Jacobs,  9 
Mete.  (Mass.)  454:  At  wood  z\ 
Brooks  (Tex.  Civ.  .\pp.).  16  S.  W. 
S'3=; ;  Cooper  r.  Wood,  i  Colo.  .\pp. 
loi.  27  Pac.  884. 

Must   Be   Against   Interest The 

admission   to  be  admissible  must   be 

Vol.  I 


?8() 


ADMISSIONS. 


lev,"  or  the  admission  must  be  made  in  relation  to  matters  within 
the  scope  of  the  partnership."- 

(2.)  By  Partner  Since  Deceased.  —  The  declarations  of  an  allejjed 
partner  since  deceased,  made  against  his  interests  and  goin^  to  the 
question  of  the  existence  of  the  partnership,  are  competent.""'  They 
have  been  held  competent  also,  to  show  that  the  claim  was  a  part- 
nership debt."* 

b.  Made  After  Dissolution  Iiiadiiiissiblc.  —  The  general  rule. 
established  by  the  weight  of  authority,  is  that  the  power  of  a  partner 
to  make  admissions  binding  upon  the  firm,  ceases  upon  the  disso- 
lution of  the  partnership."^ 


Johnson, 
CluircU 
8s 


283. 
Palmer 


against  the  interest  of  the  partner 
making  it  and  will  not  be  received 
when  in  his  own  favor  bnt  against 
the  interest  of  his  co-partner.  Lewis 
V.  Allen,  17  Ga.  300;  Edgell  j'.  Mac- 
queen,  8  Mo.  App.  71. 

61.  Illinois.  —  Hahn  z:  St.  Clair, 
S.   &   I.   Co.,  50  111.  456. 

Indiana.  —  Boor  v.  Lowrey,  103 
Ind.  468,  3  N.  E.  151;  Hickman  z'. 
Reincking,  6  Blackf.  387. 

Kentucky.  —  Stockton    i 
6  B.  Mon.  408. 

Massachusclts.  —  Taft 
162  Mass.  527,  39  N.  E. 

Michigan.  —  Welch   v. 
Mich.  310,  48  N.  W.  552. 

Minnesota.  —  Slipp  r.  Hartley 
(Minn.),  52   N.   W.  386. 

Ncrmda.  —  Jones  r.  O'Farrell,  i 
Nev.  354. 

Neiv  York.  —  Thorn  ;'.  Smith.  21 
Wend.  365,  13  N.  Y.  Com,  L.  1122; 
Elliott  V.  Dudley,  19  Barb.  326: 
Union  Nat.  Bank  f.  Underbill.  102 
N.  Y.  336,  7  N.  E.  293. 

U'yoiniug.  —  Hester  ;■.  Smith.  5 
Wyo.  291.  40  Pac.  310. 

That  His  Own  Debt  Was  a  Debt 
of  the  Firm.  —  A  partner  cannot  by 
his  admissions,  render  his  co-partner 
liable  for  his  individual  debt.  Elliot 
V.  Dudley,  19  Barb.  (N.  Y.)  326; 
White  V.  Gibson,   11    Ired.   Law   (N. 

C.)  283. 
Admission        After       Transaction. 

In  White  i'.  Gibson,  II  Ired.  Law 
(N.  C.)  283,  it  is  held  that  the  dec- 
laration of  a  partner,  after  the  pur- 
chase of  an  article,  that  he  had  pur- 
chased it  for  and  on  account  of  the 
firm  is  not  sufficient  to  make  bis  co- 
partners liable. 

62.  Slipp  r.    Hartley    (Minn.').  52 

Vol.  I 


N.  W.  386;  Low  r.  Arnstein,  73  111 
.\pp.   215. 

63.  Humes  r.  O'Bryan.  74  Ala. 
64. 

64.  Dodds  V.  Rogers,  68  Ind.  1 10. 
Story  Partn.  §§  323,  324. 

65.  England. — Henderson  v.  Wild. 
2  Camp.  561. 

United  States.  —  Bispham  t.  Pat- 
terson, 2  McLean  87,  3  Fed.  Cas.  No. 
1441  ;  Thompson  v.  Bowman,  6  Wall. 

California.  —  Brums  t.  .McKenzie, 
23  Cal.  lOi. 

Colorado.  —  Cooper  v.  Wood.  I 
Colo.  App.   loi,  27   Pac.  884. 

Illinois.  —  Winslow  v.  Newlan,  45 
111.  145;  Miller  v.  Neimerick.  19  111. 
171. 

Indiana.  —  Yandes  i'.  Lefavour,  2 
i'dackf.  371  ;  Boor  i'.  Lowrv.  103  Ind. 
4(«,  3  N.  E.  151. 

Kentucky.  —  Benlley  -'.  White,  3  B. 
Mon.  263,  38  .\m.  Dec.  186;  Craig  r. 
.\lverson,  6  J.  J.  Marsh.  609;  Daniel 
7'.  Nelson,  10  B.  Mon.  316:  Hamilton 
;■.  Summers,  12  B.  Mon.  II. 

Louisiana.  —  Johnson  v.  Marsh,  2 
La.  Ann.  772;  Concry  z'.  Hayes,  19 
La.  Ann.  325:  White  z'.  Kearney, 
9  Rob.  495;  Dupre  z:  Richard,  11 
Rob.  497;  Lachomette  f.  Thomas,  5 
Rob.  172;  Lambeth  z'.  Vawter,  6  Rob. 
127;   Clarke  7'.  Jones,   i   Rob.  78. 

.1/i7/;ir. —  Foster  f.   Fifield,  29   Me. 

.Maryland.  —  Newman  v.  McComas. 
43  Md.  70 ;  Ward  v.  Howell,  5  Har. 
&  J.  60;  Owings  z:  Low,  5  Gill.  &  J. 

l.?4- 

Massachusetts. — Ostrom  z:  Jacobs, 
9   Mete.  454. 

Minnesota.  —  First  Nat.  Rank  z\ 
Strait,  65  Minn.   162,  67  N.  W.  987; 


ADMISSIONS. 


581 


(1.)   Contrary    Rule    Declared.  —  JJut  it  seems  to  have  been  the  rule 
in  lingland,  adopted  in  some  of  the  states  in  this  country,  that  the 


Xal.  Bank  z:   Meadcr.  40  Minn.  ^2^, 
41    N.   W.    1043. 

Missouri.  —  Popt  v.  Risley,  23  Mo. 
185;  Brady  z:  Hill,  i  Mo.  315;  Amer- 
ican Iron  Co.  z:  Evans,  27  Mo.  552. 
A'«i'  York. — Baker  v.  Stackpoole,  9 
Cow.  420,  18  Am.  Dec.  508;  Gleason 
I'.  Clark,  9  Cow.  57,  9  N.  Y.  Com.  L. 
565 ;  Hackley  v.  Patrick,  3  Johns. 
536,  3  N.  Y.  Com.  L.  695 ;  Walden  v. 
Sherburne,  15  Johns.  409,  5  N.  Y. 
Com.  L.  1 1 39;  Brisban  v.  Boyd,  4 
Paige  Ch.  17,  3  N.  Y.  Com.  L.  322; 
Xichols  ■;■.  White,  85  N.  Y.  531 ;  Wil- 
liams I'.  Manning,  41  How.  Pr.  454; 
Hopkins  Z'.  Banks,  7  Cow.  65b,  9  N. 
Y.  Com.  L.  252;  Graham  z:  Selover, 
59  Barb.  313. 

Pennsylvania.  —  Mair  v.  Beck 
(  Pa.),  2  Atl.  218;  Hogg  V.  Orgill,  34 
J'a.  St.  344;  Levy  v.  Cadet,  17  Serg. 
&   R.   126,   17   Am.   Dec.  650. 

Tc.vas.  —  Cohen  v.  Adams,  13  Te.\. 
Civ.  App.  118,  35  S.  W.  303. 

Powers  Cease  With  Dissolution. 
in  Miller  z'.  Neimerick,  19  111.  171,  a 
leading  case  on  the  subject,  the  court 
said ; 

"  The  question  is  broadly  presented 
whether  admissions  of  one  partner 
made  after  the  dissolution  of  the  part- 
nership, relating  to  partnership  tran- 
sactions arising  prior  to  the  dissolu- 
tion, are  admissible  to  charge  the  sev- 
eral members  of  the  dissolved  firm. 
In  the  case  of  Wood  v.  Braddick,  x 
Taunton  R.  104,  such  admissions  were 
held  competent  to  charge  all  the 
members  of  the  firm,  and  that  ruling 
seems  to  have  been  followed  in 
England  until  finally  avoided  by  act 
iif  Parliament.  The  same  rule  has 
been  recognized  in  several  states  of 
this  union,  but  in  many  of  them  the 
opposite  doctrine  prevails. 

"  In  view  of  the  conflict  of  au- 
thority upon  the  question,  we  are  at 
liberty  to  adopt  such  rule  as  is  most 
consonant  with  the  reason  and 
analogies  of  the  law,  and  best 
adapted  to  the  security  of  private 
rights.  It  is  true,  that  during  the 
existence  of  the  partnership,  each 
partner  may  act  for  the  whole,  upon 
the   ground    that    all    have   delegated 


to  each,  authority  to  act  for  them  in 
matters  of  joint  concern ;  but  this 
plenary  power  of  the  several  mem- 
bers of  the  partnership  continues  no 
longer  than  the  partnership  out  of 
which  it  arises.  Therefore,  when 
the  partnership  has  terminated,  the 
several  partners  lose  their  authority 
to  act  for  the  whole,  and  can  no 
longer  bind  them  by  any  underlakmg 
hi  the  partnership  name ;  and  their 
powers  become  limited  to  the  adjust- 
ment of  the  partnership  affairs  and 
the  winding  up  of  the  partnership. 
For  such  purposes  each  may  receive 
and  release  debts  due  the  partner- 
ship, and  apply  the  assets  to  the 
liquidation  of  the  firm  debts — the 
pre-e.xisting  rights  of  their  persons 
remaining  unaffected  by  the  disso- 
lution— but  the  power  to  bind  the 
several  members  of  the  dissolved 
firm,  by  the  creation  of  new  liabilities 
and  obligations,  falls  with  the  part- 
nership." 

Admissions  After  Dissolution. 
In  Cooper  z\  Wood,  I  Colo.  App.  loi, 
27  Pac.  884,  the  authorities  on  the 
subject  are  cited  and  reviewed.  In 
that  case  the  court  said :  "  Another 
important  question,  which,  as  far  as 
i  can  ascertain,  has  not  been  de- 
termined in  this  court  is  presented 
in  this  case,  viz.,  whether,  under 
any  circumstances  after  the  disso- 
lution of  the  partnership,  the  admis- 
sions or  acknowledgments  of  a  for- 
mer partner  are  admissible  to  estab- 
lish a  cause  of  action  against  a  for- 
mer partner.  In  England,  the  rule 
for  years  was  well  settled  that  such 
admissions  are  competent,  not  only 
to  take  the  case  out  of  the  statute 
of  limitations,  but  to  establish  or 
create  a  firm  indebtedness.  It  was 
based  upon  the  opinion  of  Lord 
Mansfield   in   Whitcomb   z'.   Whiting, 

2  Dong.  652,  and  what  Judge  Story 
(Story  Partn.  323)  did  not  hesitate 
to  call  an  unreasoned  decision.  The 
case  has  been  severely  criticised  in 
the  English  courts.  See  opinion  of 
Lord  Kenyon  in  Clarke  v.  Bradshaw, 

3  Esp.  15s;  of  Lord  EUenborough 
in   Brandram  v.   Warton,    i   Barn.  & 

Vol.  I 


582 


IPMISSIONS. 


power  of  one  partner  to  bind  another  by  his  admissions  does  not, 
with  respect  to  past  transactions  or  liability  growing  out  of  such 
transactions,  cease  with  the  dissolution  of  the  partnership,  but  that 
admissions,  made  thereafter,  are  competent."" 


Aid.  463 ;  and  Lord  Tenterdeii  in 
Atkins  V.  Tredgold,  2  Barn.  &  C.  23 ; 
and  the  doctrine  has  been  limited  and 
partially  overtnrned  by  late  acts  of 
Parliament.  In  the  United  States. 
considerable  diversity  of  opinion  is 
expressed  in  the  dififerent  courts, 
some  few  states  adhering  to  and  fol- 
lowing the  old  English  decisions ; 
but  in  federal  courts  the  English  doc- 
trine has  been  overruled,  and  the  ad- 
mission held  inadmissible,  first  in  the 
case  of  Clementson  v.  Williams,  8 
Cranch  72,  followed  by  Judge  Story 
in  Bell  v.  Morrison,  1  Pet.  373.  In 
Bispham  v.  Patterson,  2  McLean  87, 
the  learned  judge,  after  reviewing  the 
authorities,  expressed  his  conviction 
in  favor  of  the  English  rule  but 
yielded  to  American  precedents,  and 
decided  the  case  in  harmony  with 
them.  The  American  rule,  overruling 
early  English  decisions,  has  since 
been  followed  in  those  courts.  See 
Thompson  i'.  Bowman,  6  Wall.  316. 
In  a  great  majority  of  state  courts 
the  English  doctrine  has  been  over- 
ruled :  first  in  the  state  of  New  York, 
and  followed  by  at  least  twenty  other 
state  courts.  In  New  York  the 
English  rule  was  repudiated  as  early 
as  Walden  v.  Sherburne,  15  Johns. 
409,  which  has  since  been  followed 
in  Van  Keuren  v.  Parmelee,  2  N.  Y. 
523,  in  which  the  decisions  of  the 
different  states  are  carefully  and  ably 
reviewed  in  the  court  of  appeals,  re- 
sulting again  in  overruling  the  En- 
glish doctrine.  The  principal  au- 
thorities on  the  subject  will  be  found 
collected  in  3  Kent  Com.  49-51. 
The  power  of  an  individual  partner 
to  bind  the  firm  during  its  existence 
arises  only  from  the  fact  that  each 
is  the  agent  of  the  firm,  and,  it  seems 
difficult  upon  principle  to  perceive 
how  they  can  be  any  more  than  the 
declarations  or  acts  or  acknowledg- 
ments of  any  other  agent  of  the  part- 
nership would  be  after  his  agency 
has  ceased.  Story,  Partn.  323,  and 
see   Ellicott    j'.    Nichols.   7   Gill.   85 ; 

Vol.  I 


Thompson  ;■.  Bowman,  6  Wall.  316. 
Tliere  is  certainly  great  authority,  as 
well  as  reason  for  adopting  the 
American    rule." 

Rule  the  Same  as  in  Case  of  Other 

Agents In    Boor    '■.    Lowrey,     103 

Ind.  468,  3  N.  E.  151,  it  is  held  that 
neither  the  adn>issions  nor  declar- 
ations of  a  partner  made  after  the 
event  to  which  they  refer  has  trans- 
pired, can  properly  be  received  in 
evidence  to  bind  the  other,  unless  so 
immediately  connected  with  the  event 
as  to  become  a  part  of  the  res  gestae, 
and  that  in  this  respect  declarations 
of  a  partner  made  in  the  absence  of 
the  other  partners  stand  upon  the 
same  footing  with  the  declarations 
of  other  agents. 

Except  to  Take  Debt  Out  of  Stat- 
ute of  Limitations In  Hopkuis  v. 

Banks,  7  Cow.  (N.  Y.)  650,  it  is 
held  that  admissions  made  after  dis- 
solution are  not  binding  except  to 
avoid  the  statute  of  limitations.  See 
also  Ward  v.  Howell,  5'  Har.  &  J. 
(Md.)  60;  Shelton  v.  Cocke,  3  Munf. 
(Va.)  191;  Tappan  v.  Kimball,  30 
N.  H.  136;  Warner  v.  Allee,  i  Del. 
Ch.  49. 

66.  United  Stales.  —  Bell  v.  Mor- 
rison,   I    Pet.   351. 

Alabama.  —  Cochran  v.  Cunning- 
ham, 16  Ala.  (N.  S.)  448;  Barringer 
V.   Sneed,  3   Stew.  201,  20  Am.   Dec. 

74. 

Illinois.  — W'M     V.     Allen,     13     111. 

592- 

Indiana.  —  Kirk    r.    Hiatt.    2    Ind. 

Maine.  —  Darling  v.  Leonard,  22 
Me.  T84;  Parker  v.  Merrill,  6  Greenl. 

41- 

Massaelntsetls.  —  Vinal  v.  Burrill, 
16  Pick.  401;  Cady  v.  Shepherd,  II 
Pick.  400,  22  Am.  Dec.  379 :  Harding 
V.  Butler,  156  Mass.  34.  3°  ^'-  E.  168; 
Bridge  v.  Gray,  14  Pick.  55,  25  Am. 
Dec.  35;  Ide  r.  Ingraham,  5  Gray 
106. 

Miehigan.  —  Pennoyer  :■.  David,  8 
Mich.  407. 


-i/wnssioxs. 


583 


(A.)  Admissible  Against  the  Party  Making  It.  —  The  admission  is 
competent  as  asjainst  the  party  making  it.  and  is  properly  admitted, 
although  not  binding,  upon  the  firm  or  other  partners."' 

(B.)  Must  Relate  to  Past  Business.  —  Admissions  made  after  dis- 
solution, if  admissible  at  all,  must  relate  to  business  done  by  the  firm 
previous  to  such  dissolution."'' 

(2.)  Where  Partner  Made  Agent  to  Close  Up  the  Business.  —  If  one 
partner  is  authorized  by  the  other  to  close  up  the  business  after 
the  dissolution,  he  is  then  made  the  agent  of  the  firm  for  that  pur- 
pose, and  his  admissions  in  furtherance  of  his  agency  are  admissible 
against  the  other  partner. °'' 

(3.)  Where  Has  Assigned  to  Co-Partner. —  If  one  partner  has.  after 
dissolution,  assigned  his  interest  to  the  other,  his  admissions  after 
such  assignment  are  not  admissible  against  the  assignee.'"  But  the 
rule  does  not  apply  where  he  still  retains  an  interest  in  the  business.'^ 

(4.)  Not  to  Create  New  Obligation.  —  The  authority  of  a  partner 
after  dissolution,  will  make  binding  only  such  admissions  as  relate 
to  the  closing  up  of  the  partnership  business,  and  they  cannot  be 
heard  to  create  new  or  extend  or  increase  the  old  liabilities. '- 


Mississifl^i.  —  Currj'  v.  Kurtz,  ^^ 
Miss.  24. 

Neic  Hampshire.  —  Mann  v.  Locke. 
II  N.  H.  246. 

Nexi.<  Jersey.  —  Casebolt  z:  Acker- 
man.  46  N.  J.  Law  169. 

Ohio.  —  Myers  z\  Standart,  11  Ohio 
St.   29. 

Penitsvlvaiiia.  —  Houser  i'.  Irvine. 
3   Watts  &   S.   345- 

South  Carolina.  —  Fripp  v.  Birnie, 
14  S.  C.  502;  Simpson  r.  Geddes,  2 
Bay  533;  Beckham  v.  Peay,  I  Bailey 
121. 

Texas.  —  Nalle  r.  Gales,  20  Te.\. 
315- 

■Vermont. — Woodworth  v.  Downer, 
13  Vt.  522;  Wheelock  v.  Doolittle.  18 
Vt.  440;  Loomis  V.  Loomis,  26  Vt. 
198. 

Admission  After  Dissolution  of 
Partnership.  _  In  Vinal  v.  Burrill. 
16  Pick.  (Mass.)  401,  the  court  said: 
"  The  confessions  of  one  partner 
after  the  dissoUition  of  the  partner- 
ship in  relation  to  the  concerns  of  the 
partnership  are  competent,  though 
not  conclusive  evidence  against  a 
co-partner,  the  joint  contract  being 
proved  aliunde.  This  rule  does  not 
enable  a  partner,  after  the  dissolu- 
tion, to  create  a  new  debt  or  obli- 
gation. In  regard  to  all  contracts 
made  before  the  dissolution,  the  joint 


liability  continues  after  the  disso- 
lution." 

Distinguished       From       Ordinary 

Joint     Contract In     this     respect. 

partnership  contracts  are  distin- 
guished from  joint  ordinary  con- 
tracts.    Hitt  V.  Allen.  13  111.  592. 

Cannot  Create  New  Obligation. 
A  distinction  is  made  between  an 
admission  as  to  an  existing  obligalion 
and  an  acknowledgment  that  will 
create  a  new  liability.  Kirk  v.  Hiatt. 
2  Ind.  322 ;  Lansing  v.  Gaine,  2  Johns. 
(N.  Y.)  300,  3  Am.  Dec.  422;  EUi- 
cott  V.   Nichols,  7  Gill   (Md.)   85. 

67.  Boynton  7'.  Hardin.  9  Kan. 
App.  166.  58  Pac.  1007 ;  Creath  v. 
Distilling   Co..   70   Mo.   App.   296. 

68.  Taylor  v.  Hillyer,  3  Blackf. 
(Ind.)    433,  26  Am.   Dec.  430. 

69.  Reppert  v.  Colvin,  48  Pa.  St. 
248 ;  Ide  -'.  Ingraham,  5  Gray 
(Mass.)  106;  Hogg  V.  Orgill,  34  Pa. 
St.  344- 

70.  Gillighan  v.  Tebbetts,  a  Me. 
360. 

71.  Foster  v.  Fifield,  29  Me.   136. 

72.  United  States.  —  Bell  v.  Mor- 
rison.  I    Pet.  351. 

Alabama.  —  Wilson  z'.  Torbert.  3 
Stew.  296. 

California.  —  Curry  v.  White,  51 
Cal.  530. 

Kentucky.  —  Merritt    v.    Pollys,    16 

Vol.  I 


584 


ADMISSIONS. 


c.  F'artiicrs/iip  Must  Be  Proved.  —  As  the  competency  of  admis- 
sions of  one  person  as  against  another  depends,  in  this  case,  upon 
the  fact  of  the  existence  of  the  partnership,  the  fact  of  partnership 
hetween  the  two  parties  mnst  be  first  shown  to  render  the  evidence 
admissible. "■■■ 

(1.)  Cannot  Be  Proved  by  Admissions  of  One  Alleged  Partner.  —  .And 
the  rule  is  that  the  fact  of  partnership  cannot  as  against  another  be 
proved  by  the  declarations  of  the  alleged  partner,  but  must  be 
established  by  other  evidence.'""  nor  can  the  fact  that  a  party  was  a 


B.  Mon.  355;  Wagnon  z:  Clay,  i  A. 
K.  Marsh.  257. 

Michigan.  —  Pcniioycr  v.  David,  8 
Mich.  407. 

Missouii.  —  Flowers  i'.  Hehn,  29 
Mo.  324. 

Pennsylvania.  —  Shoneman  v.  Feg- 
lev.  7  Pa.  St.  433 ;  Levy  v.  Cadet,  17 
Serg.  &  R.   126. 

South  Carolina.  —  Chardon  v.  Oli- 
phant.  3  Brev.   183,  6  .\m.   Dec.  572. 

To  Take  Debt  Out  of  Statute  of 
Limitations.  —  It  is  held  that  the  ac- 
knowledgment of  a  partnership  debt 
by  one  of  the  partners,  after  disso- 
lution and  after  the  statute  has  run. 
is  competent  to  take  the  debt  out  of 
the  statute  of  limitations  as  to  all 
of  the  members  of  the  firm. 

Connecticut.  —  .Austin  v.  Bostwick, 
9  Conn.  496,  25  Am.  Dec.  42;  Beards- 
ley  V.  Hall,  36  Conn.  270;  Bissell  v. 
Adams,  35  Conn.  299. 

Maine.  —  Greenleaf  v.  Quincy,  12 
Me.  II,  28  Am.  Dec.  145. 

Massachusetts.  —  Harding  t:  But- 
ler, 156  Mass.  34,  ,^0  N.  E.  168 :  Bux- 
ton V.  Edwards,  134  Mass.  567 ;  Sage 
V.   Ensign,  2  Allen  245. 

Missouri. — McClurg  v.  Howard,  45 
Mo.  365,   100  .^m.  Dec.  378. 

New  Jersey.  —  Casebolt  v.  Acker- 
man,  46  N.  J.  Law  169;  Merritt  v. 
Day,  38  N.  J.  Law  32. 

Nezi.'  York.  —  Patterson  r.  Choate, 
7  Wend.  441,  II  N.  Y.  Com.  L.  190. 

J'ernwnt.  —  Wheelock  r.  Doolittle, 
18  Vt.  440,  46  Am.  Dec.  163. 

Rut  see  to  the  contrary,  Reppert 
-'.  Colvin,  48  Pa.  St.  248;  Levy  '.: 
Cadet.  17  Serg.  &  R.  CPa.)  126.  17 
.'\m.  Dec.  650 :  Pennoyer  v.  David,  8 
Mich.  407:  Graham  v.  Selover,  59 
Barb.  (N.  Y.)  313;  Chardon  v.  Oli- 
nhant,  3  Brev.  (S.  C.)  183,  6  Am. 
Dec.    572 ;    Hathaway   i'.    Haskins,   0 

Vol.  I 


Pick.  (Mass.)  42;  Van  Keuren  v. 
Parmelee,  2  N.  Y.  523,  51  Am.  Dec. 
122. 

73.  .4rlcansas.  —  Campbell  v.  Has- 
tings   Britton   Co.,   29   Ark.   512. 

Georgia.  —  McCutchin  i'.  Bankston. 
2  Ga.  244;  Boswell  v.  Blackman,  12 
Ga.  591. 

Illinois.  —  Bartlett  f.  Wilcox,  68 
111.   .-Vpp.   142. 

liiwa.  —  Holmes  z\  Budd,  11  Iowa 
186. 

Maine.  —  Jennings  j'.  Estes,  16 
Me.  323. 

Massacliusctts.  —  .\lcott  ;■.  Strong, 
9  Cush.  323. 

.Maryland.  —  Atwell  v.  Miller,  II 
Md.  348,  69  Am.  Dec.  206. 

^^ssouri.  —  Rimel  v.  Hayes,  83 
Mo.  200;  Bank  of  Osceola  v.  Onth- 
waite,  50  Mo.  .A.pp.   124. 

Xcbraslia.  —  McCann  z\  McDonald, 
7   Neb.  305. 

Neiu  Jersey.  —  Faulkner  z\  Whit- 
aker,  15  N.  J.  Law  438;  Flanagin  j'. 
Champion,  2  N.  J.  Eq.  51. 

North  Carolina.  —  McFadyen  v. 
Harrington.  67  N.  C.  29. 

Pennsylvania.  —  Slavmaker  v.  Gun- 
dackcr.   lO   Serg.   &   R.   7$. 

Of  Subsequent  Ratification  of  Acts. 
.\  showing  of  subsequent  ratification 
of  acts  done  as  a  partner  may  let  in 
the  admissions,  nrumriglit  z\  Phil- 
pot.   16  (".a,  424.  60  .\m.   Doc.   73S. 

Prima  Facie  Showing  Sufficient. 
Dennis  v.  Kohm,  r3i  Cal.  gi,  63  Pac. 
141. 

74.  Alabama.  — C\ark  r.  Taylor. 
68  .\la.  453;  Cross  z'.  Langley,  50 
.Ma.  8. 

Arkansas.  —  Campbell  z\  Hastings. 
Britton  Co.,  29  .'\rk.  512;  Berry  v. 
Lathrop,  24  Ark.   12. 

Georgia.  —  Thompson  z\  Mallory, 
108  Ga.  797.  3^  S.  E.  9S6. 


inMfssinxs. 


585 


member  of  a  co-partnership  be  proved  by  the  admissions  of  members 
of  the  firm  to  that  effect."^  nor  can  one's  admissions  be  proved  by 
the  other  alleged  partner  to  disprove  the  partnershi]}.'" 

(A.)  Admissible  Against  Party  Makinc.  It.  —  T'lit  such  an  admis- 
sion is  competent  to  prove  the  partnership,  as  against  the  party 
making  it." 


Illinois.  —  Hurd  v.  Haggerty,  24  111. 
172;  Couley  V.  Jennings,  22  111.  App. 
547;  Hahn  i'.  St.  Clair  S.  &  I.  Co.. 
50  lit.  456. 

Indiana. — King  t'.  Barbour.  70  Ind. 
35;  Pierce  r.  McConnell.  7  P.lackt. 
170. 

Massachusetts.  —  Alcott  v.  Strong, 
9  Cush.  323;  Dutton  v.  Woodman,  9 
Ciisli.  255,  57  .\m.  Dec.  46;  Tuttle 
r.  Cooper,  5  Pick.  414;  Smith  v.  Col- 
lins, 115  Mass.  388;  Winchester  v. 
Whitney,  138  Mass.  549. 

Missouri.  —  Rimel  t>.  Hayes,  83 
Mn.  200:  Bank  of  Osceola  z'.  Outh- 
waite,  50  Mo.  App.  124. 

New  Jersey.  —  Faulkner  t'.  Whit- 
aker,  15  N.  J.  Law  438. 

AVti'  Hainl'shirc.  —  Grafton  P.auk 
r.  Moore,  13  N.  H.  99,  38  Am.  Dec. 
478. 

New  York.  —  Whitney  f.  Ferris,  10 
Johns.  66;  Kirby  i'.  Hewitt,  26  Barb. 
607. 

North  Dakota.  — Cs.Tsoi\  v.  Gillett 
(X.  D.),  so  N.  W.  710. 

Ohio.  —  Cowan  v.  Kinney,  a  Ohio 
St.  422. 

Pennsylvania.  —  Porter  v.  Wilson, 
13  Pa.  St.  641  ;  Edwards  %■.  Tracy,  62 
Pa.   St.  374- 

South  Carolina.  —  McCorkle  v. 
Doby,  I  Strob.  Law  396,  47  Am.  Dec. 
560. 

Admissions  by  Alleged  Partner. 
In  Faulkner  r.  Whittaker,  15  N.  J. 
Law  438.  it  was  said  in  a  case  in- 
volving the  right  to  prove  the  dec- 
larations of  an  alleged  partner: 
■■  That  one  man  cannot  be  bound  by 
the  admissions  or  declarations  of 
another,  unless  such  a  relation  is 
previously,  and  by  other  evidence, 
proved  to  exist  between  them,  as 
will  enable  the  one  to  involve  the 
other  in  liabilities,  is  a  position,  so 
plain  upon  reason  and  principle,  as  to 
require  no  arguments  or  authorities 
to  sustain  it.     If  the  latter  is  desired, 


they  may  be  found  collected  or  re- 
ferred to.  in  2  Sand,  on  PI.  and 
Evid.  258,  top  page,  709,  marg.  and  in 
5  Law  Lib.  Cary  on  Partnership.  136 
and  see],  and  see  Ballinger  t.  Sher- 
ron.  2  Green's  R.  144  and  cases  there 

75.'  Carson  r.  Gillitt,  (N.  D.,)  50 
N.  W.  710. 

76,  Clark  J'.  Huflfaker,  26  Mo.  264: 
Champlin  z:  Tilley,  3  Day  303,  ^  Fed. 
Cas.  No.  2586. 

To  Prove  Another  Not  a  Partner. 
But  see  Danforth  !■.  Carter,  4  Clarke 
( Iowa )  230,  in  which  it  is  held  that 
the  declarations  of  members  of  a 
firm  may  be  heard  to  show  that 
another  person  was  not  a  partner 
with  them. 

77.  .Alabama. — Central  R.  etc.  Co. 
z\  Smith,  76  Ala.  572. 

Illinois.  —  Couley  z\  Jennings,  22 
111.  .-^pp.  547;  Rogers  ?■.  Suttle,  19 
III.  App.  163. 

Indiana.  —  Bennett  z\  Holmes.  32 
Ind.  108;  Pierce  z\  McConnell,  7 
Blackf.  170. 

Ioz>.v.  —  Holmes  v.  Budd,  11  Iowa 
186. 

.Maine.  —  Jennings  z:  Estes,  16  Me. 
.^23. 

Massacliuselts.  —  Smith  z'.  Collins, 
115   Mass.  388. 

Neze  Hainl'shirc.  —  Grafton  Bank 
z'.  Moore,  13  N.  H.  99,  38  Am.  Dec. 
478. 

A'cti'  J  ork.  —  Kirby  i'.  Hewitt,  26 
Barb.  607. 

Ohio.  —  Cowan  z\  Kinnev,  ^3  Ohio 
St.  422. 

Pennsylvania.  —  Edwards  v.  Tracy, 
62  Pa.  St.  374;  Reed  z'.  Kremer,  III 
Pa.  St.  482 ;  Lenhart  v.  Allen,  32  Pa. 
St.  312;  Bowers  r.  Still,  49  Pa.  St. 
65;  Painter  v.  Austin,  37  Pa.  St.  458; 
Taylor  i'.  Henderson,  17  Serg.  &  R. 
453;  Crossgrove  z:  Himmelrich.  54 
Pa.  St.  203;  Haujhey  v.  Stickler,  2 
Watts  &  S.  411  ;  Johnston  z\  Warden, 
3  Watts  loi. 

Vol.  I 


586 


ADMISSIOXS. 


(2.)  Question  of  Partnership  One  for  the  Court. —  If  the  admissibility 
of  ail  offered  admission  depends  upon  the  (piestion  of  i)artnership, 
the  latter  is  a  question  for  the  court. '- 

E.  Principai,  and  Surktv.  —  a.  Of  Principal  Against  Surety. 
The  admissions  of  the  principal  made  in  connection  with  and  relating 
to  the  matter  of  suretyship,  are  competent  to  establish  his  liability 
and  thus,  incidentally,  the  liability  of  his  surety."" 


South  Carolina.  —  McCorkle  v. 
Doby,  I  Strob.  Law  396,  47  Am.  Dec. 
560. 

IVyoming.  —  Carr  7'.  Wrigbt.  i 
Wyo.  157. 

78.  Dennis  i'.  Kohni,  131  Cal.  91, 
63  Pac.  141  ;  Hilton  v.  McDowell,  87 
N.  C.  364. 

Question  of  Partnership  One  for 
Court. —  In  Harris  v.  Wilson,  7 
Wend.  (N.  Y.)  57,  it  is  said:  "The 
defendant  contended  that  whether  he 
was  then  a  partner  or  not  was  a  fact 
for  the  jury.  This  would  have  been 
so  if  the  fact  had  been  in  issue  on 
the  merits  of  this  case,  but  it  was 
not.  It  was  incidentally  raised  in 
relation  to  the  question  about  admit- 
ting or  rejecting  evidence.  Tlie  evi- 
dence offered  was  as  the  judge  con- 
ceived admissible,  if  the  plaintiff  was 
a  partner  in  1820;  otherwise,  not;  he 
was  therefore  obliged,  in  order  to  de- 
termine the  question  of  the  admissi- 
bility of  the  evidence,  to  pass  on  the 
fact  of  the  plaintiff's  being  a  partner 
at  that  time." 

Decision  Conclusive There  is  no 

appeal  from  the  decision  of  the  court 
as  to  the  sufficiency  of  the  evidence 
of  partnership  to  admit  the  declara- 
tions. Hilton  V.  McDowell,  87  N.  C. 
364- 

79.  England.  —  Middleton  i:  Mel- 
ton, 10  Barn.  &  C.  317,  21  Eng.  C.  L. 
84. 

United  Stairs.  —  Ingle  i'.  Collard, 
I  Cranch  C.  C.  134,  13  Fed.  Cas.  No. 
7042. 

Alabama.  —  Bondurant  v.  State 
Bank,  7  Ala.  (N.  S.)  830;  Walker  v. 
Forbes,  25  Ala.  139;  Casky  v.  Havi- 
land,  13  Ala.  314;  Dumas  v.  Patter- 
son, 9  Ala.  (N.  S.)  484;  Walling  v. 
Morgan  Co.,  126  Ala.  326,  28  So.  433. 

Arkansas.  —  State  v.  Newton,  3; 
Ark.  276. 

California.  —  Placer  Co.  ?■.  Dicker- 
son.  45  Cal.  12. 

Vol.  I 


Georgia.  —  Dobbs  i'.  The  Justices, 
17  Ga.  624;  Stephens  t.  Crawford,  I 
Ga.  574,  44  Am.  Dec.  680. 

Illinois.  —  Guarantee  Co.  v.  Mutual 
B.  &  L.  Ass'n,.  57  111.  .\pp.  254; 
Schureinan  i'.  People.  55  III.  .\pp. 
629;   Magner  f.  Knowles.  67  111.  325. 

Indiana.  —  Parker  v.  State.  8 
Blackf.  292. 

Kentucky. — .'Vmbcrst  Bank  v.  Root, 
2  Mete.  522. 

Maryland.  —  McShane  z'.  Howard 
Bank,  73  Md.  135.  20  Atl.  776. 

Massachusetts.  —  Williamsburg 
City  F.  Ins.  Co.  v.  Frothingham.  122 
Mass.  39;  McKim  ?■.  Blake,  139  Mass. 
593 ;  Sigourney  v.  Drury,  14  Pick. 
387 ;  Singer  Mfg.  Co.  v.  Revnolds, 
168   Mass.   588,   47    N.   E.   438' 

Minnesota.  —  Whitaker  v.  Rice,  9 
Minn.  13;  Hall  v.  U.  S.  F.  &  G.  Co., 
77  Minn.  24.  79  N.  W.  590. 

Mississif'I'i.  —  Montgomery  v.  Dil- 
linghain,  3  Smcd.  &  M.,  647 ;  State  v. 
Stewart,  36  Miss.  652. 

Missouri.  —  Union  Sav.  .\ss'n.  v. 
Edwards.  47  Mo.  445. 

A''^i('  Hampshire.  —  Hinkley  v. 
Davis,  6  N.  H.  210,  25  Am.  Dec.  457. 

Nezi.'  y'ork.  —  Eichhold  z:  Tiffany, 
20  Misc.  680,  46  N.  Y.  Supp.  534. 

Pennsylvania.  —  Rcspublica  v. 
Davis,  3  Yeates  128,  2  .\m.  Dec.  .366: 
Com.  V.  Kendig,  2  Pa.  St.  448 ;  Bach- 
man  V.  Killinger,  55  Pa.  St.  414; 
Deardorf  ?■.  Hildebrand,  2  Rawl.  226. 

Rhode  Island.  —  Atlas  Bank  j'. 
Brownell,  9  R.  I.  168. 

South  Carolina.  —  State  v.  Teague, 
9  S.  C.  149. 

Virginia.  —  Walker  Z'.  Pierce,  21 
Gratt.  722. 

Vermont.  —  Wilson  v.  Green,  25 
Vt.  450,  60  Am.  Dec.  279;  Brown  v. 
Munger,  16  Pt.  12. 

Where  Principal  and  Surety  Ar« 
Sued  Together.  —  In  .\mherst  Bank 
V.  Root,  2  Mete.  (Mass.)  522,  the 
court    say :  "  The     last     exception    is 


ADMISSIONS. 


587 


(1.)  Must  Be  Made  at  Time  of  Transaction.  —  I'.ut  to  be  l)in<ling 
upon  the  surety  the  admissions  of  the  principal  must  be  made  at  the 
time  of  the  transaction,  or  act  to  which  thev  relate.*" 


that  evidence  was  received  of  the  ad- 
missions and  declarations  of  I^uther 
Root,  the  cashier,  to  charge  the  sure- 
ties. This  is  a  case  where  the  cash- 
ier and  his  sureties  are  sued  on  their 
joint  ohligation.  Whatever  may  be 
the  law  when  one  becomes  guarantor 
or  surety  for  another  by  a  separate 
obligation,  we  think  where  the  prin- 
cipal and  surety  are  all  liound  by  a 
joint  obligation,  the  declarations  and 
admissions  of  the  principal  are  evi- 
dence against  the  sureties  in  a  joint 
action  against  them."  See  also  .\tlas 
Bank  r.  Brownell.  9  R.  I.   168. 

Are  Prima  Facie  Evidence  Against 
Surety. —  In  Stephen  v.  Crawford,  i 
Ga.  574,  44  Am.  Dec.  680,  it  is  held 
in  an  action  on  an  official  bond  that 
the  admissions  of  the  principal  are 
prima  facie  evidence  against  the 
surety,  and  casts  the  onus  on  him. 

To  Show  Insolvency  of  Principal. 
In  Daniel  v.  Ballard,  2  Dana  (Ky.) 
296,  it  was  held  that  the  answer  of 
the  principal  was  not  competent 
against  the  surety  to  show  the  prin- 
cipal's insolvency. 

Where    Principal    Is    Dead The 

fact  that  the  principal  is  dead  does 
not  afTect  the  admissibility  of  his  ad- 
missions. Walker  v.  Pierce,  21 
Gratt.   (Va.)   722. 

In  Case  of  Guaranty.  —  In 
Walker  v.  Forbes,  25  Ala.  139,  60 
Am.  Dec.  498,  a  case  of  guaranty,  it 
was  held  that  the  principal  debtor's 
statement  made  pending  the  negotia- 
tions for  the  goods,  "  that  he  had 
been  unfortunate,  and  was  without 
means,"  was  admissible  as  tending  to 
show  the  fact  that  the  credit  was 
given  to  the  guarantor,  and  not  to 
the  principal  debtor.  See  also  Eich- 
hold  V.  Tiffany,  20  Misc.  680,  46  N. 
V.  Supp.  534. 

80.  United  States.  —  U.  S.  v.  Cut- 
ter, 2  Curt.  617,  25  Fed.  Cas.  No. 
14,911. 

Alabama.  —  Walker  v.  Forbes,  25 
Ala.  IJ9,  60  Am.  Dec.  498;  Bondu- 
rant  v.  Slate  Bank,  7  Ala,  830;  Lewis 


-'.  Lee  Co.,  73  Ala.  148;  Dumas  v. 
Patterson,  9  Ala.   (N.  S.)   484. 

Arkansas.  —  State  v.  Newton,  si 
Ark.  276. 

Colorado. — -Jenness  f.  City  of 
Black  Hawk,  2  Colo.  578. 

Georgia.  —  Dobbs  ?•.  Justices,  17 
Ga.  624. 

Illinois.  —  Guarantee  Co.  i:  Mutual 

B.  &  L.  Ass'n.,  57  III.  App.  254; 
Kirkpatrick  v.  Hawk,  80  111.   122. 

Indiana.  —  Lane  v.  State,  27  Ind. 
108;  Hotchkiss  T'.  Lyon,  2  Blackf. 
222 ;  Shelvv  v.  Governor,  2  Blackf. 
289. 

Kansas.  —  Lee  v.  Brown,  21  Kan. 
458. 

Kentucky.  —  Pollard    v.    Louisville 

C.  &  L.  R.  Co.,  7  Bush  597 ;  Com.  v. 
Brassfield,  7  B.  Mon.  447 ;  Lucas  v. 
Chamberlain,  8  B.  Mon.  276. 

Maine.  —  Fo.xcroft  z'.  Nevens,  4 
Greenl.   72. 

Massachusetts.  —  De.xter  z\  Clcm- 
ans,  17  Pick.  17^. 

Minnesota.  — Hah  v.  V.  S.  F.  &  G. 
Co.,  77  Minn.  24,  79  N.  W.  590. 

Missouri.  —  Union  Sav.  Ass'n.  v. 
Edwards,  47  Mo.  445  ;  Blair  v.  Per- 
petual Ins.  Co.,  10  Mo.  559,  47  Am. 
Dec.  129;  Cheltenham  Co.  !■.  Cook, 
44  Mo.  29. 

New  York.  —  Hatch  z'.  Elkins,  65 
N.  Y.  489;  Eichhold  z:  Tiffany,  20 
Misc.  680,  46  N.  Y.  Supp.  534 ;  Tenth 
Nat.  Bank  z:  Darragh,  i  Hun  (8 
Sup.  Ct.)  Ill  ;  Ayer  v.  Getty,  46 
Hun    (53    N.    Y.    Sup.    Ct.)    287. 

Ohio.  —  Stetson  v.  City  Bank,  2 
Ohio  St.  167. 

Pennsylvania.  —  Nickols  v.  Jones, 
166  Pa.   St.  599,  31  Atl.  329. 

Tennessee.  —  Wheeler  v.  State,  9 
Heisk.  393 ;  White  v.  German  Nat. 
Bank,  9  Heisk.  475 ;  Trousdale  v. 
Phillips,  2  Swan  384. 

Virginia.  —  Hodnelt  z\  Pace,  84 
Va.  873,  6  S.  E.  217. 

Must  Be  at  the  Time  of  the 
Transaction.  —  In  Hatch  z:  Elkins, 
65  N.  Y.  489.  it  was  held  that  the 
declarations  of  the  principal  made 
during  the  transaction  of  the  busi- 
ness    for     which     the     surety     was 


Vol.  I 


5S8 


ADMISSIONS. 


(2.)  In  Case  of  Bond  of  Officer  After  Term  Expires. — It  is  held  that 
the  admissions  of  an  officer  after  his  term  has  expired,  of  defalca- 
tions in  office,  are  inadmissible  against  his  surety  on  his  bond  as 
such  officer,  sued  alone.*'     If  sued  jointly   with  his  sureties  on  a 


bound,  so  as  to  be  a  part  of  tbe  res 
ficstac,  were  competent,  but  that  liis 
declarations  subsequently  made  were 
inadmissible.  But  see  Drabek  r. 
Grand   Lodge,  24  111.  App.  82. 

Where    Principal    Is    Dead The 

admissions  of  the  principal  may  be 
proved  in  case  of  his  death  the  same 
as  tliose  of  other  deceased  persons  in 
actions  between  third  parties  and  for 
the  same  reasons.  County  of  Ma- 
liaska  V.  Ingalls,  16  With.  (Iowa)  81  ; 
Middleton  v.  Melton,  10  Barn.  &  C. 
M7,  21  Eng.  C.  L.  85. 

81.  Action  on  Official  Bonds It  is 

lield  in  Fo.xcroft  i'.  Nevens,  4  Greenl. 
(Me.)  72,  an  action  upon  an  official 
bond  for  the  faithful  performance  of 
the  duties  of  an  office,  that  the  decla- 
rations of  the  principal  were  to  be 
taken  as  true  against  him  alone,  and 
that  the  sureties  were  not  thereby 
precluded  from  any  matter  proper  for 
their  defense.  See  also  Bocard  v. 
State.   79  Ind.   270. 

Made  After  Breach  of  the  Con- 
tract  In   Lucas  V.   Chamberlain,  8 

B.  Men.  (Ky.)  276,  it  is  held  that  an 
admission  of  the  principal,  after  the 
breach  of  the  contract  has  occurred, 
is  inadmissible  against  the  surely. 
See  also  Bocard  v.  State,  79  Ind.  270. 

By  Official  Against  Surety  on  His 
Bond.  —  In  Union  Savings  Ass'n.  i'. 
Edwards,  47  Mo.  445,  it  is  said: 
"  Therefore,  the  admissions  which 
Edwards  made  to  Rutherford,  the 
president  of  the  bank,  when  the  de- 
fault was  first  discovered,  were  com- 
petent evidence  against  him  and  his 
sureties,  because  they  formed  a  part 
of  the  res  gestae,  and  were  made 
while  acting  in  the  course  of  his  offi- 
cial duty,  but  they  could  not  be  com- 
petent against  the  sureties  after  his 
official   duties   had  ceased  " 

Entries  Made  in  Course  of  Duty. 
Entries  made  by  the  principal  in 
course  of  his  duty,  respecting  mat- 
ters covered  by  the  bond  sued  on,  are 
admissible.  Pollard  z\  Louisville  C. 
iK:   I,.   R.   R.   Co.,  7  Bush    (Ky.)    597; 

Vol.  I 


Whitnash  v.  George,  8  Barn.  &  C. 
556,  15  Eng.  C.  L.  295;  Singer  Mfg. 
Co.  V.  Coon,  9  Misc.  465,  30  N.  Y. 
Supp.  232;  McKim  7:  Blake,  139 
i\Iass.  593 ;  Williamsburg  City  F.  Ins. 
Co.  V.  Frothingliam.  122  Mass.  391 ; 
Jenness  v.  City  of  Black  Hawk,  2 
i^olo.  578;  Chelmsford  Co,  v.  Deina- 
rest,  7  Gray  (Mass.)  i;  Board  of 
Supervisors  v.  Bristol,  15'  Hun  (22 
N.  Y,  Sup.  Ct.)  116.  But  see  to  the 
contrary,  Jenness  iJ.  City  of  Black 
Hawk,  2  Colo.  5/8. 

In  Shelby  f.  Governor,  2  Blackf. 
(.Ind.j  289,  it  was  held  that  the 
acknowledgment  of  the  sheriff  that 
he  had  collected  money  on  an  order 
of  sale  could  not  be  proved  to  sustain 
an  action  for  the  money  against  the 
surety,  unless  his  acknowledgment 
was  made  whilst  the  sheriff  was  act- 
ing officially  in  relation  to  the  receipt 
of  the  money,  the  court  saying :  "  If 
Weathers,  while  officially  acting  in 
relation  to  the  receipt  of  this  money, 
stated  that  he  had  received  it,  such 
statement  would  form  a  part  of  the 
res  gestae  and  would  be  evidence  to 
prove  the  act  of  receiving,  and  would, 
therefore,  be  admissible  against  his 
sureties ;  but  declarations  made  by 
him  at  any  subsequent  period  would 
have  no  connection  with  the  act,  and 
could  not  be  introduced  as  evidence 
of  the  act,  so  as  to  bind  his  sureties ; 
for  it  is  his  acts,  and  not  his  admis- 
sions or  declarations,  for  which  his 
sureties  are  bound.  As  the  state- 
ment of  Weathers  that  he  had  col- 
lected this  money  is  not  connected 
by  the  testimony  with  any  act  of  his 
relative  to  this  order  of  sale,  or  any 
money  collected  by  him  on  this  order, 
it  was  inadmissible  as  evidence 
against   the    defendant    in    this    case." 

Reports  in  Performance  of  Official 
Duty.  —  But  a  contrary  rule  is  an- 
iinunccd  in  respect  of  statements 
made  by  a  public  officer  in  pursuance 
of  his  duties  as  such  made  after  his 
defalcation,  and  removal  for  miscon- 
duct, but  during  the  period  covered 
by  th<'  bond.     Father  Malhew  Young 


.-ADMISSIONS. 


5S'J 


joint  bond,  his  admissions,  not  part  of  the  irs  sicsfac.  are  held  to  be 
competent. *- 

Otherwise  as  to  the  surety  if  the  liond  is  joint  and  several. **■'■ 

(3.)  When  Conclusive.  —  It  is  held  that  the  sureties  on  the  bond  of 
a  public  officer  are  estopped  to  deny  the  correctness  of  public  records 
kept  and  reports  made  by  the  officer  in  the  performance  of  his 
duties.** 

But  a  different  rule  apjjlies  to  private  books  of  account  kept  by 
the  principal.*"'' 

(4.)  Confession  of  Judgment  by  Principal. —  It  is  held  that  a  judij- 
ment  confessed  by  the  principal  is  competent  evidence  against  the 
surety  not  a  party  to  the  suit.*'"' 

b.  Of  Surety  Against  Principal.  —  It  is  held  that  the  admissions 
of  the  surety  are  inadmissible  against  the  principal.*'  But  taken  as 
a  general  rule  of  evidence  this  may  well  be  doubted.** 

c.  Of  One  Surety  Inadmissible  Against  Another.  —  The  admis- 
sions of  one  surety  are  inadmissible  against  his  co-surety.*"' 

d.  Guarantor  and  Guarantee.  —  The  admissions  of  a  party  on 
whose  account  a  guaranty  has  been  made,  are  held  not  competent 
evidence  against  the  guarantor."" 

But  in  other  cases  a  different  rule  is  declared."^ 

F.  Co-CoNSPiKATORS. — a.  /)(  Furtherance  of  Conspiracy  Admis- 
sible. —  The  declarations  of  co-conspirators  in  furtherance  of  the 
conspiracy,  and  in  connection  therewith,  against  the  interest  of  the 
conspirators,  are  competent  as  against  all  of  them."- 


Soc.  -'.  Fitzwilliam,  84  Mo.  406; 
State  I'.  Newton,  a  .-^rk.  276; 
County  of  Tompkins  v.  Bristol,  gg 
N.  Y.  316,  I  N.  E.  878;  Barry  r, 
Screwmeiis  Ass'n,  67  Tex.  250,  3  S. 
W.  261, 

Board  of  Supervisors  ?'.  Bristol, 
15  Hun  (22  N.  Y.  Sup.  Ct.)  116.  So 
of  receipts  given  by  the  principal 
after  the  expiration  of  his  term  of 
office.  Placer  Co.  v.  Dickerson,  45 
Cal.  12. 

82.  Union  Sav.  ,\ss'n  z\  Edwards. 
47  Mo.  445- 

83.  Lee  t'.  Brown,  21   Kan.  458. 

84.  Doll  r.  People,  48  111.  App. 
418;  Schureman  v.  People.  55  III. 
.■\pp.  629. 

85.  Schureman  v.  People,  55  111. 
App.  629. 

86.  Iglehart  v.  State,  2  Gill  &  J. 
(Md.)  235. 

87.  Thurman  v.  Blankenship- 
Blake  Co.,  79  Tex.  171,  15  S.  W.  387. 

88.  Chapel  v.  Washburn,  21  Ind. 
363- 


89.  Very  z:  Walkins,  21,  How.  (U. 
S.)   469- 

90.  Griffith  z:  Turner,  4  Gill 
(.Md.)    III. 

91.  Meade  z:  McDowell.  ;  Hinn. 
(Pa.)    195. 

Judgment  Confessed  by  Principal. 
In  Drummond  ;■.  Prestman,  12 
Wheat.  514,  it  was  held  that  a  judg- 
ment confessed  by  the  principal  was 
competent  evidence  against  the 
guarantor. 

92.  lliigland.  — Rex  v.  Inhabitants 
of   Hardwick,   11   East  578. 

United  States. — In  re  Clark.  9 
Blatchf.  379,  5  Fed.  Cas.  No.  2802; 
.American  Fur  Co.  v.  U.  S.,  2  Pet. 
358;  Nudd  V.  Burrows.  91  L'.  S.  427; 
Lincoln  v.  Claflin,  7  Wall.  132 ;  Rea 
z<.  Missouri,  17  Wall.  532;  Jones  v. 
Simpson,  116  U.  S.  609;  Drake  v. 
Stewart,  76  Fed.  140. 

Alabama.  —  Weaver  v.  Yeatmans, 
15  Ala.  539;  Phoeni.x  Ins.  Co.  z'. 
Moog,  78  Ala.  284 ;  Stewart  v.  State, 
26  Ala.  44;  Smith  v.  State,  52  Ala. 
407. 


Vol.   I 


5'J(t 


ADMISSIONS. 


b.  Conspiracy  Must  Be  Shoii'ii. — -But.  as  the  competency  of  the 
evidence   of   such    admissions,   as   against    one    not    making   them, 


Arkansas.  —  Gray  v.  Nations,  i 
Ark.  i57 ;  CliiUon  v.  Estes,  20  Ark. 
216. 

California.  —  People  z\  Collins.  64 
Cal.  293.  30  Pac.  847 ;  Barkly  v. 
Copeland,  86  Cal.  48.1.  25  Pac.  i  : 
Lacey  i'.  Porter,  103  Cal.  597,  37  Pac. 
635;  Howe  V.  Scannell,  8  Cal.  325. 

Caniiccticut.  —  Colt  v.  Eves.  12 
Conn.  243;  Cowles  v,  Coc.  21  Conn. 
220. 

Fliirida.  —  Williams  v.  Dickerson. 
28  Fla.  90.  9  So.  847. 

Georgia.  —  Ernest  v.  Merritt.  107 
Ga.  61,  32  S.  E.  898;  McRae  v.  Stale, 
71  Ga.  go. 

///mou.  —  Chicago  R.  1.  &  P.  R. 
C6.  V.  Collins,  56  111.  212;  Philpot  ;■. 
Taylor,  75  111.  309;  Snyder  1:  La- 
framboise,  Breese  343. 

Indiana.  —  Hall  v.  Bishop.  78  Ind. 
370 ;  Daniels  v.  McGinnis,  97  Ind. 
549;  Caldwell  v.  Williams,  i  Ind. 
405 ;  Ewing  v.  Gray,  12  Ind.  64 ;  Wil- 
liams 7'.  State.  47  Ind.  568 ;  Roberts 
V.  Kendall,  3  Ind.  App.  339.  29  N.  E. 
487;  Wolfe  z'.  Pugh,  lOi  Ind.  293; 
Smith  I'.  Freeman.  71  Ind.  85;  Bark- 
ley  I'.  Tapp,  87  Ind.  2=- 

lox^'a.  —  Miller  v.  Dayton,  57  Iowa 
423,  10  X.  W.  814. 

Kentucky.  —  Smithern  v.  Waddle, 
19  Ky.  Law  1418,  43  S.  W.  453. 

Maine.  —  Aldrich  v.  Warren,  16 
Me.  465. 

Massachusetts.  —  O'Neil  i'.  Glover, 
5  Gray  144;  Com.  v.  Brown.  14  Gray 
419. 

Michigan.  —  People  i'.  Pitcher.  15 
Mich.  397 ;  ^lawich  v.  Elsey,  47  Mich. 
10;  Edgell  '■.  Francis.  63  Mich.  303, 
33  N.  W.  501. 

Mississit>f>i.  —  Ma.sk  v.  Stale,  32 
Miss.  405 ;  Trimble  v.  Turner,  13 
Smed.  &  M.  348,  53  Am.  Dec.  90. 

Missouri.  —  Weinrich  t.  Porter,  47 
Mo-  293;  State  v.  Danbert,  42  Mo. 
239;  State  -■.  Ross,  29  Mo.  32;  Ex- 
change Bank  z'.  Russell,  50  Mo.  531 ; 
Boyd  V.  Jones.  60  Mo.  454. 

Montana.  —  Harrington  z:  Butte  & 
B.  Min.  Co.,  19  Mont.  411,  48  Pac. 
758;  Pincus  V.  Reynolds.  19  Mont. 
564,  49  Pac.  145- 

Nezji'    Hampshire.  —  Lee    z:    Lam- 

Vol.  I 


prey.  43  N.  H.  13:  State  v.  Pike,  51 
i\.  11.  105;  Page  z:  Parker,  40  N.  H. 
47- 

N_ezi.'  Jersey.  —  Patton  z'.  Freeman, 
1  N.  J.  Law  134. 

A^ezc  York.  —  Waterbury  z:  Sturte- 
vant.  18  Wend.  353;  Legg  z\  Olney. 
I  Denio  202,  16  N.  Y.  Com.  L.  768; 
Galle  V.  Tode,  56  N.  Y.  St.  851,  26 
N.  Y.  Supp.  633 ;  Flagler  !■.  New- 
come,  36  N.  Y.  St.  755,  13  N.  Y.  Supp. 
299;  Moers  z:  Martens,  8  Abb.  Pr. 
257 :  Apthorp  I'.  Comstock.  2  Paige 
Ch.  482,  2  N.  Y.  Ch.  997-,  Dart  v. 
Walker.  3  Dal^-  136;  Cuyler  z\  Mc- 
Cartney. 33  Barb.  165. 

A^orth  Carolina.  —  State  v.  George, 
7  Ired.  S2I  ;  Barnhart  z\  Smith.  86  N. 
C.  473- 

Oregon.  —  Pacific  Live  Stock  Co. 
7'.  Gentry.  38  Or.  275.  61  Pac.  422; 
Shcppard  z\  Yocum,  10  Or.  402. 

Pennsylvania.  —  Com.  z\  Eberle,  3 
Serg.  &  R.  9 ;  Souder  v.  Schechterly, 
91  Pa.  St.  83 ;  Burns  z:  McCabe,  72 
Pa.  St.  309;  Kelsey  Z'.  Murphy,  26 
Pa.  St.  78:  Deakers  z:  Temple,  41  Pa. 
St.  234 ;  Jackson  z:  Summerville,  13 
Pa.  St.  359;  Kehoe  z\  Com.,  85  Pa. 
St.  127 ;  Price  z'.  Junkins,  4  Walls  85, 
28  Am.  Dec.  685;  Scott  v.  Baker,  37 
Pa.  St.  330;  Peterson  z'-  Speer,  29 
Pa.  St.  478;  McKee  :■.  Gilchrist,  3 
Watts  230;  McCabe  z'.  Burns,  66  Pa. 
St.  356 ;  Sommer  z:  Gilmore.  160  Pa. 
St.  129,  28  All.  654:  Palmer  t'.  Gil- 
more,  148  Pa.  St.  48,  23  Atl.  1041 ; 
Lowe  V.  Dalrymple,  117  Pa.  St.  564, 
12  Atl.  567. 

Tennessee.  —  Strady  z:  State,  5 
Cold.  300;  Harrison  z'.  Wisdom,  7 
Heisk.  99. 

Tc.ras.  —  Phillips  z:  Stale,  6  Te.x. 
.^pp.  364;  Taylor  z:  Stale.  3  Tex. 
App.  169. 

7  'irginia.  —  Claytor  c'.  Antliony,  6 
Rand.  285. 

Cerniont.  —  Stale  z:  Tliibeau.  30 
Vt.  100;  Jenne  i'.  Joslyn,  41  \'t.  478; 
Qnin  v-  Halbert,  57  Vt.  178. 

West  ]' irginia.  —  Ellis  t'.  Dempsey, 
4  W.  Va.  126. 

The   Reason   for   the   Rule The 

reason  for  the  rule  is  thus  staled  in 
Moers  v.   Martens.  8  Abb.    Pr.    ( N. 


ADMISSIONS. 


591 


depends  ujion  the  fact  that  the  parties  are  acting-  together,  the  con- 
spiracy must  be  first  shown  or  the  declarations  are  inadmissible."^ 


Y.)  257,  258:  "And  the  acts  and 
declarations  of  the  other  conspirators 
are  admitted  as  evidence  against 
each,  npon  the  principle,  that  liy  the 
act  of  conspiring  together  they  have 
jointly  assumed  to  themselves,  as  a 
body,  the  attribute  of  individuahty, 
so  far  as  regards  the  prosecution  of 
the  common  design,  a  part  of  the  res 
gestae,  and  therefore  the  acts  of  all." 
It  is  the  same  principle  of  identity 
with  each  other  that  governs  in 
regard  to  the  acts  and  admissions  of 
agents  when  offered  in  evidence 
against  their  principals,  and  of  part- 
ners against  the  partnership."  Scott  v. 
Baker,  37  Pa.  St.  330 ;  Lacey  v. 
Porter,  103  Cal.  sg".  i7  Pac.  635. 

Rule  Stated.  — "The  rule  is  well 
settled,  that  where  a  cominunity  of 
design  is  established,  the  acts  of  each 
of  the  parties,  and  their  declarations 
made  at  the  time  of  the  prosecution 
of  those  acts  are  evidence  against 
all."     Colt  V.  Eves,  12  Conn.  243. 

The  Time  He  Became  a  Party  Im- 
material—  The  time  when  a  party 
became  a  party  to  the  conspiracy 
does  not  afTect  the  question.  By  be- 
coming such  party,  after  its  partial 
consummation,  he  makes  the  previous 
declarations  of  his  co-conspirators 
his  own.  Den  i".  Johnson,  18  N.  J. 
Law  87. 

93.  England.  — Re.x  v.  Inhabitants 
of  Hardwick,  11  East  578. 

United  States.  —  Winchester  Mfg. 
Co.  V.  Creary,  116  V.  S.  161,  6  Sup. 
Ct.  369. 

Alabama.  —  Weaver  j'.  Yeatmins. 
15  Ala.   (\.  S.)  539. 

Georgia.  —  Foster  v.  Thrasher,  45 
Ga.  517. 

Indiana.  —  NN'olfc  v.  Pugh,  loi  Ind. 
293. 

Iowa.  —  State  z'.  Nash,  7  Iowa  346 ; 
Johnson  v.  Miller,  63  Iowa  529,  17 
N.  W.  34;  Wiggins  v.  Leonard,  9 
Iowa  194. 

Louisiana.  —  Reid  i'.  »^ouisiana 
State  Lottery,  29  La.  Ann.  388;  State 
V.  Hogan,  3  La.  .\nn.  714. 

Massaehtisctts.  —  Blanchette  v. 
Holvoke  St.  R.  Co.,  175  Mass.  si,  55 
N.  E.  481 ;  Burke  v.  Miller,  7  Cush. 
547- 


Michigan.  —  Mawich  v.  Elsey,  47 
Mich.  10;  Hamilton  f.  People,  29 
Mich.  195. 

Mississippi.  —  Browning  t.  State, 
30  Miss.  656. 

Missouri.  —  Hart  v.  Hicks,  52  Mo. 
App.  177,  31  S.  W.  351;  Wright  v. 
Cornelius,  10  Mo.  174;  Boyd  f.  Jones, 
60  Mo.  454. 

Neiv  York.  —  Douglass  v.  McDer- 
motl,  21  App.  Div.  8,  47  N.  Y.  Supp. 
336 ;  Hoguet  v.  Beekman,  25  N.  Y. 
St.  562,  6  N.  Y.  Supp.  214;  Jones  v. 
Horlburt,  39  Barb.  403 ;  Pfeffer  v. 
Kling,  58  App.  Div.  179,  68  N.  Y. 
Supp.  641  ;  Lent  v.  Shear,  160  N.  Y. 
462,  55  N.  E.  2. 

North  Carolina.  —  State  v.  George, 
7  Ired.  321. 

Ohio.  —  Preston  v.  Bowers,  13 
Ohio  St.  I,  82  Am.  Dec.  430. 

Pennsylvania.  —  Com.  v.  Eberle,  3 
Serg.  &  R.  9;  Rogers  i\  Hall,  4 
Watts  359 ;  Benford  •;■.  Sanner,  40 
Pa.  St.  9,  80  Am.  Dec.  545 ;  Helser 
V.  McGrath,  58  Pa.  St.  458 ;  Gauiice 
V.  Backhouse,  37  Pa.  St.  350 ;  Bredin 
V.  Bredin,  3  Pa.  St.  81 ;  McDowell  v. 
Rissell,  i7  Pa.  St.  164. 

Tennessee.  —  Girdner  v.  Walker,  i 
Heisk.  186. 

Te.ras.  —  Ft.  Worth  Live  Stock 
Co.  V.  Hitson,  (Te.x.  Civ.  App.,)  46 
S.  W.  915;  Phoenix  Ins.  Co.  z'.  Pad- 
gitt,  (Te.x.  Civ.  App.,)  42  S.  W.  800. 

Vermont.  —  Windover  v.  Robbins, 
2  Tyler  i. 

West  I'irginia.  —  Carskadou  f. 
Williams,  7  W.   Va.   i. 

Slight  Evidence  of  Conspiracy 
Sufficient.  —  It  is  held  m  Souder  v. 
Schechterly,  91  Pa.  St.  83,  that  where 
the  bona  tides  of  a  conveyance  of 
property  is  assailed  by  creditors,  on 
the  ground  of  fraud,  the  declarations 
of  the  grantor  made  after  the  con- 
veyance are  admissible  against  the 
grantee  if  there  is  some  evidence  of 
collusion.  See  also  McDowell  v. 
Rissell,  37  Pa.  St.  164. 

Not     Sufficient    to     Allege    It    in 

Complaint It  is  not  enough  to  let 

in  the  admissions  to  allege  the  con- 
spiracy in  the  complaint.  It  must  be 
proved.  Wright  v.  Cornelius,  10 
Mo.   174. 

Vol.  I 


592 


ADMISSIONS. 


(1.)  Cannot  Be  Proved  by  Admissions  of  One  Conspirator.  —  lint  the 
conspiracy,  or  collusion,  cannot  be  proved  by  the  admission  of  one 
of  the  alleged  conspirators  as  against  the  other, ''^  unless  such  decla- 
rations were  themselves  in  execution  of,  or  for  the  promotion  of  the 
common  design.'''' 

(2.)  Of  Each  Admissible  Against  Him.  —  The  admissions  of  each  arc- 
competent  against  him,  for  that  purpose,  and  the  admissions  of  all 
may  thus  establish  the  conspiracy  as  against  all.'"' 


Must  Kore  Than  Raise  a  Sus- 
picion  Hart    I'.    Hopsoii,    52    Mo. 

App.  177- 

Least  Degree  of  Collusion  Suffi- 
cient  So   it   is   held   in   Rogers   v. 

Hall,  4  Watts  (Pa.)  3^0,  that  the 
least  degree  of  conceit  or  collusion 
between  parties  to  an  illegal  transac- 
tion makes  the  act  of  one  the  act  of 
all.  and  their  admissions  competent 
one  against  the  other.  See  also 
Phillips  I'.  State,  6  Tex.  App.  364; 
Confer  z'.  McNeal,  74  Pa.  Si.  112; 
Kelsey  v.  .Murphy.  -'6  Pa.  St.  78. 

May  Be  Proved  by  Circumstances. 
Direct  evidence  of  the  conspiracy  is 
not  necessary.  It  may  be  established 
by  circumstances.  Redding  v.  Wright, 
49  Minn.  322,  51  N.  W.  1056;  Kelley 
v.  People,  55  N.  Y.  565,  14  Am.  Rep. 
342 ;  Miller  v.  Dayton,  57  Iowa  423, 
10  N.  W.  814;  D/ake  iC  Stewart,  76 
Fed.  140. 

In    Case    of    Fraud If    fraud    is 

charged,  the  party  against  whom  the 
admissions  are  offered  must  be 
shown  to  have  participated  in  the 
fraud  to  render  them  admissible. 
Triplett  z:  Goff,  (Va.  App.,)  3  S.  E. 

Least  Degree  of  Conceit  or  Col- 
lusion    Sufficient The     degree     in 

which  the  parly  is  implicated  is  im- 
material. Any  degree  of  conceit  or 
collusion  will  render  the  admissions 
of  his  confederate  competent  against 
him.     Rogers  -■.  Hall,  4  Watts  (  Pa. ) 

359- 

Cannot  Be  Proved  by  Mere  Opin- 
ion Evidence.  —  Tlie  conspiracy  can- 
not be  proved  by  opinion,  hut  must 
be  established  by  facts.  I.aytham  z\ 
.^gnew,  70  Mo.  48. 

94.  England. — Re.\  j'.  Inhabitants 
of  Hardwick,  11   East  578. 

United  States.  —  Winchester  Mfg. 
Co.  V.  Cleary,  116  U.  S.  161,  6  Sup. 
Ct.  369. 

Vol.  I 


California.  —  Barkly  v.  Copeland, 
86  Cal.  483.  25  Pac.  i. 

Indiana.  —  Roberts  Z'.  Kindall.  3 
Ind.  .\pp.  339,  29  N.  E.  487. 

Kentucky.  —  Metcalf  v.  Conner, 
Litt.  Sel.  Cas.  497,  12  Am.  Dec.  340. 

Mississipf'.  —  Browning  z-.  State, 
30  Miss.  656. 

jVcic  York.  —  Cuyler  v.  McCart- 
ney, i3   Barl).    165. 

North  Carolina.  —  Bryce  v.  Butler. 
70  N.  C.  585. 

Ohio.  —  Preston  v.  Bowers,  13 
Ohio  St.   I,  82  Am.  Dec.  430. 

Oregon.  —  Osmun  f.  Winters,  30 
Or.   177,  46  Pac.  780. 

Can  Not  Be  Proved  by  Admissions. 
"  Evidence  of  an  admission  made  by 
one  of  several  defendants  in  trespass, 
will  not,  it  is  true,  establish  the 
others  to  be  co-trespassers,  but  if 
they  be  established  to  be  co-trespass- 
ers by  other  competent  evidence,  the 
declaration  of  the  one  as  to  the  mo- 
tives and  circumstances  of  the  tres- 
pass will  be  evidence  against  all  who 
are  proved  to  have  combined  to- 
gether for  the  common  object."  Rex 
z'.  Inhabitants  of  Hardwick,  11  East 
578. 

95.  Clawson  z:  Stale,  14  Ohio  St. 
234;  Roberts  i'.  Kendall,  3  Ind.  App. 
339;  29  N.  E.  487. 

96.  St.  Paul  Distilling  Co.  v. 
Pratt,  47  N.  W.  789 ;  Preston  :•.  Bow- 
ers, 13  Ohio  St.  I,  82  Am.  Dec.  430; 
.Miller  z:  Barber,  66  X.  Y.  558. 

Of  Each  Co-Conspirator  Against 
Himself. —  The  rule  is  thus  stated 
in  St.  Paul  Distilling  Co.  z\  Pratt, 
45  Minn.  215,  47  N.  W.  789:  "So 
in  a  case  like  this,  evidence  of  the 
alleged  conspiracy  is  admissible,  even 
though  the  same  evidence  do  not 
connect  all  the  defendants  with  the 
conspiracy.  If  it  were  not  so.  it 
would  be  nearly  impossible  to  try 
such   cases,  certainly  cases   in   which 


ADMISSIONS. 


593 


(3.)  Order  of  Proof.  —  The  conspiracy  need  not,  in  the  discretion 
of  the  trial  court,  be  proved  first.  The  admission  may  be  proved 
first  and  the  conspiracy  estabHshed  afterwards,  although  it  is  a 
practice  not  to  be  encouraged.^' 

c.  Question  of  Conspiracy  One  for  the  Court. — The  question  of 
the  conspiracy,  as  a  foundation  for  proof  of  admissions,  is  one  to  be 
determined  by  the  court. "^ 

Weight  of  Evidence  Left  to  the  Jury.  —  But  it  is  held  that  if  there 
is  any  evidence  of  the  conspiracy  the  admissions  should  be  received, 
and  the  question  whether  there  was  or  was  not  a  conspiracy  left  to 
the  jury  under  proper  instructions  to  disregard  the  proof  of  such 
admissions,  if  there  was  not."" 

d.  Made  Before  or  After  Conspiracy,  Inadmissible.  —  The  admis- 
sions, to  be  competent  against  a  co-conspirator,  must  have  been  made 
pending  and  in  furtherance  of  the  conspiracy.  If  made  before  or 
afterwards  they  are  inadmissible,^  unless  made  at  the  instance  or 


the  conspiracy  is  planned  by  some  of 
the  defendants,  and  the  others  after- 
ward join  it.  If,  when  the  evidence 
is  all  in,  it  does  not  connect  one  of 
the  defendants  with  the  conspiracy, 
his  proper  course  is  to  move  for  a 
dismissal,  or  for  an  instruction  to 
find  a  verdict  in  his  favor.  There 
was  no  error  in  overruling  the  ap- 
pellant's objections  to  the  evidence." 

97.  Miller  v.  Barber,  66  N.  i . 
558;  Dole  V.  Wooldredge,  142  Mass. 
161,  7  N.  E.  832, 

Order  of  Proof  in  Discretion  of 
Court.  — In  Miller  v.  Barber,  66  N. 
Y.  558,  it  is  said :  "  The  order  of 
proof  is  in  general  a  matter  of  dis- 
cretion, and  we  are  of  opinion  that 
no  legal  error  was  committed  in 
allowing  the  declarations  of  Barber 
to  be  given  in  evidence,  as  against 
his  co-defendant  before  proof  of  his 
connection  with  the  conspiracy  had 
been  made.  If  the  proof  subse- 
quently had  failed  to  connect  Scher- 
merhorn  with  the  fraud,  it  would 
have  been  the  duty  of  the  court  to 
have  instructed  the  jury  to  disre- 
gard them  in  considering  his  lia- 
bility." 

98.  Jones  v.  Hurlbart,  39  Barb. 
(N.  Y.)  403;  Com.  V.  Brown,  14 
Gray  (Mass.)  419;  Phoenix  Ins.  Co. 
V.  Moog,  78  Ala.  284;  State  v.  Nash, 
7  Clarke  (Iowa)  347;  Brown  v. 
Chenoworth,  51  Tex.  469. 

99.  Oldham  v.  Bcntley,  6  B.  Mon. 

38 


(Ky.)  428;  Miller  f.  Dayton.  57  Iowa 
243,  10  N.  W.  814. 

1.  Alabama.  —  Phoenix  Ins.  Co.  v. 
Moog,  78  Ala.  284;  Stewart  v.  State, 
26  Ala.  44. 

Arkansas.  —  Clinton  v.  Estes,  20 
Ark.  216. 

California.  —  People  v.  English,  52 
Cal.  212 ;  People  v.  Moore,  45  Cal. 
19. 

Indiana.  —  Roberts  v.  Kendall,  3 
Ind.  App.  339,  29  N.  E.  487 ;  Hogue 
V.  McClintock,  76  Ind.  205  ;  Wiler  v. 
Manley,  51  Ind.  169. 

Louisiana.  —  State  v.  Jackson,  29 
La.  Ann.  354 ;  Reid  v.  Louisiana 
State  Lottery,  29  La.  Ann.  388. 

Maine.  —  Strout  v.  Packard,  76 
Me.  148,  49  Am.  Rep.  601. 

Minnesota.  —  Nicolay  v.  Mallery, 
62  Minn.  119,  64  N.  W.  108. 

Mississippi.  —  Lynes  v.  State,  36 
Miss.  617. 

Missouri.  —  State  i'.  Duncan,  64 
Mo.  262 ;  Poe  v.  Stockton,  39  Mo. 
App.  SSO- 

Nebraska.  —  Stratton  j'.  Oldfield, 
41  Neb.  702,  60  N.  W.  82. 

Neiv  Hampshire.  —  State  v.  Pike, 
5T  N.  H.  105. 

Neiv  Jersey.  —  Ferguson  v.  Reeve, 
16  N.  J.  Law  193- 

New  York.  —  Scofield  v.  Spalding, 
54  Hun  523,  7  N.  Y.  Supp.  927;  Ap- 
thorp  I'.  Comstock,  2  Paige  Ch.  482 ; 
Dart  V.  Walker,  3  Daly  136;  Doug- 
lass V.  McDermott,  21  App.  Div.  8, 
47  N.  Y.  Supp.  336. 

Vol.  I 


594 


ADMISSIONS. 


with  the  knowledge  and  consent  of  the  co-conspirator. - 

e.  Must  Be  in  Furtherance  of  or  Connected  With  the  Conspiracy. 
The  admissions  to  be  competent  must  not  only  be  made  at  the  time 
of  the  conspiracy  or  its  execution,  but  must  relate  thereto/' 

7.  Persons  Under  Disability  or  Restraint.  —  A.  Generally.  —  It 
may  be  stated  as  a  general  rule  that  the  mere  fact  that  a  party  is 
laboring  under  some  legal  disability  which  deprives  such  party  of 
the  right  or  power  to  contract,  or  protects  him  from  his  contracts, 
if  made,  does  not  render  his  admissions  incompetent. 

B.  Infants.- — a.  Generally.  —  We  have  seen  that  admissions  by 
an  infant  in  his  pleadings  do  not  warrant  a  judgment  against  him.* 

But  it  does  not  follow  that  his  admissions  may  not  be  proved 
subject  to  be  controverted,  as  in  case  of  admissions  made  by  adults. 
His  admissions  are  admissible  against  him  as  a  rule.'' 

b.  In  Actions  for  Injuries  Causing  His  Death.  —  His  adiuissions 
are  competent,  however,  only  where  the  action  is  for  or  against  him 
in  his  own  right.  Therefore,  it  is  held  that  in  an  action  by  the 
father  for  damages  for  injuries  causing  the  death  of  his  infant  son, 
under  a  statute  trivina;  the  rig-ht  of  action  to  the  father,  the  admis- 


Ohio. — Preston  v.  Bowers,  i.^  Ohio 
St.  I,  82  Am.  Dec.  430. 

Oregon.  —  Slieppard  v.  Yocum,  10 
Or.  402. 

Pennsylvania.  —  Benford  v.  San- 
ner,  40  Pa.  St.  g ;  McCaskey  v. 
Graff,  23   Pa.    St.   321,  62  Am.   Dec. 

Tennessee.  —  Strady  v.  State,  5 
Cold.  300;  Lyons  v.  Wattenbarger,  i 
Heisk.  193. 

Virginia.  —  Danville  Bank  %'.  Wad- 
dill,  31  Gratt.  469. 

2.  Mathews  v.  Herdtfelder,  39  N. 
V.  St,  486,  15  N.  Y.  Snpp.  165;  State 
V.  Frederics,  85  Mo.  145 ;  State  v. 
Ah  Tom,  8  Nev.  213;  Helser  i<. 
McGrath,  58  Pa.  St.  458;  Owens  v. 
State,  16  Lea  (Tenn.)  i  ;  Benford  v. 
Sanner,  40  Pa.  St.  9,  80  ,\ni.  Dec. 
.V--  U.  S.  V.  Hartwell.  3  Cliff.  221. 
26  Fed.  Cas.  No.  15,318. 

3.  Fonts  V.  State,  7  Ohio  Sl  472; 
Johnson  v.  Miller,  63  Iowa  529,  17 
N.  W.  34;  Ferguson  v.  Reve,  16  N. 
J.  Law  193. 

4.  Ante,  p.  460. 

5.  Haile  v.  Lillie.  ?  Hill  149; 
.McCoon  V.  Smith,  3  Hill  (N.  Y.) 
147,  38  Am.  Dec.  623 ;  Crapster  ;■. 
Griffith,  2  Bland  (Md.)  5;  Ackerman 
V.  Rnnyon,  3  ,\bb.   Pr.   (N.   Y.)    in. 

Admissions  of  Infants  Competent. 

Vol.  I 


So  it  was  said  in  Haile  v.  Lillie.  3 
Hill  (N.  Y.)  149:  "The  only  point 
in  the  case  is,  whether  the  admis- 
sions of  the  plaintiff,  an  infant,  were 
admissible  in  evidence  against  him. 
There  can  be  no  donbt  they  were ; 
though  the  effect  of  such  admissions 
may  frequently  be  controlled  by  the 
infant's  incompetency  to  bind  him- 
self by  contract.  It  is  the  daily 
practice  to  receive  the  confessions  of 
infants  in  criminal  proceedings,  and 
in  actions  for  wrongs  committed  by 
them  for  which  they  are  personally 
responsible,  as  in  actions  of  trespass, 
etc.  The  only  privilege  of  an  infant 
who  has  arrived  at  years  of  discre- 
tion, even  in  civil  cases,  is  an  exemp- 
tion at  common  law  from  liability 
upon  most  of  his  contracts.  Inde- 
pendently of  this  privilege  he  stands 
in  court  upon  the  same  footing  of  an 
adult." 

Giving  Receipt.  —  It  is  held  that  a 
receipt  given  by  an  infant  is  compe- 
tent evidence.  Crapster  v.  Griffith,  2 
Bland   (Md.)   5- 

Inadmissible But     it     has     been 

directly  held  that  an  infant  is  incapa- 
ble of  making  an  admission  which 
will  affect  his  rights.  Barker  v. 
Hamilton,  3  Colo.  291  ;  Lunday  v. 
Thomas,  26  Ga.  537. 


ADMISSIOXS. 


595 


sions  of  the  son  are  inadmissible." 

C.  Under  Guardianship.  —  The  fact  that  one  is  under  guardian- 
ship does  not  render  his  admissions  inachnissible.' 

D.  NoN  Compos.  —  It  has  been  said  to  be  the  admitted  law  that 
the  declarations  of  a  lunatic,  not  a  party  to  the  action,  are  admissible 
as  between  third  parties,  where  they  have  been  made  asjainst  his 
interest.* 

E.  Married  Women.  —  a.  Generally.  —  As  a  general  rule  mar- 
ried women  are  bound  by  their  admissions  the  same  as  other  per- 
sons.° 

b.  For  What  Purposes  Inadmissible.  —  If  a  married  woman  is 
disabled  by  reason  of  her  coverture  to  render  herself  liable  by  direct 
contract,  she  cannot  do  so  by  her  parol  admissions." 

F.  Under  Duress.  —  a.  When  Admissible.  —  If  the  admission  is 
not  voluntary,  but  is  compelled  by  duress  or  under  threats  made,  it 
should  be  received  if  at  all,  with  great  caution." 

The  definition  of  an  admission  provable  against  a  party  requires 
the  admission  to  be  voluntary. '- 

And  it  is  held  that  an  admission  not  voluntary,  but  extorted  from 
the  party  making  it,  should  not  be  considered.'" 


6.  Louisville  E.  &  St.  L.  R.  Co.  v. 
Berry,  2  Ind.  .^pp.  427,  28  N.  E.  714. 

7.  '  McNiglit  !■.   McNight,  20  Wis. 
446. 

tinder  Guardianship In  Hoyt  i'. 

Underhill,  10  N.  H.  220,  34  Am.  Dec. 
148,  the  court  said :  "  A  promise  by 
the  defendant,  after  he  was  placed 
under  guardianship,  or  after  suit, 
would  be  insufficient ;  but  an  admis- 
sion, after  suit,  of  a  promise  made 
before  the  suit,  would  be  competent 
evidence  where  no  guardianship  ex- 
isted ;  and  the  guardianship  does 
not  change  all  the  ordinary  rules  of 
evidence.  The  defendant  might  be 
charged  for  any  tortious  acts  not- 
withstanding the  guardianship;  and 
those  acts  might  be  proved,  we  tliink, 
by  his  confessions;  and  if  so,  he  may 
make  declarations  in  relation  to  his 
previous   transactions,  which  will  be 


to    be    weighed 


by 
C. 


the 


17 


320. 
Pa. 


competent 
jury." 

8.  Jones  v.  Henry,  84  N. 
37  Am.  Rep.  624. 

9.  Hollinshead  ?•.  Allen, 
St.  275;  McLemore  i'.  nuckoUs,  37 
Ala.  (N.  S.)  662;  Morrell  z:  Caw- 
ley,  17  .•SLbb.  Pr.  (N.  Y.)  76;  Poole 
I'.  Gcrrard,  9  Cal.  593 ;  Lindner  v. 
Sahler.  51   Barb.   (  N.  Y. )  322. 

Married  Woman's  Admissions  Ad- 


missible Against  Her In  Hollins- 
head V.  Allen,  17  Pa.  St.  275,  the 
court  said ;  "  The  question  is,  does 
her  position  as  a  married  woman 
exclude  her  admissions  in  such  a 
case  as  this?  Where  there  is  any 
probability  that  a  wife  acts  under  the 
constraint  of  her  husband,  or  in 
such  way  as  to  enure  to  his  benefit, 
we  should  be  very  guarded  about 
receiving  her  admissions  against  her- 
self. But  where  there  can  be  no 
such  suspicion,  and  her  admissions 
are  most  palpably  against  her  own 
interest  and  directly  affecting  her 
separate  property,  I  know  of  no  prin- 
ciple of  policy  that  would  exclude 
them.  In  the  case  of  McKee  v. 
Jones,  6  Pa.  St.  425,  her  admissions 
were  received  in  just  such  a  case  as 
this ;  and  it  is  impossible  to  see  that 
the  fact  of  the  husband's  presence  in 
that  case  was  an  element  essential  to 
their  competency,  as  against  herself. 
It  cannot  be  doubted  that  in  an 
equity  suit  to  establish  the  trust,  she 
would  be  compelled  to  answer." 

10.  McGregor  r.  Wait,  10  Gray 
(Mass.)  72,  69  Am.  Dec.  305. 

H.     Fidler  r.  McKinley,  21  111.  308. 

12.  Ante,  p.  357. 

13.  Scott    7'.    Home     Ins.    Co.,    I 


Vol.  I 


5% 


ADMISSIONS. 


But  the  mere  fact  that  the  part)'  was  forced  by  judicial  process  to 
become  a  witness  and  testify,  does  not  render  his  statements  as  a 
witness  inadmissible.'* 

A  distinction  is  made  between  mere  constraint  and  actual  duress." 

V.  WHAT  ADMISSIONS  NOT  RECEIVABLE. 

1.  Generally. — A  declaration  may  in  some  instances  be  admis- 
sible against  the  party  making  it  as  an  admission,  but  will  not  be 
received  on  the  ground  of  public  policy,  as,  for  example,  where  it 
will  have  the  effect  of  disclosing  state  secrets,  jury  secrets,  or 
statements  between  persons  so  related  towards  each  other  as  to 
render  communications  between  them  confidential  and  privileged.'" 

These  are  only  noticed  here  in  a  general  way.  They  will  be 
considered  more  in  detail  under  their  appropriate  heads. 

2.  Admissions  of  Law.  —  The  general  rule  is  that  admissions  of 
law  or  the  legal  eft'ect  of  a  written  instrument,  are  not  competent." 

3.  For  Sake  of  Compromise.  —  A.  Gener.xlly  Inadmissible. 
The  general  rule  is  that  offers  made  in  an  effort  to  compromise  can- 
not be  proved  as  admissions.'* 


Hughes  163,  21  Fed.  Cas.  No.  12,535; 
City  Bank  v.  Foucher,  9  La.  405. 

14.  Ante,  p.  357 ;  Rex  z'.  Merce- 
ron,  2  Stark.  366,  3  Eng.  C.  L.  385. 

15.  I  Greenl.  Ev.  §  193. 

While  Under  Arrest. —  The  fact 
that  the  party  was,  at  the  time  of 
making  the  admission,  under  arrest, 
and  arraignment  does  not  render  it 
inadmissible.  Notara  v.  DeKamala- 
ris,  22  Misc.  3i7,  49  N.  Y.  Supp.  216. 

16.  Greenl.  Ev.,  chap.  XIII. 

17.  Boston  Hat  Mfg.  Co.  v.  Mes- 
singer,  2  Pick.  (Mass.)  223;  Roberts 
V.  Roberts,  82  N.  C.  29;  Crockett  v. 
Morrison,  11  Mo.  3;  Rice  <■.  Rnddi- 
man,  10  Mich.   125. 

Must  Be  Admission  of  Facts. 
Folk  V.  SchaefFer,  180  Pa.  St.  613,  37 
Atl.  104. 

Mixed  Law  and  Fact  Admissible. 
Lewis  V.  Harris,  31  Ala.  689.  But 
see  Sunmiersett  v.  Adamssoii,  i 
Bing.  72,  8  Eng.  C.  L.  255. 

18.  England.  —  Paddock  v.  For- 
rester, 3  M.  &  G.  903,  42  Eng.  C.  L. 
470;  Jardine  v.  Sheridan,  2  Car.  & 
K.  24,  61  Eng.  C.  L.  24. 

United  States.  —  Gibbs  v.  Johnson, 
3  App.  Conn.  Pat.  255;  10  Fed.  Cas. 
No.  5384;  Home  Ins.  Co.  v.  Balti- 
more Warehouse  Co.,  93  U.  S.  527 ; 
West  V.  Smith,  loi  U.  S.  263. 

Vol.  I 


Alabama. — Jackson  v.  Clopton,  66 
Ala.  29;  Wood  7'.  Wood,  3  .-Ma.  756; 
Collier  v.  Coggins,  103  .^la.  281,  15' 
So.  578;  Feibelman  v.  Manchester  F. 
A.  Co.,  108  .^la.  180,  19  So.  540;  East 
Tennessee,  V.  &  G.  Ry.  Co.  v.  Davis, 
91  Ala.  615,  8  So.  349. 

Colorado.  —  Patrick  i'.  Crowe.  15 
Colo.  543,  25  Pac.  985 ;  Chicago  B.  & 
Q.  R.  Co.  V.  Roberts,  26  Colo.  329, 
57  Pac.  1076. 

Georgia.  —  Emery  v.  Atlanta  R.-E. 
Exch.,  88  Ga.  321,  14  S.  E.  556; 
Keaton  v.  Mayo,  71  Ga.  649;  Mayor 
of  Montezuma  -'.  Minor,  73  Ga.  484. 

Idaho.  —  Sebree  ?'.  Smith,  2  Idaho 
329,   l6  Pac.  915. 

Illinois.  —  Paulin  v.  Howser,  63 
111.  312;  Chicago  E.  &  L.  S.  R.  Co. 
V.  Catholic  Bishop,  119  111.  525,  10 
N.  E.  372;  Malthressen  v.  Ferris,  72 
111.  App.  684;  Hanison  v.  Frickctt, 
57   111.  App.  575. 

Indiana.  —  Dailey  j'.  Coons,  6.'  Ind. 

S45- 

loiva.  —  Kassing  f.  Walter  (Iowa), 
65  N.  W.  832;  Houdeck  v.  Mer- 
chants' &  Bankers'  Ins.  Co.,  102 
Iowa  303,  71  N.  W.  354. 

Kansas.  —  Myers  v.  Goggerty 
(Kan.),  63   Pac.  296. 

Maryland.  — Pentz  r.  Pennsylvania 
F.  Ins.  Co.,  92  Md.  444,  48  .\t.l.   139. 


ADMISSIONS. 


597 


Massachusetts.  —  Harrington  v. 
Inhab.  of  Lincoln,  4  Gray  563,  64 
Am.  Dec.  95 ;  Gay  ?■.  Bates,  99  Mass. 
263;  Draper  v.  Hatfield,  124  Mass. 
S3 ;  Upton  v.  South  Reading  B.  R. 
Co.,  8  Cush.  600. 

Michigan.  —  Montgomery  v.  Allen, 
84  Mich.  656,  48  N.  W.  153;  Pelton 
V.  Schmidt,  104  Mich.  345,  62  N.  W. 
552,  53  Am.  St.  Rep.  462 ;  Ward  v. 
Munson   (Mich.),  75  N.  W.  440. 

Minnesota.  —  Person  v.  Bowe,  79 
Minn.  238,  82  N.  W.  480. 

Mississippi.  —  Garner  i'.  Myrick, 
30  Miss.  448. 

Missouri.  — Huetteman  v.  Vresseh- 
man,  48  Mo.  App.  582;  Moore  v.  H. 
Cans  &  Sons'  Mfg.  Co..  113  Mo.  98, 
20  S.  W.  975. 

Nebraska.  —  Kierstead  v.  Brown, 
23  Neb.  595,  37  N.  W.  471 :  Callen  v. 
Rose,  47  Neb.  638,  66  N.  W.  639; 
Wright  V.  Morse,  5'3  Neb.  3,  73  N. 
W.  211 ;  Hanover  F.  Ins.  Co.  v.  Stod- 
dard, 52  Neb.  745,  73  N.  W.  291  ; 
Boyce  v.  Palmer,  55  Neb.  389,  75  N. 
W.  849;  Aultman  &  Co.  v.  Martin, 
49  Neb.  103,  68  N.  W.  340. 

Nevada. — Quinn  v.  White  (Nev.), 
62   Pac.  995. 

Nezi'  Hampshire. — Perkins  v.  Con- 
cord R.  R.,  44  N.  H.  223;  Hamblett 
V.  Hamblett,  6  N.  H.  333 ;  Green- 
field V.  Kennett,  69  N.  H.  419,  45 
Atl.  233 ;  Sanborn  v.  Neilson,  4  N. 
H.  501 ;  Jenness  v.  Jones,  68  N.  H. 
475,  44  Atl.  607. 

Nezv  Jersey.  —  Wrege  v.  Westcott, 
30  N.  J.  Law  212;  Miller  v.  Halsey, 
14  N.  J.  Law  48;  Scheurle  v.  Hus- 
bands, 65  N.  J.  Law  40,  46  Atl.  759; 
International  Pottery  Co.  v.  Rich- 
ardson  (N.  J.  App.),  43  Atl.  692. 

New  York.  —  Smith  v.  Satterlee, 
130  N.  Y.  677,  29  N.  E.  225;  Wil- 
liams V.  Thorp,  8  Cow.  201 ;  Gom- 
mersall  v.  Crew,  14  N.  Y.  Supp.  922 ; 
Slingerland  v.  Norton,  35  N.  Y. 
St.  426,  12  N.  Y.  Supp.  647 ;  Doyle  v. 
Levy,  89  Hun  350,  35  N.  Y.  Supp. 
434;  Rods  v.  Dicke,  34  Misc.  168,  68 
N.  Y.  Supp.  790;  Tennant  v.  Dudley, 
144  N.  Y.  504,  39  N.  E.  644. 

Oregon.  —  Cochran  z'.  Baker,  34 
Or.  555.  56  Pac.  641. 

Pennsxlvania.  —  Fisher  v.  Fidelity 
Mut.  L."  Ins.  Co.,  188  Pa.  St.  i.  41 
Atl.  467. 

South    Carolina.  —  Gibbes    v.    Mc- 


Craw,  45  S.  C.  184,  22  S.  E.  790; 
Frick  &  Co.  V.  Wilson,  36  S.  C.  65, 
15  S.  E.  331  ;  Chandler  Z'.  Geraty,  10 
S.  C.  304;  Norris  v.  Hartford  F.  Ins. 
Co.,  57  S.  C.  358,  35  S.  E.  572 ;  Rob- 
ertson z:  Blair,  56  S.  C.  96,  34  S.  E. 
II.  76  Am.  St.  Rep.  543. 

South  Dakota.  —  Reagan  z'.  Mc- 
Kibben.  11   S.  D.  270.  76  N.  W.  943. 

Tennessee.  —  Strong  v.  Stewart,  g 
Heisk.  137. 

Texas.  ■ —  International  &  G.  N. 
Ry.  Co.  z:  Ragsdale,  67  Te.x.  24,  2 
S.  W.  515;  Western  U.  Tel.  Co.  v. 
Thomas.  7  Tex.  Civ.  App.  105,  26 
S.  W.  117;  Darby  v.  Roberts,  3  Tex. 
Civ.  App.  427,  22  S.  W.  529;  San 
Antonio  &  A.  P.  Ry.  Co.  v.  Stone, 
(Te.x.  Civ.  App.,)  60  S.  W.  461. 

Vermont.  —  Whitney  Wagon  Wks. 
V.  Moore,  61  Vt.  230,  17  Atl.  1007. 

Wisconsin.  —  State  Bank  v.  Dut- 
ton,  II  Wis.  371. 

Rule  Extends  to  Offers  to  Confess 
Judgment —  Kelley  v.  Combs,  22 
Ky.  Law  365,  57  S.  W.  476. 

Otherwise  as  to  a  Deposit  in  Court. 
Low  V.  Griffen,  (Tex.  Civ.  App.,) 
41  S.  W.  73- 

Exclusions  of  Such  Admissions 
Not  Favored —  The  leaning  of  the 
courts  against  the  exclusion  of  offers 
of  compromise  is  thus  stated  in 
Grubbs  v.  Nye,  13  Smed.  &  M. 
(Miss.)  443:  "The  courts  of  late, 
and  especially  in  this  country,  have 
leaned  against  the  exclusion  of  offers 
of  compromise  as  testimony.  I 
Greenl.  Ev.,  232,  p.  192,  and  notes. 
The  overture  in  this  instance  was 
not  stated  to  have  been  confidential, 
nor  to  be  made  without  prejudice. 
It  was  not  an  offer  of  a  sum  of 
money  to  buy  peace  in  a  contro- 
verted state  of  case.  There  was,  at 
the  time,  no  denial  of  the  execution 
of  the  note  in  the  pleadings.  There 
was  no  treaty  pending  for  a  com- 
promise, but  it  was  a  voluntary  and 
unsolicited  offer  of  the  defendant. 
It  evinced  no  willingness  to  submit 
to  a  sacrifice,  or  to  make  a  conces- 
sion, to  terminate  litigation.  On  the 
contrary,  the  offer  was  only  to  be 
considered  obligatory,  provided  the 
plaintiff  obtained  a  judgment.  It 
was  then  but  a  proposition  to  obtain 
time  after  the  suit  should  have  ter- 
minated against  him.    The  admission 

Vol.  I 


598 


ADMISSIONS. 


B.  Rule  Does  Not  Apply  to  Criminal  Cases.  —  The  rule  has 
no  application  to  criminal  cases.'" 


in  the  letter  of  a  distinct  fact,  fell 
within  none  of  the  rules  for  the  ex- 
clusion of  propositions  of  compro- 
mise, and  was  properly  permitted  to 
go  to  the  jury." 

But  see  to  the  contrary  Berggreu 
V.  Fremont  etc.  Co..  2^  Neh.  620,  37 

N.   W.   471. 

Made  Voluntarily  Without  Pend- 
ing Negotiations.  _  In  Gibbs  v. 
Johnson,  3  App.  Comr.  Pat.. 255,  10 
Fed.  Cas.  No.  5384,  this  limitation 
of  the  rule  is  stated:  ''If  the  ad- 
missions are  by  way  of  coinpromise 
and  without  the  admissfon  of  any 
particular  independent  facts,  this 
would  be  considered  as  inadmissible, 
but  if  the  offer  be  so  made  volun- 
tarily without  any  pending  negotia- 
tion, and  without  stating  it  to  be 
made  without  prejudice  the  rule  does 
not   apply." 

See  also  International  Pottery  Co. 
V.  Richardson  (N.  J.  App.).  43  .\tl. 
692;  Teasley  v.  Bradley,  no  Ga. 
jf-?,  35   S.    E.   782,   78   Am.    St.   Rep. 

113- 
Offers    to    Arbitrate    Within    the 

Rule.  —  Mundhenk   v.    C.    1.    R.    Co., 

57  Iowa  718,  II  N.  W.  656;  Duff  V. 

buff.  71   Cal.  513,   12  Pac.  570. 

Competent  Where  Results  in  Mak- 
ing   of    Contract    Sued    On Stuht 

;•.  Sweescy,  48  Neb.  7(17,  67  N.  VV. 
748. 

To  be  privileged  must  be  part  of 
negotiations  for  compromise.  Bros- 
chart  f.  Tuttle.  59  Conn,  i,  21  Atl. 
925,   II   L.   R.   .\.  33. 

Competent  to  Contradict  the  Party. 
In  Taylor  i<.  Bay  City  St.  R.  Co.,  101 
Mich.  140,  59  N.  W.  447,  the  court 
said ;  "  Propositions  for  a  compro- 
mise are  of  course  inadmissible,  but, 
if  a  party  during  such  negotiations 
make  statements  not  in  harmony 
with  his  claim  for  damages,  such 
statements  are  competent  to  contra- 
dict him  when  he  has  testified  that 
he  suffered  damages.  Any  statement 
made  by  either  of  the  plaintiffs  in 
this  case,  whether  during  negotiations 
for  a  settlement  or  otherwise,  which 
tended  to  show  that  he  considered 
the  railroad  a  benefit  rather  than  in- 
jury,   was    clearly    competent." 

Vol.  I 


Must  Be  Offered  as  a  Compromise. 

In  Hood  V.  Tyner,  3  Ind.  .\pp.  51. 
28  N.  E.  1033,  it  was  offered  to  show 
that  the  defendant  offered  to  give 
the  plaintiff  a  horse  and  a  certain 
amount  to  boot  as  a  settlement  of  the 
claim  made  against  him.  The  evi- 
dence was  held  to  be  competent,  the 
court  saying ;  "  This  conversation 
occurred  upon  an  occasion  when  the 
appellee  went  to  the  house  of  the 
appellant  to  collect  his  account.  The 
latter  said  that  he  did  not  have  the 
money  to  pay  him  at  that  time ; 
hence  the  talk  about  the  sale  of  a 
horse.  There  was  no  element  of 
compromise  in  the  negotiation.  No 
treaty  of  peace  was  pending  between 
the  parties,  and  the  proposition  to 
sell  the  horse  was  not  an  overture 
of  pacification,  but  was  suggested 
as  a  means  of  paying  a  debt  which 
the  debtor  was  unable  to  pay  in 
cash." 

What  Amounts  to  Offer  of  Com- 
promise. —  As  to  what  will  or  will 
not  amount  to  an  offer  of  com- 
promise or  admissions  inade  in 
course  of  negotiations  therefor,  in 
such  sense  as  to  protect  a  party  from 
their  disclosure  as  privileged,  see  \the 
following  cases : 

Colorado.  —  Chicago  B.  &  Q.  R. 
Co.  I'.  Roberts.  10  Colo.  .\pp.  87. 
49  Pac.  428;  Chicago  B.  &  Q.  R.  Co. 
v.  Roberts,  26  Colo,  329,  57  Pac.  1076. 

Connecticut. — Hartford  Bridge  Co. 
V.  Granger,  4  Conn.  142. 

Illinois.  —  McKenzie  v.  Stretch,  13 
111.  App.   184. 

Indiana.  —  Hood  v.  Tyner,  3  Ind. 
App.   51,  28   N.   E.    1033. 

Ioii.-a.  —  Houdeck  v.  Merchants  & 
Bankers  Ins.  Co.,  102  Iowa  303.  71 
N.   W.   354. 

Suggestion  of  Compromise  Between 
Parties  Jointly  Interested —  Thc 
suggestion  of  compromise  by  one 
party  to  another  jointly  liable  or 
charged  with  liim  is  not  privileged. 
It  must  be  an  offer  or  negotiations 
with  the  opposite  party.  Smith  v. 
Whittier,  95  Cal.  279,  30  Pac.  529. 

19.  State  V.  Soper,  16  Me.  293. 
33  Am.  Dec.  665. 


ADMISSIOXS. 


599 


C.  Must  Be  Made  to  Purchase  Peace.  —  Offers  of  compromise 
are  privileged  only  where  made  to  purchase  peace  in  a  controversy 
where  the   party   making  the  offer   does  not   admit   his   liahility.-" 

D.  Question  for  the  Court.  —  As  the  question  is  one  of  the 
admissibihty  of  evidence,  the  court  should  determine  whether  the 
admissions  offered  were  or  were  not  so  made  as  to  be  privileged.-' 

E.  Admission  of  Facts  Competent.  —  While  offers  of  compro- 
mise cannot  be  proved  as  admissions,  a  distinct  admission  of  a  fact 
in  the  course  of  negotiations  therefor  are  held  to  be  admissible." 


20.  Hood  7'.  Tyner,  3  Ind.  \pp. 
51,  28  N.  E.  1033;  Grubles  i'.  Nye. 
13  S.  &  M.  (Miss.)  443;  Moore  :■. 
Gaus  etc.  Mfg.  Co..  113  Mo.  98,  20 
S.  W.  975;  Hartford  Bridge  Co.  v. 
Granger.  4  Conn.  142 ;  Jenness  i'. 
Jones,  68  N.   H.  475,  44  Atl.  607. 

21.  Batchelder  v.  Batchelder.  2 
Allen  105 ;  Greenfield  7'.  Kennett,  69 
N.  H.  419,  45  Atl.  233, 

Question  When  Left  to  Jury. 
It  is  held  that  where  there  is  a  dis- 
agreement in  the  evidence  up^n  the 
question  whether  matters  offered  to 
be  proved  were  made  as  an  offer 
of  or  in  negotiations  for  a  com- 
promise the  question  may  properly 
be  left  to  the  jury  under  instruction 
to  disregard  the  admissions  proved 
if  made  in  an  effort  to  compromise. 
Webber  i'.  Dumm,  71  Me.  330; 
Greenfield  -■.  Kennett,  69  N.  H.  419, 
45   Atl.  233. 

22.  California.  —  Rose  i'.  Rose, 
112  Cal.  341,  44  Pac.  658. 

Colorado.  —  Kutcher  v.  Love,  19 
Colo.   542,   36   Pac.    152. 

Connecticut. — Hartford  Bridge  Co. 
V.   Granger,  4   Conn.    142. 

Georgia. — Molyneaus  v.  Collier,  13 
Ga.  406. 

Illinois.  —  McKinzie  v.  Stretch,  53 
111.  App.   184. 

/owa.  —  Rosenberger  v.  Marsh, 
108  Iowa  47,  78  N.  W.  837. 

Massachusetts.  —  Marsh  z:  Gold,  2 
Pick.  284;  Gerrish  v.  Sweetser,  4 
Pick.  373;  Durgin  v.  Somers,  117 
Mass.  55. 

Michigan.  —  Taylor  v.  Bay  City 
St.  Ry.  Co.,  Id  Mich.  140,  59  N.  W. 

447- 

Mississipfi.  —  Grubbs  v.  Nye,  13  S. 
&  M.  443;  Garner  v.  Myrick,  30 
Miss.  448. 

Missouri.  —  Moore     v.     Gaus     etc. 


Mfg.  Co.,  113  Mo.  98.  20  S.  W.  975. 

Neif  Hampshire.  —  Hamblett  f. 
Hamblett.  6  N.  H.  333;  Perkins  v. 
Concord  R.  R.,  44  N.  H.  223 ;  Ride- 
out  V.  Newton,  17  N.  H.  71  ;  Plum- 
nier  v.  Currier,  52   N.  H.  287. 

New  York.  —  Marvin  v.  Richmond. 
3  Denio  58,  17  N.  Y.  C.  L.  280: 
Armour  z\  GafTey,  30  App.  Div.  121, 
51  N.  Y.  Supp.  846. 

United  States.  —  Gibbs  r.  Johnson, 
3  App.  Conn.  Pat.  25s,  10  Fed.  Cas. 
No.  5384. 

Admission  of  Independent  Fact. 
In  Rose  v.  Rose,  112  Cal.  341,  44 
Pac.  658,  a  divorce  case,  a  paper 
signed  by  the  defendant,  in  which  he 
offered  to  divide  the  property  and 
described  it  as  community  property, 
was  admitted  in  evidence  solely  for 
the  purpose  of  showing  that  the 
property  was,  in  fact,  community 
property.  The  court  held  the  ruling 
to   have  been   correct,   saying : 

"  The  declaration  as  to  the  com- 
munity character  of  the  property  was 
not  essential  to  the  purposes  of  the 
compromise,  and  is  therefore  not  to 
be  regarded  as  a  concession  made  for 
that  purpose.  While,  therefore,  it 
would  not  be  competent  to  admit  an 
offer  of  compromise,  as  such,  the 
declaration  therein  of  facts  involved 
in  the  controversy  which  are  not 
mere  concessions  made  for  the  pur- 
pose of  such  offer,  but  are  statements 
of  independent  facts,  is  admissible 
against  the  party  making  them.  The 
rule  is  thus  stated  by  Mr.  Rice :  '  It 
is  never  the  intention  of  the  law  to 
shut  out  the  truth,  but  to  repel  any 
inference  which  may  arise  from  a 
proposition  made,  not  with  a  design 
to  admit  the  existence  of  a  fact, 
but  merely  to  buy  one's  peace.  If 
an  admission,   however,   is   made  be- 


Vol.  I 


600 


ADMISSIONS. 


4.  State  Secrets.  —  Confidential  matters  of  state  cannot  be  dis- 
closed by  proof  of  admissions  or  declarations  made  by  officers  pos- 
sessed as  such  of  such  secrets."^ 

5.  Jury  Secrets.  —  The  same  rule  applies  to  matters  which  come 
before  jurors  in  secret  sessions  and  in  the  performance  of  their 
duties.-^ 

6.  Privileged  Communications.  —  If  an  admission  is  made  in  con- 
versation between  parties  occupying  such  a  confidential  relation  as 
to  render  communications  so  made,  privileged,  proof  of  them  is 
inadmissible.-"^ 

7.  Parol  Admissions  in  Pais.  —  A.  Generally.  —  Parol  admis- 
sions are  admissible  generally  as  we  have  seen.  But  the  question 
not  infrequently  arises,  as  to  their  competency  to  prove  certain 
things,  for  example,  the  contents  of  written  instruments.  These 
questions  have  been  reserved  for  this  place  under  receivable  admis- 
sions. 

B.  As  Evidence  of  Contents  of  Written  Instruments.  — The 
rule  is  general  that  a  written  instrument  is  the  best  evidence  of  its 
contents,  and  that  parol  evidence  is  competent  only  when  the  instru- 
ment itself  cannot  be  produced.  Therefore,  such  contents  could 
not  be  proved  by  the  sworn  testimony  of  the  party  except  as  second- 
ary evidence  after  laying  the  proper  foundation.  It  would  seem  to 
follow  necessarily,  that  the  contents  of  the  instrument  could  not 
be  established  by  the  parol  or  verbal  admissions  of  the  party  except 
in  the  same  wav."" 


carse  it  is  a  fad,  the  evidence  to 
prove  it  is  competent,  whatever 
motive  may  have  prompted  the 
declaration.  But  if  ihc  partj'  admits 
a  particular  item  in  an  account,  or 
any  other  fact,  meaning  to  m^ke 
the  admission  a«  being  true,  this  is 
good  evidence,  although  the  object 
of  the  conversation  was  to  com- 
promise an  e.xisting  controversy.'  " 

Amounting  to  Admission  of  Lia- 
bility  It    is    held    in    McKinzie   v. 

Stretch,  S3  111.  App.  184,  that  an 
offer  to  compromise  a  disputed  claim 
to  avoid  litigation  is  not,  as  a  general 
rule,  admitted  in  evidence,  but,  when 
such  offer  amounts  to  an  admission 
of   liability,   the   rule   is   different. 

TTnless  Made  Without  Prejudice. 
Kutcher  v.  Love,  19  Colo.  542,  36 
Pac.  152. 

23.  Greenl.  Ev.,  §250;  Worthing- 
ton  V.  Scribner,  109  Mass.  487,  12 
Am.  Rep.  736. 

24.  1  Greenl.  Ev.,  §§  252,  2523. 

25.  Emmons  v.  Barton,  lOg  Cal. 
662,    42    Pac.    303 ;    Van    Zandt    v. 

VoL  I 


Schuyler,  2  Kan.   App.   118,  43   Pac. 
295  ;    I   Greenl.  Ev.,  §§  86-90. 

26.  England.  —  Summerset  v. 
Adamson,   1    Bing.   73,  8  Eng.   C.   L. 

255. 

United  States.  —  In  re  Paine,  9 
Ben.   144,   18  Fed.  Cas.   No.   10.673. 

Alabama.  —  Fralick  v.  Presley,  29 
Ala.  457,  64  Am.  Dec.  413 ;  Ware  v. 
Roberson,  18  Ala.  (N.  S.)  lOS ;  Chap- 
man  V.    Peebles,   84   ,\Ia.    283,   4   So. 

273- 

California.  —  Poole  v.  Gerrard,  9 
Cal.    593- 

Connecticut.  —  Davis  r.  Kingsley, 
13    Conn.    285. 

///iiiou.  —  Mason  v.  Park,  4  111. 
532 ;  Jameson  ?'.  Conway,  5  Gilm. 
227. 

Minnesota.  —  Horton  v.  Chad- 
bouni,  31  Minn.  322,  17  N.  W.  865. 

New  Jersey.  —  Cumberland  Mat. 
F.  Ins.  Co.  V.  Giltinan,  48  N.  J.' Law 
495.  7  Atl.  424. 

New  York.  —  Keator  v.  Diininick, 
46  Barb.  158;  Welland  Canal  Co.  v. 
Hathaway,    8    Wend.    480,    24    Am. 


ADMLSSIOXS. 


6ni 


C.  To  Prove  Fact  of  Which  Instrument  Is  Evidence.— There 
is,  however,  an  apparent  exception  to  this  rule  where  the  written 
instrument  "  is  not  part  of  the  fact  to  be  proved,  but  is  merely  a 
collateral  or  subsequent  memorial  of  the  fact."-' 

But  this,  it  will  be  seen,  is  not  proving  the  contents  of  the  instru- 
ment, but  proving  the  fact  of  which  the  instrument  is  itself  made 
evidence.-* 


Dec.  51  ;  Jeimer  v.  Joliffe,  6  Johns. 
9;  Morris  v.  Wadsworth,  17  Wend. 
103. 

Nortli  Carolina.  —  Shaffer  v.  Gay- 
nor,  117  N.  C.  15,  23  S.  E.  154; 
Roberts  v.  Roberts.  82  N.  C.  29. 

Soutti  Carolina.  —  Moore  v.  Dick- 
inson, 39  S.  C.  441,  17  S.  E.  998; 
Lands  V.  Crocker,  3  Brev.  40. 

Texas.  —  Dooley  v.  McEwing,  8 
Tex.  306. 

General  Statement  of  the  Rule. 
In  Morgan  v.  Patrick,  7  Ala.  (N. 
S.)  185,  it  is  said  that  the  rule  is 
that  admissions  out  of  court  are  no 
evidence  to  estabhsli  deeds,  records 
or  statutes. 

Of  Existence  of  Policy  of  Insur- 
ance  The  existence  of  a  policy  of 

insurance  on  property  may  be  estab- 
lished by  the  admission  of  the  party 
in  his  application  for  other  insurance. 
New  York  Cent.  Ins.  Co.  v.  Watson, 
23    Mich.   486. 

For  What  Purpose  Oral  Admission 
Competent.  —  In  Keator  v.  Dini- 
mick,  46  Barb.  158,  it  is  held,  gen- 
erally, that  admissions  of  a  fact  are 
competent  only  when  parol  evidence 
of  the  fact  would  be  competent.  See 
also  Shaffer  v.  Gaynor.  117  N.  C. 
15,  23  S.   E.   154. 

In  Fralick  v.  Presley,  29  Ala.  457, 
462,  the  rule  is  thus  stated :  "  So 
far  as  the  declarations  above  men- 
tioned were  mere  statements  ot  the 
contents  of  the  deed  they  were  cer- 
tainly inadmissible  unless  the  proper 
predicate  for  the  introduction  of 
secondary  evidence  was  laid.  Parol 
admissions  are  competent  evidence 
only  of  those  facts  which  it  is  per- 
missible  to  prove  by  parol." 

To  Prove  Consideration.  —  The 
consideration  for  a  writing  may  be 
proved  by  the  admissions  of  a  party. 
Edgerton  v.  Edgerton,  8  Conn.  6; 
Dimon  ?'.  Keery,  54  App.  Div.  318, 
66  N.  Y.  Supp.  817. 


Statement     of      the     Rule.  —  In 

Welland  Canal  Co.  v.  Hathaway,  8 
Wend.  480,  II  N.  Y.  Com.  Law  439, 
the  rule  is  thus  stated :  "  I  am  not 
aware  of  any  principle  in  the  law  of 
evidence  which  will  authorize  us  to 
substitute  the  declarations  of  a  party, 
even  as  against  himself,  for  record 
or  written  evidence,  and  thereby  dis- 
pense with  its  production.  Such  ad- 
missions rank  only  with  oral  tes- 
timony, and  are  entitled  to  no  higher 
consideration  in  deciding  upon  the 
competency  of  evidence.  It  may  be 
laid  down,  I  think,  as  an  undeniable 
proposition,  that  the  admissions  of  a 
party  are  competent  evidence  against 
himself  only  in  cases  where  parol  evi- 
dence would  be  admissible  to  estab- 
lish the  same  facts,  or  in  other  words, 
where  there  is  not,  in  the  judgment 
of  the  law,  higher  and  better  evi- 
dence in  existence  to  be  produced. 
It  would  be  a  dangerous  innovation 
upon  the  rules  of  evidence,  to  give 
any  greater  effect  to  confessions  or 
admissions  of  a  party,  unless  in  open 
court,  and  the  tendency  would  be  to 
dispense  with  the  production  of  the 
most  solemn  documentary  testimony." 
Admissions  of  Agent  Incompetent 
to  Prove  Contents  of  Written  In- 
strument  In   Moore  v.   Dickinson, 

39  S.  C.  441,  17  S.  E.  998  it  is  held 
that  evidence  of  the  declarations  of 
an  agent  as  to  the  contents  of  letters 
received  by  him  from  his  principal  is 
not  admissible  against  the  latter,  in 
the  absence  of  testimony  showirfg 
that  the  letters  have  been  lost  or 
destroyed. 

27.  I  Greenl.  Ev.,  §§86-90;  Dooley 
V.    McEwing,   8   Te.x.    306. 

28.  I  Greenl.  Ev.,  §§  86-90;  Dooley 
V.    McEwing,    8    Tex.    306. 

In  What  Cases  Admissions  Inad- 
missible  In  Greenleaf  on  evidence 

the  following  are  stated  as  cases  in 
which  admissions  or  other  oral   evi- 

Vol.  I 


602 


ADMISSIOXS. 


D.  Distinction  Between  Admission  oe  Law  and  of  Fact. — A 
distinction  is  made  between  an  admission  of  law  and  an  admission 
of  fact,  or  of  the  legal  eiifect  of  the  instrument,  or  its  contents,  it 
being-  held  in  some  cases  that  the  former  is  not  and  the  latter  is 
admissible.'" 

E.  Cases  Holding  Sfcii  Admissions  Competent.  —  Again 
there  are  cases  holding,  apparently  without  exception,  that  admis- 
sions may  be  received  in  proof  of  what  would  otherwise  have  to  he 
established  bv  a  written  instrument.''"' 


dence  is  inadmissible,  i.  Where 
the  law  requires  the  instrument  to 
be  in  writing.  2.  To  prove  any 
contract  which  the  parties  have  put 
in  writing.  3.  Where  the  existence 
of  a  writing  which  is  material  either 
to  the  issue  between  the  parties,  or  to 
the  credit  of  witnesses  and  is  not 
merely  the  memorandum  of  some 
other  fact,     i  Greenl.  Ev.,  §§  86-88. 

And  that  such  admissions  are  com- 
petent. I.  Where  the  writing  does 
not  fall  within  either  of  the  three 
classes  above  described,  i  Greenl. 
Ev.,  §  90.  2.  Where  the  record  or 
document  appointed  by  law  is  not 
part  of  the  fact  to  be  proved  but  is 
merely  a  collateral  or  subsequent  me- 
morial of  the  fact,  i  Greenl.  Ev.. 
§§86,  56311. 

Of    Right    of    Way    by    Married 

Woman In   McGregor  v.  Wait,   10 

Gray  72,  69  Am.  Dec.  305,  it  is  held 
that  the  admission  bv  her  of  facts 
tending  to  establish  a  right  of  way 
over  the  land  of  a  married  woman 
of  which  she  and  her  husband  were 
seized  and  possessed  were  incom- 
petent because  she  could  not  have 
made  a  valid  grant,  and  therefore 
could  not  do  indirectly  by  her  parol 
admission  what  she  could  not  have 
done   by   a   direct   grant. 

29.  I  Greenl.  Ev.,  §§96,  563k; 
Roberts  z:  Roberts,  82  N.  C.  29. 

30.  Smith  V.  Palmer,  6  Cush.  513; 
Hoeriing  v.  Hambleton,  84  Te.x.  517, 
19  S.  W.  689 ;  Loomis  v.  Wadhams. 
8  Gray  557.  See  also  as  bearing  on 
the  question,  Jackson  v.  Leek,  12 
Wend.   105,   12  N.  Y.  Com.  L.   105. 

To  Prove  Contents  of  Written  In- 
strument  In    Smith    Z'.    Palmer.   6 

Cush.  513,  the  court  said:  "The 
general  principle,  as  to  the  produc- 
tion of  written  evidence  as  the  best 
evidence,   does   not  apply  to   the  ad- 

Vol.  I 


missions  of  parties ;  as  what  a  party 
admits  against  himself  may  reason- 
ably be  taken  to  be  true.  The  weight 
and  value  of  the  statements  and  ad- 
missions will  vary  according  10  the 
circumstances  and  must  be  deter- 
mined by  the  jury.  The  ruling  of 
the  judge  in  the  court  below  on  this 
point  is  well  supported  by  the  au- 
thorities. See  the  case  of  Slatteric 
z:  Pooley,  6  M.  &  W.  664,  where  the 
distinction  between  the  admissions  of 
parties,  and  parol  statements  from 
other  sources,  as  to  written  instru- 
ments, is  fully  explained  and  sup- 
ported. The  general  doctrine  is  also 
found  in  l  Greenl.  Ev.,  §§  96,  97, 
and  cases  there  cited.  In  the  pres- 
ent case,  the  principal  fact  was.  that 
the  defendant  had  not  performed 
his  contract,  in  regard  to  which 
there  could  be  no  doubt  that  his  ad- 
mission would  be  important  evidence, 
and  the  execution  reciting  the  judg- 
ment assigned  by  the  defendant  him- 
self was  produced,  in  connection  with 
the  admissions  and  statements  of  the 
defendant." 

To     Prove     Sale     of     Land In 

Hoefling  v.  Hambleton,  84  Tex.  517, 
19  S.  W.  689,  admissions  of  the 
party  were  allowed  to  show  the  sale 
of  land  which  was  conveyed  by  deed. 
In  holding  the  evidence  to  have  been 
properly  admitted  the  court  said : 
"  It  is,  we  think,  a  proper  case  for 
the  application  of  the  doctrine  that 
tlie  admissions  of  a  party  of  the 
coiitciits  of  a  written  instrument  may 
be  received  in  evidence  without  the 
production  of  the  writing  or  account- 
ing for  its  absence." 

Kule  Stated. —  The  rule  is  thus 
broadly  stated  in  Loomis  v.  Wad- 
hams,  8  Gray  557,  quoted  from  Mr. 
Justice  Parke  in  Earle  i'.  Picker,  S 
Car.  &  P.  542 :     "  What  a  party  says 


.IDMISSIOXS. 


603 


F.  As  A  SuBSTiTL'TE  FUR  WRITTEN  Ex'iDExci';.  —  Doubtless  a 
party  may  waive  proof  by  the  best  evidence  and  substitute  therefor 
his  formal  admission  of  the  fact  at  the  trial. •'' 

G.  Competent  to  Prove  Existence  and  Execution  of  Instru- 
ment. —  The  fact  that  a  writins^  exists,  without  going  into  its  con- 
tents, may  be  proved  by  oral  admissions. '- 

H.  As  Secondary  Evidence.  —  If  the  loss  or  destruction  of  a 
written  instrument  or  that  it  is  out  of  the  jurisdiction  of  the  court, 
and  that  it  cannot  be  produced,  are  shown,  the  admissions  of  a 
party  are  competent  to  show  not  only  its  existence,  but  its  contents.'^ 

I.  To  \'ary  Terms  of  Written  IxsTRUiiEXT. — Admissions 
cannot  be   used   to  vary   the  terms  of  a   written   instrument."* 

8.  Must  Be  Relevant  and  Material  to  the  Issue.  —  The  admission, 
like  all  other  evidence,  must  be  material  to  the  issue.'" 


is  evidence  against  himself  as  an  ad- 
mission whether  it  relates  to  the  con- 
tents of  a  written  paper,  or  any- 
thing else." 

Depends  Upon  the  Character  of 
tne  Admission.  —  In  Cumberland 
Mut.  F.  Ins.  Co.  V.  Giltinan,  48  N.  J. 
Law  495,  7  Atl.  424,  57  Am.  Rep. 
586,  the  admission  sought  to  be 
proved  was  contained  in  the  proof  of 
loss  required  to  be  furnished  to  the 
company  under  oath,  and  to  set  forth 
the  policies  existing  on  the  prem- 
ises. The  admission  thus  made  was 
held  to  be  competent,  but  based  upon 
the  peculiar  character  of  the  admis- 
sion, the  court  saying  :  "  But,  while 
the  evidence  in  question  is  not  to  be 
invalidated  by  force  of  the  theory 
just  criticised  and  repudiated,  we 
still  think  it  was  competent,  and  had 
the  effect  to  prove  the  existence  of 
the  policy  in  question.  Such  evi- 
dence was  not  constituted  of  an  or- 
dinary admission,  but  an  admission 
of  a  character  so  formal,  and,  in 
view  of  the  purpose  for  which  it  was 
designed,  so  accredited  as  to  put  it 
on  a  level  with  admissions  in  a  court 
of  law,  and  which  are  intended  to 
dispense  with  primary  testimony.  It 
was  a  part  of  the  agreement  of  as- 
surance that  the  proof  of  loss 
required  upon  the  happening  of  a 
fire  to  be  furnished  to  the  company 
should  contain  a  statement  of  the 
several  insurances  upon  the  property. 
Such  statement  was  required  to  be 
verified  by  oath ;  and,  if  it  were  will- 
fully false,  the  claim  against  the  com- 


pany was  to  become  void ;  its  object 
being  to  afiford  to  the  company  a 
safe  basis  for  its  action  in  dealing 
with  the  assured.  We  think  that  ad- 
missions, thus  authenticated,  were 
properly  received  at  the  trial  under 
the  circumstances  then  present,  and 
that  their  effect  was  to  prove  the 
policy  in  question." 

31.  Niles  z:  Rhodes,  7  Mien.  (3 
Cooley)   374- 

32.  Poole  V.  Gerrard,  9  Cal.  593; 
New  York  Cent.  Ins.  Co.  v.  Watson, 
23  .Mich.  486. 

And  its  e-xecution  may  also  be 
proved  by  the  admission  of  the  party 
that  he  signed  it.  Nichols  v.  Allen, 
112  Mass.  23. 

33.  Jackson  z:  Livingston,  7 
Wend.  136;  Jackson  z'.  Vail,  7  Wend. 
125;  Fralick  v.  Presley,  29  Ala.  (N. 
S.)  105;  Jackson  Z'.  Hoogland,  7 
Wend.  125 ;  AUred  z'.  Kennedy,  74 
Ala.   326. 

34.  Uhler  v.  Browning.  4  N.  J. 
Law  79;  Scott  V.  Dansby,  12  Ala. 
(N.  S.)  714;  Sawyer  z\  Grandy,  113 
N.  C.  42.   18  S.  E.  79- 

35.  Wells  V.  Alabama  G.  S.  R. 
Co.,  67  Miss.  24,  6  So.  737;  Gilbert 
V.  Odum,  69  Tex.  670,  7  S.  W.  510; 
Fail  V.  McArthur,  31  Cal.  26;  Tuttle 
v.  Cone,  108  Iowa  468,  79  N.  W. 
267;  Wilson  V.  Sax,  21  Mont.  374, 
54  Pac.  46. 

Affecting  One's  Title   to  Personal 

Property Thus  it  is  held  in  Tuttle 

V.  Cone,  108  Iowa  468,  79  N.  W. 
267,  that  declarations  made  by  one  in 
disparagement    of    his    title    ro    per- 

Vol.  I 


604  ADMISSIONS. 

9.  Made  on  Previous  Trial  of  Same  Action.  —  The  question 
whether  judicial  admissions  made  at  the  trial  of  a  cause  may  be 
proved  at  a  subsequent  trial  has  been  fully  considered.^" 

If  made  by  an  attorney  they  are  usually  held  not  to  be  admissible 
at  a  subsequent  trial.^' 

But  there  are  cases  holding  such  admissions  competent  at  the 
second  trial  of  the  same  case  if  made  generally  and  without  limiting 
them  to  the  purposes  of  the  present  trial.^* 

If  made  by  the  party  himself  or  by  an  attorney  with  his  authority, 
and  made  generally  and  not  for  the  purpose  of  the  trial,  there  is 
no  reason  why  they  may  not  be  proved  against  him  at  any  subse- 
quent time  the  same  as  admissions  made  out  of  court. 

VI.  MODE  OF  MAKING  AS  AFFECTING  ADMISSIBILITY. 

1.  Generally.  —  The  mode  of  making  the  admission  is  not  gen- 
erally material  upon  the  mere  question  of  its  admissibility,  how- 
ever much  it  may  affect  its  weight.  But  the  fact  that  the  admission 
is  made  in  an  unusual  way  as,  for  example,  through  an  interpreter, 
or  through  the  telephone,  has  given  rise  to  some  interesting  ques- 
tions which  should  be  noted. 

2.  Through  an  Interpreter.  —  A.  Designated  by  the;  Party 
Himself.  —  Admissions  made  through  an  interpreter  may  be 
proved  by  proving  what  the  interpreter  said  as  being  the  interpreta- 
tion of  what  was  said  by  the  party  in  a  foreign  language.'"' 

B.  Appointed  by  the  Court.  —  A  different  rule  prevails  in  case 
of  the  appointment  by  the  court  of  an  interpreter  for  a  witness. 
There  the  interpreter  is  himself  a  witness  and  not  the  agent  of  the 
witness  for  whom  he  interprets,  and  what  he  says  cannot  be  proved 
as  admissions  of  the  witness.*" 

3.  Through  the  Telephone.  —  A.  Speaking  Directly.  —  It  is 
competent  to  prove  admissions  made  through  the  telephone.*' 

sonal  property,  made  before  his  title  kins,  77  Wis.  9,  45  N.  W.  947;   Sul- 

thereto   was   acquired,   were   immate-  livan    v.    Kuydendall,    83    Ky.    483; 

rial    and    irrelevant.  Canierlin  !■.  Palmer  Co.,  10  Allen  539; 

Whether     Refers     to     Hatter     in  McCormicks   7:    Fuller,   56   Iowa   43, 

Issue ll'hcii     question     for     jury.  8  N.  W.  800 ;  Wright  v.  Maseras,  56 

Von    Reeden   t'.   Evans,   52   111.   App.  Barb.  521. 

209.  Interpreter    Ag^ent    of    Both    Par- 

36.  rlittc,  p.  464.  ties — Where  two  parties  not  speak- 

37.  Ante.  pp.  467,  560;  Nichols  ing  a  common  language  agree  to 
Shepard  &  Co.  v.  Jones.  32  Mo.  .'\pp.  commune  through  an  interpreter, 
657;  State  V.  Buchanan.  Wright  such  interpreter  becomes  the  agent 
(Ohio)    233.  of   each   of   them   and   what   he  says 

38.  Hallez  v.  Young,  68  Me.  215,  for  each  is  his  admission.  Miller 
28  Am.  Rep.  40;  Woodcock  v.  Calais,  i'.  Lathrop,  50  Minn.  91,  52  N.  W. 
68.  Me.  244;  Wetherill  v.  Bird,  7  Car.  274. 

&  P.  6,  32  Eng.   C.   L.  472.  40.     Schearer   i'.    Harber,   36    Ind. 

39.  Nadau   v.   White   River   Lum.       536. 

Co.,  76  Wis.  120,  43  N.  W.  1135.  20  41.     Illinois.  —  Miles    v.    Andrews, 

.'\m.   St.  Rep.  291;  Blazinsky  i'.   Per-       153   111.  262,  38  N.  E.  644;  Oberman 

Vol.  I 


.WMISSIONS. 


605 


B.  Through  an  Operator.  —  And  if  a  conversation  is  had 
tlirough  an  operator  who  states  what  is  said  by  each  to  the  other, 
he  is  the  agfent  of  both,  and  what  he  stated  as  havin<j  been  said  and 
communicated  by  him  is  admissible/- 

VII.  HOW  PROVED. 

1.  Generally,  by  Any  One  Who  Heard  Them.  —  Aihnissions, 
whether  made  by  the  party,  or  by  some  one  by  whose  declarations 
he  is  bound,  are  original  evidence  and  not  hearsay,  and  may  be 
proved  the  same  as  any  other  fact  by  the  party  making  them,  or  any 
one  who  heard  them.*' 

And  this  is  true  where  the  admission  was  made  as  a  part  of  the 
testimony  of  a  witness  in  court." 

A.  Exceptions.- — a.  Husband  or  Wife.  IVhcn  Competent  to 
Prove.  —  If  not  so  made  as  to  fall  within  the  class  of  confidential 
communications,  they  may  be  proved  by  the  husband  or  wife  of  the 
party  making  them.*^ 

b.  Persons  Disqualified  to  Testify.  —  By  statutory  provisions  cer- 
tain persons  are  disqualified  to  testify,  the  other  party  to  the  con- 


Brewing  Co.  T'.  Adams,  35  III.  .^pp. 
540- 

Massacliusctts.  —  Lord  Electric  Co. 
z:  Morrill,  178  Mass.  304,  5g  N.  E. 
807. 

Missouri. — Wolfe  v.  Missouri  Pac. 
Ry.  Co.,  97  Mo.  473,  II  S.  W.  49, 
3  L.  R.  .'\.  539,  10  Am.  St.  Rep.  331 ; 
Globe  Printing  Co.  v.  Stall!,  23  Mo. 
App.   451- 

Ncbraslia.  —  Oskamp  v.  Gadsden, 
35  Neb.  7,  52  N.  W.  718,  17  L.  R.  A. 
440. 

Texas.  —  Missouri  Pac.  Ry.  v. 
Heidenheimer,  82  Tex.  195,  17  S.  W. 
608,  27  Am.  St.  Rep.  861 ;  Stepp 
V.    State,    31    Tex.    Crim.    App.    349, 

20  S.  w.  753. 

Proof  That  Party  Sent  the  An- 
swer  It  would  seem  to  be  neces- 
sary to  identify  the  person  making 
the  statement.  Morris  v.  Stokes,  21 
Ga.  552;  Oberman  Brewing  Co.  z: 
Adams,  35  III.  App.  540.  But  in 
Globe  Printing  Co.  v.  Stahl,  23  Mo. 
.\pp.  451,  it  is  held  that  a  response 
to  an  inquiry  made  of  a  person  over 
the  telephone  purporting  to  be  an 
answer  by  him  may  be  proved  with- 
out positive  proof  of  his  identity. 
See  also  Wolfe  v.  Missouri  Pac.  R. 
Co.,  97  Mo.  473,  II  S.  VV.  49,  3  L. 
R.  A.  539,  10  Am.  St.  Rep.  331. 


Proof  of,   by  Party   Hearing   One 

Side A  party  hearing  but  one  side 

of  the  conversation  may  testify  to 
what  he  heard.  Miles  z'.  Andrews, 
153    111.   262,   38   N.    E.   644- 

Identity  of  Person  Speaking.  —  It 
is  sufficient  to  identify  the  person 
making  the  admission  if  the  witness 
testifies  that  he  recognized  the  voice 
as  his.  Lord  Electric  Co.  v.  Morrill 
(Mass.),  59  N.   E.  807. 

42.  Oskamp  v.  Gadsden,  35  Neb. 
7,  52  N.  W.  718,  17  L.  R.  A.  440,  37 
Am.    St.   Rep.  428. 

43.  Georgia. — Kitchen  t'.  Robbins, 
29  Ga.  713. 

Illinois.  —  Graft'enreid  v.  Kundert, 
31   111.  App.  394- 

Indiana.  —  McConnell  v.  Hannah, 
96  Ind.  102. 

Massachusetts.  —  Goodrich  v.  Wil- 
son,  iig  Mass.  429. 

Michigan.  —  Gilman  v.  Riopelle,  18 
Mich.    145. 

Tennessee.  —  Mulholland  v.  EUit- 
son,  I  Cold.  307,  78  Am.  Dec.  495. 

Vermont.  —  Lyman  v.  Lull,  20  Vt. 

349- 

44.  Graffenreid  v.  Kundert,  31  111. 
App.  394- 

45.  McConnell  v.  Hannah,  96  Ind. 
102. 

Vol.  I 


606 


ADMISSIONS. 


tract  sued  upon  being  dead.     In  such  case  they  cannot  be  lieard  to 
prove  admissions  made  by  such  deceased  person.*'' 

c.  When  Admission  Is  Confidential.  —  So  if  the  admission  is  so 
made  as  to  be  privilesjed  on  account  of  the  relations  of  the  parties, 
it  cannot  be  proved  by  the  person  to  whom  it  was  made.*' 

2.  By  Stenographer's  Notes.  —  Where  testimony  has  been  given 
as  a  witness  and  taken  down  by  a  stenographer  in  shorthand,  it  may 
be  proved  by  the  shorthand  notes,  or  a  transcript  thereof,  after 
proof  by  the  stenographer  of  their  correctness.** 

3.  Particularity  Required. — A.  Generally.  —  A  witness  called 
to  prove  oral  admissions  must  be  able  to  give  the  language  used  or 
its  substance,  or  the  testimony  should  be  excluded.*' 

B.  Party  Making  Must  Be;  Identified.  —  And  the  identity  of 
the  party  making  the  admission  must  be  established  either  by  the 
witness  testifying  to  the  admission  or  by  other  proof. ^^ 

C.  Substance  May  Be  Given.  —  The  witness  need  not  be  able 
to  give  the  exact  words  of  the  admission  ;  it  is  permissible  to  give  its 
substance.^' 

4.  Explanation  by  Party  Making.  —  A.  All  That  Was  Said  at 
THE  Time  May  Be  Pro\Ed.  —  Evidence  is  competent  to  explain 
the  admissions  by  proving  the  circumstances  under  which  they  were 
inade,  and  all  that  was  said  at  the  time  that  would  in  any  way 
qualify  or  explain  them,  and  all  that  was  said  must  be  taken 
together. ^- 


46.  Redden  v.  Innian,  6  111.  App. 
55 ;  Sanford  v.  Ellithorp,  95  N.  Y. 
48. 

47.  Emmons  v.  Barton,  log  Cal. 
662,  42  Pac.  303 ;  Long  v.  Lander, 
10  Or.   175. 

48.  ;Macomber  v.  Bigelow,  128 
Cal.  9,  58  Pac.  312. 

49.  Dennis  v.  Chapman,  19  Ala. 
29,  54  Am.  Dec.  186;  Bailev  v.  Small. 
17  Wend.  (N.  Y.)  238;  Parsons  v. 
Disbrow,    I    E.    D.    Smith    (N.    Y.) 

547- 

50.  Morris  v.  Stokes,  21   Ga.  552. 

51.  Woods  V.  Gevecke,  28  Iowa 
561;   Kittridge  v.   Rnssell.   114  Mass. 

67. 

But     Cannot     Give     Conclusions. 

Parsons  v.   Disbrow,    i    E.   D.   Smith 

(N.  Y.)  547. 

52.  United  States.  —  Sargent  v. 
Home  Benefit  Ass'n,  35  Fed.  711; 
Nat.  Bank  v.  First  Nat.  Bank,  61 
Fed.  8og;  Newman  v.  Bradley,  i 
Dall.  240. 

Alabama.  —  Troy  Fertilizer  Co.  v. 
Logan,  90  Ala.  325,  8   So.  46. 

Vol.  I 


Arkansas.  —  Adkins  v.  Hersy,  14 
Ark.  442. 

California.  —  Thrall  v.  bmiley,  9 
Cal.  529;  First  Nat.  Bank  v.  Wolff, 
79  Cal.  69,  21   Pac.  748. 

Connecticut. — Benedict  :•.  Nichols, 
I   Root  434. 

Delaxcarc.  —  Lattomus  v.  Carman, 
3  Del.  Ch.  232. 

Georgia.  —  Dixon  z'.  Edwards,  48 
Ga.  142;  Doonan  v.  Mitchell,  26  Ga. 
472. 

///mow.— Stone  v.  Cook,  79  111.  424; 
Mclntyre  v.  Thompson,  14  111.  App. 
554;  Moore  v.  Wright,  90  111.  470; 
Rollins  V.  Duffy.  18  111.  App.  .598; 
Chicago  B.  &  Q.  R.  Co.  v.  Bartlett, 
20  111.  App.  96. 

Indiana.  — M'Mev  v.  Wild  Cat  G. 
R.  Co.,  52  Ind.  511  ;  Grand  Rapids  & 
I.  R.  Co.  V.  Diller,  no  Ind.  223,  9 
N.  E.  710. 

/o7C'a.  —  Hartley  State  Bank  v. 
McCorkell,  gi  Iowa  660,  60  N.  W. 
197 ;  Hess  v.  Wilcox,  58  Iowa  380, 
ID  N.  W.  847;  Courtwright  v.  Deeds, 
37  Iowa  .S03 ;  Jones  v.  Hopkins,  32 
Iowa   503. 


ADMISSIONS. 


607 


Kansas.  —  Davis  t.  McCrockliii,  34 
Kan.  218,  8  Pac.  196. 

Maine.  —  Parks  v.  Mosher,  71  Me. 
304 ;  Oakland  Ice  Co.  v.  Maxcy,  74 
Me.  294 ;  Stover  v.  Gorven,  18  ^le. 
174:  Barbour  v.  Martin,  62  Me.  536. 

Maryland.  —  Bowie  X'.  Stonestreet. 
6  Md."4i8,  61  Am.   Dec.  318. 

Massachusetts. — O'Brien  v.  Cheney, 
5  Cush.  148 ;  Falrey  v.  Rodocanachi, 
100   Mass.   427;    Field   z\    Hitchcock, 

17  Pick.  182,  28  Am.  Dec.  288; 
Knight  i>.  New  England  M.  Co..  2 
Cnsh.  271. 

Michigan. — Passmore  z'.  Passmore, 
50  Mich.  626,  16  N.  W.  170,  45'  Am. 
Rep.  62;  Continental  Life  Ins.  Co. 
V.  Willets,  24  Mich.  268. 

Minnesota.  —  Searles  v.  Thompson, 

18  Minn.  316. 

Mississippi.  —  Mclntyre  ?'.  Harris, 
41   Miss.  81. 

Missouri.  —  Howard  v.  Newsom, 
5  Mo.  523;  Burghart  -■.  Brown,  51 
Mo.  600. 

Nebraska.  —  Johnson  r.  Opfer,  58 
Neb.  631,  79  N.   W.   547. 

Nevada.  —  Dalton  z'.  Bowker,  8 
Nev.   190. 

Nezi'  Hampshire.  —  Moore  z:  Ross, 
II  N.  H.  547. 

Nezv  York.  —  Thon  v.  Rochester  R. 
Co.,  81  Hun  615,  30  N.  Y.  Supp.  620; 
Weinberg  z'.  Kram,  44  N.  Y.  St.  126, 
17  N.  Y.  Supp.  535;  Humes  i'.  Proc- 
tor, 73  Hun  265,  26  N.  Y.  Supp.  315; 
Hopkins  v.  Smith,  11  Johns.  161; 
Kelsey  v.  Bush,  2  Hill  440; 
Schwartz  v.  Wood,  67  Hun  648,  21 
N.  Y.  Supp.  1053 ;  Dorton  v.  Doug- 
las, 6  Barb.  451  ;  Bearss  z\  Copley, 
10  N.  Y.  93 ;  Root  z\  Brown,  4  Hun 
797- 

Nortli  Carolina.  —  Steele  v.  Wood, 
78  N.  C.  365;  Roberts  v.  Roberts, 
85  N.  C.  9;  Walker  r.  Featress,  i 
Dev.  &  B.   Law   17. 

0/1/0.  —  Cullen  z'.  Bimm,  37  Ohio 
St.   236. 

Pennsylvania.  —  Hamsher  c'.  Kline, 
57  Pa.  St.  397;  Bank  v.  Donaldson, 
6  Pa.  St.  179;  Stevenson  Z'.  Hoy,  43 
Pa.  St.  191. 

South  Carolina.  —  Devlin  v.  Kil- 
crease,  2  McMull.  425;  Co.x  v.  Buck, 
3   Strob.  367. 

South  Dakota.  —  Wendt  v.  Chicago 
St.  P.  M.  &  O.  R.  Co.,  4  S.  D.  476,  57 
N.  W.  226. 


Totni-ssee.  —  Rogers  z'.  Kincan- 
non.  3   Humph.  252. 

J'ermont.  —  Brown  Z'.  Munger,  16 
Vt.  12 ;  Dean  z'.  Dean,  43  Vt.  337 ; 
Mattocks  V.  Lyman,  18  Vt.  98,  46 
.^m.  Dec.  138. 

Party  Entitled  to  Prove  All  That 
Was  Said.  _  In  Adkins  v.  Hershy,  14 
Ark.  442,  it  is  said:  "There  is  no 
rule  of  law  better  settled,  or  more 
consonant  with  justice,  than  the  one 
that  the  party  who  is  sought  to  be 
charged  by  an  admission,  is  entitled 
to  the  benefit  of  all  that  he  said  by 
way  of  qualification  or  explanation, 
during  the  same  conversation,  rela- 
tive to  the  business  in  hand.  The 
admission  must  be  taken  as  a  whole, 
and  if  the  plaintiff  proves  only  a 
part,  the  defendant  may  call  for  the 
entire  conversation  on  cross-exami- 
nation. The  rule  is,  not  that  the  plain- 
tiff is  concluded  by  the  entire  admis- 
sion, but  that  it  is  competent  evi- 
dence for  the  defendant  to  go  to 
the  jury,  who  are  the  proper  judges 
of  its  credibility,  and  may  reject  such 
portions,  if  any,  as  appear  to  be  in- 
consistent, improbable  or  rebutted  by 
other  circumstances  in  evidence. 

Where  Admission  Is  Made  in 
Foreign  Language.  _  Where  an  ad- 
mission is  made  in  a  foreign  language, 
it  is  competent  to  show  that  the  wit- 
ness, testifying^  to  the  language  used 
and  translating  the  same,  does  not 
give  the  proper  meaning,  in  English, 
of  the  words  used.  Thon  r.  Roches- 
ter R.  Co.,  81  Hun  615,  30  N.  Y. 
Supp.  620. 

Must  Be  Confined  to  Material 
Matters.  —  In  RoUands  v.  Duffey,  18 
111.  .\pp.  398,  it  is  held  that  proof 
of  tile  conversation  must  be  contined 
to  matters  material  to  the  issue  and 
tending  to  explain  or  qualify  what 
has  been  said  by  the  other  party 
and  proved  as  admissions.  A  dif- 
ferent rule  has  been  declared  in  some 
cases  in  which  it  is  held  that  every- 
thing said  in  the  conversation, 
whether  material  to  the  issue  or  tend- 
ing to  explain  the  admission  proved 
on  the  other  side  or  not.  But  the 
better  rule  is  that  the  balance  of  the 
conversation  to  be  competent  must 
be  material  and  in  some  way  afifect 
that  portion  of  the  conversation 
already  proved.  Wilhehn  v.  Connell, 
3   Grant    (Pa.)    178. 

Vol.  I 


()08 


.iPMISSlOXS. 


B.  Not  What  Was  Said  at  Axotiier  Time.  —  But  not  what 
was  said  in  a  different  conversation."'^ 


To     Prove     Admission     Was     Not 

Made In    Continental    L.    Ins.    Co. 

V.  Willets,  24  Mich.  268,  it  was  held 
to  be  competent  to  prove  what  was 
said  in  the  same  conversation  imme- 
diately after  the  admission  was 
alleged  to  have  been  made  if  it  tended 
to  show  that  such  admission  was  not 
made  as  testified  to  by  a  prior  wit- 
ness. 

As  Explainin^f  an  Act So,  where 

an  act  has  been  proved  as  an  admis- 
sion the  party  is  entitled  to  prove 
what  was  said  at  the  time  explaining 
the  act  or  showing  the  intent  with 
which  it  was  done  or  the  purpose  of 
it.  Goodhue  v.  Hitchcock.  8  Mete. 
(Mass.)    62. 

53.  Alabama.  —  Roberts  r.  Tra- 
wick,  22  Ala.  490. 

Arkansas.  —  Hazen  v.  Henry,  6 
Ark.  86. 

Colorado.  —  Nutter  v.  0"Donnell, 
6  Colo.  253. 

Connecticut. — Stewart  i'.  Sherman, 
5  Conn.  244 ;  Robinson  ?'.  Ferry,  1 1 
Conn.   460. 

Georgia.  —  Lewis  v.  Adams.  6t  Ga. 

559- 

Illinois.  —  Hatch  v.  Potter,  2  Gilm. 
725,  43  Am.   Dec.  88.  ' 

Indiana.  — :  Moelering  7'.  Smith,  7 
Ind.   App.  451,  34  N.  E.  675. 

Maine. — Royal  v.  Chandler,  79  Me. 
26s,  9  Atl.  615,  I  Am.  St.  Rep.  305; 
Carter  v.  Clark,  92  Me.  225,  42  Atl. 
398. 

Maryland.  — •  Kerschncr  ?'.  Kersch- 
ner,  36  Md.  309. 

Massachusetts.  —  Adam  z\  Eames, 
107  Mass.  27s ;  Hunt  v.  Roylance, 
II  Cush.  117,  59  Am.  Dec.  140;  Bos- 
ton &  W.  R.  C.  V.  Dana,  i  Gray  83. 

Missouri.  —  Gunn  v.  Todd,  21  Mo. 
303,   64   Am.    Dec.   231. 

Neiv  Hampshire.  —  Judd  v.  Brent- 
wood, 46  N.  H.  430;  Woods  7\  .\llen. 
18  N.  H.  28;  Barker  v.  Barker,  16 
N.   H.  333- 

Nezi'  Jersey.  —  Lister  7:  Lister,  35 
N.  J.   Eq.  49- 

Pennsylvania.  —  McPeake  i'.  Hut- 
chinson,  5   Serg.   &   R.   295. 

South  Carolina.  —  Davis  v.  Kirk- 
sey,  2  Rich.  Law  176;  Ellen  r.  Ellen, 

Vol.  I 


18  S.  C.  489;  Edwards  v.  Ford,  2 
Bailey  461. 

South  Dakota.  —  Wendt  v.  Chicago 
St.  P.  M.  &  O.  R.  Co.,  4  S.  D.  476,  57 
N.  W.  226. 

Vermont.  —  Lyman  v.  Lull,  20  Vt. 
349;  Burrows  v.  Stevens,  39  Vt.  378. 

Parties'  Own  Declarations  Inad- 
missible  The   rule   on   the   subject 

is  thus  stated  in  Hunt  v.  Roylance, 
n  Cush.  (Mass.)  117,  59  .\m.  Dec. 
140:  "The  defendant  had  a  right 
to  prove  any  statements  of  bis  own, 
which  made  part  of  those  offered  in 
evidence  by  the  plaintiflfs.  He  could 
explain  and  contradict  any  conversa- 
tion or  declaration  which  had  been 
first  proved  against  him  by  the  plain- 
tiffs, because  such  evidence  tended 
directly  and  legitimately  to  control 
the  case  made  out  against  him  by 
the  plaintiffs.  But  beyond  this  he 
could  not  go.  His  own  admissions, 
not  offered  in  evidence  against  him, 
had  no  legal  tendency  to  control 
the  case  proved  on  the  other  side. 
To  show  that  a  man  denied  being 
a  member  of  a  copartnership  to  A 
today  does  not  prove  or  in  any  way 
tend  to  show  that  he  did  not  admit 
that  he  was  a  member  of  the  firm  to 
B  yesterday.  It  is  simply  an  admis- 
sion in  his  own  favor,  having  no 
bearing  on  the  admission  proved 
against  him.  Nor  does  it  make  such 
testimony  any  the  more  competent 
or  relevant  because  a  party  seeks  to 
couple  it  with  independent  acts  and 
circumstances  not  proved  on  the 
other  side,  and  which  of  themselves, 
unaccompanied  by  the  declarations 
of  a  party,  would  not  tend  to  prove 
the  matter  in  issue." 

At  Another  Conversation  Inad- 
missible  In  Adams  v.  Eanies,   107 

Mass.  27s,  a  conversation  took  place 
between  the  parties,  which  was  given 
in  evidence  as  containing  certain  ad- 
missions. It  appeared  that  at  the  end 
of  that  conversation,  there  was  an 
understanding  between  the  parties 
that  they  should  have  another  inter- 
view concerning  the  same  matter, 
and  that  such  interview  was  had. 
The  opposite  party  offered   to  prove 


ADMISSIONS. 


60<» 


C.  Or  Occuring  at  the  Time,  if  Not  Relevant.  —  Or  in  the 
same  conversation,  but  not  relating  to  or  connected  with  the  admis- 
sion proved  or  tending  to  explain,  modify  or  otherwise  af¥ect  it."* 

D.  CoxTAiNED  IN  Written  Instrument,  All  Must  Be  Re.\d. 
If  the  admission  is  contained  in  a  writing,  the  whole  instrument,  or 
so  much  of  it  as  relates  to  the  matter  embraced  in  the  admission, 
must  be  read.^^ 


what  was  said  in  this  subsequent 
conversation,  but  it  was  held  to  be 
incompetent. 

Unless  Part  of  Res  Gestae. 
Roberts  v.  Trawick,  22  Ala.  490. 

Must  Be  Confined  to  the  Same 
Conversation  and  the  Same  Matter. 
Wendt  V.  Chicago,  St.  P.,  M.  &  O. 
R.  Co.,  4  S.  D.  476,  57  N.  W.  226. 

Exception  Where  Effort  Is  to 
Prove  a  Gift  of  Property  by  Declar- 
ations  In    Wheaton    v.    Weld,    28 

Tenn.  773,  it  was  held  that  where 
declarations  of  a  party  were  proved 
to  establish  the  fact  of  a  gift  of  per- 
sonal property  by  him,  other  dec- 
larations of  his  tending  to  show  the 
contrarj',  although  made  at  a  differ- 
ent time,  were  competent,  the  court 
saying:  "But  in  this  case,  the  ques- 
tion and  the  only  question  was 
whether  or  not  Frederick  Christian 
had  given  the  negro  to  his  niece, 
Mary  C.  Christian,  and  the  proof  in- 
troduced by  the  plaintiff  to  establish 
the  fact  of  the  gift  was  declarations 
to  that  effect,  said  to  have  been  made 
by  him.  Unquestionably,  his  dec- 
larations to  the  contrary  ought  to 
have  been  heard,  as  it  is  upon  a 
proper  adjustment  of  balance,  and 
these  declarations  and  counter-dec- 
larations, if  they  were  made  that  the 
judgment  of  the  jury,  must  rest  in 
finding  the  fact  thus  submitted  to 
them." 

54.  Miller  v.  Wild  Cat  G.  R.  Co., 
52  Ind.  51 ;  Clark  v.  omith,  10  Conn. 
I,  25  Am.  Dec.  47 ;  Rouse  v.  Whited, 
25  Barb.  (N.  Y.)  279;  Wilhelm  v. 
Connell,  3  Grant   (Pa.)    178. 

55.  Ante,  pp.  423,  448. 
Nebraska.  —  Churchill  v.  White,  58 

Neb.  22,  78  N.  W.  369,  76  Am.   St. 
Rep.    64;    Bartlett    v.    Clieesbrough, 
32  Neb.  339,  49  N.   E.  360. 
Nezii  York.  —  Fisher  v.  Monroe,  51 

39 


N.  Y.  St.  585,  -M  N.  Y.  Supp.  995' ; 
Root  V.  Brown,  4  Hun  797. 

Pennsylvania.  —  Kreiter  v.  Bom- 
berger,  82  Pa.  St.  59,  22  Am.  Rep. 
750. 

Wisconsin.  —  Hunter  v.  Gibbs,  79 
Wis.  70,  48  N.  W.  257;  Wisconsin 
Planing  Mill  Co.  v.  Schuda,  72  Wis. 
277.  .39  N.   W.   558. 

The  Rule  Stated —  In  Robeson  v. 
Schuylkill  Nav.  Co.,  39  Grant  (Pa.) 
186,  the  rule  is  thus  stated :  "  Noth- 
ing in  the  law  is  better  settled  than 
tne  rule  that  a  party  cannot  pick  out 
such  portions  of  the  paper  as  he 
thinks  will  suit  his  purpose,  and 
then  object  to  the  remainder.  If  the 
defendants  were  entitled  to  the  whole 
of  the  report  because  a  part  of  it 
had  been  produced,  the  cross-e.xam- 
ination  was  the  right  way  and  the 
right  time  to  bring  it  out.  We  can- 
not sustain  the  argument  of  the 
plaintiff's  counsel  that  the  defend- 
ants were  bound  to  open  their  case 
and  call  these  witnesses  as  their 
own,  before  they  could  put  the  in- 
terrogatories objected  to.  You  can- 
not have  one  part  and  suppress 
another  part  of  a  conversation,  an 
admission,  a  deed,  contract,  record, 
a  letter,  or  any  other  document,  and 
if  an  attempt  be  made  to  do  so,  the 
opposing  counsel  may  substitute  a 
thorough  search  for  everything  ne- 
cessarily connected  with  the  evidence 
in  chief,  and  proper  to  explain  it. 
The  truth  in  a  garbled  and  mutilated 
form  is  as  well  calculated  to  mislead 
as  ,  positive  falsehood.  To  make  it 
round  and  full  is  the  object  of 
cross-e.xamination." 

Party  Offerings  May  Disprove  Por- 
tion   Against    Him As    the    party 

offering  the  whole  instrument  is 
bound  to  do  so  in  order  to  have  the 
benefit  of  so  much  of  it  as  is  favor- 
able to  him,  he  is  not  estopped  to 
disprove   that   portion   which    is   un- 

Vol,  I 


610 


ADMISSIONS. 


E.  In  Correspondenck,  Whole  May  Be  Required.  —  If  the 
admission  occurs  in  correspondence,  by  letter  or  otherwise,  the 
whole  correspondence  bearing  upon  or  in  any  way  relating  to  the 
admission  relied  upon  is  competent,  and  may  be  insisted  upon  I)y 
either  party."" 

5.  By  Party,  Foundation  for  Impeachment  Need  Not  Be  Laid. 
Where  the  admission  is  made  by  a  party  to  the  suit,  it  is  substantive 
and  original  evidence,  and  not  necessarily  for  impeachment,  and 
may  be  proved  without  laying  the  foundation  by  asking  him  if  he 
made  the  statement.'" 

6.  In  Pleading,  Must  Be  Read  in  Evidence.  —  If  a  pleading  in 
ani.ither  case  is  relied  upon  as  an  admission,  it  must  be  offered  in 
evidence  the  same  as  any  other  written  admission.^**  Whether  it  is 
necessary  to  read  in  evidence  an  admission  made  in  a  pleading  in 
the  case  on  trial  is  a  disputed  question.'''' 

VIII.  WEIGHT  TO  BE  GIVEN  TO  EVIDENCE  OF. 

1.  Generally. — The  weight  to  he  given  to  evidence  of  admis- 
sions may  depend  upon  various  matters  affecting  its  accuracy ;  as, 
for  example,  the  liability  to  mistake  what  has  been  said,  resulting 
either  from  the  frailty  of  human  memory,  the  natural  inability  to 
detail  v^'hat  has  been  said  by  another  precisely  as  it  was  said,  and 
the  liability  to  purposely  distort,  color  or  mistake  what  was  said."" 


favorable.  Algase  v.  Horse  Owners' 
etc.  Ass'n,  yy  Hun  472,  29  N.  Y. 
Supp.  lOl ;  Cromwell  v.  Hughes,  12 
Misc.  372,  33  N.  Y.  Supp.  643;  Mott 
V.  Consumers'  Ice  Co.,  7^  N.  Y.  543 ; 
Patrick  v.  Hazen,  10  Vt.  183;  Cleve- 
land C.  C.  &  St.  L.  R.  Co.  V.  Gray, 
148  Ind.  266,  46  N.  E.  675. 

56.  Ante,  p.  385 ;  Murray  v.  Great 
Western  Ins.  Co.,  72  Hun  282,  25 
N.  Y.  Supp.  414. 

Confined   to   Matters   Pertinent   to 

Admission  Proved Edwards  v.  Os- 

nian,  84  Tc,\.   656,    19   S.   W.   868. 

Whole  Need  Not  Be  Offered  in 
First  Instance But  the  party  offer- 
ing evidence  of  the  admission  may 
offer  so  much  of  the  writing  or 
correspondence  as  he  desires  to  use 
leaving  the  opposite  party  to  offer 
the  remaining  part  of  it  if  he  desires 
to  do  so.  Cramer  v.  Gregg,  40  111. 
App.  442;  Jones  t'.  Fort,  36  Ala.  449; 
Hudson  V.  Howlett,  32  Ala.  478. 

57.  Alabama.  —  Crocker  z'.  Clem- 
ents, 23  Ala.  296;  Callan  v.  Mc- 
Daniel,   72   Ala.   96. 

Connecticut.  —  Bristol  v.  Warner, 
19  Conn.  7. 

Vol.  I 


Indiana.  —  McNut  v.  Dare,  8 
Blatchf.  35. 

Missouri.  —  Bompart  v.  Lucas,  32 
Mo.  123 ;  Kritzer  v.  Smith,  21  Mo. 
296. 

Nezv  York.  —  Shrady  v.  Shrady,  42 
App.  Div.  9,  58  N.  Y.  Supp.  546; 
Garrie  v.  Schmidt,  25  Misc.  75'3,  55 
N.  Y.  Supp.  703 ;  Young  -'.  Katz,  22 
App.  Div.  542,  48  N.  Y.  Supp.  187. 

Pennsylvania.  —  Reiter  ?'.  Morton, 
96  Pa.  St.  229;  Robeson  v.  Schuyl- 
kill  Nav.   Co.,  3   Grant   186. 

South  Carolina.  —  Cohen  v.  Robert, 
2  Strob.  410;  Carrier  v.  Hague,  9 
Rich.    454. 

Texas.  —  Smith  v.  Chenault,  48 
Tex.  455- 

58.  Ante,  p.  424. 

59.  Ante,  p.  422. 

But  the  better  rule  seems  to  be 
that  it  must  be  read  in  evidence. 
Town  of  Greenville  v.  Old  Dominion 
S.  S.  Co.,  104  N.  C.  91,  10  S.  E. 
147;  Smith  I'.  Nimocks,  94  N.  C. 
243- 

60.  Arkansas.  —  Sadler  v.  Sadler, 
16  Ark.  628. 

Illinois.  —  Ryder    v.     Emrich,     104 


ADMfSSIONS. 


611 


A.  Should  Be  Received  With  Caution.  —  Consequently  the 
rule  is  that  evidence  of  admissions,  particularly  mere  verbal  admis- 
sions, should  be  received  with  caution."^ 

B.  Strong  Extdence  When  Satiseactorily  Proved.  —  But  it  is 
equallv  well  settleH  that  admissions  deliberately  made  and  clearly 


111.  470;  Avers  v.  Metcalf.  3q  111. 
307- 

/oti'O.  —  Bullard  v.  Bullard,  112 
Iowa  423,  84  N.  W.  51.V 

Kentucky.  —  Colyer  i'.  Langford,  I 
A.    K.    Marsh.    174. 

Michigan.  —  Niles  v.  Rhodes,  7 
Mich.  374. 

Mississippi.  —  Prewett  v.  Coop- 
wood,  30  Miss.  369 ;  Parker  v.  Mc- 
Neil, 12  Smed.  &  M.  355. 

Missouri.  —  Wolfe  z'.  M.  Pac.  R. 
Co.,  97  Mo.  473,  II  S.  W.  49,  3  L. 
R.  A.  539- 

AVii'  York.  —  Garrison  z'.  .\kin,  2 
Barb.  25. 

Made  Without  Knowledge Ad- 
missions made  by  a  party  without 
personal  knowledge  on  his  part  of 
the  truth  of  the  fact  admitted  are 
competent  against  him  and  should 
be  given  such  weight  as  they  de- 
serve under  all  the  circumstances. 
Kitchen  v.  Robbins,  29  Ga.  713; 
Sparr  z'.  Wellman,  11  Mo.  230. 

61.  United  States.  —  Sunday  i>. 
Gordon,  i  Blatchf.  &  H.  569,  23  Fed. 
Cas.  No.  13,616;  Smith  v.  Burnham, 
3  Sum.  435,  22  Fed.  Cas.  No.  13,019. 

Alabiiina.  —  Alexander  v.  Hooks, 
84  Ala.  605,  4  So.  417. 

California.  —  Mattingly  v.  Pennie, 
105  Cal.  514,  39  Pac.  200,  45  Am. 
St.  Rep.  87. 

Georgia.  —  Richmond  &  D.  R.  Co. 
V.  Kerler,  88  Ga.  39,  13  S.  E.  833. 

Illinois.  —  Ray  v.  Bell,  24  111.  444; 
Chicago  &  N.  W.  R.  Co.  z:  Button, 
08  111.  409. 

loz'.a.  —  Clark  z\  Sarkin,  9  Iowa 
39I-. 

Kentiiclcy.  —  Higgs  v.  Wilson,  3 
Mete.  3i7. 

Missouri.  —  Ringo  v.  Richardson, 
33  -Mo.  385. 

AVji'  York.  —  Garrison  z'.  Akin,  2 
Barb.  25. 

Pennsylvania.  ■ —  Erie  &  W.  Va.  R. 
Co.  V.  Knowles.  117  Pa.  St.  77,  11 
Atl.  250. 


Te.vas.  —  Portis  z:  Hill,  14  Tex. 
69,  65  Am.  Dec.  99. 

Vermont.  —  Fenno  v.  Weston,  31 
Vt.  345- 

H'iseonsin.  —  Saveland  v.  Green, 
40  Wis.  431 ;  Benedict  v.  Horner,  13 
Wis.  285;  Dreher  v.  Town  of  Fitch- 
burg,  22  Wis.  675,  99  Am.  Dec.  91  ; 
Durkee  v.  Stringham,  8  Wis.  i  ; 
Haven  z'.  Cole,  67  Wis.  493.  30  N.  W. 
720, 

Weight  to  Be  Given  to  Admis- 
sions—  In  Garrison  v.  Akin,  2  Barb. 
N.  Y.  25,  it  is  said:  "There 
have  been  but  few  judges  or  elemen- 
tary writers,  who  have  not  had  occa- 
sion to  speak  of  the  character  of 
this  kind  of  evidence ;  such  is  the 
facility  with  which  it  may  be  fab- 
ricated, and  such  the  difficulty  of 
disproving  it,  if  false.  It  is  so  easy, 
too,  by  the  slightest  mistake  or  fail- 
ure of  recollection,  totally  to  pervert 
the  meaning  of  the  parly  and  change 
the  efYect  of  his  declarations,  that 
all  experience  in  the  administration 
of  justice  has  proved  it  to  be  the 
most  dangerous  kind  of  evidence, 
always  to  be  received  with  great 
caution,  unless  sustained  by  corrobo- 
rating circumstances.  Then  indeed, 
the  character  of  this  species  of  evi- 
dence is  changed,  and  the  mind  re- 
ceives  it   without   suspicion." 

Party  Should  Be  Taken  at  His 
Word —  In  Blackstock  v.  Long,  19 
Pa.  St.  340,  it  is  said :  "  As  a  gen- 
eral rule  it  is  not  unfair  to  take  a 
man  at  his  word."  See  also  Robin- 
son z:  Stuart,  68  Me.  61. 

Not  as  Satisfactory  as  That  of 
Witnesses  Who  Testify  from  Knowl- 
edge—  O'Riely  v.  Fitzgerald,  40  111. 
310. 

Weakest  Kind  of  Evidence. 
Dreher  v.  Town  of  Fitchburg,  22 
Wis.   675,   99   Am.    Dec.   91. 

May  Be  the  Best  or  the  Weakest. 
Parker  v.  McNeill,  12  Smed.  &  M. 
(Miss.)   3SS- 

Vol.  I 


612 


.4DMISSI0\'S. 


proved  are  very  strong  and  satisfactory  evidence  against  the  party 
making  them."- 

C.  Weight  to  I'.k  DethrminKh  1!v  Jury.  —  The  weight  tn  he 
given  to  admissions  is  to  be  determined  liy  the  jury  under  proper 
instructions  by  tlie  court."'' 

IX.  EFFECT  OF  WHEN  PROVED. 

1.  When  Conclusive.  —  A.  Giii\'KR.\mv  XoT  Coxci.usixe.  —  The 
general  rule  is  that  admissions  are  not  conclusive,  but  may  be 
disproved  by  other  evidence."* 


62.  Alabama. — Wittick  7'.  Keiffer. 
31  Ala.  igg;  Wilson  v.  Calvert,  8 
Ala.    (N.    S.)    757- 

Illinois.  —  Ray  v.  Bell,  24  111.  444; 
Alouro  V.  Piatt,  62  111.  450; 
Hartley  v.  Lybarger,  3  111.  App. 
524;  Chicago  &  N.  W.  R.  Co.  v. 
Button.  68  III.  409;  Ayers  z'.  Met- 
calf,  39  111.  307. 

Kentucky.  —  Milton  r.  Hunter,  13 
Bush  163 ;  Colyer  v.  Langford,  I  A. 
K.  Marsh.  174;  Higgs  v.  Wilson,  3 
Mete.  337. 

Virginia.  —  Little  v.  Slemp  (Va.). 
27    S.    E.   808. 

Wisconsin.  —  Saveland  v.  Green,  40 
Wis.    431. 

When  Held  to  Be  Strong  Evi- 
dence. —  It  is  said  in  Ray  v.  Bell,  24 
111.  444:  "The  admissions  or  ac- 
knowledgments of  a  party  to  a  civil 
suit,  knowing  his  rights,  are  always 
held  as  strong  evidence  against  him, 
but  he  is,  notwithstanding,  at  liberty 
to  prove  that  such  admissions  were 
mistaken  or  were  untrue,  and  he  is  not 
estopped  or  concluded  by  them  unless 
another  person  has  been  induced  by 
them  to  alter  his  condition — in  such 
a  case  a  party  is  estopped  from  dis- 
puting their  truth,  with  respect  to 
such  person,  and  those  claiming 
under  him,  but  as  lo  third  parties, 
he  is  not  bound  by  them." 

Against  Interest  Entitled  to  Pecu- 
liar Weight. —  Levy  v.  Gillis,  I 
Penn.    (Del.)    119,  39  Atl.  78s. 

63.  Arkansas.  —  Shinn  v.  Tucker, 
37  Ark.  580. 

Illinois. — Dufield  7'.  Cross,  12 
HI.  397;  Ingalls  V.  Bulkley,  15  111. 
224;  Mouro  V.  Piatt,  62  111.  450; 
Hartley  v.  Lybarger,  3  111.  App.  524 ; 
Ayers  v.  Metcalf,  39  111.  307 ;  Young 
V.   Foutc,  43   111.  33. 

Vol.  I 


Meiu  York.  —  Stevens  v.  Vroman, 
18  Barb.  250;  Roberts  v.  Gee,  15 
Barb.  449;   Bearss  v.  Copely.   10   N. 

Y.  93- 

Wisconsin.  —  Saveland  v.  Green,  40 
Wis.   431. 

64.  England.  —  Skaife  v.  Jackson, 
3  Barn.  &  C.  421,  10  Eng.  C.  L.  I37- 

Connecticut.  —  Beers  v.  Broome,  4 
Conn.  247 ;  Goodwin  v.  U.  S.  An.  & 
L.  Ins.  Co.,  24  Conn.  591. 

Delazvarc.  —  Sharpe  v.  Swayne,  i 
Penn.    (Del.)    210,  40  Atl.    113. 

Illinois.  —  Mason  v.  Park,  4  111. 
532;  Ray  V.  Bell.  24  111.  444;  Ayers 
V.  Metcalf,  39  HI-  307;  Young  v. 
Foute,  43  111.  a. 

Indiana.  —  Thompson  v.  Thomp- 
son, 9  Ind.  323,  68  Am.   Dec.  638. 

Kansas. — Solomon  R.  Co.  v.  Jones, 
30  Kan.  601,  2  Pac.  657. 

Kentucky.  —  Thompson  v.  Thomp- 
son, 93  Ky.  435,  20  S.  W.  373. 

Michigan.  —  Eastman  v.  Lake 
Shore  &  M.  S.  R.  Co.,  loi  Mich.  597, 
60  N.  W.  309. 

New  Hampshire.  —  Pende.Kter  v. 
Carleton,  16  N.  H.  482;  Pearson  v. 
Sabin,   10  N.  H.  205. 

Nezc  Jersey.  —  McElroy  ?'.  Lud- 
lum,  32  N.  J.  Eq.  828. 

Nciv  York.  —  Stephens  v.  Vroman, 
18  Barb.  250;  Meister  v.  Sharkey's 
M.  W.,  5  App.  Div.  470,  39  N.  Y. 
Supp.  789;  Bissell  V.  Sa.xton.  66  N. 
Y.  55;  Ins.  Co.  I'.  Telfair,  45  App. 
Div.  564,  61  N.  Y.  Supp.  322;  JMet- 
ropolitan  L.  Ins.  Co.  v.  Schaeffer,  16 
Misc.  625,  40  N.  Y.  Supp.  984;  Boyd 

V.  L.    H.    Quinn   Co.,    18   Misc.    l6g, 
41  N.  Y.  Supp.  391. 

p'ermont.  —  Reed  v.   Newcomb.  62 

VI.  75',    19  Atl.   367. 

Wisconsin.  —  Hurbrook  v.  Straw- 
ser,    14   Wis.   403. 


ADMISSIONS. 


(,U 


a.  Made  Under  Oath.  —  This  rule  is  not  affected  by  the  fact  that 
the  admission  was  made  under  oath  as  a  witness  or  otherwise.  It 
may  still  be  disproved  by  other  evidence,  including  the  testimony 
of  the  party  making  it."^ 

B.  Exceptions  to  the  Rule.  —  a.  Generally.  —  There  are 
exceptions  to  this  general  rule  in  case  of  judicial  admissions  and 
those  which  were  intended  to  be  and  have  been  so  acted  upon  as  to 
give  rise  to  the  doctrine  of  estoppel."" 

b.  Jndieial  Admissions.  —  (l.)  As  Substitute  for  Evidence.  — Such 
judicial  admissions  as  are  made  as  a  substitute  for  evidence  that 
might  lie  adduced  by  the  other  side  are  conclusive  for  the  purposes 
of  the  trial  and  proceedings  on  appeal."' 

(2.)  In  Pleading-s.  —  So  a  party  is  conclusively  bound,  for  the 
same  purposes,  by  an  admission  in  his  pleading."* 


Although  Made  for  a  Fraudulent 
Purpose.  ^  Pendexter  v.  Carleton,  i6 
N.    H.   482. 

Book    Entries    Within    the    Rule. 

.■\nd  are  not  conclusive.  Meister  v. 
Sharkey's  M.  W.,  5  App.  Div.  470, 
39  N.  Y.  Supp.  789. 

By  One  of  Several  Executors 
not  conclusive  on  the  others.  James 
V.  Hackley,  16  Johns.   (N.   1.)  273. 

65.  Delazvare.  —  Sharp  v.  Swayne, 
I    Penn.    (Del.)   210,  40  Atl.  113. 

Kansas. — Solomon  R.  Co.  v.  Jones, 
30  Kan.  601,  2   Pac.  657. 

Kentucky.  —  Louisville  &  N.  R. 
Co.  V.  Miller,  19  Ky.  Law  i66s,  44 
S.  W.   119. 

Michigan.  —  Pelton  v.  Schmidt, 
104  Mich.  345,  62  N.  W.  552. 

AVti'  York.  —  Akers  v.  Overbeck, 
18  Misc.  198,  41  N.  Y.  Supp.  382. 

l^ermont.  —  Whitcher  v.  Morey,  39 
Vt.  459- 

66.  So  public  records  kept  by  a 
principal  are  held  to  be  conclusive 
as  against  the  sureties  on  his  bond. 
Doll  V.  People,  48  111.  App.  418. 

67.  California.  —  Hearne  v.  De 
Young,  III  Cal.  373,  43  Pac.  1108. 

Illinois.  —  Mason  v.  Park,  3  Scam. 
.S32. 

Indiana.  —  Thompson  v.  Thomp- 
son, 9  Ind.  323,  68  Am.  Dec.  638. 

Kansas.  —  Central  Branch  U.  P.  R. 
Co.  V.  Shoup,  28  Kan.  394,  42  Am. 
Rep.   163. 

Missouri.  —  Moling  t'.  Barnard,  65 
Mo.   600. 

Nezi.'  Hampstiire.  —  Town  of  AUon 


V.  Town  of  Gilmantown,  2  N.  H. 
520. 

Made  on  Former  Trial  cannot  be 
retracted  at  the  second  trial  of  the 
same  case.  Owen  v.  Cawley.  36 
N.   Y.   600. 

By  One  Not  a  Party  to  the 
action  not  conclusive.  Reed  v.  New- 
comb,  62  Vt.  75.   19  Atl.  367. 

Conclusive  Only  as  Between  the 
Parties.  —  Murphy  v.  Hindman,  58 
Kan.    1 84.    48    Pac.    850. 

In  Bill  of  Exceptions  Not  Con- 
clusive. —In  MuUin  v.  Vermont  Mut. 
F.  Ins.  Co.,  56  Vt.  39,  it  is  held  that 
a  bill  of  exceptions  containing  a  state- 
ment of  facts  admitted  on  the  trial 
while  conclusive  on  appeal  is  not 
so  upon  a  second  trial  of  the  case  in 
the  court  below. 

68.  Ante,  p.  398;  Goldwater  v. 
Burnside,  22  Wash.  215,  60  Pac.  409; 
Or.  R.  &  Nav.  Co.  v.  Dacres,  i  Wash. 
195,  23  Pac.  415';  Cal.  Elec,  Works  v. 
Finch,  47  Fed.  583 ;  New  Albany  V. 
P.  R.  Co.  V.  Stallcup,  62  Ind.  345; 
Johnson  v.  Thorn,  27  Misc.  771,  57 
N.  Y.  Supp.  762. 

But  Not  Where  Pleading  Is  Aban- 
doned by  Filing  Amended Baxter 

V.  N.  Y.  T.  &  M.  R.  Co.,  (Tex.  Civ. 
App.,)  22  S.  W.  1002;  Miller  v.  Nico- 
demus,  58  Neb.  352,  78  N.  W.  618; 
Fogg  V.   Edwards,  20  Hun  90. 

In  Confession  and  Avoidance. 
May  be  explained.  Oarrie  v. 
Schmidt,  25  Misc.  753,  ?■;  N.  Y.  Supp. 
703 ;  Young  v.  Katz,  22  App.  Div. 
542,  48  N.  Y.  Supp.  187. 

Vol.  I 


614 


ADMISSIONS. 


(A.)  But  Not  When  Offered  in  Another  Action.  —  lint  tlie  rule  is 
different  if  the  admission  is  offered  in  another  action  or  for  another 
purpose.  Then  the  admission  is  not  conclusive  but  may  be  dis- 
proved by  the  party  making  it.''" 

(3.)  Confession  of  Judgment.  — The  confession  of  a  judgment  is  a 
conclusive  admission  of  liability  for  the  amount  confessed.'" 

(4.)  To  Avoid  Continuance,  Effect  Of.  ■ —  An  admission  to  avoid  a 
continuance  that  the  witness  will  testify  to  the  facts  alleged  in  the 
affidavit  for  the  continuance,  only  admits  that  such  testimony  will 
be  given  by  the  witness,  and  is  not  conclusive  of  the  fact,  but  may 
be  disproved. '"^ 

(5.)  Made  by  Mistake.  —  A  party  may  be  relieved  from  the  conclu- 
sive effect  of  a  judicial  admission  where  it  is  shown  to  have  been 
made  by  mistake. '- 

(6.)  Procured  by  Fraud.  —  So  a  party  may  avoid  the  effect  of  an 
admission  by  a  showing  that  it  was  procured  by  fraud.''' 

c.  When  Acted  Upon.  —  And  an  admission  made  with  intent  to 
influence,  and  acted  upon  in  good  faith  by  another,  may  be  held  con- 
clusive if  injury  would  result  to  such  party  if  the  admission  were 
denied  or  repudiated.''' 


69.  :McLcmore  v.  Nuckolls,  37 
Ala.  (N.  S.)  662;  Parsons  v.  Cope- 
land,  33  Me.  370,  54  Am.  Dec.  628; 
Rich  V.  City  of  Minneapolis,  40 
Minn.  82,  41  N.  W.  4=;^ ;  Tabb's  Cur- 
ator V.  Cabell,  17  Gratt.  (Va.)   160. 

70.  Iglehart  v.  State,  2  Gill.  &  J. 
(Md.)   235. 

Plea   of   Guilty   in   Criminal   Case 

Not  Conclusive  in  Civil  Case Jones 

V.  Cooper.  97  Iowa  735,  65  N.  W. 
1000;  Young  7'.  Copple,  52  111.  .\pp. 
547;  Clark  T.   Irvin,  9  Ohio   131. 

Confession  by  Executor,  Effect  of. 
In  Iglehart  v.  State,  2  Gill.  &  J. 
(Md.)  23s,  it  is  held  that  a  confes- 
sion of  judgment  by  an  executor  is 
conclusive  on  him  as  well  as  to  the 
debt  confessed  as  to  the  sufficiency 
of  assets  to  pay  it ;  but  as  to  the 
surety  on  his  bond,  not  a  party  to  the 
suit,  it  is  only  prima  facie  evidence 
as  to  either. 

71.  Ante,  p.  480;  Bestor  v.  Sardo, 
2  Cranch  C.  C.  260,  3  Fed.  Cas.  jno. 
1363 ;  Alden  v.  Carpenter,  7  Colo.  87, 
I  Pac.  904 ;  Brent  t.  Heard,  40  Miss. 
370. 

Does    Not    Admit    Immaterial    or 

Irrelevant     Matter In     State     v. 

Eisenmeyer,  94  111.  96,  it  is  held  that 
the  court  is  not  bound  to  admit  in 
evidence   an   affidavit   ff  r  a   continu- 

Vol.  I 


ancc  containing  only  incompetent 
evidence  because  the  facts  stated 
have  been  admitted  to  avoid  a  con- 
tinuance. 

72.  I  Greenl.  Ev.  §206:  Or.  R.  & 
Nav.  Co.  V.  Dacres,  i  Wash.  195,  23 
Pac.  415;  Hawley  7'.  Bennett,  e, 
Paige  Ch.  (N.  Y.)  104;  Knight  r. 
New  England  W.  Co.,  2  Cush. 
(Mass.)  271;  Jililler  v.  Jiloore,  I  E. 
D.  Smith  (N.  Y.)  739. 

73.  Reed  v.  Newcomb,  62  'Vt.  7S. 
19  .A-tl.  367. 

74.  I    Greenl.   Ev.   §  207. 
California.  —  Hearne  r.  De  Young, 

III  Cal.  373,  43  Pac.  1 108. 

Delaware.  —  Sharp  v.  S'lvayne,  i 
Penn.   (Del.)   210,  40  Atl.  113. 

Illinois.  —  Ray  v.  Bell,  24  111.  444. 

Minnesota.  —  Whitacre  v.  Culver. 
8  Minn.  103. 

Nebraska.  —  Towne  z'.  Sparks.  23 
Neb.   142,  36  N.  W.  375- 

New  York.  —  Calanan  v.  McClure, 
47  Barb.  206;  Joslyn  ?■.  Rockwell,  59 
Hun  129,  13  N.  Y.  Supp.  311. 

Admissions  Acted  Upon.  —  In 
Calanan  v.  McClure.  47  B..:-b.  206,  it 
is  held  that  the  admissions  of  a 
party  of  law  or  of  fact,  which  have 
been  acted  upon  by  another,  are  con- 
clusive against  the  party  making 
them,  and  between  him  and  the  per- 


ADMISSIONS. 


615 


C.  In  Deeds.  —  The  general  rule  is  that  admissions  in  deeds  are, 
as  between  the  parties  to  them  and  their  privies,  conclusive,'^  hut 
not  as  affecting  strangers.'" 

D.  In  Other  Writings.  —  The  fact  that  an  admission  is  in  writ- 
ing does  not  render  it  conclusive.     It  is  still  open  to  be  disproved." 

E.  CoNTAiNixG  Hears.'W.  —  An  admission  not  founded  upon 
knowledge,  but  based  upon  information  received  from  others,  should 
receive  but  little  weight. '* 

F.  Parol  Admissions  in  Pais.  —  Parol  admissions  fall  within 
the  class  that  may  be  explained  or  disproved  unless  they  are  within 
some  of  the  exceptions  above  mentioned." 

2.  Effect  of  For  the  Jury.  —  The  effect  of  an  admission  when 
proved  nuist  be  left  to  the  jur_\-  and  received  according  to  its  terms."" 


son  whose  conduct  he  has  influenced, 
and  this,  whether  the  admissions  are 
made  in  the  express  language  to  the 
person  himself,  or  are  implied  from 
the  open  and  general  conduct  of  the 
party. 

75.  I   Greenl.  Ev.,  §  2il. 

76.  I  Greenl.  Ev.,  i6th  Ed..  §2il. 

77.  Solomon  R.  Co.  z'.  Jones.  30 
Kan.  601,  2  Pac.  657;  Chicago  B.  & 
Q.  R.  R.  Co.  I'.  Bartlett,  20  111.  App. 
96;  Insurance  Co.  v.  Telfair,  45  App. 
Div.  564,  61   N.  Y.  Supp.  322. 

78.  Stevens  v.  Vroman,  18  Barh. 
(N.  Y.)  250;  Kitchen  v.  Rolibins,  29 
Ga.  713. 

Competent  But  Unsatisfactory. 
Sparr  :■.  Wellman.  11  Mo.  2f0. 

79.  Chicago  B.  &  Q.  R.  R.  Co.  v. 


Bartlett,  20  111.  -App.  96;  Sharp  v. 
Swayne,  i   Pcnn.   (,Del.)   210,  40  Atl. 

113- 
May    Believe    Part    or    Disbelieve 

Part. —  In  Roberts  v.  Gee,  15  Barb. 
(N.  Y.)  449,  it  is  held  that  the  rule 
as  now  established  in  reference  to 
the  oral  admissions  of  the  party  to  a 
suit,  permits  the  court  and  jury  to 
believe  that  part  of  the  admission 
which  charges  the  party  who  makes 
it,  and  to  disbelieve  that  part  which 
discliargcs,  when  the  latter  is  improb- 
able on  its  face  or  is  discredited  by 
the  other  testimony.  See  also  to  the 
same  effect,  Bearss  v.  Copley,  10  N. 
Y.  93. 

80.     Ripley   v.    Paige,    12   Vt.   353 ; 
Pearson  v.  Sabin,  10  N.  H.  205. 


ADOPTION     OF    CHILDREN.  — See     Parent     and 
Child ;    Legitimacy. 


ADULT.— See  Age. 


Vol.  I 


ADULTERATION. 

By  Clark  Ross  Mahan. 

I.  ELEMENTS  OF  THE  OFFENSE,  6i6 

1.  The  Fact  of  the  Adulteration,  6i6 

A.  Certificate  of  Analysis  by  Inspector,  6i6 

B.  Bz'idcnce  Other  Than  Official  Analysis,  617 

2.  Identifying  Product  Adulterated,  618 

3.  Mode  of  Adulteration,  6t8 

4.  Kuozvledge  and  Intent,  618 

A.  Burden  of  Proof,  618 

B.  Mode    of    Proof.     See    the    Titles.     "  Intent," 

"  Knowledge." 

5.  Cogency  of  Proof,  619 

II.  MATTERS  OF  DEFENSE,  620 

1.  In  General,  620 

2.  Absence  of  Knowledge  of  Adulteration,  621 

3.  Exemption  From  Statute,  621 

I.  ELEMENTS  OF  THE  OFFENSE. 

1.  The  Fact  of  the  Adulteration.  —  A.  Certificate  oe  Analysis 
K\  Inspector.  —  The  statutes  of  Enpiland  and  of  the  various  states 
under  which  the  aduUeration  of,  or  the  sale  of  adulterated  food 
products  is  prohibited,  very  generally  embrace  a  provision  for  tests 
or  analyses  of  samples  by  inspectors,  the  results  of  which  tests  are 
recorded  and  preserved,  to  be  received  as  evidence  on  prosecutions 
for  violations  of  such  statutes,  on  the  question  of  the  fact  of  adulter- 
ation.' 

1.     Constitutionality     of     Statute.  Slate  v.  Groves,  15  R.  I.  208,  2  Atl. 

A   certificate   of  analysis   of   milk  by  3''^4- 

an  inspector  appointed  under  a  statute  Purchase  of  Sample  Tested.  —  The 

providing  that  such  a  certificate  when  fact    that    a    statute    requires    as    a 

sworn  to  shall  be  admissible  in  cvi-  requisite  for  using  the  analysis  by  an 

dence   in   all   prosecutions   under   the  inspector  or  collector  as  evidence  of 

statute,    is    not    inadmissible    on    the  the   fact  that  the  food  analyzed  was 

ground    that    the    legislature    has    no  adulterated,    that    a    portion    of    the 

power  to  make  it  evidence  where  it  sample  analyzed  must,  if  desired,  be 

further    appears    that    the    inspector  sealed  and  delivered  to  the  owner  or 

was  a  witness  in  the  case  and  testified  person  in  charge  of  the  food,  is  not 

to  all  the  facts  set  forth  in  the  cer-  ground    for   excluding  the   testimony 

lificate.      Com.    v.    Waite,    11    Allen  01    the    inspector    who    purchased    a 

(Mass.)  264,  87  Am.  Dec.  711  ;  State  sample  for  analysis  without  disclosing 

V.   Campbell,  64  N.   H.  402,    13   Atl.  that    he    is    such    an    inspector    and 

58s,  10  Am.  St.  Rep.  419;  Shivers  v.  witliout    giving   to    the    person    from 

Newton,  45  N.  J.  Law  46Q.     See  also  whom    it    was    purchased    an    oppor- 

Vol.  I 


ADULTERATION. 


()17 


I'..  EviDExci;  Uthicr  Than  Official  Axalvsis.  —  But  it  is  held 
that  the  method  thus  pointed  out  by  the  statutes  for  procuring  a 
sample  for  analysis  to  show  the  fact  of  adulteration  is  not  exclusive" 
and  does  not  operate  to  exclude  competent  evidence  from  any  other 
source  to  show  the  fact  of  adulteration.^     And  the  testimony  of  anv 


tunity  to  ask  for  a  sealed  sample ;  the 
requirement  of  the  statute  referred 
to  does  not  apply  to  such  a  case 
to  show  that  the  food  so  purchased 
was  in  fact  adulterated.  Com.  v. 
Coleman,  157  Mass.  460.  t,2  N.  E.  662. 
Under  the  English  Statutes,  the 
certificate  of  analysis  given  in  evi- 
dence must  show  in  detail  the  quan- 
tities of  each  element  in  the  com- 
pound substance.  Newby  v.  Sims, 
(1894')  I  Q.  B.  478.  70  L.  T.  105,  10 
R.    ^96;   Fortune  v.    Hanson.    (1896) 

1  Q'  B.  202.  74  L.  T.  14s,  44  W.  R. 
431,  18  Cox  C.  C.  2s8;  Bridge  v. 
Howard,  (1897)  I  Q.  B.  80,  18  Cox 
C.  C.  421,  75  L.  T.  300.  But 
where  the  certificate  contains  ex- 
traneous facts  unconnected  with  the 
analysis,  the  certificate  is  not  admis- 
sible as  evidence  of  such  facts.  Reg. 
V.  Smith,  (1896)  I  Q.  B.  S96,  18  Cox 
C.   C.   307.   74  L.  T.   348. 

Analysis     Made     After     Lapse     of 

Year    Not    Admissible Stearns    v. 

Ingraham.  i  Thonip.  &  C.  (N.  Y.) 
218. 

2.  Isenhour  v.  State.  157  Ind..5i7, 
62  N.  E.  40;  Com.  V.  Spear.  143 
Mass.   172,  9  N.  E.  632. 

A  statute  providing  that  in  all 
prosecutions  thereunder  for  adul- 
terated milk,  if  the  milk  be  shown 
upon  analysis  by  the  proper  officer 
or  inspector  therein  designated  to 
contain  an  excess  of  fluids  or  not  to 
contain  sufficient  solids,  the  milk 
shall  be  deemed  for  the  purpose  of 
the  act  to  be  adulterated,  is  not  in- 
tended to  operate  as  a  rule  of  evi- 
dence by  which  the  act  of  analysis 
is  to  be  conclusive  of  the  guilt  of  the 
defendant  in  selling  adulterated  milk, 
hut  is  intended  to  prohibit  the  sale 
of  milk  under  a  certain  standard  of 
excellence  and  is  a  lawful  exercise 
by  the  legislature  of  its  police  power. 
Shivers  v.  Newton,  45  N.  J.  Law 
469.  See  also  People  v.  Cipperly,  lOi 
N.  Y.  634.  4  N.  E.  107. 

In   State  v.  Groves,   iq  R.   T.   208. 

2  .-\tl.  ^84,  and  State  7'.  Campbell.  64 
N.   H.   402,   T^  \t\.   ^8q.   TO  .\ni.   St. 


Rep.  419,  the  objection  was  that  a 
statute  providing  that  in  prosecutions 
thereunder  if  the  milk  shall  be  shown 
upon  analysis  to  contain  an  e.xcess 
of  fluids  or  not  to  contain  the  neces- 
sary solids,  it  shall  be  deemed  for 
the  purpose  of  that  statute  to  be 
adulterated,  was  unconstitutional  be- 
cause it  virtually  confined  the  tes- 
timony to  the  analysis  of  the  sample 
taken  by  the  inspector,  which  sam- 
ples were  destroyed  in  the  making  of 
the  analysis,  so  that  the  testimony 
could  not  be  controverted;  but  the 
court  ruled  that  the  testimony  al- 
though it  might  not  always  be  prac- 
ticable to  controvert  it  by  another 
analysis,  could  be  controverted  by 
evidence  of  collateral  facts  going  to 
prove  that  the  analysis  was  incorrect 
and  hence  that  the  act  was  not  un- 
constitutional on  the  ground  alleged. 

3.  Test  by  Lactometer.  —  On 
prosecution  for  unlawfully  keeping, 
offering  for  sale  and  selling  adul- 
terated milk,  it  is  proper  to  allow  a 
witness,  who  has  testified  that  during 
the  course  of  several  years  he  had 
used  a  lactometer  in  a  great  many 
instances  for  the  purpose  of  testing 
the  quality  and  purity  of  milk,  to 
state  that  he  had  applied  this  lacto- 
meter to  the  milk  sold  by  the  de- 
fendant to  the  prosecuting  witness, 
and  what  was  indicated  by  the  lacto- 
nieler  as  the  specific  gravity  thereof 
and  what  was  the  standard  specific 
gravity  of  pure  milk  according  to  the 
lactometer,  although  there  is  no  evi- 
dence as  to  the  character  of  the  in- 
strtunent.  the  principles  of  its  con- 
struction and  operation,  or  its  ac- 
curacy. Tests  by  means  of  instru- 
ments are  used  in  a  great  varietj'  of 
case';  and  are  found  to  be  trust- 
worthy, and  for  this  reason  they  are 
admissible  in  evidence.  In  each  par- 
ticidar  case  the  value  of  the  test  is 
to  be  estimated  by  the  jury.  Com. 
V.    Xichols.    TO   .Mien    (Mass.1    too. 

Sample  Delivered  to  Inspector  by 
Purchaser.  —  Where  it  appears  that 
the   milk   analyzed,    for   whose   adul- 

Vol.  I 


4k 


f)18 


ADULTERATION. 


person   who  has  sufficient   skill  to  make  an  anal\sis,  and  who  has 
analyzed  some  of  the  food  jiroduct  in  question,  is  admissible.'' 

2.  Identifying  Product  Adulterated.  —  In  a  prosecution  under  a 
statute  making  it  an  ofifense  to  sell,  keep  or  ofifer  to  sell  adulterated 
milk,  or  milk  to  which  water  or  any  foreign  substance  has  been 
added,  it  is  not  necessary  to  prove  that  the  milk  sold  was  cow's 
milk.'' 

3.  Mode  of  Adulteration.  —  (  )n  a  prosecution  for  a  violation  of  a 
statute  against  the  adulteration  of  food  proilucts  defining  the  vari- 
ous modes  of  adulteration  prohibited,  it  is  not  necessary  to  show 
the   particular  manner  by   which   the  adulteration  was  effected.* 

4.  Knowledge  and  Intent.  —  A.  Burden  of  Proof.  —  Whenever 
knowledge  of  the  fact  of  adulteration  is,  by  the  terms  of  the  statute 
made  an  element  of  the  offense,  it  is  necessary  for  the  prosecution 
to  show   such  knowledge  on  the  part  of  the  defendant  ;^  but  not 


teration  the  defendant  is  being 
prosecuted,  was  not  taken  by  the  in- 
spector under  the  provision  of  the 
statute  but  was  delivered  to  the  in- 
spector for  analysis  by  the  purchaser 
of  the  milk,  the  competency  of  the 
testimony  of  the  milk  inspector  as  to 
the  results  of  his  analysis  is  to  be 
determined  by  the  common  law. 
Com.  V.  Holt,  146  Mass.  38,  14  N.  E. 
930. 

Where  evidence  has  been  mtro- 
duced  to  show  that  a  particular 
foreign  substance  had  been  added 
to  milk,  it  is  proper  to  permit  a 
chemist  who  has  tested  the  milk  to 
testify  what  the  milk  was  inde- 
Iiendent  of  the  substance  added. 
Com.  V.  Schaffner,  146  Mass.  512.  16 
N.   E.  280. 

On  a  prosecution  for  bavmg  ui  his 
possession  adulterated  milk  with  in- 
tent unlawfully  to  sell  the  same,  evi- 
dence that  the  wagon  belonged  to 
the  defendant;  that  it  was  at  a  cer- 
tain place  at  a  certain  time,  in  charge 
of  his  servant,  and  contained  sev- 
eral cans  of  milk,  from  one  of  which 
the  inspector  took  a  sample  without 
objection  from  the  servant,  is  proper 
evidence  for  the  jury.  Com.  v. 
Smith,  T43  Mass.  169,  g  N.  E.  6,31. 

In  Com.  V.  Rowell,  146  Mass.  128. 
15  N.  E.  154,  the  defendant  was 
charged  with  having  in  his  posses- 
sion adulterated  milk  with  intent  to 
sell  the  same,  and  it  was  held  tliat 
evidence  that  the  milk  was  taken  fnnn 
a  can  not  marked  "  skimmed  milk." 
out  of  a  wagon  on  which  was  painted 
a   license   and   the   name   of  the  firm 

Vol,  I 


of  wliich  the  defendant  was  a  mem- 
ber, and  on  which  wagon  was  the 
defendant  with  certain  other  cans  of 
milk,  from  which  he  gave  to  the 
chemist  in  the  employ  of  the  milk 
inspector,  a  sample  for  analysis,  was 
competent  evidence  for  the  jury  upon 
the  issue  whether  the  defendant  was 
in  possession  of  the  milk  with  intent 
to    sell    it. 

4.  Com.  V.  Holt,  146  Mass.  38,  14 
N.  E.  9,m 

5.  "  As  the  statute  does  not  men- 
tion cow's  milk,  it  must  be  held  to 
include  all  the  milk  of  commerce, 
and  this  objection  is  therefore 
groundless."  Com.  v.  Farren,  9  .Al- 
len   (Mass.")    489. 

6.  It  is  enough  for  the  purpose  of 
the  prosecution  to  show  that  the  food 
in  question  fails  to  meet  the  require- 
ments of  the  statute  in  any  one  of 
the  particulars  specified.  State  v. 
Luther.  20  R.  I.  472,  40  Atl.  9.  See 
also  to  the  same  affect,  Vandegrift  v. 
Miehla,  66  N.  J.  Law  92.  49  Atl.  16. 

7.  Sanchez  v.  State,  27  Tex.  App. 
14,  10  S.  W.  756 ;  Carter  v.  State,  27 
Tex.  App.  S3,  10  S.  W.  757;  Verona 
Central  Cheese  Co.  ■<'.  Murtaigh.  50 
N.  Y.  314:  People  v.  Dold,  44  N.  Y. 
St.  822.  18  N.  Y.  Supp.  643;  Com.  v. 
Flannelly.  15  Gray  CMass.")  195; 
State  V.  Snyder,  44  Mo.  .App.  429: 
Dilley  v.  People,  4  fH-  App.  52. 

It  is  not  necessary  to  prove  that 
the  milk  in  question  was  to  the 
knowledge  of  the  defendant  below 
the  required  standard.  It  is  compe- 
tent   for    the    legislature    to    declare 


ADULTERATION. 


()1") 


where  such  knowledge  is  not  an  element  of  the  offense.' 

5.  Cogency  of  Proof.  —  It  is  necessary  that  the  prosecution  show 
clearly  that  the  provisions  of  the  statute  have  been  violated  ;■'  and  it 


the  doing  of  an  act  shall  subject  the 
iloer  thereof  to  a  penalty  irrespective 
of  his  motive  or  knowledge,  and  in 
such  case  the  court  has  no  power  to 
require  proof  of  motive  or  knowl- 
edge. Vandegrift  v.  Miehia,  66  N. 
J.  Law  92,  49  Atl.  16. 

8.  Reg.  V.  Woodrow,  15  M.  &  W. 
404;  Roberts  v.  Egerton,  L.  R.  9  Q. 
B.  494;  Dyke  v.  Gouer  (1892),  i 
Q.  B.  220,  17  Co.x  C.  C.  421 ;  State 
V.  Schlenker,  112  Iowa  642,  84  N.  W. 
698,  51  L.  R.  A.  347;  People  V. 
Schaeffer,  41  Hun  (N.  Y.)  23;  Peo- 
ple V.  Mahaney,  41  Hun  (N.  Y.)  26; 
Com.  V.  Farren.  9  Allen  (Mass.) 
489;  Com.  V.  Nichols,  10  Allen 
(Mass.)  199;  Com.  v.  Evans,  132 
Mass.  11;  State  v.  Smith,  10  R.  I. 
258;  People  V.  Eddy,  35  N.  Y.  St. 
146,  12  N.  Y.  Siipp.  628;  Com.  V. 
Warren,  160  Mass.  533,  36  N.  E.  308 ; 
Bissman  v.  State,  9  Ohio  C.  C.  226 ; 
.\ltschul  V.   State.  8  Ohio  C.  C.  214. 

Presumption  of  Intent  From  Pos- 
session  Under      the      New      York 

statute  making  the  doing  of  anything 
prohibited  thereby,  to-wit :  the  sale, 
or  offer  or  exposure  for  sale,  of  adul- 
terated milk,  evidence  of  a  violation 
thereof  irrespective  of  the  intent  of 
the  doer,  the  mere  fact  of  possession 
does  not  raise  a  presumption  of  in- 
tent to  sell.  People  %'.  Wright,  19 
Misc.  135,  43  N.  Y.  Supp.  290. 

Actual  Knowledge  Need  Not  Be 
Shown,  or  express  authority  to 
adulterate  the  food  in  any  particular 
manner  or  to  any  particular  extent. 
It  is  sufficient  to  prove  knowledge 
by  the  defendant,  that  his  servants 
and  agents  did  sell  an  adulterated 
product  or  a  general  authority  in 
them  to  do  so ;  and  this  knowledge 
and  authority  may  be  implied  by  cir- 
cumstances. Verona  Central  Cheese 
Co.  V.  Murtaugh,  50  N.  Y.  314. 

9.  People  V.  Braested,  30  App. 
Div.  401,  51  N.  Y.  Supp.  824. 

In  People  v.  Kellina,  23  Misc.  134, 
50  N.  Y.  Supp.  653,  a  prosecution 
under  the  New  York  statute  to  re- 
cover the  penalty  prescribed  therein 
for  selling  adulterated  milk,  the  evi- 
dence  showed   that   adulterated   milk 


was  found  by  the  inspectors  in  the 
defendant's  milk  wagon  which  was 
being  driven  by  his  employee;  but 
there  was  no  evidence  that  the 
driver  was  engaged  in  delivering 
milk  to  customers  at  the  time,  the 
evidence  being  merely  to  the  effect 
that  he  had  just  received  the  milk 
from  the  shipper  and  was  taking  it 
to  the  defendant's  place  of  business. 
It  was  held  that  the  evidence  did  not 
justify  a  conviction.  But  in  People 
V.  Koch,  ig  Misc.  634,  44  N.  Y.  Supp. 
3S7.  it  was  held  that  evidence  that 
the  defendant  was  delivering  milk  to 
regular  customers  at  the  time  the 
can  of  adulterated  milk  was  found  in 
his  wagon  is  sufficient  to  justify  a 
conviction,  although  after  its  analy- 
sis he  returned  the  milk  from  where 
he  had  bought  it  and  was  credited 
with  its  price. 

Testimony  that  a  salesman  solicited 
and  obtained  an  order  for  pure 
fruit  jelly  which  he  reduced  to  writ- 
ing, describing  the  goods  ordered  as 
ahove  specified  is  not  sufficient  to 
justify  a  conviction  under  the  Michi- 
gan statute  (Pub.  Acts  1895,  Act  No. 
193  as  amended  by  Pub.  Acts  1897; 
.\ct  No.  118  and  Pub.  Acts  1899, 
.\ct  No.  117),  where  no  further  con- 
nection with  the  order  by  the  sales- 
man is  shown,  although  his  employer 
sends  adulterated  jelly  in  response 
to  bis  order  in  glasses  labeled 
"  Pure  Fruit  Jelly."  People  v.  Skill- 
man.   (Mich.),  89  N.  W.  330. 

Evidence  merely  that  milk  was 
found  in  a  milk  wagon  on  the  street 
and  was  intended  for  delivery  down 
town  does  not  justify  a  conviction 
for  selling,  ofifering  or  exposing  for 
sale  adulterated  milk.  People  v. 
Wright,  rg  Misc.  135,  43  N.  Y.  Supp. 
290. 

In  Verona  Central  Cheese  Co.  v. 
Murtaugh,  50  N.  Y.  314,  a  prosecu- 
tion for  selling  skimmed  niiU<,  the 
evidence  was  that  the  defendant  was 
at  and  about  his  farm,  managing  and 
controlling  it,  and  that  his  servants 
prepared  and  clelivered  to  the  plain- 
tifif  diluted  and  skimmed  milk. 
It    was    held    that    the    evidence   un- 

Vol.  I 


020 


ADULTBRAl'ION. 


lias  bt-en  said  that  the  jury  must  be  satisfied  beyond  a  reasouable 
doubt  before  they  can  convict."  There  is,  however,  authority  to 
the  effect  that  the  mere  fact  that  an  action  to  recover  a  penalty 
prescribed  by  statute  for  adulterating,  or  selling  adulterated  food 
products,  is  instituted  in  the  name  of  the  people,  and  other  sections 
ol  the  statute  declare  such  an  act  to  be  a  misdemeanor,  does  not 
require-  that  the  jury  be  satisfied  of  the  defendant's  guilt  beyond  a 
reasonable  doubt,  but  that  a  preponderance  of  the  evidence  is  sufii- 
cient.^' 

II.  MATTERS  OF  DEFENSE. 

1.  In  General.  —  A  person  prosecuted  under  a  statute  prohibiting 
the  adulteration  of  food  products  may,  of  course,  resort  to  anv  evi- 
dence otherwise  unobjectionable  which  will  establish  his  innocence 
of  the  offense  charged. ^- 


rebuttcd  by  the  proof  that  the  de- 
fendant had  no  knowledge  and  was 
in  no  way  accessory  to  the  acts 
complained  of,  raised  a  presumption 
of  fact  that  they  were  done  with  his 
knowledge  and  consent,  and  required 
tiie  submission  of  that  question  to  the 
jury. 

10.  In  Com.  V.  Rowell,  146  Mass. 
128,  15  N.  E.  154,  the  court  instructed 
ihe  jury  that  if  they  beheved  beyond 
a  reasonable  doubt,  that  the  millc 
was  in  the  possession  of  the  defend- 
ant at  the  time  the  sample  was  taken 
from  him,  with  the  intent  to  sell  the 
same,  he  should  be  convicted ;  but 
the  opinion  of  the  supreme  court 
seems  not  to  have  touched  Ihe  pro- 
priety  of  that   instruction. 

In  Tsenhour  v.  State,  157  Ind.  517, 
62  N,  E.  40.  a  prosecution  under  the 
Indiana  statute  which  reads,  "  who- 
ever knowingly  .  .  .  has  in  his 
possession,"  etc..  the  court  said : 
"  It  must  be  conceded  that  under  a 
plea  of  not  guilty,  it  was  incumbent 
upon  the  state  to  satisfy  the  jury 
beyond  a  reasonable  doubt  that  the 
defendant  knew  (that. the  milk  was 
adulterated.)  But  it  was  not  essen- 
tial that  the  proof  should  be  positive 
and  direct.  It  was  suflficicnt  if  the 
slate  had  proven  a  state  of  facts  from 
which  knowledge  might  be  reasona- 
bly and  naturally  inferred." 

11.  In  People  v.  Briggs,  1 14  N. 
Y.  56.  20  N.  E.  820,  the  court  said: 
"  Such  an  action  is  no  less  a  civil 
action  because  so  brought.  The  pur- 
pose  of   the   action    is   not     'punish- 

Vol.  I 


ment  '  of  the  defendant  in  the  sense 
legitimately  applicable  to  the  term, 
but  such  action  is  brought  to  recover 
the  penalty  as  fixed  by  way  of  indem- 
nity to  the  public  for  the  injury  suf- 
fered by  reason  of  the  violation  of 
the  statute.  The  efifect  of  the  recov- 
ery is  merely  to  charge  the  defendant 
with  pecuniary  liability  while  a  crim- 
inal prosecution  is  had  for  the  pur- 
pose of  punishment  of  the  accused, 
and  the  consequence  of  conviction 
may  be  more  serious  to  him  for  the 
reason,  if  for  no  other,  that  it  is  held 
an  imputation  affecting  his  moral 
standing  in  a  degree  depending  more 
or  less  upon  the  nature  of  (he  crime. 
There  is,  therefore,  more  apparent 
reason  for  the  application  to  crim- 
inal cases  of  the  rule  which  continues 
the  burden  of  proof  on  the  prosecu- 
tion throughout  the  trial,  and  re- 
quires that  the  evidence  be  such  as  to 
overcome  all  reasonable  doubt  as  to 
the  guilt  to  justify  conviction." 

12.  In  People  v.  Richard,  48  App. 
Div.  408.  63  N.  Y.  Supp.  165,  a 
prosecution  for  selling  adulterated 
milk,  the  evidence  as  to  the  milk 
tested  showed  that  it  had  stood  over 
night  in  the  can,  and  after  being 
slirred  up,  a  sample  was  taken  and 
put  into  two  bottles,  one  of  which 
the  inspector  retained,  the  other  be- 
ing delivered  to  the  defendant.  It 
was  held  that  for  the  purpose  of  aid- 
ing the  jury  to  determine  whether 
the  sample  taken  from  the  can  was  a 
fair  sample  of  the  whole  can,  it  was 
proper    for    the    defendant    to    show 


un-i:i'iuiATios. 


(.21 


2.  Absence  of  Knowledge  of  Adulteration.  —  When  the  statute  in 
terms  makes  proof  of  the  sale  of  an  aihiherated  food  protkiet  pre- 
sumptive evidence  of  g;uilt,  evidence  of  ahsence  of  knowledg-e  of  the 
fact  of  adulteration  on  the  part  of  the  defenilant  is  not  competent  to 
rebut  such  a  presumption.'-'  Otherwise,  however,  where  the  statute 
in  terms  makes  knowledtje  an  element  of  the  offense  charged.'* 

3.  Exemption  From  Statute.  —  When  the  defense  to  an  action  to 
recover  a  penalty  for  the  unlawful  manufacture,  possession  or  sale 
of  adulterated  food  products  is  that  the  product  in  question  was  for 
some  reason  excepted  from  the  operation  of  the  statute  the  defend- 


that  by  a  well-known  and  universally 
accepted  method  of  ascertaining  but- 
ter fats  in  milk,  the  sample  delivered 
to  him  showed  a  greater  percentage 
of  butter  fats  than  tliat  shown  by  the 
chemical  tests  liy  the  state. 

Explaining  Result  of  Analysis. 
Thus,  in  an  action  to  recover  the 
penalty  for  selling  adulterated  milk 
in  which  the  analysis  of  the  milk  sold 
by  the  defendant  showed  that  it  was 
not  of  the  standard  required  by  law. 
it  was  held  that  the  defendant  had 
the  right  to  account  for  the  condition 
of  the  milk  as  shown  by  the  analysis, 
by  evidence  that  the  milk  had  not 
been  tampered  with ;  that  it  had  re- 
mained in  the  can  over  night ;  that 
the  cream  had  separated  from  the 
milk  and  risen  to  the  top  of  the  can ; 
that  it  had  not  again  become  per- 
fectly mi.xed  with  the  milk,  and  that 
the  sample  from  which  the  analysis 
was  made  was  drawn  from  the  lower 
part  of  the  can.  People  v.  Hodnett, 
51  N.  V.  St.  S95.  22  N.  Y.  Supp.  8og. 

Physical  Interference  With  Milk, 
hi  an  action  to  recover  the  penalty 
for  selling  adulterated  milk,  the  de- 
fendant may  give  evidence  tending 
to  show  that  there  had  been  no  phy- 
sical interference  with  the  milk  after 
it  was  drawn  from  the  animals, 
although  the  chemical  analysis 
showed  an  excess  of  fluids  and  a  lack 
of  the  necessary  solids.  People  v. 
Salisbury,  2  App.  Div.  39,  S!  N.  Y. 
Supp.  420. 

On  a  prosecution  for  the  alleged 
violation  of  an  act  prohibiting  the 
adulteration  and  selling  of  adulter- 
ated milk,  evidence  offered  by  the 
defendant  to  show  that  his  cows 
were  properly  fed,  is  properly  ex- 
cluded when   not  made   for  the  pur- 


pose of  discrediting  the  analysis  put 
in  by  the  state.  State  v.  Campbell, 
04  N.  H.  402,  13  Atl.  585,  10  Am.  St. 
Rep.  419. 

The  defendani  may  show  that  he 
sold  the  milk  as  skimmed  milk  out 
of  a  tank  duly  marked  as  containing 
skimmed  milk.  Com.  v.  Tobias,  141 
Mass.   129,  6  N.  E.  217. 

13.  People  V.  Mahaney,  41  Hun 
26 ;  People  v.  Worden  Grocer  Co., 
118  Mich.  604,  77  N.  W.  315;  State  v. 
Kelly,  54  Ohio  St.  166,  43  N.  E.  163. 
See  also,  People  v.  Cippcrly,  loi  N. 
Y.  634,  4  N.  E.   107. 

14.  The  law  will  not  permit  the 
state  to  construct  about  the  defend- 
ant a  circumstantial  case  and  then 
deny  him  an  opportunity  to  show  the 
circumstances  consistent  with  his  in- 
nocence. And  if  he  used  the  adulter- 
ant honestly  believing,  after  making 
reasonable  inquiry  and  investigation, 
that  it  contained  no  substance  inju- 
rious to  health,  he  may  show  that 
fact.  What  he  did  to  ascertain  the 
facts  about  it.  who  he  inquired  of, 
what  was  said  to  him  by  others  in 
whom  he  might  reasonably  confide, 
what  was  explained  to  him  in  writing 
or  printing,  arc  all  proper  subjects  of 
inquiry  to  lay  before  the  jury  as  to 
his  assertion  that  he  did  not  at  the 
time  know  the  milk  was  adulterated. 
Tsenhour  v.  State,  157  Ind.  ?I7.  62  N. 
E.  40- 

Like  other  questions  of  fact  or  cir- 
cumstantial evidence  tending  to  prove 
a  fact,  knowledge  on  the  part  of  the 
defendant  prosecuted  for  selling 
adulterated  milk  may  be  rebutted  by 
evidence  that  he  did  not,  in  any  way, 
authorize  it.  and  had  no  knowledge 
of  it.  Verona  Central  Cheese  Co.  v. 
Murtaugh.  50  N.   Y.   314. 

Vol.  I 


622  ADULTERATION. 

ant  has  the  burden  of  sliowing  that   fact.^^ 

15.  People  V.  Briggs.  114  N.  Y.  cepted  because  niamifactured  or  in 
56,  20  N.  E.  820,  so  holding  of  the  process  of  manufacture  at  the  time 
defense  that  the  product  was  so  ex-       the  act  was  passed. 

Vol.  I 


ADULTERY. 

By  D.  Modnt.joy  Cloud. 

I.  PROOF  OF  MARRIAGE,  624 

1.  Necessity  Of.  624 

2.  Method  'Of,  625 

A.  Strict  Proof  Required.  625 
P>.  By  Certificate.  625 

C.  By  Celebrant's  Record.  625 

D.  By  Testinionv  of  IVitnesscs,  625 

E.  By  Confessions  or  Admissions.  626 

F.  By  Marriag,e  Contract.  626 

3.  Presumption  of  Continuance  Of.  626 

A.  Generally,  626 

B.  O'irrcoming  Presumption,  626 

a.  By  Showing  Absence,  626 

b.  By  Shozving  Divorce,  626 

II.  PROOF   THAT   PROSECUTION  WAS  INSTITUTED  BY  CON- 
SORT, 627 

III.  MATTERS     RELATING     IMMEDIATELY     TO     THE     ACT 

CHARGED.  627 

1.  Time  Not  Material.  627 

2.  Identity  of  Particeps  Criiiiinis.  627 

3.  Guilty  Kno-Li'ledge,  627 

4.  Potency  of  Accused,  627 

5.  Completion  of  Act.  627 

6.  Single  Adulterous  Act,  628 

IV.  PROVING  ACT  OF  ADULTERY,  628 

I.  Relez-ancy,  628 

A.  Direct  Proof  Not  Required.  628 

B.  Facts  Held  Relevant.  628 

a.  Opportunity  and  Disposition,  629 

b.  Reputation     of     female     Particeps     Crim- 

inis,  629 

c.  Other  Adulterous  Acts,  629 

( r.)   Before  Indictment,  629 
(2.)   After  Indictment,  630 
(3.)   In  Other  Jurisdictions,  631 
(4.)   Instructions  As  to  Such  Evidence. 
631 

Vol.  I 


624 


ADULTERY 


d.  Birtli,  Appearance  and  Treatment  of  Cliild. 
631 
C.  Certain  Facts  Held  Irrelevant.  ("132 

2.  Competency,  632 

A.  Of  Particcps  Criniinis,  632 

B.  Of  Consort  of  Accused,  633 

C.  Confessions  and  S'lutcments  of  Accused,  633 

3.  Weight,  634 

4.  Sufficiency,  634 


CROSS-REFERENCES. 


Bastardy ;  Bigamy ; 
Criminal  Conversation ; 
Divorce ; 
Fornication  ; 
Husband  and   Wife ; 
Lewdness ; 
Marriage. 


I.  PROOF  OF  MARRIAGE. 

1.  Necessity  Of.  —  The  State  must  establish,  beyond  a  reasonable 
doubt,  that  at  the  time  of  the  act  charged,  the  defendant  was  the 
laivful  consort  of  some  person  other  than  the  one  with  whom  the  act 
was  committed.' 


1.  Alabama.  —  Buchanan  i>.  State, 
55  Ala.  is'4;  Smitlierman  i'.  Slate,  27 
Ala.  23;  White  v.  State,  74  Ala.  31; 
Owens  V.  State,  94  Ala.  97,  10  So. 
669. 

Georgia.  —  Bigby   v.    State,   44   Ga. 

344- 

lo'civ.  —  State  -■.  Sanders,  30  Iowa 
582. 

Montana.  —  Montana  z'.  Whitcomb, 
I   Mont,  359,  25  Am.  Rep.  740. 

Texas.  —  Webb  v.  State  24  Te.\. 
App.  164,  5  S.  W.  651 :  Clay  v.  State, 
3  Tex.  App.  499 ;  Tucker  ?'.  State,  35 
Tex.  11,^. 

Evidence  of  Marriage  to  a  Woman 
Under  Age  is  in,suliFicicnt  to  establish 
a  legal  marriage  in  the  absence  of 
proof  that  she  acquiesced  in  such 
marriage  upon  attaining  her  majority, 
and  prior  to  the  commission  of  the 
ofifcnsc  charged.  People  t.  Bennett, 
3()  .Mich.  208. 

Invalid    Marriage Mary    Hcnke 

married  Thomas  Sinnett  in  1868,  and 
about  New  Years,  1869,  four  days 
after  the  second  marriage,  he  disap- 
peared, and  she  never  procured  a  di- 

Vol.  I 


vnrcc.     She     married     defendant     in 
i88j. 

The  court  instructed  the  jury  that 
"  if  the  evidence  sliows  that  at  the 
lime  of  the  marriage  of  the  defend- 
ants, Henry  and  Mary.  Sinnett  had 
.  .  .  been  voluntarily  absent  from 
Mary  for  the  space  of  three  j-ears, 
and  Mary  did  not  then,  to-wit :  at  the 
time  of  her  marriage  to  Henry,  know 
that  Sinnett  was  alive  .  .  .  then 
the  marriage  of  Henry  to  Mary  was 
legal."  The  court  thus  applied  to 
this  case  the  provisions  of  §  4010  of 
the  Code,  enacted  in  favor  of  a  party 
contracting  a  second  marriage,  whose 
husband  or  wife  had  been  continually 
absent  for  three  years,  and  was  not 
known  to  be  living  at  the  time  of  the 
second  marria.ge.  Thus  by  the  action 
of  the  court  a  statute  which  was  in- 
tended to  establish  innocence  in  a 
prosecution  for  bigamy,  is  made  to 
establish  guilt  in  a  prosecution  for 
adultery.  The  instruction  is  clearly 
erroneous.  A  presumption  of  the 
death  of  a  party  does  not  arise  until 
he   has   been   absent,   without   intelli- 


ADULTERY. 


625 


2.  Method  Of.  —  For  a  complete  statement  of  the  methods  of 
proving  marriage  the  Article  "  Marriagk  "  should  be  consulted. 

A.  Strict  Proof  Required.  —  Stricter  proof  is  required  in 
prosecutions   for  adultery  than   in  most  other  actions. - 

Marriage  may  not,  in  such  prosecutions,  be  established  by  general 
reputation.' 

B.  Rv  Certificate.  —  But  it  may  be  proved  by  production  of  a 
marriage  certificate,  accompanied  by  proof  of  the  identity  of  the 
parties.'' 

C.  By  Celebrant's  Record.  —  In  some  states  it  may  be  proved 
by  the  record  of  the  celebrant. ° 

D.  By  Testimony  of  Witnesses.  —  It  may  be  established  by 
testimony  of  persons  present  at  the  wedding.'' 


gence  concerning  him.  for  the  period 
of  seven  years.  State  v.  Henke,  58 
Iowa  457,  12  N.  W.  477. 

2.  State  V.  Annice,  Chip.  N.  (Vt.) 
9;  State  V.  Winkley,  14  N.  H.  480. 

3.  Alabama. — Buchanan  v.  State. 
55  Ala.  154. 

Connecticut.  —  State  v.  Roswell,  6 
Conn.  446. 

Maine.' — Wedgwood's  Case.  8  Ale. 
75;  State  v.  Hodgskins,  19  Ale.  155. 
36  Am.  Dec.  742;  Ham's  Case,  ir  Me. 
391- 

Massachusetts.  — Com.  v.  Norcross. 
9  Mass.  492. 

Missouri.  —  State  v.  Cottee,  39  Mo. 
App.  56. 

Texas.  —  Webb  v.  State,  24  Tex. 
App.  164,  5  S.  W.  651. 

I'ermont.  —  State  i'.  Annice,  Chip. 
N.  9;  State  V.  Rood,  12  Vt.  396. 

Holding  Themselves  Out  As  Hus- 
band and  Wife. —  In  Ham's  Case,  11 
Me.  391,  where  the  accused,  about 
twenty  years  prior  to  the  alleged 
adultery,  in  renting  a  house,  stated 
that  his  family  consisted  of  "  a  wife 
and  one  child,"  and  afterwards 
moved  into  such  house  with  a  wo- 
man whom  he  called  "  Miss  Ham," 
with  whom  he  lived  for  several  years 
as  his  wife  before  deserting  her,  it 
was  held  that  such  evidence  was  not 
sufficient  proof  of  marriage  to  sus- 
tain a  conviction  for  adultery.  Contra. 
Wood  V.  State,  62  Ga,  406;  Com.  v. 
Holt,  121  Mass.  61. 

4.  People  V.  Isham,  109  Mich.  72, 
67  N.  W.  819;  State  v.  Isenhart,  32 
Or.  170,  52  Pac.  569;  People  v. 
Broughton,  49  Mich.  ■>■>,<),  13  N.  W. 
621  ;    State   v.    Schweitzer    57    Conn. 

40 


532,  18  .\1\.  787,  6  L.  R.  A.  125; 
State  V.  Brecht.  41  Alinn.  =;o,  42  N. 
W.  602. 

Certificate  of  Marriage  in  Foreign 
Country.  —  State  v.  Behrman,  114  N'. 
C.  797,  19  S.  E.  220,  25  L.  R.  A.  449. 

Discrepancy  in  Certificate Iden- 
tity.— -In  People  v.  Stokes,  71  Cal. 
263,  12  Pac.  71.  there  was  offered  the 
record  of  a  certain  marriage  certifi- 
cate, which  showed  that  Stokes  was 
married  to  Rebecca  G.  A  witness 
testified  that  at  the  time  and  place 
named  in  the  certificate,  he  was  pres- 
ent at  the  marriage  of  the  defendant  . 
and  Rachael  G.,  performed  by  the 
minister  signing  the  certificate.  Evi- 
dence was  introduced  that  defendant 
and  Rachael  lived  together  as  man 
and  wife  for  years.  Such  evidence 
was  held  admissible  as  tending  to 
prove  that  defendant  and  Rachael  G. 
were  the  persons  named  in  the  cer- 
tificate. 

Presumption  of  Validity —  It  will 
be  presumed  that  such  marriage  cer- 
tificate was  made  by  the  proper  offi- 
cer, and  contains  all  that  is  necessary 
to  make  it  the  authentic  evidence  of  a 
valid  marriage.  State  v.  Potter,  52 
Vt.  3i.  See  State  v.  Brecht.  41 
Minn.  50,  42  N.  W.  602. 

5.  Com.  V.  Littlejohn,  15  Mass. 
163 ;  Wedgwood's  Case,  8  Me.  75 ; 
State  V.   Colby,  51   Vt.  291. 

Celebrant's  Authority  to  Be  Estab- 
lished. —  State  V.  Winkley,  14  N.  H. 
480;  State  V.  Hodgskins,  19  Me.  155. 
36  Am.  Dec.  742. 

6.  Lord  V.  State,  17  Neb.  526,  23 
N.  W.  507;  Com.  V.  Littlejohn,  15 
Mass.  163 ;  Com.  v.  Norcross,  9  Mass. 

Vol.  I 


(>2(> 


AOriTERV. 


E.  Bv  Confessions  or  Aomissions.  —  It  may  be  proved  by  con- 
fessions  or  admissions  of  tbc   fact.' 

Possibility  of  Untruth  of  Confession  affects  its  weig^ht  bnt  not  its 
competency.* 

Extrajudicial  Confession.  —  An  extrajudicial  confession,  bv  the 
accused,  of  his  marriage,  unconnected  with  the  existing  prosecu- 
tion, would  be  insufficient  proof  thereof,  to  sustain  conviction." 

F.  l^.v  Marri.ac.e  Contr.\ct.  —  Marriage  may  be  established  by 
proving  a  marriage  contract  without  witness  or  celebrant,  but  fol- 
lowed by  cohabitation.'" 

3.  Presumption  of  Continuance  Of.  —  A.  Generally.  —  A  mar- 
riage having  been  established,  the  continuance  thereof  is  presumed.'^ 

B,  Overcoming  Presumption.  —  a.  By  Shoiving  Absence. — But 
this  presumption  is  overcome  by  the  presumption  of  death  after  one 
has  been  absent  and  unaccounted   for   for  seven  years. '- 

b.  By  Shozviiii;  Divorce.  —  Or  by  proving  a  divorce  by  the  record 
of  such  divorce.'''' 


492;  State  V.  Marvin,  35  N.  H.  22; 
State  v.  Winklcy,  14 "  N.  H.  480 ; 
Mill.-;  V.  U.  S.,  I   Pinn.   (Wis)  7.3. 

Marriage  in  Other  State  or  Coun- 
try  People  V.  lines,  no  Midi.  250, 

68  N.  W.  157;  Cayford's  Case,  7  Me. 
57.     See  also  Ham's  Case,  11  Me.  391. 

7.  Alabama.  —  Owens  v.  Stale,  94 
Ala.  97,  10  So.  669;  Cameron  t. 
State,  14  Ala.  546,  48  Am.  Dec.  iii; 
Buchanan  v.  State,  55  Ala.  154. 

Georgia.  —  Cook  v.  State,  11  Ga. 
53-  56  Am.  Dec.  410;  Wood  v.  State, 
62  Ga.  406. 

Iowa.  —  State  v.  Sanders,  30  Iowa 
582. 

.Maine.  —  Ham's  Case,  11  Me.  391; 
Cayford's  Case,  7  Me.  57;  State  v. 
I.ibliy,  44  Me.  469,  69  Am.  Dec.  115. 

.Massachusetts.  —  Com.  r.  Thomp- 
son, 99  Mass.  444;  Com.  v.  Holt,  121 
Mass.  61. 

.\Hchigan. —  People  v.  Imes,  no 
Mich.  250,  68  N.  W.   157. 

Missouri.  —  Slate  v.  McDonald.  25 
Mo.   176. 

North  Carolina.  —  State  r.  Behr- 
man,  1 14  N.  C.  797,  19  S.  E.  220,  25 
I,.  R.  A.  449. 

Pennsylvania.  —  Com.  ■;•.  Manock. 
2  Crim.  L.  Mag.  239. 

Rhode  Island.  —  Stale  i'.  Medbnrv. 
8  R.  I.  543. 

Texas.  —  Boger  1:  Stale,  19  To.\. 
App.  9L 

Statements  to  Arresting  Officer. 
Cnni.  7:    Moll.   i_'i    Masv  61. 


109  Mich.  72, 

36  Neb.  808, 
Rood,  12  Vl. 
Behrman,  114 


Letter    Written     by    Accused. 

State  z:  Horn,  43  Vl.  20. 

Contra.  —  Slate  -•.  Armstrong.  4 
Minn.  251. 

8.  State  V.  Libby,  44  Me.  469,  69 
Am.  Dec.   ns. 

9-  People  V.  Isham, 
67  N.  W.  819. 

10.  Bailey  v.  State, 
55  N.  W.  241  ;  State  v. 
396.  See  also  State  v. 
N.  C.  797,  19  S.  E.  220,  25  L.  R.  A. 

449- 

11.  Defense  Must  Show  Dissolu- 
tion  State  V.  Wilson,  22  Iowa  364; 

People  i'.  Stokes,  71  Cal.  263,  12  Pac. 
7L 

Burden  of  Proof Where  the  evi- 
dence shows  that  defendant's  lus- 
band  was  alive  fonr  or  five  years  pre- 
vious to  the  offense  charged,  the  bur- 
den of  proving  his  death  rests  upon 
the  defendant.  Cameron  7'.  State.  14 
.WcL.  546.  48  Am.  Dec.  ni. 

12.  People  V.  Stokes,  71  Cal.  263, 
12  Pac.  71 ;  Cameron  v.  State,  14 
."Ma.  546,  48  Am.  Dec.  in. 

13.  People  V.  Broughton,  49  Mich. 
M9,  13  N.  W.  621. 

Invalid  Decree  of  Divorce  Not  Ad- 
missible. —  Hood  r.  State.  56  Ind. 
263,  26  Am.  Rep.  21. 

In  Stale  r.  Fleak,  54  Iowa  429,  6 
N.  W.  68g,  the  defendant  offered  in 
evidence  a  decree  of  divorce  obtained 
in  Utah,  it  was  held  that  parol  evi- 
dence   was    admissible    on    behalf   of 


Vol.  I 


AnULTERY. 


627 


II.    PROOF   THAT   PROSECUTION   WAS   INSTITUTED 
BY  CONSORT. 

It  is  sometimes  provided  that  prosecutions  for  adultery  can  be 
instituted  only  on  complaint  of  the  consort  of  the  accused.  It  will 
depend  upon  the  wording  of  the  statute  whether  or  not  evidence  is 
required  on  this  point.''' 

III.  MATTERS  RELATING  IMMEDIATELY  TO  THE 
ACT   CHARGED. 

1.  Time  Not  Material.  —  Evidence  which  establishes  the  fact  that 
the  alleged  offense  was  committed  on  any  day  within  the  time  fixed 
by  the  Statute  of  Limitations  is  sufficient..'^ 

2.  Identity  of  Particeps  Criminis.  —  Where  the  indictment  alleges 
the  adultery  to  have  been  committed  with  a  certain  person,  the 
evidence  must  establish  the  identity  of  that  person.'" 

3.  Guilty  Knowledge.  —  The  state  need  not  adduce  evidence  of  a 
guilty  intent.'" 

4.  Potency  of  Accused.  —  Presumptions  of  Virility.  —  Until  the 
contrary  appears  by  satisfactory  evidence,  it  will  be  presumed  that  a 
mature,  male,  hinnan  being  possesses  normal  powers  of  virility.'* 

The   Burden  of  Proof    lies   upon   him    who   denies   such    powers." 

5.  Completion  of  Act.  —  It  is  not  necessary  to  prove  emission.-" 


the  state,  going  to  show  that  the 
tribunal  granting  such  divorce  was 
without    jurisdiction. 

14.  Not  Required  in  Minnesota. 
State  V.  Brecht.  41  Minn.  50.  42  N. 
W.  602. 

In  Iowa,  the  fact  that  the  prosecu- 
tion was  so  instituted  must  be 
proved.  State  v.  Henke,  58  Iowa 
457,  12  N.  W.  477. 

But  the  fact  need  not  be  estabhshed 
beyond  a  reasonable  doubt.  .\  pre- 
ponderance of  evidence  is  enough. 
State  V.  Donovan,  61  Iowa  278,  16 
N.  W.  130. 

15.  State  c'.  Williams,  76  .Me.  480; 
Com.  V.  Cobb,  14  Gray  (Mass.)  57; 
Com.  V.  O'Connor,   107   .Mass.  219. 

16.  Difference  in  Names Where 

the  indictment  alleged  the  act  to  have 
been  committed  with  one  "  Lula 
Hunting."  evidence  was  admitted  of 
the  confession  of  "  Lula  Hunting- 
ton, "  but  none  was  adduced  to  show 
them  to  be  identical.  It  was  held  in- 
sufficient. State  -■.  Minis,  39  S.  C. 
557,   17  S.  E.  850. 

In  State  v.  Vittum,  9  N.  H.  519, 
the  indictment  alleged  that  adultery 
was  committed   with   one   Levi   Wal- 


lace, without  further  description. 
The  evidence  showed  that  there  were 
in  the  same  town  two  persons  of  that 
name,  father  and  son,  and  that  the 
latter  was  well  known  and  distin- 
guished from  his  father  by  the  suf- 
fix of  "  junior "  to  his  name.  The 
accused  is  justified  in  understanding 
the  adultery  to  have  been  committed 
with  the  father,  and  evidence  of 
adultery  with  the  son  is  inadmissi- 
ble. 

Upon  an  Indictment  of  Two  for 
Adultery,  if  one  is  known  by  the 
name  charged,  the  other  cannot  es- 
cape by  introducing  evidence  to  show 
that  it  is,  nevertheless,  not  the  true 
name.     State  v.  Glaze,  9  Ala.  283. 

17.  Com.  V.  Elwell,  2  Mete. 
(Mass.)  190,  35  Am.  Dec.  398;  Fo.k 
V.  State,  3  Tex.  App.  329.  30  Am. 
Rep.  144:  Collum  v.  State,  10  Tex. 
.\pp.  708. 

18.  Gardner  r.  State.  81  Ga.  144, 
7  S.  E.  144- 

19.  Gardner  v.   State.  81   Ga.    144, 

7  S.  E.  144- 

20.  Sexual   Act   Incomplete —  In 

Com.  V.  Hussey,  157  Mass.  415,  32  N. 
E.  362,  the  joint  defendants  were  dis- 

Vol.  I 


628 


ADULTERY. 


6.  Single  Adulterous  Act.  —  By  statute  in  some  of  the  states, 
where  the  crime  consists  in  living  together  in  adultery  or  in  state 
of  open  and  notorious  adultery,  or  in  an  open  state  of  adultery, 
evidence  of  a  single  act  of  adultery  only,  is  insufficient  to  warrant 
a  conviction, ='  but  it  tends  to  prove  the  offense  and,  if  cohabitation 
is  shown,  raises  a  presumption  of  continuance.-^ 

IV.  PROVING  ACT  OF  ADULTERY. 

1.  Relevancy.  —  A.  Dirkct  Proof  Not  Required.  —  From  the 
nature  of  the  crime  it  is  usuallv  impossible  to  produce  direct  proof 
of  guilt,  hence,  direct,  positive  proof  of  sexual  acts  need  not  be 
furnished.^'' 

B.  Facts  Held  Relevant.  —  It  is  sufficient  if  the  evidence 
establishes  facts  and  circumstances  from  which  guilt  may  be 
inferred,  and  which  will  satisfy  a  rational  and  just  man  beyond  a 
reasonable  doubt.-* 


covered  by  the  officers  in  bed  to- 
gether, partially  undressed,  and  in 
the  act  of  sexual  intercourse,  but 
were  interrupted  before  completion. 
It  was  held  sufficient  to  convict. 

21.  Miner  v.  People,  58  III.  59; 
People  V.  Gates,  46  Cal  52 ;  State  v. 
Coffee,  39  Mo.  App.  56;  Morrill  v. 
State,  5  Tex.  App.  447 ;  Searls  v. 
People,   13  111.  597. 

Relation  of  Master  and  Servant. 
In  Carotti  f.  State,  42  Miss.  334,  97 
Am.  Dec.  465,  it  was  held  that,  where 
the  evidence  simply  showed  ihat  the 
parties  had  lived  together  under  the 
same  roof  as  master  and  servant,  and 
there  were  occasional  instances  of 
illicit  intercourse  between  them,  such 
evidence  would  not  be  sufficient  to 
convict  of  unlawful  cohabitation. 
Citing  Searls  v.  People,  13  111.  597- 
State  V.  Marvin,  12  Iowa  499:  State 
V.  Jolly,  3  Dev.  &  B.  (N.  C.)  no,  32 
■  .^m.  Dec.  656 ;  Wright  v.  State,  5 
P.lackf.  (Ind.)  358,  35  Am.  Dec.  126; 
Com.  V.  Calef,   10  Mass.  153. 

22.  State  v.  Coffee,  39  Mo.  .\pp. 
56. 

23.  State  v.  Eliason,  91  N.  C.  564 ; 
State  V.  Green,  Kirby  (Conn.)  87; 
State  V.  Poteet,  8  Ired.  (N.  C.)  23; 
Com.  V.  Bowers,  121  Mass.  45';  Com. 
V.  Gray,  129  Mass.  474,  37  Am.  Rep. 
378;  Richardson  v.  State,  34  Tex. 
142. 

24.  Alabama.  —  Gore  v.  State,  58 
Ala.  391 ;   State  v.  Crowley,   13  Ala. 


172;  Love  V.  State,  124  Ala.  82,  27 
So.  217. 

Connecticut.  —  State  v.  Schweitzer, 
57  Conn.  532,  18  Atl.  787,  6  L.  R.  A. 
125. 

Georgia.  —  Weaver  v.  State,  74  Ga. 
,S76. 

Illinois.  —  Crane  v.  People,  168  111. 
395,  48  N.  E.  54. 

Iowa.  —  State  z\  Wiltsey.  103 
Iowa  54,  72  N.  W.  415 ;  State  v.  Hen- 
derson, 84  Iowa  161,  50  N.  W.  758. 

Massachusetts.  —  Com.  v.  Gray, 
129  Mass.  474,  37  Am.  Rep.  378; 
Com.  V.  Clifford,  145  }ilass.  97,  13 
N.  E.  345- 

Michigan.  —  People  v.  Fowler,  104 
^lich.  449,  62  N.  W.  572 ;  People  v. 
Montague,  71  Mich.  447,  39  N.  W. 
585;  People  V.  Girdler,  65'  Mich.  68, 
31   N.  W.  624. 

Mississippi.  —  Carotti  7-'.  State,  42 
Miss.  334,  97  Am.  Dec.  465. 

Missouri.  —  State  v.  Coffee,  39  Mo. 
App.  56;  State  V.  Clawson,  30  Mo. 
App.   I39. 

Nebraska.  —  State  v.  Wav,  5  Neb. 
283. 

Nezi<  Hampsliirc.  —  State  t'.  Wink- 
ley,  14  N.  IT.  480. 

New  Jersey.  —  State  v.  Snover,  64 
N.  J.  Law  65.  44  Atl.  850. 

North  Carolina.  —  State  v.  Austin, 
io8  N.  C.  780,  13  S.  E.  219;  State  v. 
Poteet,  8  Ired.  23;  State  v.  Stubbs, 
108  N.  C.  774,  13  S.  E.  90;  State  V. 
Waller,  80  N.  C.  401- 


Vol.  I 


ADULTERY. 


629 


a.  Opportunity  and  Disposition.  —  In  prosecutions  for  adultery, 
all  evidence  is  admissible  which  tends  to  show  a  disposition-'^  or 
opportunity  for  the  adulterous  act.-" 

b.  Reputation  of  Female  Particeps  Criminis.  —  On  the  trial  of  a 
man  for  adultery,  evidence  of  the  reputation  for  chastity  of  the 
particeps  criminis  is  admissible,  in  connection  with  evidence  of 
facts  showing  opportunity  for  committing  the  offense."' 

c.  Otiicr  Adulterous  Acts. — (1.)  Before  Indictment.  — Evidence  is 
admissible  of  sexual  acts,  between  the  same  parties,  before  the  time 
laid  down  in  the  indictment.-* 


Pennsylvania.  —  Com.  v.  Bell,  i66 
Pa.  St.  405,  31  Atl.  123. 

Texas.  —  Swaiicoat  v.  State,  4  Te.x. 
App.  105;  Stewart  v.  State,  (Te.x.) 
43  S.  W.  979 ;  Bradshaw  v.  State, 
(Tex.)  61  S.  W.  713;  Lenert  v. 
State,  (Tex.)  63  S.  W.  563;  Kahii 
V.  State.   (Tex.)  38  S.  W.  989. 

Vermont.  —  State  v.  Bridgman,  49 
Vt.  202,  24  Am.  Rep.  124;  State  v. 
Colby,  51   Vt.  291. 

IVisconsin.  —  Baker  v.  U.  S.,  I 
Pinn.  641. 

25.  Disposition  Shown  by  Letters 
Written  by  paramour  and  road  by 
accused.  State  v.  Butts,  107  Iowa 
653.  78  N.  W.  687 ;  Boatwrigbt  v. 
State,  (Tex.)  60  S.  W.  760;  People 
I'.  Imes.  1 10  Mich.  jjo.  08  X.  W.  157. 

Letters  Not  So  Read  Are  Not  Ad- 
missible  People    Z'.    Montague,    71 

Mich.  447,  39  N.  W.  585. 

26.  (jardner  v.  State,  81  Ga.  144, 
7  S.  E.  144;  Com.  V.  Tarr,  4  Allen 
(86  Mass.)   315-. 

Occupying  Same  Room  at  Night. 
State  V.  Ean,  90  Iowa  534,  58  N.  W. 
898;  Com.  I'.  Bowers,  121  Mass.  45; 
Richardson  v.  State,  34  Tex.  142; 
Com.  V.  Hosier,  135  Pa.  St.  221,  19 
Atl.  943;  Eldridgc  7:  State,  97  Ga. 
192,  23  S.  E.  832 ;  Starke  v.  State,  97 
Ga.  193.  23  S.  E.  832 ;  State  v. 
Snover,  65  N.  J.  Law  289,  47  Atl  583. 

27.  Reputation  a  Material  Fact. 
In  Com.  V.  Gray,  129  Mass.  474,  37 
Am.  Rep.  378,  I.ord,  J.,  said :  "  In 
this  case,  the  precise  question  pre- 
sented by  the  exception  under  con- 
sideration is,  whether  evidence  of 
the  character  or  reputation  for  chas- 
tity of  the  person  with  whom  the 
adultery  of  the  defendant  is  alleged 
to  have  been  committed,  is  admissi- 
ble. It  is  quite  true  that  legally  her 
character  or  reputation  is  not  in  is- 


sue. No  judgment  upon  this  indict- 
ment can  afifect  either  her  or  her 
reputation,  and  in  no  proceeding 
against  her  would  a  judgment  upon 
this  indictment  be  admissible  in  evi- 
dence. Still,  her  character  or  repu- 
tation may  be  a  material  fact,  and 
so  evidence  upon  it  be  competent  and 
material." 

Where  an  indictment  was  found 
against  a  married  man  for  living  in 
adultery  with  an  unmarried  woman, 
it  having  been  duly  shown  that  he 
frequently  visited  at  night,  the  house 
in  which  such  woman  lived,  and  was 
seen  lying  in  her  bed,  evidence  go- 
ing to  prove  her  general  reputation 
for  want  of  chastity  is  relevant. 
Blackman  v.  State,  36  Ala.  295. 
Contra. — Boatwrigbt  v.  State  (Tex.), 
60  S.  W.  760;  Gumn  v.  State,  (Tex.), 
65  S.  W.  376. 

28.  Alabama.  —  Cross  v.  State,  78 
Ala.  430;  McLeod  v.  State,  35  Ala. 
395 ;    Alsabrooks    v.    State,    52    Ala. 

24- 

Florida.  —  Brevaldo  v.  State,  21 
Fla.  789. 

Illinois.  —  Crane  v.  People,  168  111. 
395,  48  N.  E   54. 

Indiana.  —  State  z'.  Markins,  95 
Ind.  464,  48  Am.   Rep,   733. 

lozva.  —  State  v.  Smith,  108  Iowa 
440,  79  N.  W.  115;  State  V.  Briggs, 
(•8  Iowa  416,  27  N.  W.  358. 

Maine.  —  State  v.  Williams,  76  Me. 
.180;  State  V.  Witham,  72  Me.  531. 

Massachusetts.  —  Com.  v.  Curtis, 
97  Mass.  574 ;  Com.  v.  Dacey,  107 
Mass,  206;  Com,  v.  Lahey,  80  Mass, 
(14  Gray)  91;  Com,  v.  Merriam,  14 
Pick,  518,  25  Am,  Dec,  420;  Com,  v. 
Durfee,  100  Mass,  146;  Com,  v. 
Pierce,  77  Mass.  (11  Gray)  447; 
Com.  r.  Thrasher,  77  Mass.  (11 
Gray)    450. 

Vol.  I 


f)30 


.incf.rnRV. 


This  Rule  Obtains  without  reference  to  the  sufficiency  of  other 
evidence  tending  to  authorize  conviction,-"  and  notwithstanchng 
such  evidence,  may  prove  distinct  offenses  other  than  the  one 
charged.'"' 

The  Reason  of  the  Rule  rests  upon  the  material  assistance  which 
such  evidence  renders  the  jury  in  determining  the  truth  as  to  the 
matters  charged  in  the  indictment.^' 

(2.)  After  Indictment.  —  Evidence  of  facts  of  adultery,  or  indecent 
familiarity,  occurring  subsequent  to  the  time  named  in  the 
indictment     is     admissible,"-     but     the     opposite     view     has     lieen 


Michigan.  —  People  v.  Davis,  52 
Midi.  569,  18  N.  W.  362;  People  ?;'. 
Heiulrickson,  53  ^licli.  525,  19  N. 
W.   i6g. 

Missouri.  —  State  v.  Coffee,  39  Mo. 
App.  56;  State  I'.  Clawson,  30  Mo. 
App.  139. 

Nebraska.  —  State  v.  Way,  5  Neb. 
283. 

Nczi'  Jersey.  —  State  v.  Jackson, 
65  N.  J.  Law  62,  46  Atl.  767 ;  Snover 
V.    State    (N.  J.),  44   Atl.   850. 

North  Carolina.  —  State  v.  Pippin, 
88  N.  C.  646;  State  v.  Guest,  100 
N.  C.  410,  6  S.  E.  253;  State  v. 
Kemp,  87  N.  C.  538. 

Pennsylvania.  —  Com.  v.  Bell,  166 
Pa.   St.  405-,  31   Atl.   123. 

Tcimcssee.  —  Cole  v.  State,  6  Baxt. 
-'.?9. 

Texas.  —  Burnett  v.  State,  32  Tex. 
Cr.  86,  22  S.  W.  47;  Henderson  v. 
State    (Tex.),  45   S.   W.   707. 

Acts  Eig-hteen  Months  Before  Ad- 
missible. —  State  V.  Briggs,  68  Iowa 
416,  27  N.  W.  358;  State  v.  Smith, 
108  Iowa  440,  79  N.  W.   115. 

Acts  Against  Which  the  Statute 
of  Limitations  Has  Run.  —  State  v. 
Potter,  52  Vt.  ii',  State  v.  Kemp,  87 
N.  C.  538;  State  v.  Pippin,  88  N.  C. 
646;  State  V.  Guest,  100  N.  C.  410, 
6  S.  E.  253. 

Intercourse  With  Particeps 
Criminis  Before  Her  Marriage.  —  In 
Stale  V.  Arnold,  50  Vt.  731,  there 
was  evidence  to  show  that  the  act 
had  been  committed  on  the  day  al- 
leged in  the  indictment.  The  defend- 
ant, upon  his  examination  in  chief, 
being  asked  whether  on  the  day  al- 
leged, or  at  any  time  thereafter,  he 
had  made  improper  solicitations,  or 
had  intercourse  with  her,  replied,  "  I 
never  had  in  my  life,  nor  never  made 
any  improper  words,  nor  talked  with 

Vol.  I 


her  any  way."  The  state  was  then 
permitted  to  adduce  evidence  tend- 
ing to  show  that  he  had  had  con- 
nection with  her  before  her  marriage. 
It  was  held  that  such  evidence  was 
admissible  both  by  way  of  rebuttal, 
and  also  to  discredit  the  defendant. 
Upon  a  trial  for  adultery,  the  in- 
dictment alleging  only  one  act  of 
sexual  intercourse,  the  state  intro- 
duced evidence  showing  that  defend- 
ant and  the  alleged  paramour  slept 
in  the  same  bed  on  one  occasion. 
It  was  held  competent  for  the  state 
to  give  evidence  of  other  acts,  show- 
ing an  adulterous  intercourse  be- 
tween them  down  to  the  time  named 
in  the  indictment.  Baker  v.  U.  S., 
I  Pinn.  (Wis.)  641  ;  State  v.  Witham, 
72  Me.  531  ;  People  t'.  Hendrickson, 
S3  Mich.  525,  19  N.  W.  169;  otate 
V.  Snover,  65  N.  J.  Law  289,  47  Atl. 
.S83. 

29.  Cross  V.   State,  78  .Ala.  4.?o. 

30.  State  V.  Bridgniau,  49  \'i.  202, 
24  Am.   Rep.   124. 

31.  State  V.  Guest,  100  N.  C.  410, 
6  S.  E.  253;   State  V.   Potter,  52  Vt. 

a- 

32.  Alabama.  —  .Msabrooks  z\ 
State,   52   Ala.   24. 

Illinois.  —  Crane  "'.  People,  168  111. 
39.=;,  48  N.  E.  5-4. 

Io'i.i.'a.  —  State  "'.  Briggs,  68  Iowa 
416,  27  N.  W.  358;  State  v.  Moore 
(Iowa),  88  N.  W.  322. 

Maine.  —  State  v.  Williams,  76 
Me.   480. 

Massachusetts.  —  Com.  ''.  Curtis, 
97  Mass.  574. 

Michigan.  —  People  ',•.  Hendrick- 
son, S3   Mich.  525,   19  N.   W.   169. 

Nebraska.  —  State  v.  Way,  i  Neb. 
-'83. 

Tennessee.  —  Cole  v.  State,  6  l^axt. 

J.i9- 


.ADULTERY. 


631 


taken.-"' 

(3.)  In  Other  Jurisdictions.  —  For  the  same  reason  evidence  of 
adultery,  or  acts  of  indecent  familiarity,  in  another  jurisdiction,  is 
admissible.  •* 

(4.)  Instructions  As  to  Such  Evidence.  —  \\  hen  evidence  of  other 
acts  than  those  charged  is  admitted,  its  effect  should  be  limited  to  its 
proper  purpose  by  appropriate  instructions  and  cautions  to  the 
jury.''"' 

d.  Birtli.  Aplycarancc  and  Treatment  of  Clitld.  —  It  seems  that 
it  is  admissible  to  show  that  the  particcl'.s  criminis  if  not  married, 
or  if  long  separated  from  her  husband,  gave  birth  to  a  child,  that 
might  have  been  begotten  about  the  time  of  the  alleged  crime.'"' 

It  is  incompetent  to  adduce  evidence  of  an  existing  resemblance 
between  the  accused  and  an  illegitimate  child,  in  order  to  determine 
its  paternity  in  a  prosecution  for  adultery  with  its  mother."' 


Texas.  —  Funderbiirg  v.  State.  2J 
Tex.  App.  392,  5   S.  W.  244. 

U tall.  — Stale  v.  Snowden  (Utah), 
65  Pac.  47g. 

■Vermont.  —  State  v.  Bridgman.  49 
Vt.   202,   24   Am.    Rep.    124. 

33.  Com.  V.  Horton,  2  Gray 
(Mass.)  354;  Com.  v.  Pierce.  77 
Mass.  (II  Gray)  447;  State  -■.  Dono- 
van, 61  Iowa  278.  16  N.  \\\  130. 

Acts  Eighteen  Months  After  In- 
dictment  Acts    occurring   eighteen 

months  after  the  finding  of  an  in- 
dictment and  unconnected  with  acts 
charged  in  the  indictment,  are  inad- 
missible in  evidence,  though  going 
to  prove  an  illicit  connection.  State 
V.  Crowley,   13  Ala.   172. 

Acts  Three  Months  Subsequent  In- 
admissible. —  People  V.  Fowler,  104 
Mich.  449,  02  N.  W.   ^72. 

The  Error  May  Be  Cured  by  the 
withdrawal  of  such  evidence  from 
the  jury.  State  v.  Donovan,  61  Iowa 
278,    16   N.    W.    130. 

34.  Crane  v.  People,  i68  111.  395, 
48  N.  E.  54;  State  v.  Briggs,  68 
Iowa  416,  27  N.  W.  358;  Com.  v. 
Nichols,  114  Mass.  285,  19  Am.  Rep. 
346 ;  Funderburg  i\  State,  2i  Te.\. 
App.  392,  5  S.  W.  244 ;  State  v.  Guest, 
100  N.  C.  410,  6  S.  E.  253;  State  v. 
Snover,  65  N.  J.  Law  289,  47  .\tl. 
583. 

Adulterous  Acts  in  Another  State. 
Com.  V.  Curtis,  97  Mass.  574;  State 
r.    Moore    (Iowa),   88   N.   W.   322. 

35.  Funderburg  v.  State,  2^  Tc.x. 
App.  392,  5  S.  W.  244 ;  State  v.  Wit- 
ham,  72  Me.  531. 


36.  Com.  V.  Morrissey,  175  Mass. 
264.  56  N.  E.  285. 

Parties     living     Together     Nine 

Months  Before  Birth   of  Child In 

Com.  V.  Curtis.  97  Mass.  574,  a 
prosecution  for  adultery,  it  was  held, 
that,  evidence  might  be  introduced 
on  cross  examination  to  show  that 
the  female  fartieeps  eriminis  had 
given  birth  to  a  bastard  child  sev- 
eral months  after  the  act  complained 
of  was  committed,  and  that  she  lived 
in  the  house  with  accused  for  nine 
months  before  the  birth  of  such 
child ;  and  also  that  at,  or  about  the 
time  of  the  alleged  offense,  she 
wished  it  understood  that  she  was 
the  wife  of  accused,  and  said  that 
they  had  been  married  for  several 
years. 

Contra.  —  In  Com.  f.  O'Connor, 
107  Mass.  219,  the  court  said :  "  The 
paternity  of  the  child  was  not  the 
subject  of  inquiry,  and  it  is  diffi- 
cult to  see  how  the  fact  or  the  date 
of  its  birth  could  be  material  to  the 
question  at  issue.  It  had  no  tendency 
to  show  the  defendant's  guilt  on 
the  occasion  referred  to  in  the  in- 
dictment, and  we  cannot  say  that 
the  evidence  of  the  fact  may  not  have 
had  some  effect  upon  the  minds  of 
the   jurors   to   his    prejudice." 

37.  Resemblance  to  Seven 
Months  Old  Child. —  Hilton  z:  State 
(Tex.),  53  S.  W.  113;  Barnes  v. 
State,  37  Tex.  Crim.  320,  39  S.  W. 
684. 

See  article  "  B.-\st.\rdv." 

Vol.  I 


632 


ADULTERY. 


But  the  treatment  of  tlie  child  by  the  accused  may  be  shown. ^' 

C.  Certain  Facts  Held  Irrelevant.  —  Without  attempting  to 
classify  irrelevancy,  some  illustrations  are  given  in  the  note  of  facts 
held  inadmissible,  in  addition  to  the  cases  cited  in  the  foregoing 
section  as  holding  contrary  to  the  text.'"' 

2.  Competency.  —  A.  Of  Particeps  Criminis.  —  One  was  not, 
at  Common  Law,  incompetent  to  testify  merely  because  he  or  she 
was  the  particeps  criiiiiiiis  named  in  the  indictment.''" 

The  Present  Rule,  sustained  by  the  decided  weight  of  authority, 
sanctions  the  admission  of  a  paramour's  testimony,  when  corrobo- 


38.  In  State  v.  Chancy,  no  N.  C. 
507,  14  S.  E.  780,  which  was  an  in- 
dictment of  a  white  man  and  ncgress 
for  adultery,  evidence  was  admitted 
that  the  latter  had,  since  being  sep- 
arated from  her  husband,  given  birth 
to  two  children,  of  whom  the  male 
defendant  was  so  fond  that  he  had 
been  observed  teaching  one  of  them 
to  sing,  and  had  had  his  photograph 
taken  with   such   children. 

A  Letter  Written  by  Accused  to 
his  alleged  paramour,  who  had  lived 
a  year  in  his  house  before  giving 
birth  to  a  child,  in  which  letter  he 
threatens  to  take  such  child  from 
her,  is  material  evidence  in  a  prose- 
cution for  adultery,  and  if  sufficiently 
corroborated,  will  sustain  a  convic- 
tion. Powell  r.  State  (Tex.),  44 
S.    W.    504. 

39.  Contents  of  Letter  written  by 
particeps  criminis  to  accused,  hut  not 
shown  to  have  been  read  by  him. 
People  V.  Montague,  71  .Mich.  447, 
39  N.   W.   585. 

Statements  Made  by  Paramour  in 

Absence    of    Accused Whicker    v. 

State  (Tex.),  55  S.  W.  47;  Com.  v. 
Thompson,  99  :Mass.  444;  Gore  v. 
State,    58    Ala.    391. 

The  Suspicions  of  a  Witness. 
McKnight  v.  State,  6  Tex.  App.  158. 

Neighborhood  Rumor —  Belcher  v. 
State,  27  Tenn.  63;  Buttram  v.  State, 
4  Cold.   (Tenn.)    171. 

That  accused  is  "  foolishlv  fond  " 
of  women  cannot  be  shown  in  rebut- 
tal of  his  evidence  of  good  char- 
acter. Cauley  v.  State,  92  Ala.  71, 
9  So.  456. 

Seen  Together  Early  in  Morning. 
In  State  v.  Waller,  80  N.  C.  401,  the 
male  defendant  was  23  years  old  and 

Vol.  I 


the  female  50,  at  the  time  of  the 
alleged  crime.  A  witness  testified 
that  one  morning,  at  4  o'clock,  he 
called  at  the  house  and  saw  the 
female  in  one  bed,  the  other  bed  not 
being  tumbled,  and  that  the  male  de- 
fendant was  up  and  dressed,  but  wit- 
ness did  not  know  where  he  had 
spent  the  night.  The  admission  of 
this   testimony   was   held   error. 

Occupying  Separate  Rooms  in 
Same  House —  Bradshaw  v.  State 
(Tex.),    61    S.    W.    713. 

Jealousy  of  Consort The  sus- 
picions or  jealousy  of  the  wife  of 
one  indicted  for  adultery,  cannot  be 
admitted  as  evidence  against  him. 
State  V.   Crowley.    13   .Ma.    172. 

Suspicions  of  Consort Graham  v. 

State,  28  Tex.  App.  9,  11  S.  W. 
781,  19  Am.  Rep.  809,  was  the  pros- 
ecution of  a  woman  for  adultery 
committed  with  her  husband's  cousin, 
then  residing  in  the  house  durinc  the 
husband's  illness.  Evidence  was  ad- 
mitted to  show  that  the  husband,  who 
died  soon  after,  requested  the  wit- 
ness to  remain  with  him  and  admin- 
ister his  medicine,  as  he  dared  not 
trust  his  wife  and  cousin  M  do  so. 
It  was  held  that  such  evidence, 
though  not  objectionable  as  hearsay, 
was  irrelevant,  as  being  too  uncer- 
tain :  the  husband's  fear  was  not 
necessarily    for   his   wife's   virtue. 

40.  Unconvicted  Paramour  Com- 
petent Witness In  State  v.  Crow- 
ley. 13  Ala.  172,  Collier,  C.  J.,  said: 
"  it  is  said  to  be  a  settled  rule  of 
evidence  that  a  particct'S  criminis, 
notwithstanding  the  turpitude  of  his 
conduct,  is  not  on  that  account  an 
incompetent  witness,  so  long  as  he 
remains  not  convicted  and  sentenced 
for  an  infamous  crime." 


ADULTERY. 


633 


rated  by  additional  proof  of  his  connection  with  the  crime  alleged,*' 
though  the  contrary  is  maintained.''- 

B.  Of  Consort  of  Accused.  —  At  common  law  and  in  the 
absence  of  a  statute,  neither  husband  nor  wife  may  testify  in  a  trial 
of  the  other  for  adultery.*" 

Where  a  statute  provides  that  the  husband  or  wife  may  testify 
in  a  criminal  proceeding  for  a  crime  committed  by  one  against  the 
other,  the  authorities  are  in  conflict.** 

Where  the  paramour  is  on  trial  the  authorities  are  in  conflict  as  to 
the  admissibilit}-  of  testimony  of  the  husband  or  wife,  the  weight  of 
authority  holding  it  incompetent.*^ 

C.  Confessions  and  St.vtements  of  Accused.  —  A  confession, 
shown  to  have  been  vokmtary,  is  admissible,  or  a  statement  or 
admission  made  bv  the  accused.*" 


41.  Merritt  v.  State,  lo  Tex.  App. 
402;  Wiley  V.  State,  33  Tex.  Cr.  406, 
26  S.  W.  723 ;  Morrill  v.  State,  5  Tex. 
.■\pp.  447 ;  State  v.  Colby,  51  Vt.  291 ; 
State  v.  Crowley,  13  Ala.  172;  Peo- 
ple z\  Isham.  109  Mich.  72,  67  N.  W. 
8iq:  People  z\  Knapp.  42  Mich.  267, 
3  N.  W.  927.  36  Am.  Rep.  438;  Mc- 
Alpine  v.  State,  117  Ala.  93,  23  So. 

42.  State  v.  Rinehart.  106  N.  C. 
787,  II  S.  E.  512;  State  I'.  McGuire, 
50  Iowa  153 ;  Rutter  v.  State,  4  Tex. 
App.  57 ;  State  V.  Mims,  39  S.  C.  557, 
17  S.  E.  850;  State  V.  Berry,  24  Mo. 
App.  466;  Frost  '•.  Com.,  9  B.  Mon. 
iKy.)    362. 

43.  Cotton  r.  State,  62  Ala.  12; 
Miner  z'.  People,  58  III  59;  Com.  v. 
Jailer,  i  Grant  (Pa.)  218;  State  v. 
Gardner,  l  Root  (Conn.)  485;  State 
c'.  Jolly,  3  Dev.  &  B.  (X.  C.)  no, 
32  .Am.  Dec.  656. 

Testimony  of  Divorced  Husband 
of  adultery  before  divorce  incom- 
petent. State  V.  Jolly,  3  Dev.  &  B. 
(N.  C.)   no,  32  Am.  Dec.  656. 

44.  In  State  f.  Bennett,  31  Iowa 
24;  Lord  V.  State.  17  Neb.  526,  23 
X.  VV.  507,  the  adultery  of  the  de- 
fendant was  considered  an  ofifense 
by  one  spouse  against  the  other, 
and  the  testimony  of  the  consort  was 
admitted.  See  also  State  v.  Hazen, 
39  Iowa  648 ;  State  v.  Sloan,  55  Iowa 
217,   7    N.   W.   516    (bigamy). 

Such  Was  Formerly  the  Rule  in 
Texas.  — Roland  v.  State,  9  Tex. 
.\pp.  277,  35  Am.  Rep.  743.  But  that 
case  was  expressly  overruled  in 
Compton  V.  State,  13  Tex.  App.  271, 


44  Am.  Rep.  703  (approved  in 
Thomas  v.  State,  14  Tex.  App.  70), 
holding  that  the  weight  of  authority 
in  England  and  in  America  is  against 
the  admission  of  such  testimony. 

In  Michigan,  where  the  statute 
provides  that  "  in  any  action  or  pro- 
ceeding instituted  by  the  husband 
or  wife,  in  consequence  of  adultery, 
the  husband  and  wife  shall  not  be 
competent  to  testify,"  it  was  held  that 
the  testimony  of  the  spouse  institu- 
ting the  proceeding  is  not  admissible. 
People  Z'.  Isham,  109  Mich.  72,  67 
X.  W.  819;  People  V.  Imes,  no 
Mich.  250,  68  N.  W.  157.  But  the 
testimony  of  the  husband  of  a 
woman,  jointly  indicted  with  a  mar- 
ried man,  was  competent  as  to  his 
marriage,  where  the  complaint  was 
sworn  to  by  the  wife  of  the  co- 
defendant.      People   V.   Isham,  supra. 

In  Pennsylvania,  by  Statute. 
Act  of  March  23d,  1887,  upon  a  trial 
for  the  adultery  of  the  husband,  the 
wife  is  a  competent  witness  to  the 
marriage.  Com.  v.  Mosier,  135  Pa. 
St.    221,    19   Atl.   943. 

45.  People  z'.  Fowler,  104  Alich. 
449,  62  N.  W.  572;  Com.  ■:•.  Sparks, 
7  Allen  (Mass.)  534;  State  v.  Welch, 
26  Me.  30,  45  Am.  Dec.  96 ;  Cotton 
V.  State,  62  Ala.  12;  State  v.  Jolly, 
3  Dev.  &  B.  (N.  C.)  no,  32  Am. 
Dec.   656. 

Contra.  —  Morrill  v.  State,  5  Tex. 
.\pp.  447;  Alonzo  V.  State,  15  Tex. 
App.  378,  49  Am.  Rep.  207 ;  State  v. 
Bridgman,  49  Vt.  202,  24  Am.  Rep. 
124. 

46.  Mc.\lpine   v.    State,    117    Ala. 

Vol.  I 


634 


ADULTnRV. 


Statements  made  by  the  accused  to  his  wife,  re.s^arding  his  where- 
abouts on  the  night  in  question,  are  admissible,  as  are  the  questions 
of  the  wife  which  led  to  his  statement. •"' 

The  confession  of  the  accused  is  to  be  accorded  g'reat  weight. *° 
It  should  be  corroborated  by  a  showing  of  opportunity  or  access, 
together  with  a  probability  of  guilt  arising  from  the  surrounding 
circumstances  of  each  particular  case.'"' 

3.  Weight.  —  The  credence  to  be  given  the  testimony  of  the  par- 
ficcps  criiniiiis  is  a  matter  peculiarly  for  the  jury."'" 

4.  Siifficiency.  —  The  testimony  of  one  credible  witness  will  sus- 
tain a  conviction.^' 

The  testimony  of  an  eye  witness  is  sufficient.^-  The  facts  and 
circumstances  must  be  such  as  to  convince,  beyond  a  reasonable 
doubt,  but  what  circumstantial  evidence  will  suffice  for  that  niust 
rest  very  largely  with  the  jury.''-' 

Whether  or  not  the  evidence  shows  that  there  was  time  for  the 
commission  of  the  ofifense,  is  a  question  peculiarly  for  the  considera- 
tion of  the  jtiry,  and  must  be  submitted  to  them  for  final  decision.'* 

Where  there  is  circumstantial  evidence  going  to  show  undue  inti- 
macy, the  jury  will  not  be  instructed  that  they  must  acquit,  pro- 
vided they  do  not  credit  a  witness  who  testifies  to  having  seen  the 
adulterous  act.^^ 

It  has  been  held  sufficient  that  accused  was  the  companion  of  an 
itinerant  peddler,''"  or  was  found  in  bed  with  a  prostitute,'''  but  not 


93,  23  So.  130;  Com.  V.  Morrissey, 
i/S  Mass.  264,  56  N.  E.  285;  Com.  v. 
Tarr   (4  Allen).  86  Mass.  315-. 

47.  State  z:  Austin,  108  N.  C. 
780,    13    S.    E.   219. 

48.  Com.  V.  Manock,  2  Crim. 
Law   Mag.    (Pa.)   239. 

49.  Com.  ?■.  Morrissev,  175  Mass. 
264,   56   N.   E.   285. 

50.  State  V.  Crowley,  13  Ala.  172. 

51.  Com.  i:  Cregor,  7  Gratt.  (Va.) 

.=59 1- 

52.  People  f.  ^lontague.  71  Mich. 
447,  39  N,   \V.  585. 

53.  Illustration — In  Crane  z'.  Peo- 
ple, 168  111.  395.  48  N.  E.  54,  the  de- 
fendants moved  from  the  country  to 
a  certain  town,  rented  and  furnished 
a  house,  and,  with  one  or  two  ser- 
vants, lived  there,  the  relation  be- 
tween them  being  ostensibly  that  of 
landlady  and  boarder.  Their  mode 
of  life  had  all  the  appearances  of 
a  married  couple  keeping  house  in 
the  usual  manner.  The  defendants 
had  become  alienated  from  their 
families  by  their  infatuation  for  each 
other,    and    prior    acts    having    been 

Vol.  I 


proved,  which  reasonably  led  the  jury 
to  believe  that  adultery  had  been 
elsewhere  committed,  it  was  held 
that  the  above  state  of  facts  would 
justify   conviction. 

54.  State  v.  Henderson.  84  Iowa 
161,  50  N.  W.  758;  State  -■.  Green, 
Kirby   (Conn.)   87. 

55.'  State  z:  Austin,  108  X.  C. 
780.   13  S.  E.  219. 

■Wholly  Negative  Evidence. 
Where  evidence  adduced  against  the 
accused,  is  of  a  character  entirely 
negative,  and  not  such  as  to  exclude 
a  contrary  inference,  the  jurv  should 
not  be  charged  to  consider  such  evi- 
dence as  tending  to  show  an  adul- 
teroivs  intercourse.  Hall  v.  State, 
88  .\la.  236,  7  So.  340.  16  \m.  St. 
Rep.  51- 

56.  Stewart    f.    Stale    (Tex.).    43 

S.   W.   979- 

57.  Ellis  z:   State,  20  Ga.  438. 
That  Accused  and  Particeps  Crim- 

inis    Occupied    the    Same    Room    at 

Night State  z\  Ean,  90  Iowa  534, 

58  \.  \V.  898;   Com.  V.   Bowers,   121 


ADULTERY.  (.35 

the  mere  fact  that  a  married  man  kissed  his  housekeeper.^* 

Mass.    45;    Richardson    t'.    State,    34  Starke  ?■.  State.  97  Ga.   193,  23  S.  E. 

Te.x.    142;   Com.   I'.   Mosier.    135   Pa.  S,^2. 

St.    221,    19    Atl.    943;    Eldridge    r.  58.     Kalin   r.    State    (Te.x.),    ?8   S. 

State,    97    Ga.    192,    2H    S.    E.    832;  W.   989. 


ADVANCEMENTS.— See  Descent  and  Distribution. 

Vol.  I 


ADVERSE  POSSESSION. 

By  a.   B.   Young. 

I.  POTENT  EVIDENCE  OF  TITLE,  639 

1.  Is  a  Legal  Conception  Based  on  Fact,  639 

2.  Practically  All  a  Question  of  Evidence,  640 

3.  Available  Independent  of  Any  Statute,  640 

4.  May  Invoke  Conclusive  Presmnptions.  641 

II.  BURDEN  OF  PROOF,  642 

1.  Rests  Upon  Claimant,  642 

2.  Same  Rule  in  Ejectment,  643 

III.  PROOF  TO  ESTABLISH  ADVERSE  POSSESSION,  644 

1.  An  Actual  Occupancy,  644 

2.  Intention  to  Claim  Ownership,  644 

3.  Open  and  Notoriously  Adverse,  645 

A.  Simple  Occupation  No  Evidence,  646 

B.  Claim  Witlwtit  Possession  No  Evidence,  647 

4.  Without  Interruption,  647 

5.  Exclusive  of  All  Others,  648 

A.  Actual  Occupancy,  649 

a.  Ouster  of  True  Owner  Essential,  649 

b.  Ouster  Is  Question  of  Fact,  649 

6.  Residence  Unnecessary,  650 

7.  Inclosure  and  Improvement  Unnecessary,  651 

8.  Character  of  Land  Important,  652 

9.  Evidence  of  Occupation  of  Part,  653 

10.  Tenant's  Possession  Is  That  of  His  Landlord,  653 

1 1 .  Wild  Lands,  654 

12.  Intetruption,  655 

A.  Abandonment,  656 

B.  Abandoned  Occupancy  Cannot  Be  Retrieved,  637 

13.  Nature  of  Occupancy,  658 

A.  Oral  Declarations,  659 

B.  Evidence  of  Intent  From  Acts  Must  Show  Con- 

tinuous Hostility,  659 

C.  Secret  Intent  No  Evidence  Except  As  Shoivn  by 

Acts,  659 

D.  Squatter,  660 

14.  Proof  of  Open  and  Adverse  Use,  660 

A.  Visible  Effects,  660 

B.  Otherivise  of  Land  Not  Susceptible  of  Oecupancv, 

661 

C.  Reputation  Incompetent,  661 

D.  Proof  of  Actual  Knou'ledge  Sufficient,  661 

15.  Continuity,  661 

A.  Evidence  of  Permanent  Occupancy,  661 

Vol.  I 


ADVERSE  POSSESSION.  637 

B.  Successive  Possessions  May  Be  Combined.  662 

a.  Privity  of  Estate  Must  Be  Sliozm.  662 

b.  Privity,  Hotv  Proved.  663 

16.  Transfer.  Hoiv  Proved,  664 

A.  By  an  Agreement  or  Understanding  Carried  Into 

'Eifect,'^(^r^4 

B.  Possessions  of  Ancestor  and  Heir  Are  in  Privity. 

664 

C.  Particular  Description  Not  Akvays  Necessary,  665 

17.  Period  Need  Not  Be  That  Next  Preceding,  665 

IV.  PRESUMPTIVE  EVIDENCE,  666 

1.  Presumptions  All  in  Favor  of  True  Oivner.  666 

2.  One  Seized  in  Fee  Simple  Presumed  to  Be  Entitled  to 

Possession,  666 

3.  Mixed  Possession  Governed  by  Same  Rule,  667 

4.  Grant  From  State  May  Be  Presumed.  667 

5.  Peaceable  Possession.  Effect  Of,  668 

6.  Unexplained  Possession  Shoivs  Prima  Facie  Title.  668 

7.  Presumption    of   Same    Possession    During    Intermediate 

Periods,  669 

V.  WRITTEN  EVIDENCE  NOT  INDISPENSABLE,  669 

1.  Written   Evidence  Not   Indispensable   to   Prove   Title   or 

Color  of  Title,  669 

2.  Is  Akvays  of  Primary  Importance  in  Fixing  Limits.  670 

A.  Qualification  of  Rule.  673 

B.  Mere   Trespasser  Acquires  Nothing   Outside  His 

Actual  Occupancy.  673 

VI.  COLOR  OF  TITLE,  674 

1.  Is  Mere  Semblance  of  Title,  674 

2.  Void  Instruments,  Evidence  Of,  674 

3.  Under  Void  Tax  Deed  for  Government  Land,  675 

4.  Color  of  Title  May  Aid  Prior  Ineffectual  Entry,  676 

5.  Different  Kinds  of  Written  Evidence.  676 

6.  Written  Evidence  Not  Indispensable,  677 

7.  Facts  Shozcing  Nature  of  Entry  Max  Operate  As  Color 

of  Title.  677 

VII.  ADMISSIBILITY  OF  PARTICULAR  CLASSES  OF  WRITTEN 
EVIDENCE,  677 

1.  Judgment  Roll  in  Former  Action.  O77 

2.  All  Writings  Tendinis  to  Shoiv  Nature  of  Claim  Asserted, 

678  ^ 

3.  Deed  Monuments  of  Adverse  Claimants,  679 

VIII.  EVIDENCE  OF  PARTICULAR  ACTS,  679 

1.  All  Acts  of  an  Occupant  Tending  to  Sho-iv  Claim  of  Ozvn- 

ership  Admissible,  679 

2.  Payment  of  Taxes  Admissible,  CiSo 

Vol.  I 


638  .inrnRsii  f'ossF.ssfoy. 

IX.  DECLARATIONS  OF  AN  OCCUPANT,  680 

1.  .Idiiiissiblc  to  E.y plain  Character  and  Extent  of  Claim,  680 

A.  Conduct  and  Admissions  After  Statutory  Period 

Ensues.  682 

B.  Admissions  Not  Prejudicial  After  Title  Acquired, 

682 

2.  Declarations  As  to  Source  of  Title  Incompeteut .  683 

3.  Althoui:li  the  Declarant  Be  Not  Liviui::.  683 
X.  REPUTATION,  083 

I.  Proof  of  Particular  Land  Marks,  683 

A.  Occupant  May  Show  He  Jl'as  Reputed  Owner  of 

Land  in  Question.  683 
P,.  Rule  Not  Uuiform.  684 

XI.  WHERE  ADVERSE  CLAIM  IS  MADE  BY  PUBLIC.  684 

XII.  AS  BETWEEN  LANDLORD  AND  TENANT,  (.84 

XIII.  AS  BETWEEN  CO-OWNERS  —  PRESUMPTIONS,  685 

1.  Tins  /.?  Simply  a  Rule  of  Evidence,  085 

2.  Evidence    Must  Show  Distinct  Acts  of  Adverse  Claiui  to 

Oust  Co-Owner.  686 

3.  Entry  and  Claim  Under  Deed  of  Whole  by  One  Co-Owner 

May  Evidence  Ouster  of  Others,  686 

4.  Conz'eyauce  of  Whole  by  One  Co-Tenant  Not  Notice  of 

Exclusive  Claim,  688 

5.  But  Such  Deed  When  Recorded  Max  Hare  That  Effect, 

688 

6.  Sole  Possession  Not  Evidence  of  Ouster  in  Itself .  ()88 

7.  Acts  May  Operate  As  Positive  Notice,  688 

8.  Conchisive  Presumptions.  689 

9.  Evidence  of  Parol  Partition.  6yo 

10.  Exclusizr    Possessioii    Under   livralid   Partition    Procecd- 
iui;s.  690 

XIV.  FRAUDULENT  ENTRY,  dyo 

1.  Occupant  Gains  No  Rights  by  Fraudulent  Entry,  690 

2.  fraudulent  Purpose  Must  Appear  From  Acts.  691 

3.  Evideuce  of  Later  Acts  May  Render  Fraudulent  Entry 

Unimportant,  6y  1 

4.  Knowledge  That  Claimant's  Title  L^  Bad  I mmaterial.  691 

5.  Need  Not  Show  Clauiiaiifs  Absolute  Good  Faith.  692 

XV.  CONFLICTING  POSSESSIONS,  693 

1.  Older  Possession  Succeeds.  693 

2.  Eiidcnce  to  Supplant  Must  Be  Same  .Is  to  Create,  (yg^ 

XVI.  CLAIMS  UNDER  CONFLICTING  TITLES,  694 

XVII.  POSSESSION  MAINTAINED  BY  MISTAKE,  (kjs 

XVIII.  ADVERSE    POSSESSION    AND    ACQUIESCENCE    DISTIN- 

GUISHED. (iy3 
Vol.  I 


. IDJllRSP.  POSSESSION. 


639 


1.  Claiming  Ozoicrsliip  to  Mistaken   Ijncs.  (xX' 

2.  Claim  of  Oivncrsliip  Beyond  His  True  Line.  697 

3.  Grantee  Must  Shoiv  Intent.  698 

4.  Mistaken  Belief  That  Land  Is  Public.  Abortife.  699 

XIX.  TITLE  ACQUIRED  BY  ADVERSE  POSSESSION,  699 

1.  Is  Ei'idencc  Under  All  Circumstances.  699 

2.  Surviirs  Default  in  Ejectment.  700 

3.  Ei'idence  of  May  Be  Perpetuated  by  a  Decree  in  Equity, 

7(X) 

4.  Ei'idencc  of  I'erbal  Surrender  Inoperatri-c.  701 

CROSS-REFERENCES. 

Boundaries ; 
Declarations ; 
Possession ; 
Prescription  : 
Title. 

I.  POTENT  EVIDENCE  OF  TITLE. 

Possession  has  alwaxs  been  potent  evidence  in  support  of  exclu- 
sive property  rights  of  every  nature  and  description.^ 

1.  Is  a  Legal  Conception  Based  on  Fact.  —  In  the  absence  of  statu- 
tory modification  of  the  common  law  rule,  adverse  possession  is  a 
question  of  law,  but  what  constitutes  adverse  possession  in  the 
legal  sense  is  a  question  of  fact.-' 


1.     Earliest    Mode    of    Acquiring 

Title '■  Possession  has  always  been 

a  means  of  acquiring  title  to  prop- 
erty. It  was  the  earliest  mode 
recognized  by  mankind  of  the  af'fro- 
t>riatioii  of  anything  tangible  by  one 
person  to  his  own  use.  to  the  ex- 
clusion of  others,  and  legislators  and 
publicists  have  always  acknowledged 
its  efficacy  in  confirming  or  creating 
title."  Campbell  v.  Holt,  115  U.  S. 
620,  6  Sup.  Ct.  260.  "  The  elements 
of  all  title  are  possession,  the  right 
of  possession  and  the  right  of  prop- 
erty." Horback  r.  Miller,  4  Neb.  31  ; 
Schall  V.  Williams  Valley  R.  Co., 
35  Pa.  St.  igi  ;  McNeely  j'.  Langan, 
22  Ohio   St.  32 ;   Keith  z\   Keith,   104 

111.    .W7. 

Applies  to  Both  Real  and  Personal 

Property "  By  the  long  and  undis- 
turbed possession  of  tangible  prop- 
erty real  or  personal,  one  may  ac- 
quire a  title  to  it,  or  ownership,  su- 
perior in  law  to  that  of  another  who 
may  be  able  to  prove  an  antecedent, 
and    at    one    time    paramount    title." 


Campbell    r.    Holt,    115    U.    S.    620, 
(1    Sup.    Ct.   260. 

2.  United  States.  —  Bradstreet  v. 
Huntington,  5  Pet.  402 ;  Anderson  v. 
Bock.   15   How.  323. 

Alabama,  —  Woods  v.  JVIontevallo 
Coal  &  Transp.  Co.,  84  Ala.  560,  3 
So.  475,  5  Am.  St.  Rep.  393;  Nash- 
ville etc.  R.  Co.  7'.  Hammond,  104 
.•\la.  igi,  15  So.  935. 

California.  —  Franz  v.  Mendonca, 
131  Cal.  205,  63  Pac.  361;  Clarke  v. 
Clarke,  133  Cal.  667.  66  Pac.  10 ; 
Baum  V.  Roper,  132  Cal.  42,  64  Pac. 
128. 

Conneeticut.  —  St.  Peters  Church 
V.    Beach,   26   Conn.   355. 

Florida. — Watrous  v.  Morrison,  a 
Fla.  261,  14  So.  805,  39  Am.  St.  Rep. 
99. 

Georgia.  —  Flannery  v.  Hightower, 
97  Ga.  592,  25  S.  E.  371  ;  Beverly 
V.  Burke.  9  Ga.  440,  54  Am.  Dec. 
351  ;  Verdery  v.  Savannah  F.  &  W. 
R.  Co.,  82  Ga.  675,  9.   S.  E.   1133. 

Illinois.  —  Weber  v.  Anderson,  73 
111.  4.W- 

Vol.  I 


640 


ADVERSE  POSSESSION. 


2.  Practically  All  a  Question  of  Evidence.  —  It  necessarily  follows 
that  adverse  possession  is,  practicall}-,  all  a  question  of  evidence.' 

3.  Available  Independent  of  Any  Statute.  —  And,  adverse  pos- 
session may  serve  as  a  niodiiiin  for  the  acquisition  of  rigKts  inde- 


Maine.  —  Gardner  v.  Gooch,  48 
Ale.  487;  Adams  v.  Clapp,  87  Me. 
316,  32  Atl.  911. 

Maryland. — Armstrong   v.    Risteau, 

5  Md.  56,  59  Am.  Dec.  115. 
Massachusclts.  —  Rand  v.  Free- 
man, I  Allen  517;  Eastern  Railroad 
V.  Allen,  135  Mass.  13;  Wheeler 
V.  Land,  147  Mass.  421,  18  N.  E. 
212. 

Michigan.  —  Sauers  v.  Giddings, 
90  Mich.  50,  51  N.  W.  265;  Marquette 
Co.  Sg.  Soc,  95  Mich.  491,  55  N.  W. 
384. 

Minnesota.  —  Washburn  v.  Cutter, 
17   Minn.  361. 

Mississififi.  —  Magce  t.  Magee, 
37  Miss.  138;  Huntington  v.  Allen, 
44   Miss.   654. 

Missouri.  —  Macklot  v.  Dubrenil, 
9  Mo.  473,  43  Am.  Dec.  550. 

Neiv  Hampshire.  —  Hopkins  v. 
Deering    (N.   H.),  52  .A.tl.   75. 

New  Jersey.  —  Foulke  v.  Bond,  41 
N.  J.  Law  527 ;  Cooper  v.  Morris,  48 
N.  J.  Law  607,  7  Atl.  421. 

New  York.  —  Barnes  v.  Light.  116 
N.   Y.  34,  22  N.  E.  441. 

Pennsylvania.  —  Bennett  v.  Mor- 
rison,  120   Pa.   St.   390,   14  Atl.  264, 

6  Am.    St.    Rep.   711. 

South    Carolina.  —  Few    v.    Killer 
(S.  C),  41  S.  E.  85. 
Texas.  —  Gillispie  v.  Jones,  26  Tex. 

343- 

Vermont.  —  Adams  v.  Fullain,  43 
Vt.   592. 

Adverse  Possession  Defined. 
"  Adverse  possession  is  a  legal  idea, 
admits  of  a  legal  definition,  of  legal 
distinctions,  and  may  be  correctly 
laid  down  as  a  rule  of  law,  but  the 
fact  of  adverse  possession,  in  its 
legal  sense,  is  a  question  for  the 
jury."  Bradstreet  v.  Huntington,  5 
Pet.  402. 

3.  United  States.  —  Bradstreet  v. 
Huntington,  5  Pet.  402 ;  Ewing  v. 
Burnet,  11  Pet.  41;  Ricard  z'.  Wil- 
liams, 7  Wheat.  59;  Holtzapple  v. 
Phillibaum,  4  Wash.  C.  C.  356,  12 
Fed.    Cas.    No.   6648. 

Vol.  I 


Indiana.  —  Moore  v.  Hinkle,  151 
Ind.  343,  50  N.  E.  822. 

Iowa.  —  Booth  V.  Small,  25  Iowa 
177. 

Maine.  —  School  District  v.  Ben- 
son, 31  Me.  381,  52  Am,  Dec.  6i8. 

Missouri.  —  Draper  v.  Shoot,  25 
Mo.  197,  69  Am.  Dec.  462. 

Neiv  York.  —  Baker  v.  Oakwood, 
123  N.  Y.  16,  25  N.  E.  312. 

Pennsylvania. — Groft  v.  Weakland, 
34  Pa.  St.  304. 

South  Carolina.  ■ —  Mole  v.  Folk,  45 
S.  C.  265.  22  S.  E.  882. 

Washington.  —  Balch  v.  Smith,  4 
Wash.   497,   30   Pac.   648. 

IV est  Virginia.  —  Parkersburg  In- 
dustrial Co.  v.  Schultz,  43  W.  Va. 
470,  27   S.   E.  255. 

Wisconsin.  —  Illinois  Steel  Co.  v. 
Budzisz,  T06  Wis.  499,  81  N.  W. 
1027,  80  Am.  St.  Rep.  54,  48  L.  R.  A. 
30. 

Foundation  of  Doctrine "  What 

the  primary  owner  has  lost  by  his 
laches,  the  other  party  has  gained 
by  continued  possession,  without 
question  of  his  right.  This  is  the 
foundation  of  the  doctrine  of 
prescription,  a  doctrine  which,  in  the 
English  law,  i.s  mainly  applied  to  in- 
corporeal hereditaments,  but  which, 
in  the  Roman  law,  and  the  codes 
founded  on  it,  is  applied  to  property 
of  all  kinds."  Camobell  v.  Holt.  115 
U.   S.  620,  6  Sup.  Ct.  260. 

Every  Element  Must  Exist. 
Every  element  in  the  definition  of 
adverse  possession  must  exist,  other- 
wise the  possession  will  not  confer 
title.  Groft  V.  Weakland,  34  Pa. 
St.  304.  "  The  title  is  created  by 
the  existence  of  the  facts,  and  not 
by  the  exhibition  of  them  in  evi- 
dence." School  District  v.  Benson, 
31   Me.  381,   =12  .Am.  Dec.  618. 

What  Are  the  Tests. —  When- 
ever this  defense  is  set  up  the  idea  • 
of  a  rightful  title  is  excluded ;  the 
fact  of  possession,  and  the  quo  animo 
it  was  commenced  and  continued, 
are  the  only  tests.  Jackson  v.  New- 
ton,  I   Johns.    (N.   Y.)    355. 


lOrnRSB  POSSESSION. 


641 


lemleiit  of  statutes  of  limitations. 
4.  May  Invoke   Conclusive   Presumptions. 


will  also  invoke  pri.'.^ 


sumptions  absoluteh-  conclusive.^ 


Adverse    possession 


4.  i'liitcd  Slates.  —  Ricard  v.  Wil- 
liams, 7  Wheat.  59;  Barclay  v. 
Howell,  6  Pet.  498;  Pratt  v.  Vattier, 
9  Pet.  405 ;  Goodin  v.  Hobart,  2 
Sun.  401,  10  Fed.  Cas.  No.  5609; 
Miller  V.  Alclntyre,  6  Pet.  61  ;  U.  S. 
r.  Chaves,  159  U.  S.  452,  16  Sup.  Ct. 
62;  Jackson  v.  Porter,  i  Paine  457, 
i,^  Fed.  Cas.  No.  7143;  Fletcher  v. 
Fuller,  120  U.  S.  534,  7  Sup.  Ct.  667; 
Oaksmiths'  Lessee  7'.  Johnston,  92 
U.  S.  343  ;  Armslroug  ?■.  Morrill,  14 
Wall.    120. 

Alabama.  —  Mc.\rthur  v.  Carrie, 
32  Ala.  75,  70  Am.  Dec.  529. 

California.  —  Bryan  v.  Tormey 
(Cal.).  21   Pac.  725. 

Connecticut.  —  Browncll  i'.  Palmer, 
22  Conn.   106. 

Nortli  Carolina. — Bryan  ■;'.  Spivey, 
109  N.  C.  57,  13  S.  E.  766. 

South  Carolina.  —  Trustees  v. 
Jennings.  40  S.  C.  1(58,  18  S.  E.  257, 
42  .^m.  St.  Rep.  854;  Trustees  v. 
McCullv.  II  Rich.  Law  424;  Few  v. 
Killer   (S.  C),  41   S.  E.  85. 

Wisconsin.  —  Schenher  ?'.  Held,  47 
\\'is.   340,   2   N.   W,    770. 

Thirty  Years  Adverse  Possession. 
Grant  Presumed.  —  "It  is  well  set- 
tled that  an  adverse  possession  of 
land  for  thirty  years  raises  a  pre- 
sumption of  a  grant  from  the  state, 
and  that  it  is  not  necessary  even  that 
there  should  be  a  privity  or  con- 
nection among  the  successive  ten- 
ants." Davis  V.  McArthur,  78  N.  C. 
357;  Reed  v.  Earnhart,  10  Ired.  ( N. 
C.)  516;  Wallace  v.  Maxwell,  II 
Ired.  (N.  C.)  no,  51  .\m.  Dec.  380; 
Fitzrandolph  v.  Norman,  Tayl.  (N. 
C.)  127.  "This  presumption,"  says 
Smith.  C.  J.,  in  the  case  first 
cited,  "  arises  at  common  law,  and 
without  the  aid  of  the  act  of  1791, 
and  it  is  the  duty  of  the  court  to 
instruct  the  jury  to  act  upon  it  as  a 
rule  of  the  law  of  evidence.  Simp- 
son V.  Hyatt,  I  Jones  (N.  C.)  517." 
Bryan  r.  Spivey,  109  N.  C.  57,  13 
S.   E.   766. 

Under  Long  Possession  Grant 
From  Government  Presumed. 
Under  some  circumstances,  grants 
will   be   presumed   from   the   govern- 

41 


ment.  in  support  of  a  long  continued 
possession,  not  merely  from  the  pos- 
sibility of  the  loss  of  documents  by 
the  common  accidents  of  time,  but 
from  the  general  experience  of  men 
that  property  is  not  usually  suffered 
to  remain  for  long  periods  in  the 
quiet  possession  of  any  one  but  the 
true  owner,  and  that  no  other  person 
will  (Iclilicrately  add  to  the  value  ol 
the  property  by  permanent  improve- 
ments. Oaksmiths'  Lessee  v.  John- 
ston,  92   U.    S.   343- 

Grant  May  Be  Presumed  From 
Shorter  Possession  Than  Statutes 
Fix ■  If  it  were  necessary,  an  un- 
molested possession  for  thirty  years 
would  authorize  the  presumption  of  a 
grant.  Indeed,  under  peculiar  cir- 
cumstances, a  grant  has  been  pre- 
sumed from  a  possession  less  than 
the  number  of  years  required  to  bar 
the  action  of  ejectment  by  the  stat- 
ute of  limitations."  Barclay  v. 
Howell,   6    Pet.   498. 

Although  the  legislature  may  ex- 
clude lands  from  the  operation  of 
statutes  of  limitation  enacted  by  it, 
presumption  of  title  or  grant  arising 
from  twenty  years  adverse  posses- 
sion, not  rebutted  by  facts  incon- 
sistent with  such  presumption,  may 
be  invoked  on  behalf  of  a  claim  of 
adverse  possession.  Trustees  v.  Jen- 
nings, 40  S.  C.  168,  18  S.  E.  257,  42 
.\m.    St.    Rep.    854. 

5.  England. — .'Knges  ?'.  Dallon,  4 
Q.    B.   Div.   162. 

United  States.  — \J.  S.  r.  Dever- 
caux,  90  Fed.  182 ;  Barclay  v.  Howell, 
6  Pet.  498;  U.  S.  V.  Chaves,  159  U,  S. 
452,  16  Sup.  Ct.  62:  Oaksmiths' 
Lessee  v.  Johnston,  92  XJ.  S.  343. 

Alabama.  —  McArthur  z'.  Carrie,  32 
Ala.   75,  70  Am.  Dec.   529. 

Connecticut.  —  Sherwood  z>.  Bar- 
low,  19   Conn.   471. 

Georgia.  —  Georgia  R.  &  Banking 
Co.  V.  Gardner,  113  Ga.  897,  39  S.  E. 
299. 

Kentucky.  —  Howes  v.  Kirk  fKy. 
.\pp.),  35  S.  W.  1032;  Woodson  v. 
Scott,  I  Dana  470;  Terrill  v.  Her- 
ron,  4  J.  J.  Marsh.  519;  Marshall  v. 
McDaniel,    12   Bush   378. 

Vol.  I 


M2 


ADVERSE  POSSESSION. 


II.  BURDEN  OF  PROOF. 

1.  Rests  Upon  Claimant.. —  In  the  absence  of  statutory  modifica- 
tion of  the  rule,  a  claim  of  title  or  right  by  virtue  of  'the  adverse 
possession  of  property,  real  or  personal,  can  only  be  rendered  effec- 
tive by  affirmative  evidence  establishing  all  the  constituents  of  such 
possession." 


Massiichusetts.  —  Church  in  Brattle 
Square  v.  Bullard,  2  Mete.  363 ; 
Tufts  V.   Charleston,   117   Mass.  401. 

Ncxv  Jersey.  —  Spottiswoode  v. 
Morris  &  E.  R.  Co.,  61  N.  J.  Law 
322,  40  Atl.  505;  Lehigh  Valley  R. 
Co.  V.   McFarlan,  43  N.  J.   Law  605. 

Ne%i'  York.  —  Jackson  v.  Diffen- 
dorf ,  3  Johns.  269 ;  Jackson  v.  Har- 
der, 4  Johns,  202,  4  Am.  Dec.  262 ; 
In  re  City  of  New  York,  63  Hun 
630,  18  N.  Y.  Supp.  82;  Moon  v. 
Green,    19   How.    Pr.  69. 

North  Carolina-.  —  Baker  v.  Mc- 
Donald, 47  N.  C.  244 ;  Freeman  v. 
Loftis,  6  Jones  524;  Yount  v.  Miller, 
91  N.  C.  331  ;  Graham  v.  Houston,  15 
N.   C.  232. 

South  Carolina.  —  McLeod  v. 
Rogers.  2  Ricli.  Law  19;  Trustees 
etc.  V.  McCully.  II  Rich.  Law  424; 
Few  V.   Killer   (S.  C),  41   S.   E.  85. 

Tennessee.  —  Cannon  v.  Phillips, 
2    Sneed.    21. 

Te.xas.  —  Herndon  v.  Vick,  89 
Tex.  469,  35  S.  W.  141  ;  Paul  v. 
Perez,    7   Tex.    338. 

■Vermont.  —  Sellick  v.  Starr,  5  Vt. 
25s;  University  of  Vermont  v.  Rey- 
nolds, 3  Vt.  542,  23  Am.  Dec.  234. 

Wisconsin.  —  Scheuber  v.  Held, 
47  Wis.  340,  2  N.  W.  779. 

Thirty  Years  Adverse  Possession 
Good,  Regardless  of  Disabilities. 
In  a  case  where  adverse  possession 
for  over  thirty  years  was  estab- 
lished by  the  proof,  the  court  said : 
"  This  court,  as  evidence  held  the 
thirty  years'  statute  to  be  a  com- 
plete bar  to  actions  for  the  recovery 
of  real  estate  regardless  of  dis- 
abilities and  we  are  not  inclined  to 
depart  from  the  rule  so  well  estab- 
lished." Howes  V.  Kirk  (Ky.  .\pp.), 
35    S.   W.    1032. 

Without  going  at  length  into  the 
subject,  it  may  safely  be  said  that 
by  the  weight  of  authority  as  well 
as  by  the  preponderance  of  (ipinion, 
it    is   the   general    rule   of   American 

Vol.  I 


law  that  a  grant  may  be  presumed 
upon  proof  of  an  adverse,  exclusive 
and  uninterrupted  possession  for 
twenty  years,  and  that  such  rule 
will  be  applied  as  a  prcsumptio  juris 
ct  dc  jure,  whenever,  by  possibility, 
a  right  may  lie  acquired  in  any  man- 
ner known  to  the  law.  U.  S.  v. 
Chaves,  159  LI.  S.  452,  16  Sup.  Ct. 
62. 

Presumption  Operates  as  Evidence 
of  Owner's  Relinquishment  of  Right. 
Presumption  does  not  operate  like 
the  statute  of  limitations,  and  bar 
the  right  which  is  known  to  exist; 
or  like  laches,  which  deprives  one 
of  a  right  which  did  exist.  It  op- 
crates  as  evidence  and  establishes  the 
conclusion  that  the  right  which  did 
exist  has  been  duly  relinquished  by 
the  possessor  of  it.  t^.  S.  v. 
Devereaux.  00  Fed.   182. 

Presumption  of  Prior  Grant  One  of 

Fact And    it    is    for    the    jury    to 

determine  the  effect  of  the  evidence 
in  support  of  that  presumption. 
Herndon  v.  Vick,  89  Tex.  ^,6g.  35 
S.    W.    141. 

6.  United  States.  —  Shuffleton  v. 
Nelson,  2  Sawy.  540,  22  Fed.  Cas. 
No.  12,822 ;  Braxton  v.  Rich,  47 
Fed.   178. 

Alabama.  —  Newton  v.  Louisville 
&  N.  R.  Co.,  no  Ala.  474,  19  So.  19; 
I^ucv  t'.  Tennessee  &  C.  R.  Co.,  92 
.\la.'  246,  8  So.  806;  Beasely  v. 
Howell,  117  Ala.  499.  22  So.  989. 

California.  —  Thompson  z'.  Pioche, 
44  Cal.  508 ;  De  Frieze  v.  Quint,  94 
Cal.  6=;3,"  30  Pac.  I.  28  Am.  St.  Rep. 
151;  Ball  V.  Kehl,  95  Cal.  606; 
Tuffrec  v.  Polhemus,  108  Cal.  670, 
41   Pac.  806. 

Colorado.  —  Evans  v.  Welsh 
(Colo.),  68  Pac.  776. 

Connecticut.  —  Huntington  v. 
■  Whaley,   29    Conn.    391. 

Florida. — Wilkins  7:  Pensacola 
City  Co.,  36  Fla.  36.  18  So.  20. 

Illinois. — Bryan  v.  East  St.  Louis, 
12  III.  App.  390. 


ADVERSE  POSSESSION. 


043 


2.  Same  Rule  in  Ejectment.  —  The  same  rule  as  to  burden  of 
proof  applies  in  actions  of  ejectment  whetlu-r  the  title  be  asserted 
by  a  plaintiff,  or  merely  as  a  defense/ 


Maryland.  —  Trustees  of  Sharp  St. 
Station  M.  E.  Church  v.  Rother,  83 
.Md.  289. 

Michigan.  —  Beecher  v.  Ferris,  no 
^rich.  537,  68  N.  W.  269. 

AffKi  York.  —  Bissing  v.  Smith,  85 
Hun  564,  33  N.  Y.  Supp.  123; 
Howard  v.  Howard,  17  Barh.  663; 
Lewis  V.  N.  Y.  &  H.  R.  Co.,  162 
N.  Y.  202,  56  N.  E.  540;  Jackson  v. 
Sharp,    9    Johns,    163,    6    Am.    Dec. 

267-  .         , 

North   Carolina. — Bryan  v.   Spivey, 

109  N.  C.  57,  13  S.  E.  766. 

Oregon.  —  Rowland  v.  Williams,  23 
Or.   515.  32   Pac.  402. 

Pennsylvania.  —  De  Haven  i'.  Lan- 
dell,  31  "Pa.   St.  120. 

Tennessee.  —  Fuller  i'.  Jackson 
(Tenn.  Ch.  App.),  62  S.  W.  274; 
Tubb  f.  Williams,  7  Humph.  367. 

Te.vas.  —  Beall  i'.  Evans,  i  Tex. 
Civ.  App.  443,  20  S.  W.  945 ;  Smith 
V.  Estill,  87  Te.x.  264.  28  S.  W.  801. 

Virginia.  —  Atkinson  v.  Smith 
(Va.  App.),  24  S.  E.  901. 

West  I  'irginia.  —  Maxwell  v.  Cun- 
ningham, 50  W.  Va.  298,  40  S.  E. 
499-^ 

Wisconsin.  —  Kurz  v.  Miller,  89 
Wis.  426,  62  N.  W.  182 ;  Fuller  v. 
Worth,  91  Wis.  406,  64  N.  W.  995; 
Ryan  v.  Schwartz,  94  Wis.  403,  69 
N.  W.   178. 

Burden  of  Proof  Rests  Upon  One 
Claiming  by  Adverse  Possession. 
Evidence  of  adverse  possession  is 
always  to  be  construed  strictly,  and 
every  presumption  is  to  be  made  in 
favor  of  the  true  owner.  The  bur- 
den of  establishing  it  is  upon  him 
who  asserts  it,  and  it  is  not  to  be 
made  out  by  inference  nr  pre- 
sumption, but  by  clear  and  positive 
proof.  Kurz  v.  Miller,  89  Wis.  426, 
62  N.  W.   182. 

Evidence  Must  Be  Clear  and  Satis- 
factory. —  It  is  incumbent  on  one 
who  relies  upon  an  adverse  posses- 
sion to  extinguish  the  legal  title, 
to  establish  the  necessary  facts 
by  clear  and  satisfactory  evidence. 
.\11  presumptions  are  in  favor 
of  the  legal  holder.  and  the 
burden    of    overcoming    them     rests 


with  him  who  assails  the  legal  title. 
Evans  V.  Welsh  (Colo.),  68  Pac. 
776. 

Burden  of  Proving  the  Possession 

Adverse That    it    was    taken    and 

held  under  a  claim  of  title  hostile 
to  the  title  of  the  true  owner  rests 
upon  the  party  asserting  it.  Newton 
V.  Louisville  &  N.  R.  Co.,  no  .Ala. 
474.  19  So.  19.  The  burden  of 
proving  all  the  essential  elements  of 
an  adverse  possession,  including  its 
hostile  character,  is  upon  the  party 
relying  upon  it.  De  Freize  "•. 
Quint,  94  Cal.  653,  30  Pac.  i,  28  .Am. 
St.  Rep.   151. 

7.  California.  —  Sharp  v.  Daug- 
ney,  33  Cal.  505. 

Colorado.  —  Evans  v.  Welsh 
(Colo.),  68  Pac.  776. 

Indiana.  —  State  Trustees  v.  Vin- 
cennes   LTniversity,   5   Ind.   77. 

lozi'a.  —  Montgomery  v.  Chad- 
wick,  7  Iowa  114. 

Kentucky.  —  Smith  i\  Frost,  2 
Dana    144. 

Michigan.  —  Highstone  v.  Bur- 
dette,  54  Mich.  329,  20  N.  W.  64. 

Nebraska.  —  Weeping  Water  v. 
Reed,  21   Neb.  261,  31    N.  W.  797. 

Nevada.  —  McDonald  v.  Fox,  20 
Nev.   364,  22    Pac.   234, 

Pennsylvania.  —  Hawk  v.  Sense- 
man,  6  Scrg.  &  R.  21  ;  De  Haven  v. 
Landell,  31  Pa.  St.  120;  Union  Canal 
Co.   v.   Young,    I    Whart.  410. 

West  Virginia.  —  Maxwell  v.  Cun- 
ningham,   50   W.    Va.   298,   40    S.    E. 

499- 

Burden    of    Proof    in    Ejectment. 

The  entry  of  the  owner  of  land  is 
only  barred  by  an  actual,  continued, 
visible,  notorious,  distinct,  and  hos- 
tile possession  for  twenty-one  years. 
It  is  not  necessary,  to  entitle  him  to 
recover  in  ejectment,  that  he  should 
prove,  that  he,  or  those  under  whom 
he  claims,  have  been  in  possession 
within  twenty-one  years  before  bring- 
ing suit.  Hawk  !■.  Senseman,  6  Serg. 
&  R.  (Pa.)  21.  Defendant  pleading 
adverse  possession  in  actions  of 
ejectment  has  burden  of  proof  on 
such  issue.  McConnell  z\  Day,  61 
.\rk.  464,   33   S.   W.   731. 

Vol.  I 


<,44 


ADVERSE  POSSESSION. 


Distinction  in  Actions  of  Ejectment. — This  is  not  to  be  confounded 
with  the  rule,  however,  that  a  defendant  in  possession  of  land  when 
sued  in  ejectment  is  entitled  to  stand  upon  his  possession  alone 
tnitil  the  plaintiff  shows  a  prima  facie  title  and  present  right  of 
recovery.* 

III.  PROOF  TO  ESTABLISH  ADVERSE  POSSESSION. 

In  the  absence  of  statutorj'  provision  to  the  contrary,  the  con- 
stituents necessary  to  be  proved  to  establish  adverse  possession  are : 

1.  An  Actual  Occupancy." 

2.  Intention  to  Claim  Ownership.  —  The  intent  to  assert  owner- 
ship must  be  evinced  in  some  affirmative  manner.'" 


Must    Prove    Every    Element If 

a  plaintiff  in  ejectment  claims  title 
by  twenty-one  years'  adverse  posses- 
sion, he  must  prove  every  element 
necessary  to  constitute  a  title  under 
the  statute  of  limitations ;  otherwise, 
it  is  the  duty  of  the  court  to  in- 
struct the  jury,  that  there  is  not  suffi- 
cient evidence  to  entitle  him  to  re- 
cover. De  Haven  v.  Landell,  31 
Pa.  St.  120. 

Proof  of  Ouster  of  Possession. 
In  this  case  both  parties  relied  upon 
an  ouster,  and  it  was  incumbent 
upon  the  plaintifif  to  prove  it  within 
the  statute  of  limitations,  and  if  he 
introduced  evidence  tending  to  prove 
it  within  that  period,  the  burden  was 
shifted  upon  the  defendants  to  prove 
an  actual  ouster  which  occurred  an- 
terior to  that  period.  Highstone  v. 
Burdette.  54  Mich.  329,  20  N.  W. 
64. 

8.  Atkinson  v.  Smith  (Va.  App.), 
24  S.  E.  901. 

9.  United  States— Ward  v.  Coch- 
ran,  150  U.   S.  597,  14  Sup.  Ct.  230. 

California.  —  De  Freize  v.  Quint, 
94  Cal.  653,  30  Pac.  i,  28  Am.  St. 
Rep.   151. 

Connecticut.  ■ —  Huntington  v. 
Whaley,  29  Conn.  391. 

Kentucky.  —  Ohio  &  B.  S.  Co.  v. 
Wooten    (Ky.),  46   S.   W.   681. 

Minnesota.  —  Village  of  Glencoe  v. 
Wadsworth,  48  Minn.  402,  51  N.  W. 
:>,yy\  Murphy  v.  Doyle,  37  Minn.  113, 
33   N.  W.  220. 

Mississifipi.  —  Davis  v.  Bouncau. 
55  Miss.  671 ;  Dixon  v.  Cook,  47 
Aliss.   220. 

Missouri.  —  Draper  v.  Shoot.  25 
Mo.  197,  69  Am.  Dec.  422. 

Vol.  1 


Nebraska.  —  Horbach  v.  Miller,  4 
Neb.  31 ;  Crawford  v.  Galloway,  29 
Neb.  261,  45   N.   W.  628. 

Tennessee.  —  Fuller  v.  Jackson 
(Tenn.   Ch.   App.),   62   S.   W.   274. 

Te.ras.  —  Polk  v.  Beaumont  Pas- 
ture Co.  (Tex.  Civ.  App.),  64  S. 
W.  58;  Wheeler  v.  Moody,  9  Tex. 
372 ;  Phillipson  v.  Flynn,  83  Tex. 
580,  19  S.  W.  136;  De  Las  Fuentes  v. 
"McDonald.    85    Tex.    132,    20    S.    W. 

I'irginia.  —  Overton  v.  Davisson,  i 
C.ralt.   211,  42  Am.   Dec.   544. 

10.  United  States.  —  Faggost  v. 
Stanberry,  2  McLean  543,  23  Fed. 
Cas.  No.  13.724;  Harvey  v.  Tyler, 
2  Wall.  328;  Ewing  v.  Burnet.  II 
Pet.  41 ;  Shuffleton  v.  Nelson,  2 
Sawy.  540,  22  Fed.  Cas.  No.  12,822; 
F.llicott  7'.  Pearl,  10  Pet.  412;  Fussell 
'.:   Hughes,  8  Fed.  384. 

California.  —  Millett  v.  Logamar- 
sino  (Cal.),  38  Pac.  308;  Thompson 
r.    Pioche,  44   Cal.   508. 

Connecticut.  —  Huntington  v. 
Whaley,  29  Conn.  391. 

Georgia.  —  Flannery  v.  Hightower, 
97  Oa.  592,  25   S.  W.  371. 

Illinois.  —  Bryan  v.  East  St.  Louis, 
12  111.  App.  390;  Hayden  v.  Mc- 
Closkey,  161  111.  351,  43  N.  E.  1091 ; 
Scott   V.   Delaney,  87  111.    146. 

Indiana.  —  Pierson  v.  Turner,  2 
Ind.    123. 

lo'av.  —  Litchfield  v.  Sewall,  97 
tiiwa  247.  66  N.  W.  104;  Jones  v. 
Hockman,  12  Iowa  loi ;  Booth  v. 
Small,  25   Iowa   177. 

Kentucky.  —  Taylor  !■.  Buckman, 
2  A.  K.  Marsh.  18,  12  Am.  Dec.  354; 
Badlcy  7'.  Coghill,  3  A.  K.  Marsh. 
614;    Smith   V.   Morrow,  5   Litt.   211. 


ADVERSE  POSSESSION. 


645 


3.  Open  and  Notoriously  Adverse.  —  And  the  acts  of  the  occupant 
must  be  proved  to  have  Ijeen  of  a  character  reasonably  calculated 
;c  imply  his  adverse  attitude  towards  the  true  owner." 


Louisiana.  —  Roe  r.  Bundy's 
Heirs,  45  La.  Ann.  i,  12  So.  759. 

Maine.  —  Bethum  f.  Turner,  I 
Greenl.    iii,   10  Am.   Dec.   36. 

Michigan.  —  Beecher  z'.  Ferris,  no 
Mich.  537,  68  N.  W.  269;  McGee  v. 
McGee,  37  Mich.  138;  Smeberg  v. 
Cunningham,  96  Mich.  378,  56  N.  \V. 
73,  35   Am.   St.   Rep.   613. 

Minnesota.  —  Todd  z'.  Weed,  84 
Minn.   4,  86   N.   W.   756. 

Mississifpi.  —  Davis  •;•.  Boimeau, 
55  'Siisi.  671 ;  Magee  f.  Magee,  37 
Miss.  138;  Ford  i'.  Wilson,  35  Miss. 
490,    72    Am.    Dec.    137. 

Missouri.  —  Ivy  v.  Yancy,  129  Mo. 
501,  31  S.  W.  937;  Spencer  v. 
O'Neill,  100  Mo.  49,  12  S.  W.  1054; 
Pharis  v.  Jones,  122  Mo.  125,  26  S. 
W.  1032;  Pitzman  !■.  Boyce,  III  Mo. 
387,  19  S.  W.  1104,  33  Am.  St.  Rep. 
536. 

Oregon.  —  Swift  z:  Mulky,  14  Or. 
59,  12  Pac.  76;  Rowland  v.  Williams, 
23  Or.   515,  32   Pac.  402. 

Pennsylvania.  —  Long  v.  Mast.  11 
Pa.   St.  "189. 

South  Carolina.  —  Trustees  v. 
Jennings,  42  S.  C.  265,  18  S.  E.  275, 
42    Am.    St.    Rep.    854. 

Tennessee.  —  Kirkman  v.  Brown, 
93  Tenn.  476,  27  S.  W.  709;  Bon 
.\ir  Coal  &  Lnm.  Co.  z:  Parks.  94 
Tenn.  263.  29  S.  W.  130. 

Te.ras.  —  Peterson  v.  Ward,  5  Tc.^. 
Civ.  App.  208,  23  S.  W.  637 ;  Ivev  v. 
Petty,  70  Te.x.  178,  7  S.  W.  798. 

Virginia.  —  Atkinson  v.  Smith 
(Va.).  24  S.  E.  901;  Kincheloe  v. 
Tracewells,  11  Gratt.  587;  Earley  v. 
Garland,  13  Gratt.  r. 

H'asliington.  —  Blake  v.  Shriver 
(Wash.),  68  Pac.  330. 

West  Virginia.  —  Maxwell  v. 
Cunningham,  50  W.  Va.  298,  40  S. 
W.   499. 

Wisconsin.  —  Link  v.  Doerfin,  42 
Wis.  391  :  Avers  v.  Riedel,  84  Wis. 
276.   54   N.   W.   588. 

Intention  to  Claim  Title  Must  Be 
Shown.  —  Inasmuch  as  the  whole 
doctrine  of  adverse  possession  may 
he  said  to  rest  upon  the  presumed 
acquiescence  of  the  party  against 
whom    it    is    held    the    intention    to 


claim  against  the  true  owner  must 
be  shown.  Litchfield  v.  Sewall,  97 
Iowa  247,  66  N.  W.   104, 

Possession  Unexplained.  Impotent. 
Simple  possession  creates  neither  a 
legal  right  in  the  occupant,  nor  a 
bar  to  the  assertion  of  the  owner's 
title.  Jones  Z'.  Hockman,  12  Iowa 
loi.  The  overwhelming  w-eight  of 
authority  is  that  the  basis  of  an  ad- 
verse possession  is  a  claim  of  title 
or  right.  Blake  r.  Shriver  (Wash.), 
68   Pac.  330. 

The  Intention  to  Claim  Title  Is  a 
Question  of  Fact.  —  Whether  the  in- 
tention existed  in  the  mind  of  the 
occupant  to  claim  title  during  the 
time  of  his  possession  is  a  question 
of  fact.  Todd  v.  Weed,  84  Minn.  4, 
86  N.  W.  756.  Intention  is  a  guide 
denoting  the  character  of  the  entry. 
Ew-ing  V.  Burnet,  11  Pet.  41.  What 
constitutes  an  adverse  possession  is  a 
question  of  law ;  but  the  intention 
of  the  possessor,  which  is  always 
material  in  determining  questions  of 
adverse  possession,  is  a  fact  which 
can  be  ascertained  only  by  a  jury. 
Magee  v.  Magee,  37  Miss.  138.  Evi- 
dence which  simply  shows  possession, 
but  not  how  title  was  claimed,  im- 
plies nothing  adverse  to  the  lawful 
owner.  Pierson  v.  Turner,  2  Ind. 
123. 

Claim    of   Entire   Title It   must 

be  made  to  apl>ear  that  the  possession 
was  under  a  claim  or  color  of  title, 
hostile  to  the  title  of  the  true  owner, 
and  a  claim  of  'the  entire  title. 
Huntington  v.  Whaley,  29  Conn.  391. 
The  affirmative  acts  of  the  party 
claiming  rights  of  adverse  posses- 
sion, not  those  of  the  party  against 
whom  they  are  asserted,  are  materinl. 
Beecher  v.  Ferris,  no  Mich.  537.  68 
N.  W.  269. 

11.  United  States.  —  Bracken  v. 
Union  Pac.  R.  Co.,  75  Fed.  347; 
Ward  V.  Cochran,  150  U.  S.  597, 
14  Sup.  Ct.  230;  Pillow  V.  Roberts. 
13  How^  472. 

Alabama.  —  Eureka     v.     Norment, 

104    Ala.    625.    16    So.    579;    Doe    v. 

Clayton,  81  .'\la.  391,  2  So.  24:  Black 

I'.    Tennessee    Coal,    Iron    &    R.    Co.. 

Vol.  I 


640 


ADVERSE  POSSESSION. 


A.  Simple  Occupation  No  Exidence.  —  Simple  occupancy 
unaccompanied  by  any  indicia  of  claim  of  ownership  avails  nothing 
in  support  of  a  claim  of  adverse  possession.^' 


93  Ala.  109,  9  So.  537 ;  Murry  v. 
Hoyle,  92  Ala.  559,  9  So.  368. 

California.  —  Brumagim  v.  Brad- 
shaw,  39  Cal.  24;  Thompson  v.  Fel- 
lon,  54  Cal.  547 ;  Mauldin  v.  Cox, 
67  Cal.  387,  7  Pac.  804;  Alta  Land  & 
Water  Co.  v.  Hancock,  85  Cal.  219, 
24  Pac.  645,  20  Am.  St.  Rep.  217; 
Thompson  v.  Pioche,  44  Cal.  508; 
Davis  V.  Baugh,  59  Cal.  568. 

Connecticut.  —  St.  Peter's  Church 
v.  Beach,  26  Conn.  354;  Turner  v. 
Baldwin,  44  Conn.    121. 

I'lorida.  —  Watrous  v.  Morrison,  33 
Fla.   261,    14   So.   805,   38  Am.   Dec. 

139- 

Georgui.  —  Carrol     v.     Gillion,     33 

Ga.  539- 

Illinois.  —  Bryan  v.  East  St.  Louis, 
12  111.  App.  390. 

Iowa.  ■ —  Booth   V.    Small,   25   Iowa 

177- 

Kentucky.  —  Buford  i:  Cox,  5  J.  J. 
Marsh.   582. 

Louisiana.  —  Simon  it.  Richard,  42 
La.  Ann.  842,  8  So.  629. 

Maryland.  —  Beathy  v.  Mason,  30 
Md.  409. 

Massachusetts.  —  Sparkhawk  v. 
Bullard,  I  Mete.  95 ;  Poignard  j'. 
Smith,  6  Pick.  172. 

.Michigan.  —  Yelverton  v.  Steele, 
40  Mich.  538;  Paldi  v.  Paldi,  95 
.Mich.  410,  54  N.  W.  903;  Bird  v. 
Stark,  66  Mich.  654,  33  N.  W.  754. 

Minnesota.  —  Washburn  v.  Cutter. 
17   Minn.  361. 

Mississippi.  —  Magee  v.  Magee,  37 
Miss.  138;  Wilson  v.  Williams,  52 
Miss.   487. 

Missouri.  —  Bowman  i'.  Lee,  48 
^lo.  335 ;  Crispen  v.  Hannover,  50 
Mo.  536;  Kansas  City  v.  Scarrett 
(Mo.),   69   S.    W.    283. 

Nebraska.  —  Horback  v.  Miller,  4 
Xeb.  31 ;  Ballard  v.  Hanson,  33  Neb. 
861,  51    N.   W.  295. 

Oregon.  —  Curtis  v.  Water  Co.,  20 
Or.  34,  23   Pac.  808. 

Pennsylvania. — Hawk  t.  Sense- 
man,  6  Serg.  &  R.  21. 

South  Carolina.  —  Trustees  v.  Jen- 
nings, 40  S.  C.  168,  18  S.  E.  257.  42 
Am.    St.   Rep.  854. 

Vol.  I 


Tennessee.  —  Fuller  v.  Jackson 
(.Tenn.),  62  S.  W.  274. 

Te.vas.  —  Polk  v.  Beaumont  Pas- 
ture Co.  (Tex.  Civ.  App.),  64  S.  W. 
58;  Gillispie  v.  Jones,  26  Tex.  343. 

IVest  -lirginia.  —  Heavner  v.  Mor- 
gan, 41  W.  Va.  428,  23  S.  E.  874- 

IVisconsin.  —  Link  i'.  Doerfin,  42 
Wis.  391. 

Acts  to  Establish  Peais  Possessio. 
They  must  not  only  carry  with  them 
the  usual  indicia  of  ownership,  but 
they  must  be  open,  notorious  and  un- 
equivocal, so  as  to  notify  the  public 
that  the  land  is  appropriated.  Brum- 
agim V.  Bradshaw,  39  Cal.  24. 

Effect     of     Decided     Cases The 

effect  of  all  the  cases  is  that  there 
must  be  continuous  evidence  upon 
the  land  of  the  assertion  of  an  active 
domination  and  control  by  the  person 
claiming.  Fuller  j'.  Jackson  (Tenn.). 
62    S.   W.   274. 

18.  United  States.  —  Jackson  z'. 
Porter,  i  Paine  457,  13  Fed.  Cas.  No. 

7143- 

Alabama.  —  Bernstein  v.  Hinnes, 
78  Ala.  134;  Doe  v.  Beck,  108  Ala. 
71,    19   So.   802. 

California.  —  Thompson  v.  Felton, 
54  Cal.  547 ;  Rix  v.  Horstman,  93 
Cal.  502,  29  Pac.   120. 

Connecticut.  —  Russell  z'.  Davis,  38 
Conn.   562. 

Georgia.  —  Wade  v.  Johnson,  94 
Ga.   348,  21    S.    E.   569. 

Indiana.  —  Maple  v.  Stevenson,  122 
Ind.   368,  23   N.   E.  8S4- 

loii'a.  —  Jones  v.  Hockman,  12 
Iowa  lOi  ;  Clagett  v.  Conler,  16  Iowa 
487;  Larum  z'.  Wilmer,  35  Iowa  244; 
McCarthy  v.  Rochel,  85  Iowa  427, 
52  N.  W.  361 ;  Doolittle  v.  Bailey,  85 
Iowa  398,  52  N.  W.  337. 

Mississippi.  —  Adams  v.  Grice,  30 
Miss.  397 ;  Davis  v.  Bouneau,  55 
Miss.   671. 

Missouri.  —  Pease  v.  Larson,  33 
Mo.  35;  Kansas  City  Milling  Co. 
V.  Riley,  133  Mo.  574,  34  S.  W.  835; 
Bakewell  ?'.  McKee,  loi  Mo.  337, 
14  S.  W.  119- 

New  Hampshire.  —  Little  v. 
Downing.  37   N.   H.  355. 


APVllRSE  POSSESSION. 


•647 


L!.  Claim  Without  I'osskssion  No  Evidence.  —  And,  on  the 
other  hand,  mere  claim  of  title  unsupported  by  actual  occupancy  is 
no  evidence  of  an  adverse  claim. '^ 

4.  Without  Interruption.  —  The  possession  thus  characterized 
must  appear  to  have  been  maintained  continuously  for  the  period 
necessary  to  ripen  into  title. ^* 


.V«i'  York.  —  Humbert  v.  Trinity 
Clnirch,  24  Wend.  587;  Howard  f. 
Howard,  17  Rarb.  663;  Andrews  v. 
Delhi  &  Stanford  Tel.  Co.,  36  Misc. 
23.  72  N.  Y.   Supp.  50. 

Tennessee.  —  Story  v.  Saunders,  8 
Humph.  663;  Turner  v.  Turner,  34 
Tenn.  27. 

/  irgiiiia.  —  .\tkinson  v.  Smith 
(\'a.),  24  S.  1{.  901  ;  Kinchelve  v. 
Tracewells,    11    Gratt.    587. 

Mere   Possession   Creates   Nothing 

Adverse It  is  not  possession  alone. 

but  that  it  is  accompanied  with  the 
claim  of  the  fee,  that  by  construction 
of  law,  is  deemed  prima  facie  evi- 
dence of  such  an  estate.  Jackson  v. 
Porter,  I  Paine  457,  13  Fed.  Cas.  No. 
7143- 

13.  Alabama.  —  Lipscomb  v.  Mc- 
Cellan.  72  Ala.  151 ;  Beasley  v. 
Clarke,  102  .Ala.  254,  14  So.  744; 
Elylon  Land  Co.  v.  Denny,  108  Ala. 
553,  18  So.  561  ;  Bonhani  v.  Loeb, 
107  Ala.  604,   18  So.  300. 

Arkansas.  —  Shark  v.  Johnson,  22 
Ark.   79. 

California.  —  San  Francisco  v. 
Fulde,  iy  Cal.  ,149,  99  Am.  Dec.  278 ; 
Howell  V.  Slauson,  83  Cal.  539. 

Georgia.  • —  Eagle  7'.  Phoenix  Mfg. 
Co.  V.  Bank  cif  Brunswick,  55  Ga.  44; 
Walker  r.  Hughes,  90  Ga.  52,  15 
S.  E.  912 ;  Anderson  j'.  Dodd.  65  Ga. 
402. 

Illinois.  —  Slalford  v.  Goldsing 
(111.),  64  N.  E.  395. 

Iowa.  —  Moore  -r.  .\ntill,  =?■?  Iowa 
612,  6  N.  W.  14. 

Kentucky.  —  Wicklitf  v.  Ensor,  9 
B.  Mon.  253;  Myers  v.  McMillan,  4 
Dana  485;  Strange  v.  Spaulding 
iKy.   App.),  29  S.   W.   137. 

Maine.  —  Thayer  v.  McLellan,  23 
Me.  417;  Tilton  v.  Hunter,  24  Me. 
29;  Welsh  V.  Wheclright  (Me.), 
52  Atl.  243. 

Massachusetts. — Bates  v.  Norcross, 
14   Pick.   224. 

Michigan.  —  Campau  -■.  Lafferty, 
50   Mich.    114. 


Minnesota.  —  Washburn  v.  Cutter, 
17   Minn.  361. 

Missouri.  —  Tayon  i'.  Ladew,  33 
Mo.  205 ;  Avery  v.  Adams,  69  Mo. 
603 ;  Lynde  v.  Williams,  68  Mo.  360. 

Neiv  Hampshire.  —  Linen  v.  Max- 
well, 67  N.  H.  370,  40  Atl.  184; 
Fowle  V.  Ayer,  8  N.  H.  57;  Bailey 
V.  Carleton,  12  N.  H.  9,  37  Am.  Dec. 
190. 

North  Carolina.  —  Wallace  v.  Max- 
well, II  Ired.  no,  51  Am.  Dec.  380; 
Hamilton  v.  Icard,  114  N.  C.  532, 
19  S.  E.  607;  Shaffer  v.  Gaynor,  117 
N.  C.  15.  23  S.  E.  154- 

Oregon.  —  Willamette  Real  Es- 
tate Co.  V.  Hindrix,  28  Or.  485,  42 
Pac.  514,  32  Am.   St.  Rep.  800. 

Pennsylvania.  —  Wheeler  v.  Winn, 
53  Pa.  St.  122,  91  Am.  Dec.  186. 

Tennessee.  —  Gass  v.  Richardson, 
2  Cold.  28;  Hicks  V.  Fredricks,  9 
Lea.  491  ;  Sequatchie  Val.  Coal  & 
Iron  Co.  V.  Coppinger,  95  Tenn.  526, 
32   S.   W.  465. 

Texas.  —  Hill  v.  Harris  (Tex.  Civ. 
App.),  64  S.  W.  820;  Mason  v. 
Stapper   (Tex.),  8  S.  W.  598- 

Claim  TTnaccompanied  by  Posses- 
sion Ineffective  to  Confer  Right. 
Mere  claim  of  title  unaccompanied 
by  adverse  possession  furnishes  no 
right  of  action  to  the  person  against 
whom  it  is  asserted,  and  his  rights 
are  unaffected.  Campton  v.  Laf- 
ferty. so  Mich.  114.  The  survey,  al- 
lotment and  conveyance  of  a  tract 
of  land  and  registration  of  the  deed 
will  furnish  no  evidence  of  a 
disseizin,  without  any  open  occu- 
pation. Thayer  v.  McLellan,  23  Me. 
4Tr;  Tilton  v.  Hunter,  24  Me.  29. 

14.  Alabama.  —  Alabama  State 
Land  Co.  V.  Kyle,  99  Ala.  474,  13 
So.  43 ;  Ross  V.  Goodwin,  88  Ala. 
390,  6   So.   682. 

Arkansas.  —  Cunningham  v.  Brum- 
back.   23   Ark.   336. 

California.  —  LTnger  v.  Mooney,  63 
Cal.     586,    49    Am.     Rep.     100;     San 

Vol.  I 


648  ADVERSE  POSSESSION. 

5.  Exclusive  of  All  Others.  —  And  to  the  exclusion  of  all  others.'^ 


Francisco  f.  Fulde,  37  Cal.  349,  99 
Am.   Dec.   278. 

Georgia.  —  Holconibe  v.  Austell,  19 
Ga.   604. 

Indiana.  —  Peck    v.    Louisville    N. 

A.  R.  &  C.  R.  Co.,  loi  Ind.  366; 
Doe  V.  Brown,  4  Ind.  143. 

Iowa.  —  Booth   V.   Small,   25    Iowa 

177. 

Kentucky.  —  Wickliffe  v.   Ensor,   9 

B.  Mon.  253. 

Louisiana.  —  Lane  i'.  Cameron,  37 
La.  Ann.  250. 

Maine.  —  Roberts  v.  Richards,  84 
Me.  I,  24  Atl.  425 ;  School  District 
V.  Benson,  31  Me.  381,  52  Am.  Dec. 
618. 

Maryland.  —  Stump  v.  Henry,  6 
Md.  201,  61  Am.  Dec.  300. 

Mississippi.  — Davis  v.  Bouneau,  55 
Miss.   671. 

Missouri.  —  Harrison  v.  Cochclin, 
23  Mo.   117. 

New  Jersey.  —  Cornelius  v.  Giber- 
son,  25  N.  J.  Law  I. 

Nezv  York.  —  Bliss  v.  Johnson,  94 
N.  Y.  235 ;  Cleveland  v.  Crawford,  7 
Hun  616. 

North  Carolina. — Williams  v.  Wal- 
lace, 78  N.  C.  354;  Ruffin  v.  Overby, 
105  N.  C.  78,  II   S.  E.  251. 

Pennsylvania.  —  Groft  v.  Weak- 
land,  34  Pa.  St.  304;  Overfield  v. 
Christie,  7   Serg.   &   R.    177. 

Tennessee.  —  Fuller  v.  Jackson 
(Tenn.),   62   S.   W,   274- 

Texas.  —  Ivey  v.  Petty,  70  Tex. 
178,  7  S.  W.  798. 

I'irginia.  —  Atkinson  v.  Smith 
(Va.),  24  S.  E.  901;  Stonestreet  v. 
Doyle,  75  Va.  356,  40  Am.  Rep.  731. 

ll'est  Virginia.  —  Oney  v.  Clen- 
denin,  28  W.  Va.  34. 

Possession  Must  Be  Continuous. 
■\dversc  possession  is  not  a  matter 
open  to  presumption,  but  its  con- 
tinuance for  the  statutory  period  un- 
der a  claim  or  color  of  title  is  re- 
quired to  be  proved.  Atkinson  v. 
Smith    (Va.),  24  S.  E.  901. 

15.  United  States.  —  Ward  v. 
Cochran,  150  U.  S.  597,  14  Sup.  Ct. 
230;  Hordpenning  v.  The  Reformed 
etc.    Church,   16   Pet.  455. 

Alabama.  —  Bank  v.  New  Orleans 
M.  &  T.  R.  Co.,  55  Ala.  480. 

Vol.  I 


California.  —  Spotts  v.  Hanley,  85 
Cal.  155,  24  Pac.  738;  Silverder  v. 
Hansen,  77  Cal.  579,  20  Pac.  136. 

Connecticut.  —  Tracy  v.  Morwick 
&  W.  R.  Co.,  39  Conn.  382;  Hunt- 
ington V.  Whaley,  29  Conn.  391. 

Georgia.  —  McCook  v.  Crawford, 
114  Ga.  337,  40  S.  E.  225. 

Illinois.  —  Ambrose  v.  Raley,  58 
111.  506;  Shaw  c'.  Schoonover.  130 
111.  448,  22  N.  E.  589. 

Maryland.  —  Stump  v.  Henry,  d 
Md.  201,  61  Am.  Dec.  300. 

Nevada.  —  McDonald  v.  Fox,  20 
Nev.  364,  22  Pac.  234. 

New  York.  —  Humbert  v.  Trinity 
Church,  24  Wend.  587;  Heller  v. 
Cohen,  154  N.  Y.  299,  48  N.  E.  527. 

Xortli  Carolina. — Gilchrist  i'.  Mc- 
Laughlin, 7  Ired.  310;  Avent  v.  Ar- 
rington,  105  N.  C.  377,  10  S.  E. 
991. 

Pennsylvania.  —  Long  v.  Mast,  II 
Pa,  St.  "189. 

Te.vas.  —  Gillispie  v.  Jones,  26  Tex. 
343 ;  Richards  v.  Smith,  67  Tex. 
610,  4  S.  W.  571. 

Vermont.  —  Spear  v.  Ralph,  14  Vt. 
400. 

ll'est  Virginia.  —  Ketchum  v. 
Spiirlock,  34  W.  Va.  597,  12  S.  E. 
832 ;  Core  v.  Fanpel,  24  W.  Va.  238. 

IViscoHsin.  —  Illinois  Steel  Co.  v. 
Bilot,  109  Wis.  418,  85  N.  W.  402. 

Right  Asserted  Must  Have  Been 
Exclusive The  fact  that  the  plain- 
tiffs and  their  predecessors  in  title 
were  in  the  undisturbed  possession 
of  the  land  for  twenty  years  and  up- 
wards does  not  show  that  the  pos- 
session was  adverse.-  It  does  not 
necessarily  follow  therefrom  tjiat 
their  entry  was  under  the  deed  men- 
tioned, exclusive  of  any  other  right ; 
and  this  was  essential  to  constitute 
an  adverse  holding  under  a  written 
conveyance,  which  would  devest  the 
title  of  the  true  owner.  Heller  v. 
Cohen,  154  N.  Y.  299,  48  N.  E.  527. 
.And  such  possession  must  be  proved, 
and  not  left  to  mere  conjecture;  and 
it  must  be  open,  and  of  such  a  char- 
acter as  to  clearly  show  that  the 
occupant  claims  the  land  as  his  own. 
exclusively.  Ambrose  v.  Ralev.  58 
111.   506. 


ADVERSE  POSSESSION. 


649 


A.  Actual  Occupancy.  —  a.  Ouster  of  True  Oioncr  Essential. 
But,  an  occupancy  will  not  be  deemed  adverse  until  such  time  as 
the. evidence  may  show  acts  from  which  an  ouster  of  the  true  owner 
may  be  assumed."' 

b.  Ouster  Is  Question  of  Fact.  —  The  question  of  ouster  of  the 
true  owner  is  one  of  fact  to  be  established  by  evidence  sufficient  to 
import  an  actual  ouster,  or  from  which  an  ouster  may  be  pre- 
sumed." 


16.  United  States.  —  Bradstreet  v. 
Huntington,  5  Pet.  402;  Ewing  v. 
Burnet,  11   Pet.  41. 

Alabama.  —  Polly  v.  McCall,  yj 
Ala.  20. 

Georgia.  —  Georgia  Pac.  R.  Co.  v. 
Strickland,  80  Ga.  776,  6  S.  E.  27. 

Iowa.  —  Robinson  v.  Lake,  14  Iowa 
421. 

Kentuctiy.  —  Humphrey  v.  Jones,  3 
Mon.  261. 

Massacliiisetts.  —  Pray  v.  Pierce, 
7  Mass.  381,  5  Am.  Dec.  54;  Small 
z:   Proctor,  15  Mass.  495. 

Minnesota.  —  Ramsey  v.  Glenny, 
45  Minn.  401,  48  N.  W.  322. 

Mississipfi.  —  Huntington  v.  Allen, 
44  ^Hss.  654. 

Missouri.  —  Ivey  v.  Yancy,  129  Mo. 
501,    31    S.   W.   937. 

Nezv  Hampsliire.  —  Waldron  v. 
Tuttle,  4  N.  H.  371. 

New  Yort!.  —  Smith  v.  Burtis.  6 
Johns.    197. 

Te.ras.  —  Galveston  Land  &  Im- 
provement Co.  V.  Perkins  (Tex.  Civ. 
.\pp.),    26    S.    W.    256. 

l!'asliiiigtoii.  —  Blake  v.  Shriver 
(Wash.),  68   Pac.  330. 

Disseizin  Must  Be  Shown There 

must  be  a  disseizin  before  another 
can  become  legally  possessed  of  the 
lands,  and  this,  of  course,  can  only 
be  done  by  some  act  which  works 
a  disseizin  of  the  original  owner, 
for  the  seizin  cannot  abide  in  two 
claimants  at  the  same  time.  Blake 
!■.    Shriver    (Wash.),  68   Pac.   330. 

17.  United  States.  —  Elder  v.  Mc- 
Closkey,  70  Fed.  529;  Bradstreet  v. 
Huntington,  5  Pet.  402 ;  Ewing  v. 
Burnett,   36   U.    S.   41. 

Alabama.  —  Trufant  f.  Hudson,  99 
Ala.   526,   13   So.  83. 

California.  —  Carpentier  f.  Ven- 
denhall.  28  Cal.  484,  87  Am.  Dec. 
135;  Winterburn  v.  Chambers,  91 
Cal.   170.  27  Pac.  658. 


Connecticut. — Johnson  v.  Gnrham, 
.58   Conn.    SI 3. 

Indiana.  —  Manchester  v.  Dodd- 
ridge,   3    Ind.    360. 

Massachusetts.  —  Steel  v.  Johnson, 
4  Allen  425 ;  Cummings  v.  Wyman, 
10  Mass.  465 ;  Parker  v.  Locks  & 
Canals,  3  Mete.  91,  ^y  Am.  Dec.  121. 

Michigan. — Highstone  v.  Burdette, 
54   Mich.   329,   20   N.   W.  64. 

M ississipfii.  —  Harmon  v.  James,  7 
Smed.    &    M,    iii. 

Penns^'lvania.  —  O'Hara  v.  Rich- 
ardson, 46  Pa.  St.  38s ;  Blackmore 
V.  Gregg,  2  Watts.  &  S.   182. 

Tennessee.  —  East  v.  Lainer,  9 
Humph.  762;  Copeland  v.  Murphy, 
2  Cold.  64. 

Uerniont.  —  McFarland  v.  Stone,  17 
Vt.  165.  44  Am.  Dec.  325;  Wing  v. 
Hall.  47  Vt.   182. 

I'irginia.  —  Taylor  v.  Hill,  10 
Leigh.  457 ;  Purcell  i'.  Wilson,  4 
Gratt.    16. 

Assertion  of  Title  Important. 
"  The  result  of  the  cases  is  that  as- 
sertion of  title  by  the  possessor  is 
an  important  circumstance  indi- 
cating adverse  possession  and  ouster 
of  the  real  owner,  and  the  absence 
of  such  assertion  may  be  an  im- 
portant circumstance,  and  often  very 
important,  as  indicating  that  the 
possession  is  not  adverse ;  yet  the 
question  of  ouster  is  one  that  must 
depend  upon  all  the  circumstances 
of  the  case,  and  it  is  not  therefore 
strictly  true,  as  stated  in  the  charge 
under  consideration,  that  it  is  essen- 
tial that  the  possessor  should  hold 
the  land  claiming  it  as  his  own,  and 
denying  the  right  of  everybody  else." 
Johnson  ?'.  Gorham,  38  Conn.  513. 

Disseizin,  Evidence  Constituting. 
.A  daughter  was  put  in  possession  of 
certain  premises  in  consideration  of  a 
written  release  to  the  owner,  her 
father,    of   all    claim    in   and   title   to 

Vol.  I 


650 


ADVERSE  POSSESSION. 


6.  Residence  Unnecessary.  —  It  is  not  indispensable  to  prove  that 
a  claimant  resided  upon  the  land,  or  that  he  held  possession  through 
a  tenant.^* 


any  part  of  his  real  or  personal  es- 
tate. The  court  said:  "If  no  deed 
of  the  estate  was  then  made  to  her, 
of  which  no  evidence  has  been  pro- 
duced, her  entry  upon  and  exclusive 
occupation  of  it  under  these  circum- 
stances constitutcil  ,1  (li^)Sci  in  of 
Levi  Steel."  Steel  i'.  Johnson,  4 
Allen    (Mass.)    425. 

Actual    Ouster    Unnecessary In 

order  that  an  efifectual  adverse  pos- 
session may  be  initiated  it  is  not 
necessary  to  show  an  actual  ouster 
of  the  true  owner.  liradstrcet  1'. 
Huntington,  5  Pet.  402. 

18.  United  States.  —  Latta  v.  Clif- 
ford, 47  Fed.  614;  Zeilin  v.  Rogers, 
21  Fed.  103 ;  Harris  ?'.  McGovern, 
99  U.  S.  161  ;  Fletcher  v.  Fuller,  120 
U.  S.  534,  7  Sup.  Ct.  667 ;  Coal  Co.  v. 
Doran,  142  V.  S.  417,  12  Sup.  Ct. 
239 ;  Boyrean  v.  Campbell,  I  Mc- 
All.  119,  3  Fed.  Cas.  No.  1760;  Ewing 
v.  Burnet,  11  Pet.  41;  Elliott  v. 
Pearl,  i  McLean  206,  8  Fed.  Cas.  No. 
4386. 

Alabama.  —  Bell  v.  Denson,  56 
Ala.  444. 

Arkansas.  —  Dorr  v.  School  Dis- 
trict No.  20,  40  Ark.  237;  Mooney  v. 
Cooledge,   30  Ark.  640. 

California. — Webber  v.  Clarke,  74 
Cal.  II,  15  Pac.  431;  Barstow  v. 
Newman,  34  Cal.  90. 

Dcla'i^vrc.  —  Bartholomew  v.  Ed- 
wards,  I   Houst.   17. 

Illinois. --Scon  <■.  Delany,  8;  HI. 
146;  Coleman  v.  Billings,  89  111.  183; 
Zirngibl  v.  Calumet  &  C.  Canal  & 
Dock  Co.,  157  111.  4.W  42  N.  E.  431  ; 
Horner  v.  Renter,  152  111.  106,  38 
N.  E.  747- 

Indiana.  —  Moore  v.  Hinkle,  151 
Ind.  343,  50  N.  E.  822;  Worthlcy  7\ 
Burbanks,    146    Ind.    534,    45    N.    E. 

loifo.  —  Dice  V.  Brown.  98  Iowa 
297,  67  N.  W.  253;  Langworthy  v. 
IVIeyers,  4  Iowa  18. 

Kansas.  —  Anderson  v.  Burnham, 
52  Kan.  455,  34  Pac.  1056;  Gilmore 
-■.   Norton,   10  Kan.  491. 

Krutucky.  —  Hook  v.  Joyce,  94 
Ky.  .\pp.  450,  22  S.  W.  651,  21  L. 
R.   .\.  96;   Singleton  z'.   School   Dis- 

Vol.  I 


trict   No.   34,    (Ky.   App.,)    10   S.   W. 

793- 

.Massacliusetts.  —  Eastern  Railroad 
'■.  Allen,  135  Mass.  13;  Tufts  v. 
Charleston,  117  Mass.  401. 

Michigan.  —  Murry  i>.  Hudson,  65 
Mich.  670,  32  N.  W.  889;  Whittacre 
i'.  Erie  Shooting  Club,  102  Mich.  454, 
(10  N.  W.  983. 

Minnesota.  —  Swan  v.  Munch,  65 
Minn.  500,  67  N.  W.  1022,  60  Am. 
St.  Rep.  491,  35  L.  R.  A.  743. 

Missouri.  —  Turner  v.  Hall,  60 
Mo.  275 ;  Goltermore  v.  Schiermeyer, 
III   Mo.  404,  19  S.  W.  484. 

Neiv  Jersey.  —  Foulke  v.  Bond,  41 
N.  J.  Law  527. 

Pennsvlvania. — Susquehanna  it  \V. 
V.  R.  &  C.  Co.  V.  Quick,  68  Pa.  St. 
189;  Stephens  -•.  Leach,  19  Pa.  St. 
262;  Thompson  j'.  Philadelphia  &  R. 
Coal  &  Iron  Co..  133  Pa.  St.  46,  19 
Atl.  346. 

Tennessee.  —  Fuller  v.  Jackson, 
(Tenn.,)  62  S.  W.  274;  Hornsby  v. 
Davis,  (Tenn.,)  36  S.  W.  159;  Ma- 
con V.  Shepard,  12  Humph.  335 ; 
Copeland   v.    Murphy,   2   Cold.   64. 

Texas.  —  Polk  v.  Beaumont  Pas- 
ture Co.,  (Tex.  Civ.  App.,)  64  S. 
W.  58;  Hodges  V.  Ross,  6  Tex.  Civ. 
.App.  437.  25  S.  W.  975;  Cantagrel 
V.  Von  Lupin,  58  Tex.  570;  Kimbro 
V.  Hamilton,  28  Tex.  560. 

Virginia.  —  Lemmings  v.  White, 
( Va.,)  20  S.  E.  831  ;  Taylor  v.  Burn- 
sides,   I   Graft.   165. 

Jl'ashington.  —  Bellingham  Bay 
Land  Co.  J'.  Dibble.  4  Wash.  76.1,  31 
Pac.  30. 

West  Virginia.  —  Oney  v.  Clen- 
denin,   28  W.   Va.  34. 

IViseonsin.  —  Moore  v.  Chicago  M. 
&  St.  P.  R.  Co.,  78  Wis.  120,  47  N. 
W.  273;  Ratz  V.  Woerpel  (Wis.,)  89 
\.   W.  516. 

Ownership,  Claim  of  How  Evi- 
denced. —  Public  acts  of  ownership, 
such  as  the  owner  would  exercise 
over  property  claimed  in  his  own 
right,  and  would  not  exercise  over 
property  which  he  did  not  claim  will 
be  competent  evidence  in  support  of 
a  claim  by  adverse  possession  of 
prcipcrty  so  situated  as  not  to  admit 


ADVERSE  POSSESSION. 


651 


7.  Inclosure  and  Improvement  Unnecessary.  —  Acts  may  be  of 
such  character  respecting  a  particular  tract  of  land  as  to  ripen  into 
a  title  by  adverse  possession,  even  though  no  inclosure  or  improve- 
ment be  erected  upon  it  by  the  claimant.'" 


of  use  or  residence.  Harris  v.  Mc 
Govern,  99  U.   S.   161. 

Actual  Occupation  Not  Indispen- 
sable—  Actual  occupation  is  not 
always  indispensable,  but  its  absence 
should  be  supplied  by  some  act  done 
on  or  about  the  land.  Turner  v. 
Hall,  60  Mo.  275. 

Any  Acts  Evincive  of  Exclusive 
Claim  of  Ownership  Sufficient. 
Possession  may  e.xist  without  actual 
residence  on  the  land,  and  be  denoted 
by  enclosed  fields,  or,  in  fact,  by  any 
open,  visible  and  continuous  acts  or 
evidence  of  claim  of  ownership  or 
possession,  or  the  exercise  of  domin- 
ion that  will  show  or  indicate  that 
they  were  done  in  the  character  of 
owners,  and  not  by  occasional  tres- 
passers. Hornsby  f.  Davis,  (Tenn.,) 
,^6  S.  W.  159.  .Actual  residence  un- 
necessary, nor  is  it  incumbent  upon 
adverse  possessor  to  make  oral  dec- 
larations of  his  adverse  claim.  Swan 
V.  Munch,  6s  Minn.  500,  67  N.  W. 
1022,  60  Am.  St.  Rep.  491,  35  I..  R. 
A.  743- 

Actual  Occupancy  Not  Indispen- 
sable—  Acts  of  ownership  done 
upon  the  land  which  are  of  such  a 
nature  as  to  manifest  a  notorious 
claim  of  property  and  are  continued 
lor  the  period  of  twenty  years,  with- 
out interruption  or  interference  by 
the  true  owner,  may.  under  the  cir- 
cumstances and  the  situation  of  the 
property,  be  sufficient  evidence  of  an 
ouster  and  of  an  adverse  possession 
to  support  a  claim  of  title  by  adverse 
possession  without  any  residence, 
cultivation  or  enclosure.  Foulke  v. 
Bond.  41  K.  J.  Law  527. 

Occupancy   in   Customary   Manner 

Sufficient If  the  land  is  constantly 

used  and  enjoyed  for  the  only  pur- 
pose for  which  it  is  possible  and 
profitable,  it  is  sufficient  possession 
to  be  prima  facie  evidence  of  title. 
Moore  v.  Chicago  M.  &  St.  P.  R. 
Co.,  78  Wis.  120.  47  N.  W.  273.  The 
possession  of  a  church  by  its  officers 
fills    all    the    requirements    of   actual 


possession.     Macon     7'.     Shepard,     2 
Humph.  335. 

19.  United  Stales.  —  Zeilin  v. 
Rogers,  41  Fed.  103 ;  Ewing  v.  Bur- 
net, II  Pet.  41;  Quindor  Tp.  v. 
Squier,  51  Fed.  152;  Boyreau  v. 
Campbell,  i  Mc.\ll.  119,  3  Fed.  Cas. 
No.   1760. 

Alabama.  —  Goodson  v.  Brothers, 
III   Ala.  589,  20  So.  443. 

.Arkansas.  —  Hames  v.  Harris,  50 
Ark.  68,  6  S.  W.  233. 

California.  —  Goodwin  v.  McCabe, 
75  Cal.  584,  17  Pac.  705;  Kockeman 
V.  Bickel.  92  Cal.  665,  28  Pac.  219; 
Webber  v.  Clarke,  74  Cal.  II,  15 
Pac.  431  ;  Marshall  7'.  Beysser,  75 
Cal.  544,  17  Pac.  644:  McCreery  v. 
Everding,  44  Cal.  246. 

Georgia.  —  Flannery  z'.  High- 
tower,  97  Ga.  592,  25  S.'  E.  371. 

Illinois.- — Brooks  v.  Bruyn,  18 
111.  539;  Kerr  v.  Hitt.  75  111.  51. 

Iowa.  —  Booth  V.  Small.  25  Iowa 
177;  Dice  V.  Brown,  98  Iowa  297,  67 
N.  W.  253;  Brett  v.  Farr,  66  Iowa 
684,  24  N.  W.  275. 

Kentucky.  —  Webbs  v.  Hynes,  g 
B.  Mon.  388,  50  Am.  Dec.  515. 

Michigan.  —  Beecher  v.  Calvin.  71 
Mich.  391,  39  N.  W.  469;  Green  v. 
Anglemier,  77  Mich.  168,  43  N.  W. 
772;  Saners  7'.  Giddings,  90  Mich. 
50,  51  N.  W.  265  ;  Chabert  v.  Russell, 
109  Mich.  571,  67  N.  W.  902. 

Minnesota.  —  Costcllo  v.  Edson,  44 
Minn.   135,  46  N.  W.   299. 

Missouri.  —  Merchants'  Bank  of 
St.  Louis  V.  Clovin,  60  Mo.  559. 

Nevada.  —  Eureka  Mining  Co.  v. 
Way,  II  Nev.  171. 

Ncii'  Jersey.  —  Foulke  v.  Bond.  41 
N.  J.  Law  527 ;  Yard  v.  Ocean  Beach 
.A.ss'n.,  49  N.  J.  Eq.  306,  24  Atl.  729; 
Cooper  V.  Morris,  48  N.  J.  Law  607, 
7  Atl.  427. 

North  Carolina.  —  Tredwell  v. 
Reddick,  i  Ired.  56;  Burton  v.  Car- 
ruth,  I  Dev.  &  B.  2. 

Tennessee.  —  Hornsbv  v.  Davis 
(Tenn.,)  36  S.  W.  159;  West  v. 
Lanier.  9  Humph.  762. 

Wisconsin.    —    Batz     7:     Woerpel. 

Vol.  I 


652 


.  ini'F.RSE  POSSESSION. 


Distinction  Where  Claim  Is  by  Occupancy  Alone.  —  But,  where  no 
claim  is  asserted  save  through  occupancy,  the  evidence  must  show 
an  exchisive  possession  b\-  inclosure  in  order  to  establish  title,  as 
against  one  having  the  constructive  possession."" 

8.  Character  of  Land  Important.  —  Ihe  uses  to  which  the  land 
may  be  shown  susceptible  will  be  important  in  determining  the 
question  of  actual  occupancy. -"^ 


(.Wis.,)  89  N.  \V.  516;  Wilson  v. 
Hevey,  35  Wis.  24;  Moore  v.  Chicago 
M.  &  St.  P.  R.  Co.,  78  Wis.  120,  47 
N.  W.  273. 

Boundaries  May  Be  Partly  Ar- 
tificial and  Partly  Natural.  —  The 
boundaries  may  be  artificial  in  part 
and  natural  in  part  if  the  circurn- 
stances  are  such  as  to  clearly  indi- 
cate that  the  inclosure  partly  arti- 
ficial and  partly  natural  marks  the 
boundaries  of  the  adverse  occu- 
pancy. Illinois  Steel  Co.  v.  Bitot, 
109  Wis.  418,  85  N.  W.  402;  Becker 
V.  Von  Valkenberg.  29  Barb.  (N.  Y.) 
319;  Trustees  v.  Kirk,  84  N.  Y.  215; 
Claney  v.  HondleUle,  39  Me.  451; 
Bruniagim  v.   Bradshaw,   ,-59   Cal.  24. 

20.  California.  —  Polack  v.  Mc- 
Grath,  32  Cal.   15. 

Kentucky,  —  Griffith  v.  Huston,  7 
J.  J.  Marsh.  385;  Caskey  v.  Lewis, 
15  B.  Mon.  27;  Degman  v.  Elliott, 
(Ky..)  8  N.  W.  10. 

Louisiana.  —  Ellis  v.  Pervosl,  19 
La.  250. 

Maryland.  —  Armstrong  v.  Ris- 
teau,  5  Md.  256,  59  Am.  Dec.   115. 

Massachusetts.  —  Kennebec  Pur- 
chase V.  Springer,  4  Mass.  416,  3 
.\m.   Dec.   227. 

Nezv  Hampshire.  —  Hale  v.  Glid- 
den,  10  N.  H.  397. 

New  Jersey.  —  Saxton  v.  Hunt.  20 
N.  J.  Law  487. 

Nciv  York.  —  Jackson  7'.  Schooua- 
ker,  2  Johns.  230. 

Pennsylvania.  —  Wheeler  v.  Winn, 
33  Pa.  St.  122,  91  .\m.  Dec.  186. 

South  Carolina.  —  Bailey  z\  Ivev,  2 
\ott  &  xMcC.  343- 

Tennessee.  —  Dyche  i'.  Gass,  3 
Yerg.   397. 

21.  United  States.  —  Holtzman  v. 
Douglass,  168  U.  S.  278;  Fletcher  v. 
Fuller,  120  U.  S.  534,  7  Sup.  Ct.  667; 
Elliott  I'.  Pearl,  10  Pet.  442;  Ewing 
!'.  Burnet,  11  Pet.  41;  Quindor  Tp. 
-'.  Squier.  51  Fed.  152;  Merrill  v. 
Tnliiii,  30  Fed.  738. 

Vol.  I 


.Irkansas.  —  Brown  v.  Bocquin,  57 
Ark.  97,  20  S.  W.  813. 

California.  —  Plume  i'.  Seward,  4 
Cal.  94. 

Illinois.  —  Brooks  -'.  Bruyn,  18  111. 
539;   Hubbard  v.  Kiddo,  87   111.  578. 

Indiana.  —  Moore  v.  Hinkle,  151 
Ind.  343,  50   N.   E.  822. 

Iowa.  —  Booth  V.  Small,  25  Iowa 
177;  Colvin  z'.  McCune,  39  Iowa  502. 

Kansas. — Giles  r.  Ortman,  11  Kan. 

59- 

Louisiana.  —  Chamberlain  r.  .Mia- 
die,  48  La.  Ann.  587,  19  So.  574. 

Minnesota.  —  Murphy  v.  Doyle,  i~ 
Minn.  113,  33  N.  W.  220;  Backins  v. 
Burke,  63  Minn.  272,  65  N.  W.  45. 

Missouri.  —  Benne  v.  Miller,  149 
Mo.  228.  50  S.  W.  824;  Turner  v. 
Hall,  60  Mo.  275. 

Nebraska.  —  Twohig  v.  Learner, 
48  Neb.  247,  67  N.  W.  152;  Omaha 
&  Florence  L.  &  T.  Co.  v.  Parker,  ii 
Neb.  775.  51  N.  W.  139,  29  Am.  St. 
Rep.   506. 

Nczc  York.  —  East  Hampton  v. 
Kirk.  84  N.  Y.  215,  38  Am.  Dec.  505. 

North  Carolina.  —  Tredwell  v. 
Reddick.  I  Ired.  56;  Williams  v. 
Buchanan,  i  Ired.  535,  35  Am.  Dec. 
760;  Smith  V.  Bryan,  i  Busb.  180; 
Bynum  v.  Carter.  4  Ired.  310. 

Tennessee.  —  Cowen  v.  Hatcher, 
(Tcnn.,)    59  S.   W.  689. 

Wisconsin.  —  Moore  v.  Chicago 
.M.  &  St.  P.  R.  Co..  78  Wis-.  120,  47 
N.  W.  27^:  Wilson  t'.  Hevey,  35 
Wis.  24. 

Acts  Necessary  to  Show  Adverse 
Possession Acts  of  ownership  dis- 
played upon  land  naturally  indi- 
cating a  notorious  claim  of  property 
in  it,  continued  for  the  rec|uisite  time, 
with  the  knowledge  of  the  adverse 
claimant,  without  interruption  or 
adverse  entry  by  him  will  be  evi- 
dence of  an  actual  ouster  of  a  for- 
mer owner,  and  an  actual  adverse 
possession  against  him,  provided  the 
jury  shall  think  the  property  was  not 


A D J  'E RSn  P OSSESSIOX . 


()53 


Burial  Lot.  —  This  rule  of  evidence  applies  with  peculiar  force  as 
resjiects  adverse  claims  asserted  to  burial  lots.-- 

9.  Evidence  of  Occupation  of  Part.  —  If  there  be  unity  of  char- 
acter in  location,  acts  of  dwnersliii)  in  places  upon  a  tract  will  be 
ciinipetent  evidence  of  possession  of  the  whole.-"' 

Qualification  of  Rule.  —  Conveyance  of  the  portion  in  actual  pos- 
session of  a  claimant  aljrogates  his  constructive  possession  of  the 
remainder,  miless  he  takes  actual  ])Ossession  of  some  part  of  it.^'' 

10.  Tenant's  Possession  Is  That  of  His  Landlord.  —  Successive 
hoklings  of  a  landlord  and  his  tenant,  if  adverse  to  all  others,  are 
to  be  treated  as  evidence  of  a  continuous  possession  of  the  land- 
lord.-" 


susceptible  of  a  more  .strict  or  definite 
pos.session  than  had  been  so  taken  and 
lield.     Ewing  v.   Burnet,   n    Pet.  41. 

Character  of  Real  Estate  Con- 
trolling'  Factor The    character   of 

real  estate  is  of  controlling  influence 
ill  determining  what  acts  of  owner- 
ship, use,  or  occupancy  are  adverse. 
Neither  actual  occupancy,  cultivation 
nor  residence  is  necessary ;  and  occu- 
pation of  a  part  of  a  tract  under 
color  of  title,  is  constructive  occu- 
pancy of  the  whole.  Moore  v. 
Hinkle,  151  Ind.  343.  50  N.  E.  822. 

Acts  Sufficient  to  Evidence  Ad- 
verse Possession —  Cranberry  cul- 
ture sufficient  occupancy  of  marsh 
land  fit  only  for  such  purpose. 
Moore  v.  Chicago,  M.  &  St.  P.  R. 
Co..  78  Wis.  120,  47  N.  VV.  273. 
Mining  land  near  the  surface  for 
lead  yearly  by  lessees  of  the  claimant 
during  mining  season.  Wilson  v. 
llevey.   35   Wis.   24. 

Use  of  Lot  by  Stone  Cutter. 
Use  of  an  uninclosed  lot  by  a  tenant 
in  conducting  his  business  of  marble 
and  stone  cutting,  although  not  all 
covered  by  material  is  evidence  of 
;ulver-^e  possession.  Holtzman  v. 
Douglass.    168   U.    S.   278. 

Use  so  Far  as  Susceptible  to  Ex- 
clusion of  All  Others  Sufficient. 
To  constitute  an  adverse  possession 
it  is  not  necessary  that  the  evidence 
show  actual  occupancy  or  inclosure 
of  the  land  where  it  was  subjected 
to  such  uses  as  it  was  susceptible  of 
to  the  exclusion  of  others.  Fletcher 
-'.  Fuller,  120  U.  S.  S34,  7  Sup.  Ct. 
667. 

22.  Hook  V.  Jovcc,  94  Kv.  App. 
450.  22  S.  W.  651.' 21   L.   R.'.A..  96; 


Zirngibl  V.  Calumet  &  C.  C.  &  D.  Co., 
157  111.  430,  42  N.  E.  431- 

23.  Foulke  v.  Bond,  41  N.  J.  Law 
527;  Moore  v.  Hinkle,  151  Ind.  343, 
50  N.  E.  822;  Mason  v.  Calumet 
Canal  &  Imp.  Co.,  150  Ind.  699,  50 
N.  E.  8s ;  Holtzman  v.  Douglass, 
168  U.  S.  278;  Worthley  v.  Bur- 
banks,  146  Ind.  534,  45  N.  E.  779; 
Kirkman    v.    Mays    (Miss.),    12    So. 

443- 

Acts  on  Part  Sufficient  Where 
There  Is  Unity  of  Character  of 
Location.  —  Acts  of  ownership  in 
places  upon  a  tract  are  competent 
evidence  of  possession  of  the  whole 
where  there  is  unity  of  character 
in  location.  "  If  competent  evi- 
dence of  possession,  such  acts  of 
possession  must  necessarily  be  suffi- 
cient to  maintain  title  by  adverse 
possession  without  occupation  by 
residence,  cultivation  or  enclosure. 
])rovided  they  be  continued  for  the 
lull  period  of  twenty  years,  with 
such  notoriety  as  that  the  true  owner 
may  reasonably  be  expected  to  have 
had  notice  of  the  nature  and  extent 
of  the  title  being  acquired  there- 
under." Foulke  V.  Bond.  41  N.  J. 
Law  527. 

24.  Sharp  z'.  Shenandoah  Fur- 
nace Co.  (Va.),  40  S.  E.  103;  Trotter 
V.  Cassady,  3  A.  K.  Marsh.  (Ky.) 
365,  13  Am.  Dec.  103 ;  Cunningham 
V.  Robinson  Lessee,  i  Swan  (Tenn.) 
138;  Chandler  v.  Rushing,  38  Tex. 
sgi  :  West  -'.  McKinney,  92  Ky.  638, 
18  S.  W.  633. 

25.  United  States.  —  Scaife  v. 
Western  N.  C.  Land  Co.,  90  Fed. 
238;   U.   S.  V.   Sliney,  21   Fed.  894. 

Alabama.  —  Jay    v.    Stein,    49    Ala. 

Vol.  I 


654 


ADVERSE  POSSESSION. 


11.  Wild  Lands. —  In  order  to  sustain  a  claim  of  title  by  adverse 
possession  of  wild  land,  a  more  stringent  rule  of  evidence  obtains.-'' 


514;  Alabama  State  Land  Go.  v. 
Keyle,  99  Ala.  474,  13  So.  43;  Good- 
son  V.  Brothers,  11 1  Ala.  589,  20  So. 
443;  Barrett  v.  Kelly  (Ala.),  30  So. 
824;  Zendel  z'.  Baldwin,  114  Ala. 
328,  21   So.  420. 

Arkansas.  —  Cox  v.  Dougherty, 
62  .\rk.  629,   36   S.   W.   184. 

California.  —  San  Francisco  v. 
Fiilde,  37  Cal.  349.  99  .\m.  Dec.  278. 

Illinois.  —  Riggs  v.  Girard,  133  111. 
619,  24  N.  E.   1031. 

Kansas.  —  Deetjen  v.  Richtcr,  33 
Kan.  410,  6  Pac.  595. 

Kentucky.  —  Chiles  r.  Conley,  9 
Dana  385;  Lee  v.  McDaniel,  i  A.  K. 
Marsh.   234. 

Michigan.  —  Rayner  r.  Lee,  20 
Mich.   384. 

Neni  York.  —  Sherman  v.  Kane, 
86  N.  Y.  57. 

North  Carolina.  —  .\Iexandcr  v. 
Gibbon,  118  N.  C.  796,  24  S.  E.  748, 
54  Am.  St.  Rep.  757;  Ruffin  v. 
Overby,  105  N.  C.  78.  n  S.  E.  251. 

South  Carolina.  —  Johnson  v.  Mc- 
.Mullan,    I    Strob.    143. 

Tennessee.  —  Sims  v.  Eastland,  3 
Head  368;  Massengill  i'.  Boyles,  11 
Humph.    112. 

Te.xas.  —  Dawson  v.  Ward,  71 
Tex.  72,  9  S.  W.  106;  Heflin  v. 
Burns,  70  Te.x.  347,  8  S.  W.  48; 
Read  v.  Allen,  63  Tex.  154;  Mc- 
Manus  v.  Matthews  (Tex.  Civ. 
■'^PP-),  55   S.   W.   589. 

Washington.  —  McAuliff  v.  Par- 
ker, 10  Wash.  141,  38  Pac.  744. 

When  the  evidence  shows  the  suc- 
cessive holdings  of  a  land  owner 
and  his  tenant  to  be  adverse,  they 
are  to  be  treated  as  continuous. 
Cox  V.  Dougherty,  62  .\rk.  629,  36 
S.  W.  184.  Actual  residence,  as 
required  by  an  act  of  limitation,  may 
be  established  by  occupation  by  a 
tenant  of  the  owner  of  the  title,  or 
by  one  in  possession,  under  a  con- 
tract purchase.  Riggs  v.  Girard,  133 
111.  619,  24  N.  E.   1031. 

26.  United  States.  —  Bump  v. 
Butler  Co.,  93  Fed.  290;  Win- 
nipisisgee  Paper  Co.  v.  New  Hamp- 
>;liire  Co.,  59  Fed.  542. 


Mitchell.    78 
Kinswur- 
90    Ga. 


V.     Living- 
Thompson. 
V.   Burhans, 

Hopkin<,   I 

Hulsev.      71 


V. 


Alabama.  —  Burks 
Ala.  61. 

Arkansas.  —  Conway    v. 
thy,  21   Ark.  9. 

Georgia.  —  Scott    v.    Cain, 
34,   15   S.   E.  816. 

Massachusetts.  —  Richmond  Iron 
Works  V.  Wadhains,  142  Mass.  569, 
9  N.  E.  I  ;  Parker  v.  Parker,  i 
.\llen  245. 

Michigan.  —  McKinnon  v.  Meston. 
104  Mich.  642,  62  N.  W.  1014. 

New  Jersey.  —  Saxton  v.  Hunt.  20 
N.  J.  Law  487. 

Nexc     York.  —  People 
stoii.  8  Barb.  253;  Doe  v. 
5   Cow.  371 ;   Thompson 
79  N.  Y.  93. 

Tennessee.  —  Pullen  v. 
Lea    741. 

Texas.  —  Boone      v. 
Tex.   176,  9   S.   W.  531. 

Virginia.  —  Harman  v.  Ratliff, 
Va.  249,  24  S.  E.  1023 ;  Koiner 
Rankin,  11  Graft.  420;  Overton  v. 
Davisson,  i  Gratt.  211,  42  Am.  Dec. 
544;  Turpin  v.  Saunders,  32  Gratt. 
27. 

Evidence  to  Show  Appropriation 
of  Wild  Lands —  Acts  of  ownership 
exercised  over  wild  and  unoccupied 
lands,  to  constitute  adverse  posses- 
sion against  the  true  owner  of  the 
legal  title  of  record,  must  be  of  a 
character  so  open,  notorious  and  un- 
equivocal that  the  true  owner  cannot 
fail  to  know  them.  Bimip  -■.  Butler 
Co..  93  Fed.  290. 

Notice  of  Surveys  and  Lines  Must 

Be    Shown The    doctrine    of    title 

by  adverse  possession  is  fraught 
with  danger,  as  applied  to  wild  lands, 
and  its  application  should  be  made 
with  great  caution ;  and  it  may  be 
doubtful  whether  it  should  be  ap- 
plied upon  constructive  notice,  or  in 
any  case,  unless  the  evidence  is  clear 
and  unmistakable  that  the  owner 
had  notice  of  the  surveys  and  lines, 
as  well  as  the  character  and  extent 
of  the  claims.  Winnipisisgee  Paper 
Co.  V.  New  Hampshire  Land  Co.,  59 
Fed.  542. 


Vol.  I 


ADVERSE  POSSESSION. 


655 


12.  Interruption.  —  An  interniption  sufficient  to  defeat  such  claim 
iiuist  be  shown  to  have  arisen  under  such  circumstances  as  mate- 
rially to  alter  the  relations  of  such  claimant  to  the  premises.-' 


27.  United  Stales.  —  Fuller  v. 
Fletcher,  44  Fed.  34 ;  Armstrong  v. 
Morn. I.  14  Wall.  20;  Smith  v. 
Trahue,  i  McLean  87,  22  Fed.  Cas. 
Xo.    13,116. 

Alabama.  —  Barron  z:  Barron,  122 
Ala.  194,  25  So.  55 ;  Beasley  v. 
Howell,   117  Ala.  499,  22  So.  989. 

Arkansas.  —  Brown  v.  Hananen, 
48  Ark.  277,  3  S.  W.  27. 

California.  —  Bree  v.  Wheeler,  129 
Cal.  I4t  ;  Borel  v.  Rollins,  30  Cal. 
408;  M~cGrath  v.  Wallace,  85  Cal. 
622,  24  Pac.  793;  Spotts  i'.  Hanley. 
85  Cal.  155;  Riverside  L.  &  R.  Irr. 
Co.  I'.  Jenson,  108  Cal.  146,  41  Pac. 
40;  Lacoste  I'.  Eastland,  117  Cal. 
^73,  49  Pac.  1046;  Cox  v.  Clough, 
70  Cal.  345.  1 1  Pac.  732 ;  Baldwin 
-■■  Durfee,  116  Cal.  625,  48  Pac.  724; 
Breon  z'.  Robrechl.  118  Cal.  469.  50 
Pac.  689,  62  .\m.  St.  Rep.  247;  Hes- 
peria  Land  &  Water  Co.  i'.  Rogers, 
83  Cal.  10,  23  Pac.  196,  17  .'Vm.  St. 
Rep.  209. 

Connecticut. — Conner  z:  Sullivan. 
40  Conn.  26,  16  Am.  Rep.  10;  Bur- 
rows V.  Gallup,  32  Conn.  493,  87  Am. 
Dec.    186. 

Georgia.  —  Byrne  v.  Lowry.  19  Ga. 
27- 

Illinois.  —  O'Flakerty  z'.  .Mann 
(111.),  63  N.  E.  727;  Peoria  P.  U.  R. 
Co.  V.  Taniplin,  156  111.  285,  40  N.  E. 
960;  Nickrans  v.  Wilk,  161  III.  76, 
43  N.  E.  741  ;  Downing  v.  .Mayes, 
153  111-  330,  38  N.  E.  620,  46  Am. 
St.  Rep.  896. 

/ou'fl.  —  Litchfield  z\  Sewell,  97 
Iowa  247,  66  N.  W.  104;  Menden- 
hall  V.  Price,  88  Iowa  203,  55  N.  W. 
321;  Pella  V.  Scholte,  24  Iowa  283, 
95  Am.  Dec.  729. 

Kansas.  —  Ard  v.  Wilson,  60  Kan. 
857,  56  Pac.  80;  Corby  v.  Moran,  56 
Kan.  278,  49  Pac.  82. 

Kentucky. — Middlesborough  Water 
Works  Co.  z'.  Neal,  20  Kv.  Law 
1403,  49  S.  W.  428;  Turner  v. 
Thomas,  13  Bush.  518;  Webbs  v. 
Hynes,  9  B.  Mon.  388,  50  .^.m.  Dec. 
515;  Hord  V.  Walker,  5  Litt.  22.  15 
.\ni.  Dec.  39. 

Massaehusctls.  —  Harrison    z>.    Do- 


lan,  17-'  Mass.  395,  52  N.  E.  513; 
Thacker  z\  Guardenicr,  48  Mass. 
484 ;  Brickett  i'.  Spofford,  14  Gray 
.SI4- 

.Michigan.  —  Shearer  v.  Middleton, 
88  Mich.  621,  so  N.  W.  7i7. 

Minnesota.  —  Swan  t'.  Munch,  65 
Minn.  500,  67  N.  W.  1022,  60  .^m. 
St.  Rep.  491,  35  L.  R.  A.  743;  St. 
Paul  M.  &  M.  R.  R.  Co.  v.  Olsen 
(Minn.),  91  N.  W.  294;  Ricker  v. 
Butler.  45   Minn.  545,  48  N.   W.  407. 

Mississil'l'i.  —  Massey  v.  Rinimer, 
69  Miss.  667,  13  So.  832. 

Missouri.  —  Wilkinson  v.  St.  Louis 
Sectional  Dock.  Co.,  102  Mo.  130,  14 
S.  W.  177;  Snell  t'.  Harrison,  131 
.Mo.  495,  32  S.  W.  37,  52  Am.  St. 
Rep.  642;  Pim  i'.  St.  Louis,  122  Mo. 
654,  27   S.   W.  525. 

Montana.  —  Casey  v.  Anderson,  17 
Mont.    176,  42   Pac.  761. 

A'c-6/-a.f^o.  —  Webb  v.  Thiele,  56 
.\cb.  752,  77  N.  W.  56;  Oldig  V. 
Fisk,   53   Neb.    156,   73   N.   W.  661. 

Xezc  Hampshire.  —  Gage  f.  Gage, 
30  N.  H.  420. 

Nez<.'  Jersey.  —  Lehigh  Valley  R. 
Co.  r.  McFarlan,  43  N.  J.  Law 
605. 

Nezi.'  York.  —  Lewis  v.  N.  Y.  & 
H.  R.^  Co.,  162  N.  Y.  202,  56  N.  E. 
541  ;  Simpson  v.  Downing,  23  Wend. 
316;  Landon  z\  Townsend,  129  N.  Y. 
166,  29  N.  E.  71  ;  Sherman  ?•.  Kane, 
86  N.  Y.  57. 

North  Carolina.  —  Mallett  :,  Simp- 
son, 94  N.  C.  37,  55  Am-  Kep.  594. 

Oregon.  —  Oregon  Const.  Co.  v. 
Allen  Dutch  Co.  (Or.),  69  Pac.  455; 
Barren  z:  Title  Guar.  &  T.  Co.,  27 
Or.  77,  39  Pac.  992. 

Pennsylvania.  —  HoUingshead  v. 
Naurven,  48  Pa.  St.  140;  Sheik  v. 
McElroy,  20  Pa.   St.  25. 

Tennessee.  —  Hornsby  v.  Davis 
(Tenn.),  36  S.  W.  159;  Cowan  v. 
Hatcher    (Tenn,),  59   S.   W.  689. 

Texas. — -\ndcrson  v.  Carter  (Tex. 
Civ.  App.),  69  S.  W.  78;  Spoflford 
z'.  Bennett,  55  Tex.  293 ;  Jacks  v. 
Dillon,  6  Tex.  Civ.  .Vpp.  192,  25 
S.  W.  645;  Smith  Z'.  Garza,   15  Tex. 

Vol.  I 


656 


ADVERSE  POSSESSION. 


A.  AbaiVdonment.  —  And,  evidence  of  equal  cogency  will  be 
required  to  show  the  abandonment  of  an  adverse  possession  once 
initiated.-' 


150;  Robinson  Z'.  Bazoor..  79  Tex. 
524,  15  S.  W.  585;  Moore  v.  Mc- 
Cown  (Tex.  Civ.  App.),  20  S.  W. 
1112;  Thompson  v.  Dutton  (Tex. 
Civ.  .-\pp.),  69  S.  W.  641;  Kirkpat- 
rick  z:  Tarlton  (Tex.  Civ.  App.), 
69  S.  W.  179. 

]'criiwiit.  —  Buck  V.  Squires,  23 
Vt.  498;  Wing  V.  Hall,  47  Vt.  182; 
Webb  '■.  Richardson,  42  Vt.  465 ; 
Perkins  v.   Blood,  36  Vt.  273. 

West  I  'irginia.  —  Swann  v.  Young. 
36  W.  Va.  57,  14  S.  E.  426. 

U'isccusin.  —  Warren  v.  Putnam, 
63  Wis.  410,  24  N.  W.  58. 

Absence  From  State  No  Inter- 
ruption if  Possession  Is  Maintained 
by  Tenants.  —  Evidence  showing 
that  a  defendant  claiming  by  ad- 
verse possession  was  absent  from 
the  state  as  was  his  grantor  also, 
but  the  land  was  in  possession  of 
tenants  during  such  absences,  will 
operate  as  possession  of  such  adverse 
claimant,  so  as  to  prevent  any  break 
in  the  possession.  Ard  v.  Wilson, 
60  Kail:  857,  56  Pac.  80,  citing  Corby 
r.  Moran,  56  Kan.  278,  49  Pac.  82. 

Vacancy  During  Change  of  Ten- 
ants Not  Evidence  of  Relinquish- 
ment. —  .\  mere  vacancy  in  the  oc- 
cupancy of  agricultural  land  for  a 
reasonable  time  necessary  to  change 
tenants,  will  not  necessarily  interrupt 
a  landlord's  possession,  in  the  ab- 
sence of  anything  tending  to  show 
an  intention  on  his  part  to  relin- 
(|uish  a  possession.  Beasley  z: 
Howell.    117   Ala.   499.   22   So.   089. 

Faithless  Acts  of  Agent  Will  Not 
Break  Continuity  of  Possession. 
The  continuity  of  a  claimant's 
possession  will  not  be  deemed  to 
have  been  interrupted  by  evidence 
that  one  who  took  possession  at  his 
request  and  agreed  to  maintain  it 
for  him  afterwards  yielded  it  to 
another  in  violation  of  his  promise, 
the  claimant  having  rcsmiicd  posses- 
sion directly  upon  learning  such 
fact.  Middlesborough  Water  Works 
Co.  f.  Neal  20  Kv.  Law  140s,  49 
S.  W.  428. 


28.  United  States.  —  Fletcher  v. 
Fuller,  120  U.  S.  534,  7  Sup.  Ct. 
067 ;  Holtzapple  v.  Phillabaum,  4 
Wash.  C.  C.  356,  12  Fed.  Cas.  No. 
6648. 

Alabama.  —  Perry  v.  Lawson,  112 
.Via.  4.80,  20  So.  611. 

California.  —  Baldwin  v.  Durfee, 
116  Cal.  625,  48  Pac.  724;  Roberts 
I'.  Unger,  30  Cal.  676. 

Georgia.  —  King  z'.  Sears,  91  Ga. 
577,  18  S.  E.  830. 

Illinois.  —  Downing  v.  Mayes,  153 
111.  330,  38  N.  E.  620,  46  Am.  St. 
Rep.    896. 

Kentneky. — Middlesborough  Water 
Works  Co.  z'.  Neal,  20  Ky.  Law 
1403.  49  S.  W.  428;  Smith  z'.  Mor- 
row, 5  Litt,  211;  Myers  z\  McMillan, 
4  Dana  485. 

Maine.  —  Schwartz  ;'.  Kuhn,  10 
Me.  274,  25  Am.  Dec.  239;  School 
District  No.  4  in  Winthrop  v.  Ben- 
son, 31   .Me.  381,  52  Am.  Dec.  618. 

Michigan.  —  Rayner  v.  Lee,  20 
.\licli.  384;  Lamoreaux  v.  Creveling, 
103  Mich.  501,  61  N.  W.  783. 

Mississil'f'i.  —  Ford  v.  Wilson,  35 
Miss.  490,  72  Am.  Dec.  137;  Hooper 
z:  Topley,  35   Miss.  506. 

Missouri.  —  Crispen  v.  Hannavan, 
50  .\lo.  536;  Hamilton  v.  Boggess, 
63  Mo.  233 ;  Western  z\  Flanagan. 
120  Mo.  61,  25  S.  W.  531 ;  Fugate  v. 
Pierce,  49  Mo.  441. 

Nebraska.  —  Webb  z'.  Thiele,  56 
Neb.  752,  77  N.  W.  56;  Oldig  z: 
Fisk,  53  Neb.  156,  73  N.  W.  661. 

jVt'Ti'  Hampshire.  —  Jones  v.  Meri- 
niack  River  Lumber  Co.,  31  N.  11. 
381. 

Nezv  York.  —  Lewis  v.  N.  Y.  & 
H.  R.  Co.,  162  N.  Y.  202,  56  N.  E. 
541  ;  Sherman  v.  Kane,  86  N.  Y. 
57;  Northrop  v.  Wright,  7  Hill  476; 
Second  Methodist  Episcopal  Church. 
66   Hun  628,  21    N.   Y.   Supp.  89. 

North  Carolina.  —  Hamilton  z'. 
Icard,  114  N.  C.  532,  19  S.  E.  607. 

Pennsylvania.  —  Susquehanna  &  R. 
R.  Co.  V.  Quick,  68  Pa.  St.  189; 
Stephens  z'.  Leach,  19  Pa.  St.  262; 
Schall   V.   Williams   Val.    R.   Co.,   35 


Vol.  I 


AD  VERSE  POSSESSION. 


057 


B.  Abandoned  Occupancy  Cannot  Be  Retrieved.  —  But,  the 
continuity  once  severed  h\  acts  equivalent  to  an  abandonment  can- 
not be  retrieved.--' 


Pa.  St.  191;  Byers  v.  Sheplar  (Pa.), 
7  Atl.   182. 

Tennessee.  —  Fuller  v.  Jackson 
(Tenn.),  62  S.  W.  274;  Hornsby  v. 
Davis   (Tenn.),  36  S.  W.   159. 

Texas.  —  De  La  Vega  v.  Butler, 
47  Tex.  529. 

I'ermont.  —  Patcliin  v.  Stroud,  28 
Vt.  394;  Aldrich  v.  Griffith,  66  Vt. 
390,  29  Atl.  376. 

Absence  of  Statutory  Require- 
ment to  Fence —  Evidence  as  to 
Abandonment.  —  Where  the  land  in 
controversy  is  situated  in  territory 
where  land  owners  are  no  longer 
required  to  keep  lawful  fences 
around  their  cultivated  lands,  the 
possession  is  not  deemed  abandoned 
when  it  is  shown  that  the  plaintiff 
used  the  land  from  year  to  year  as 
is  customary  among  farmers.  Hamil- 
ton f.  Icard,  114  N.  C.  53J,  19  S.  E. 
607. 

Loose  Talk  Will  Not  Relinquish 
Rights Rights  acquired  by  ad- 
verse possession  cannot  be  devested 
by  loose  talk  of  the  occupant  Byers 
'•.  Sheplar   (Pa.),  7  Atl.   182. 

Evidence  Not  Showing  Abandon- 
ment of  Possession.  —  Evidence 
showing  that  one  having  entered 
upon  land  under  color  of  title  cul- 
tivated it  except  for  one  year,  during 
which  he  pastured  it,  and  kept  up 
the  farm  fences,  will  not  be  treated 
as  an  abandonment  of  the  possession. 
Perry  v.  I^awson,  112  Ala.  480,  20 
So.  611. 

Where  claim  of  title  to  land  by 
adverse  possession  is  based  upon  thu 
alleged  substantial  enclosure  of  the 
land  by  a  fence  for  more  than  the 
statutory  period,  such  title  is  not 
defeated  by  showing  that  the  fences 
were  down  at  intervals  in  conse- 
quence of  floods.  Baldwin  v.  Dur- 
fee,    116   Cal.   625,   48   Pac.    724. 

Abandonment — The  possession  of 
an  ancestor  will  not  avail  if  the 
premises  are  abandoned  by  the  heir, 
but  merely  leaving  them  after  im- 
provements are  destroyed,  unimo 
rcvertcndi,  is  not  an  abandonment. 
F\igate  V.   Pierce,  49  Mo.  441. 

42 


Replacing  of  Structure  No  Aban- 
donment. —  The  removal  of  one 
railroad  structure  followed  imme- 
diately by  the  erection  of  an- 
other, in  the  same  place  and 
for  the  same  purpose,  is  not  evi- 
dence of  abandonment  of  the  pre- 
scriptive right  to  have  a  railroad 
structure  in  the  street.  Lewis  v. 
N.  Y.  &  H.  R.  Co.,  162  N.  Y.  202, 
56  N.  E.  540. 

Purchase  of  Outstanding  Title 
Does  Not  of  Itself  Break  Continuity 
of  Possession.  —  The  purchase  or  at- 
tempted purchase  of  an  outstanding 
title  by  one  in  adverse  possession  is 
not  alone  sufficient  evidence  to 
break  the  continuity  of  the  posses- 
sion or  divest  it  of  its  adverse  char- 
acter. Webb  V.  Thiele,  56  Neb.  752, 
77  N.  W.  56. 

29.  United  Stales.  —  Armstrong 
V.  Morrell,  14  Wall.  120 ;  Potts  v. 
Gilbert,  3  Wash.  C.  C.  475. 

Arkansas.  —  Sharp  v.  Johnson,  22 
Ark.  79. 

Georgia.  —  Thursby  v.  Myers,  57 
Ga.  155;  Byrne  v.  Lowry,  19  Ga.  27. 

Kentucky.  —  jNIyers  v.  McMillan,  4 
Dana  485. 

Maine. — Hamilton  v.  Paine,  17  Me. 
219;  School  District  No.  4  in  Win- 
throp  V.  Benson,  31  Me.  381,  52  Am. 
Uec.  618. 

Mississippi.  —  Nixon  v.  Porter,  38 
Miss.  401. 

Missouri.  —  Hickman  v.  Link 
(Mo.),  7  S.  W.  12;  Menkins  v. 
Blumenthal,  27  Mo.  198;  Crispen  v. 
Hanover,    50    Mo.    536. 

Nezc  Hampshire.  —  Blaisdell  v. 
Martin,  9  N.  H.  253 ;  Linen  i\  Max- 
well, 67  N.  H.  370,  40  Atl.   184. 

New  York.  —  Poor  z:  Horton,  15 
Barb.  485 ;  Jackson  v.  Harder,  4 
Johns.  202,  4  Am.  Dec.  262. 

North  Carolina.  —  Andrews  v. 
Mulford,  I  Hayw.  320;  Holdfast  v. 
Shepard,  86  N.  C.  251;  Malloy  v. 
Bruden,  86  N.  C.  251. 

Pennsylvania. — Susquehanna  &  W. 
V.  R.  Co.  V.  Quick,  68  Pa.  St.  189. 

Tennessee.  —  Free  v.  Fine  (Tenn. 
App.),  59  S.  W.  384. 

Vol.  I 


658 


ADVERSE  POSSESSION. 


13.  Nature  of  Occupancy. — Evidence  of  intention  to  Claim  Ownership. 
The  nature  of  the  demonstrative  acts  of  occupancy  may  be  such  as 
to  show  an  intent  to  claim  ownership  independent  of  any  oral  state- 
ments bv  a  claimant.''"' 


Texas.  —  Ivey  i\  Petty,  70  Tex. 
i;8,  7  S.  W.  798;  Collier  v.  Couts, 
92  Tex.  234,  47  S.  W.  52s;  Sette- 
gast  V.  O'Donnell,  t6  Tc.x.  Civ.  App. 
56,  41    S.  W.  84. 

Vermont.  —  Winslow  v.  Newell, 
19  Vt.   164. 

Virginia.  —  Taylor's  Devisees  v. 
Burnsides,    I    Gratt.    165. 

]Vest  I'irginia.  —  Jarrett  v.  Stev- 
ens. 36  W.  'Va.  445,  15  S.  E.  177; 
Parkerburg  Industrial  Co.  v.  Schnltz, 
43  VV.  'Va.  470,  27  S.  E.  255. 

Jl'isconsin. — Whittlesey  z\  Hoppen- 
yan.  72  Wis.  140.  39  N.  W.  355. 

Effect  of  Abandonment If  pos- 
session be  abandoned  the  seizin  of 
the  true  owner  reverts  and  he  may 
assert  his  right  within  the  statutory 
period.  Jarrett  z'.  Stevens,  36  W. 
Va.  445,  15  S.  E.  177.  When  one 
quits  possession,  the  siezin  of  the 
owner  is  restored.  Hickman  v. 
Link    (Mo.),    7    S.    W.    12. 

30.  Alabama.  —  Goodson  v.  Bro- 
thers, III  Ala.  589,  20  So.  443. 

California.  —  Lick  i'.   Diaz,  44  Cal. 

479- 

Georgia.  —  ]SIorrison  t.  Hays,  19 
Ga.  294. 

Illinois. — James  z'.  Indianapolis  St. 
L.  R.  Co.,  91  111.  554;  Falcon  i'. 
Sinishauser,  130  111.  649.  22  N.  E. 
835 ;   Brooks  z:   Bruyn,  24  111.  373. 

Indiana.  —  Webb  z'.  Rhodes  (Ind. 
.•Vpp.),  61   N.  E.  735- 

/oTi'a. —  Wilbur  v.  Cedar  Rapids 
&  M.  R.  Co.   (Iowa),  89  N.  W.  loi. 

Kansas.  —  Stockton  v.  Geisslcr,  43 
Kan.  613,  23  Pac.  612. 

Miehigan.  —  Shearer  v.  Middleton, 
88  Mich.  621,  50  N.  W.  737. 

Minnesota.  —  Dean  v.  Goddard,  55 
Minn.  290,  56  N.  W.  1060;  Village 
of  Glencoe  v.  Wadsworth,  48  Minn. 
402,  51  N.  W.  ^77;  Butler  v.  Drake, 
(12  .Minn.  229,  64  N.  W.  559. 

Mississippi.  —  Magee  v.  Magee, 
37  Miss.  138;  Davis  t'.  Bounean,  55 
Miss.   671. 

Nebraska.  —  Fitzgerald  v.  Brew- 
ster, 31  Neb.  51.  47  N.  W.  475. 

Vol.  I 


■  .Veil'  Jersey.  —  Johnston  v.  Fitz 
George,  50,  14  Atl.  762.  5  N.  J.  Law 
470. 

-VcK'  York. — Barnes  -•.  Light.  116 
N.  Y.  34,  22  N.  E.  441 ;  La  Fram- 
bois  V.  Smith,  8  Cow.  589 ;  Dominy 
V.   Miller,  33   Barb.   380" 

Oregon.- — Swift  v.  Mulkey,  14  Or. 
59,  12  Pac.  76. 

Tennessee.  —  Cowen  z:  Hatcher 
(Tenn.),  :;9  S.  W.  .689;  Hornsby 
z:    Davis    (Tenn.).   36   S.    W.    159. 

I'irginia.  —  Brock  z'.  Bear  (Va.), 
42  S.   E.  307. 

Evidence  of  Claim  of  Title. 
"  The  possession  of  real  estate  and 
its  use  and  improvement  by  one  as 
other  persons  are  accustomed  to  use 
and  improve  their  estates  continued 
for  twenty  years,  without  recog- 
nizing title  in  anyone  else  or  dis- 
claiming .it  in  himself,  raise  a 
presumption  of  entry  and  holding  as 
owner,  and  unless  rebutted  by  other 
evidence  will  establish  the  fact  of 
claim  of  title."  Webb  z'.  Rhodes 
(Ind.   App.),  61    N.   E.   735- 

Acts  May  Operate  as  Oral  Dec- 
larations— ■'Ci:>ntinuc>us  and  unin- 
terrupted possession  will  not  alone 
establish  a  claim  of  right  ;  neither 
will  payment  of  taxes ;  but  when, 
with  these  circumstances,  it  also  ap- 
pears that  the  party  has  set  out 
trees,  erected  a  house  and  outbuild- 
ings, inclosed  the  premises  by  fence, 
cultivated  the  land,  and  in  all 
respects  treated  it  precisely  as  his 
own.  a  claim  of  right  may  be  in- 
ferred, and  treated  as  fully  estab- 
lished as  though  shown  by  oral 
declarations  of  such  claim."  Wilbur 
z:  Cedar  Rapids  &  M.  R.  R.  Co. 
(Iowa),  8g  N.  W.   loi. 

"  There  is  no  express  parol  evi- 
dence that  the  defendant  claimed  the 
title  to  the  premises  uninclosed  by 
him.  but  that  is  to  be  inferred  from 
the  fact  that  the  grant  to  his  father 
was  a  grant  in  fee,  and  from  the 
manner  of  his  occupation,  and  the 
uses  to  which  he  applied   the  prem- 


ADVERSE  POSSESSION. 


659 


A.  Oral  Dbclakations.  —  The  intent  may  also  lie  shown  by  the 
oral  declarations  of  the  claimant  made  in  connection  with  the  pos- 
session.'" 

B.  EviDENCic  OF  Inticnt  From  Acts  Mt.:sT  Snow  Continuous 
Hostility.  —  But,  evidence  of  such  intent  by  acts  must  show  con- 
tinuous hostility  to  all  adverse  claims. ''- 

C.  Secret  Intent  No  Evidence,  Except  As  Shown  By  Acts. 
The  intent  which  determines  the  character  of  the  possession  is  not 
the  secret  purpose  of  the  occupant,  except  as  manifested  by  his  acts 
when  sufficiently  firought  to  the  notice  of  the  person  to  be  affected. ^^ 


ises."  Dominy  v.  Miller,  33  Barb. 
386. 

"  The  intent  to  claim  may  be  in- 
ferred from  the  nature  of  the  oc- 
cupancy. Oral  declarations  are  not 
necessary.  Possessory  acts,  so  as 
10  constitute  adverse  possession,  must 
necessarily  depend  upon  the  char- 
acter of  the  property,  its  location, 
and  the  purposes  for  which  it  is 
ordinarily  fit  or  adapted."  Dean  v. 
Goddard,  55  Minn.  290,  56  N.  W. 
1060. 

"  A  claim  of  title  may  be  made  by 
acts  alone  quite  as  effectually  as  by 
the  most  emphatic  assertions."  Bar- 
nes V.  Light,  116  N.  Y.  34,  22  N.  E. 
441- 

It  IS  competent  to  show  that  one 
through  whom  claim  is  made  per- 
formed work  on  the  land  during  his 
lifetime,  as  tending  to  prove  that  he 
asserted  title  to  it.  Lick  v.  Diaz,  44 
Cal.  479. 

31.  Patterson  v.  Reigh,  4  Pa.  St. 
201.  45  Am.  Dec.  684;  Blakely  v. 
.Morris,  89  Va.  717,   17   S.   E.   126. 

32.  United  States. — Bradstreet  v. 
Huntington,  5   Pet.  402. 

California.  —  Thompson  v.  Pioche, 
44  Cal.  508;  De  Frieze  v.  Quint,  94 
Cal.  653,  30  Pac.  I,  28  Am.  St.  Rep. 
151. 

Georgia.  —  Denhani  t'.  Holeman, 
26  C.a.   182,  71   .\m.  Dec.   198. 

Illinois.  —  McClellan  v.  Kellogg, 
17  111.  498. 

Mississit't'i.  —  Gordon  v.  Sizer,  39 
-Miss.   805. 

Missouri.  —  Lyndc  v.  Williams,  68 
Mo.  360. 

Scbraska. — Ballard  v.  Hansen, 
ii  Neb.  861,  51   N.  W.  295.  • 

Tennessee.  —  Hornsbv  t'.  Davis 
(Tenn.),  36  S.   W.    159. 


7V.ra.j.  —  Clark  v.  Keirby  (,Tex. 
Civ.   App.),  25   S.   W.    1096. 

t//a/i.  —  Toltec  Ranch  Co.  v.  Bab- 
cock    (Utah),   66    Pac.   876. 

Hostility  in  Technical  Sense  Un- 
necessary  "  The  possession,  as  ap- 
pears from  the  evidence,  was  open, 
notorious,  uninterrupted  and  peace- 
able, and  under  a  claim  of  right. 
It  must,  therefore,  necessarily  be 
deemed  to  have  been  adverse  to  the 
holder  of  the  legal  title,  and  such 
long  continued  possession  may  be 
deemed  to  have  been  adverse  though 
not  in  its  character  hostile."  Toltec 
Ranch  Co.  v.  Babcock  (I'tah).  66 
Pac.  876. 

Whilst  one  period  of  occupancy 
may  be  inadmissible  as  evidence  of 
adverse  possession  it  may  be  coin- 
petent  so  far  as  exhibiting  the  char- 
acter and  intention  of  other  holdings. 
Hornsby  v.  Davis  (Tenn.),  36  S.  W. 
159- 

"  Wherever  the  proof  is  that  one 
in  possession  holds  for  himself,  to 
the  exclusion  of  all  others,  the  pos- 
session so  held  must  be  adverse 
to  all  others,  whatever  relation  in 
point  of  interest  or  privity  he  inay 
stand  in  to  the  others.*  Bradstreet 
V.    Huntington,   5    Pet.   402. 

33.  .4/a/>owia.  —  East  Tenn.  V.  & 
G.  R.  Co.  V.  Davis,  91  Ala.  615,  8 
So.  349. 

Arkansas.  —  Sharp  v.  Johnson,  22 
Ark.  79. 

California.  —  Gage  Z'.  Downey,  94 
Cal.  241,  29  Pac.  635 ;  Winterburn 
V.  Chambers,  91  Cal.  170,  27  Pac. 
658. 

Connecticut.  —  French  v.  Pearce,  8 
Conn.  440,  21  Am.  Dec.  680. 

Kentucky.  —  Myers  v.  McMillan, 
4  Dana  485. 

Vol.  I 


660 


ADVERSE  POSSESSION. 


D.  "  Squatter."  —  This  rule  applies  with  all  its  force  as  against 
persons  denominated  "  Squatters,"  who  neither  by  acts  on  the  land, 
nor  otherwise,  present  any  indicia  of  an  adverse  occupancy .^^ 

14.  Proof  of  Open  and  Adverse  Use.  —  A.  A'isiblE  Effects. 
Visible  effects  naturall_\  implying  the  use  of  the  land  by  some  one 
may  also  afford  sufficient  notoriety  of  an  occupancy  adverse  to  the 
true  owner. '^ 


Missouri.  —  Comstock  v.  East- 
wood, io8  Mo.  41,  18  S.  W.  39. 

Oregon.  —  Rowland  v.  Williams, 
23  Or.  515,  32  Pac.  402. 

Vermont.  —  Soiile  f.  Barlow,  48 
Vt.  132. 

34.  Blake  v.  Shriver  (Wash.),  68 
Pac.  330;  Sackett  v.  !\IcDonald,  8 
Biss.  394,  Fed.  Cas.  No.  12,202 ;  Bell 
V.  Fry,  5  Dana  (Ky.)  341 ;  Parkers- 
burg  Industrial  Co.  v.  Schultz,  43 
W.  Va.  470,  27  S.  E.  255 ;  Smeberg 
V.  Cunningham,  96  Mich.  378,  56  N. 
W.  73,  35  Am.  St.  Rep.  613;  Gay  v. 
Mitchell,  35  Ga.  139,  89  Am.  Dec. 
278;  In  re  City  of  New  York,  63 
Hun  630,  18  N.  Y.  Supp.  82. 

"  A  strolling  struggling  occupancy 
will  not  constitute  notice  of  adverse 
possession."  Blake  v.  Shriver 
(Wash.),  68   Pac.   330. 

35.  United  States.  — Quindor  Tp. 
V.  Squier,  51  Fed.  152;  Florida 
Southern  R.   Co.  v.   Loring,  51   Fed. 

Alabama.  —  Goodson  ■;■.  Brothers, 
III  Ala.  589,  20  So.  443. 

California.  —  Silvarer  v.  Hansen, 
77  Cal.  579,  20  Pac.  136. 

Connecticut.  —  St.  Peter's  Church 
V.  Beach,  26  Conn.  354. 

IlliHois.  —  Sullivan  v.  Eddy,  154 
111.  199,  40  N.  E.  482;  St.  Louis  A.  & 
T.  H.  R.  Co.  V.  Nugent,  152  111. 
119,  39  N.  B:  263. 

lozva.  —  Teabout  v.  Daniels,  38 
Iowa    158. 

Louisiana.  —  Michel  ?■.  Stream. 
48  La.   Ann.   341,   19   So.   215. 

Maryland.  —  Armstrong  v.  Ris- 
teau,  5  Md.  256,  59  Am.  Dec.   115. 

Massachusetts.  —  Tufts  v.  Charles- 
ton,  117   Mass.   401. 

Mississippi.  —  Huntington  v.  Al- 
len,   44    Miss.    654. 

Nebraska.  —  Omaha  Florence 
Land  &  Trust  Co.  v.  Hansen,  32 
Neb.  449,  49  N.  W.  456 ;  Tourtelotte 
f.  Pearce,  27  Neb.  57,  42  N.  W.  915. 

Vol.  I 


A'«t'  Jersey.  —  Foulke  %■.  Bond,  41 
N.  J.  Law  527. 

Washington.  —  Flint  v.  Long.  12 
Wash.  342,  41  Pac.  49. 

West  Virginia.  —  Jarrett  ;'.  Ste- 
vens, 36  W!  Va.  445,  15  X.  E.  17;. 

Visible  Evidence  Imparting  No- 
toriety    of     Claim Openness     and 

notoriety  and  exclusiveness  of  pos- 
session are  shown  by  such  acts  in 
respect  to  the  land  in  its  condition 
at  the  time  as  comport  with  owner- 
ship. Such  acts  as  would  ordinarily 
he  performed  by  the  true  owner  in 
appropriating  the  land  or  its  avails 
to  his  own  use  and  in  preventing 
others  from  the  use  of  it  as  far  as 
reasonably  practicable.  Goodson  v. 
Brothers,  in  Ala.  589,  20  So.  443. 

"  The  open  and  notorious  use  of 
this  land  as  a  public  park,  under 
claim  of  title,  constituted  a  posses- 
sion as  effectual  to  bar  the  plain- 
tiff's action  as  if  it  had  been  en- 
closed by  a  stone  wall.  The  boun- 
daries of  the  park  were  distinctly 
marked  on  the  plat  of  the  town  which 
dedicated  it  to  the  public  use  as  a 
park.  The  only  possession  of 
which  it  was  susceptible  was  a  pos- 
session consistent  with  its  use  as  a 
park,  and  its  open,  public,  and 
notorious  use  for  that  purpose  was 
all  the  possession  requisite  to  sup- 
port the  defendant's  plea.  The 
court  erred  in  excluding  the  evi- 
dence offered ;  and  for  this  error 
the  judgment  must  be  reversed,  and 
the  case  remanded  for  a  new  trial." 
tjuindor  Tp.  1:   Squier,  51   Fed.   152. 

What  Sufficient  Evidence  of  Ad- 
verse Use.  —  Adverse  occupation  will 
be  evidenced  by  such  use  of  the 
premises  in  question  by  the  occu- 
pant and  his  privies  as  would  in- 
dicate to  a  passerby,  and  to  the 
owner  if  he  went  to  them,  that  they 
were  used  and  claimed  by  some  one. 
Omaha  Florence   Land  &  Trust  Co. 


ADVERSE  POSSESSION. 


(y(A 


B.  Othkrwisk,  Of  Land  Not  Susceptiblk  of  OccurANCV. 
The  rule  last  stated  applies  only  in  cases  where  the  land  is  suscepti- 
ble of  being  the  means  of  such  evidence.'"' 

C.  Reputation  Inco.mpKTKXt.  —  Notoriety  cannot  be  proved  by 
reputation." 

D.  Proop  of  Actu.vl  Knowledge  Sufficient.  —  If  it  appear 
that  the  true  owner  has  actual  knowledge  that  an  occupation  is 
under  claim  adverse  to  himself,  openness  and  notoriety  become  unim- 
portant.^* 

15.  Continuity.  —  A.  Evidence  of  Permanent  Occupancy. 
The  possession  must  be  shown  to  have  been  permanent  in  the  prac- 
tical sense. ^" 


z:   Hansen,   32    Neb.   449,   49   N.   W. 

456. 

36.  When  Land  Cannot  Be  Vis- 
ibly Occupied.  —  If  the  evidence 
show  an  impossibility  of  inclosing, 
cultivating  or  otherwise  employing 
land  in  any  manner  so  notorious  as 
may  tend  to  attract  the  attention  of 
opposing  claimants,  title  cannot  be 
acquired  by  adverse  possession,  Mc- 
Cook  '■.  Crawford,  114  Ga.  337,  40 
X.   E.  225. 

37.  Notoriety  of  Occupation  Not 
Proved  by  Reputation.  —  "  It  is 
notorious  occupation  which  is  one 
of  the  elements  necessary  to  con- 
stitute a  title  by  adverse  possession. 
It  is  not  proved  by  reputation. 
Xotoriety  of  occupation  is  not  to  be 
inferred  from  notoriety  of  claim." 
Carter  v.  Clark,  92  Me.  225,  42  Atl. 
398. 

38.  Dausch  v.  Crane,  109  Mo.  323, 
19  S.  W.  611;  De  Frieze  v.  Quint, 
94  Cal.  653,  30  Pac.  I,  28  Am.  St. 
Rep.   151. 

Notoriety;  Qualification  of  Rule. 
Possession  taken  under  a  parol  gift 
is  adverse  in  the  donee  against  the 
donor,  and  if  continued  for  fifteen 
years  perfects  the  title  of  the  donee 
as  against  the  donor.  The  donor  in 
such  cases  not  only  knows  that  the 
possession  is  adverse,  but  intends  it 
to  be,  and  there  is  no  occasion  for 
any  notoriety.  Clark  z'.  Gilbert,  39 
Conn.  94. 

39.  United  States.  —  Zeilen  v. 
Rogers,    21    Fed.    103. 

California.  —  Hespera  L.  &  W.  Co. 
-'.  Rogers,  83  Cal.  10,  23  Pac.  196, 
17    Am.    St.    Rep.    209;    De    Frieze 


z:  Quint,  94  Cal.  653,  30  Pac.  i,  28 
.\m.    St.   Rep.    151. 

Georgia.  —  Flannery  v.  Hightower, 
97  Ga.  592,  25  S.  E.  371- 

Illinois.  —  Bums  v.  Edwards,  163 
111.  494.  45   N.   E.    113. 

Indiana. — Mason  z'.  Calumet  Canal 
&  Imp.   Co.,   i=;o  Ind.  699,  50  N.   E. 

iMasscichusctts.  —  AW^n  v.  Helton, 
37  Mass.  458. 

Michigan.  —  Cornwell  Mfg.  Co.  v. 
Swift,  ^  Mich.  503,  50  N.  W.  looi. 

Minnesota.  —  Swan  v.  Munch,  65 
Minn.  500,  67  N.  W.  1022,  60  Am. 
St.   Rep.  491,  35   L.   R.   A.   743- 

No  Unvarying  Rule  as  to  Nature 
of  Possession.  — "  As  to  adverse 
possession  there  can  be  no  abso- 
lutely unvarying  rule  with  reference 
to  every  kind  of  real  estate.  The 
requirement  as  to  the  kind  of  oc- 
cupancy of  or  dominion  over  land 
to  show  adverse  possession  in  the 
case  of  a  cultivated  farm,  a  town 
lot  or  a  residence  in  a  populous  city 
may  be  quite  inapplicable  or  even 
impossible  in  the  case  of  a  piece  of 
desert  land,  a  mining  claim,  a  non- 
navigable  lake,  a  prairie  or  a 
forest."  Mason  z'.  Calumet  Canal 
&   Imp.   Co..   150  Ind.  699,  50  N.   E. 

85. 

Use  Need  Not  Be  Constant —  Oc- 
cupation and  use  of  a  right  of  flow- 
age  or  poundage  in  order  to  create 
a  prescriptive  right,  need  not  be 
constant  in  the  sense  of  a  daily  oc- 
cupancy or  use.  It  must  be  con- 
tinuous and  uninterrupted,  but  not 
necessarily  constant.  Cornwell  Mfg. 
Co.  V.  Swift,  8g  ^lich.  503,  50  N. 
W.  looi. 

Vol.  I 


662 


ADVERSE  POSSESSIOX. 


B.  Slccessixe  Possessions  May  Be  Combined.  —  Distinct  pos- 
sessions of  the  same  nature  may  be  united  successively  in  order  to 
complete  the  requisite  period.'"' 

a.  Privity  of  Estate  Must  Be  Slwicii. — To  effectually  connect 
such  distinct  possessions  it  must  appear  that  the  actual  relationship 
subsisting  between  such  successive  occupants  was  equivalent  to  a 
privit\-  of  estate.*^ 


What   Use   Sufficient When   the 

claimant  needs  the  use  of  the  ease- 
ment from  time  to  time,  and  so 
uses  it,  there  is  a  sufficient  contin- 
uous use  to  be  adverse  although  it 
is  not  constant.  Swan  z\  Munch, 
65  Minn.  500.  67  N.  W.  1022,  60 
Am.  St.  Rep.  491,  35  L.  R.  A.  743. 

"  An  omission  to  use  when  not 
needed  does  not  disprove  a  con- 
tinuity of  use,  shown  by  using  when 
needed."  Hespera  L.  &  W.  Co.  z: 
Rogers,  83  Cal.  10,  23  Pac.  196.  17 
Am.    St.    Rep.   209. 

40.  United  States.  — W'alden  v. 
Gratz,  14  U.  S.  292,  4  L.  Ed.  94; 
Walden  v.  Gratz,   i  Wheat,  292. 

Alabama.  —  Smith  J'.  Roberts,  62 
Ala.  83. 

Connecticut.  —  Fanning  v.  Will- 
cox,  3  Day  258. 

Illinois.  —  Weber  -e.  .Anderson,  73 
111.439. 

Kentucky.  —  Shannon  v.  Kinny,  i 
A.  K.   Marsh.  3,   10  Am.  Dec.  705. 

Massacliusctts. — Leonard  v.  Leon- 
ard,   7    Allen    277. 

Mississippi  —  Benson  v.  Stewart, 
30  Miss.  57;  Harvey  v.  Briggs,  68 
Miss.  60,  8  So.  274,  10  L.  R.  A.  62. 

Missouri.  —  Cooper  v.  Ord,  60  Mo. 
420;  Bakewell  v.  McKee,  lOi  Mo. 
337,  14  S.  W.  119. 

North  Carolina.  —  Alexander  v. 
Gibbon,  118  N.  C.  796,  24  S.  E. 
748,  54  Am.  St.  Rep.  757;  Miller  v. 
Bumgardncr,  109  N.  C.  412,  13  S.  E. 

935- 

Ne'a'  Jersey.  —  Colgan  v.  Pellens, 
48   N.   J.   Law  27,  2  Atl.  633. 

Nczi.'  York.  —  Reformed  Church  v. 
Schoolaraft,  65    N.   Y.    134. 

Oregon.  —  Clark  v.  Bundy,  29  Or. 
I  go,  44  Pac.  282. 

South  Carolina.  —  McLeod  v. 
Rogers.  2  Rich.  Law  19 ;  Johnson  v. 
.McMullan,    i    Strob.   143. 

Tennessee.  —  Sins  x'.  Eastland,  3 
Head     368. 

Vol.  I 


Tacking     Successive     Possessions. 

It  is  immaterial  whether  the  posses- 
sion be  held  for  the  entire  period  by 
one  party,  or  by  several  parties  in 
succession,  provided  the  possession 
be  continued  and  uninterrupted. 
Benson    v.    Stewart,    30    Miss.    57. 

41.  United  .9^ii;c.s.  —  Christy  v. 
Aloord,  58  U.  S.  601  ;  Patterson  v. 
Games,  47  U.  S.  550;  Shuffleton  v. 
Nelson,  2  Sawy.  540,  22  Fed.  Cas. 
No.   12,822. 

Alabama.  —  Ross  f.  Goodwin,  88 
.A.la.  390,  6  So.  682;  Louisville  & 
N.  R.  Co.  V.  Philyaw,  88  Ala.  264, 
6  So.  837 ;  Carter  -e.  Chevalier,  108 
Ala.    563,    19    So.    798. 

California.  —  Allen  z'.  McKay,  120 
Cal.  332,  52  Pac.  828 ;  San  Fran- 
cisco V.  Fulde,  37  Cal.  349,  99  Am. 
Dec.  278 ;  Pulliam  v.  Bennett,  55 
Cal.  368. 

Colorado.  —  Evans  v.  Welsh 
(Colo.),  68  Pac.  776. 

Florida.  —  Kendrick  v.  Latham,  25 
Fla.  819,  6  So.  871. 

Georgia.  —  Burch  v.  Burch,  96  Ga. 
133,  22  S.  E.  718;  Morrison  z'.  Hays, 
19  Ga.  294. 

Indiana.  —  Doe  S'.  Brown,  4  Ind. 
143;     McEntire    -•.     Brown.    28    Ind. 

347- 

Kentucky.  —  Winn  ?'.  Wilhite,  5 
J.  J.  Marsli.  521  ;  Bell  'e.  Pry.  5  Dana 

341. 

Maine.  —  Cornville  i'.  Hutchins, 
73,  Me.  227. 

Maryland.  —  Armstrong  v.  Ris- 
teau,  5   Md.  256,  59  Am.  Dec.   115. 

.Massachusetts.  —  Haynes  v.  Bord- 
man,  119  Mass.  414;  Wade  r.  Lind- 
sey,    6    Mete.    407. 

Minnesota.  —  Witt  t'.  Railway  Co., 
38  Minn.  122,  35  U.  W.  862;  Rani- 
sey  7'.  Glemiy,  45  Minn.  401.  48  N. 
W.  322. 

Mississippi. — •Huntington  ;•.  Al- 
len, 44  .Miss.  654. 

Missouri.  —  AdUins    i'.    Tonilinson, 


ADVERSE  POSSESSION. 


665 


b.  Privity,  How  Proi-cd.  —  Privity  may  be  established  b\'  oral 
proofs- 
Distinctions  Respecting^  Actual  and  Constructive  Possessions.  —  In  some 
jurisdictions  the  doctrine  appears  to  obtain,  that  written  evidence 
is  necessary  to  effect  the  required  privity  between  successive  occu- 
pants;  except  as  to  so  niucli  <if  tiic  land  as  may  be  treated  as  actually 
occupied.^''' 


121  Mo.  487,  26  S.  W.  573;  Crispen 
r.  Hannovan,  50  Mo.  536. 

Nebraska.  —  Carson  v.  Dundas.  39 
Neb.  503.  58  N.  W.  141. 

Nexi.'  Hampshire. — Locke  v.  Whit- 
ney, 63  N.  H.  597,  3  Atl.  920. 

.Vi'tt'  Jersey.  — ■  Davock  t\  Neal- 
on,  58  N.  J.  Law  21,  32  Atl.  675. 

-Yen,'  York.  —  Simpson  v.  Down- 
ing,  23   Wend.   316. 

Oregon.  —  Low  v.  Schaffer,  24  Or. 
•^39.  ii  Pac.  678;  Rowland  v.  Wil- 
liams,  2i   Or.   515,   i2   Pac.   402. 

Pennsylvania.  —  Sclirack  v.  Zubler. 
34   Pa.    St.   38. 

Tennessee.  —  Marr  v.  Gilliam,  i 
Cold.  488 ;  Erck  v.  Church,  87  Tenn. 
575,  n  S.  W.  794.  4  L.  R.  A.  641. 

Texas.  —  Heflin  v.  Burns,  70  Tex. 
347.  8  S.  W.  48 ;  Wheeler  v.  .Moody, 
9  Tex.  372 ;  Chandler  v.  Rushing. 
38  Tex.  591  ;  Brownson  v.  Scanlan, 
59  Tex.  222. 

M'est  I'irginia.  —  Jarrett  v. 
Stephens,   36  W.    Va.   445,    15    S.   E. 

177. 

IVisconsin.  —  AUis  v.  Field,  89 
Wis.  327,  62  N.  W.  85 ;  Ryan  v. 
Schwartz,  94  Wis.  403,  6g  N.  W. 
178. 

Privity  Required.  —  "  There  must 
be  privity  of  grant  or  descent,  or 
some  judicial  or  other  proceedings 
which  shall  connect  the  possessions 
so  that  the  latter  shall  apparently 
hold  by  the  former."  Crispen  v. 
Hannovan,  50  Mo.  536. 

42.  England.  —  Cunningham  v. 
Patton,  6  Burr  357 ;  Schutz  v.  Fitz- 
waler,  5  Burr  131 ;  Carter  v. 
Bomard,  13  Q.  B.  945 ;  Dixon  v. 
Gufere,    17    Brev.    421. 

United  States.— Shuffieion  v.  Nel- 
son, 2  Sawy.  S40,  22  Fed.  Cas.  No. 
12,822. 

Alabama.  —  Dolhard  ?'.  Denson,  72 
.\Ia.    541. 

Conneeticiil.  —  Smith  ^'.  Chapin, 
31  Conn.  580. 


Illinois.  —  Faloon  z:  Simshauser. 
130  111.  649,  22  N.  E.  835;  Weber  z: 
Anderson,   73   III.  439. 

Kentucky.  —  Winn  r.  Wilhite,  5 
J.  J.   Marsh.  521. 

.Minnesota.  —  Sherin  z\  Brackett, 
36  Minn.  152,  30  N.  W.  551;  Van- 
dall  z:  St.  Martin,  42  Minn.  163,  44 
N.    W.    525. 

Missouri.  —  Alenkins  z\  Blumen- 
thal,  27  Mo.  198;  Crispen  v.  Han- 
novan, 50  Mo.  536 ;  Atkins  v.  Tom- 
linson,  121  Mo.  487,  26  S.  W.  S73- 

Oregon.  —  Vance  z'.  Wood,  22  Or. 
77,  29  Pac.  73 ;  Rowland  v.  Williams, 
23  Or.  515,  32  Pac.  402. 

Tennessee.  —  Rambcrt  z'.  Edmund- 
son  (Tenn.),  41  S.  W.  935;  Erck  r'. 
Church,  87  Tenn.  575,  11  S.  W.  794, 
4  L.  R.  A.  641. 

Texas.  —  McManus  z\  Mathews 
(Tex.  Civ.  App.),  55  S.  W.  589; 
Johnson  v.  Simpson  (Tex.  Civ. 
App.),  54  S.  W.  308. 

Wisconsin.  —  Ryan  v.  Scliwartz, 
94  Wis.  417.  69  N.   W.    178. 

Parol  Evidence  Admissible  to  Es- 
tablish Privity  Between  Occupants. 
Parol  evidence  is  admissible  to  es- 
tablish a  privity  of  possession  be- 
tween occupants  under  statutes  of 
limitation,  in  order  to  make  up  the 
requisite  period  from  successive 
holdings  of  the  several  occupants. 
Johnson  v.  Simpson  ( Tex.  Civ. 
App.),  54  S.  W.  308. 

A  verbal  agreement  between  the 
grantor  and  grantee  that  a  strip 
within  the  enclosure  but  outside  the 
limits  of  the  deed  should  pass  to 
the  grantee  established  such  privity 
of  possession  in  respect  to  such 
strip  as  that  the  successive  posses- 
sions of  the  grantor  and  grantee 
could  be  tacked  together  so  as  to 
make  out  a  bar  of  statute.  Ram- 
bert  V.  Edniundson  (Tenn.),  41  S. 
W.  935. 

43.     Simpson      v.      Downing,      23 

Vol.  I 


664 


ADVERSE  POSSESSION. 


16.  Transfer,  How  Proved.  —  A.  By  Any  Agreement  or  Under- 
standing Cakkied  Into  Effect.  —  Such  successive  transfers  may 
be  evidenced  by  any  conveyance,  agreement,  or  understanding  in 
pursuance  of  which  a  transfer  ensues.'*'' 

B.  Possessions  of  Ancestor  and  Heir  Are  in  Privity. — Evi- 
dence showing  that  an  adverse  possession  initiated  by  one  dying 
before  it  ripened  into  title  was  continued  by  his  heirs  or  representa- 
tives, may  be  sufficient  to  establish  the  privity  essential  to  connect 
such  distinct  possessions.'''' 


Wend.  (N.  Y.)  316;  Kendrick  v. 
Latham,  25  Fla.  819,  6  So.  871. 

44.  United  States.  —  ShuflBeton 
V.  Nelson,  2  Sawy.  540,  22  Fed.  Cas. 
No.   12,822. 

Illinois.  —  Chicago  &  A.  R.  Co. 
V.  Keegan,  185  111.  70,  56  N.  E.  1088; 
Weber  v.  Anderson,  72  111.  439; 
Downing  v.  Mayes,  153  111.  330,  38 
N.  E.  620,  46  Am.   St.  Rep.  896. 

Indiana.  —  Buchanan  v.  Whitham, 
36    Ind.    257. 

Kentucky.  —  Shannon  v.  Kinney, 
I   A.  K.   Marsh.  3. 

Maine.  —  Moore  v.  Moore,  21  Me. 
350. 

MassacJiKsetts.  —  Wishart  v.  Mc- 
Knight,  178  Mass.  356,  59  N.  E. 
1028;  Chapin  v.  Freeland,  142  Mass. 
383,  8  N.  E.   128,  56  Am.  Rep.  701. 

Minnesota.  —  "Vandall  v.  St.  Mar- 
tin, 42  Minn.  163,  44  N.  W.  525; 
Ramsey  v.  Glenny,  45  Minn.  401,  48 
N.  W.  322. 

Missouri.  —  Crispen  v.  Hannovan, 
50  Mo.  536. 

New  York.  —  Jackson  -'.  Moore,  13 
Johns.  513. 

Ohio.  —  McNeely  v.  Langan,  22 
Ohio  St.  32. 

Oregon.  —  'Vance  v.  Wood,  22  Or. 
77,  29  Pac.  73. 

Pennsylvania.  —  Scheltz  v.  Fitz- 
water,    5    Pa.    St.    126. 

Tennessee.  —  Marr  v.  Gilliam,  I 
Cold.  488 ;  Rambert  v.  Edmondson 
(Tenn.),  41    S.  W.  935- 

Texas.  —  McManus  v.  Mathews 
(Tex.   Civ.   App.),   55   S.   W.   589- 

Vermont.  —  Winslow  '■.  Newell,  19 
Vt.  164. 

"  But  not  even  a  writing  is  neces- 
sary if  it  appear  that  the  holding 
is  continuous  and  under  the  first 
entry,  and  this  doctrine  applies  not 
only  to  actual  but  constructive  pos- 

Vol.  I 


session  under  color  of  title.  Such 
possession  tacks  to  that  of  previous 
holders,  if  there  has  been  a  colorable 
transfer."  Crispen  v.  Hannovan,  50 
Mo.    536. 

Parol  Evidence  Admissible  to 
Show  Transfer  of  Possession. 
"  When  one  person  succeeds  to  the 
possession  of  another,  and  it  be- 
comes necessary  to  connect  the  pos- 
session of  the  two  to  make  the  period 
required  to  bar  the  owner,  the  trans- 
fer of  possession  may  be  shown  by 
parol  evidence."  Chicago  &  A.  R. 
Co.  V.  Keegan,  185  111.  70,  56  N.  E. 
1093. 

45.  Alabama.  —  Jay  v.  Stein,  49 
Ala.    514. 

Illinois.  —  Horner  v.  Renter,  IS2 
111.    106,   38   N.   E.   747. 

Indiana.  —  McEntire  7'.  Brown,  28 
Ind.  347. 

Io'l^<o.  —  Hamilton  v.  Wright,  30 
Iowa  480. 

Kentucky.  —  Mills  c'.  Bodley,  4  T. 
B.  Mon.  248. 

Massachusetts.  —  Haynes  v.  Bord- 
man,  119  Mass.  414;  Leonard  v. 
Leonard,  7  Allen  277. 

Minnesota.  —  Witt  v.  Railway  Co., 
38  Minn.  122,  35  N.  W.  862;  Sherin 
V.  Brackett,  36  Minn.   152,  30  N.   W. 

,SSI. 

Mississippi.  —  Hanna  v.  Renfro,  32 
Miss.  125 ;  Magee  v.  Magee,  37 
.Miss.    138. 

Missouri.  —  St.  Louis  v.  Gorman, 
29  Mo.  593,  77  Am.  Dec.  586; 
Frigati   v.    Pierce,   49   Mo.   441. 

North  Carolina.  —  Trustees  of  the 
University  v.  Blount,  4  N.   C.   13. 

Oregon.  —  Rowland  v.  Williams, 
.'3  Or.  515,  32  Pac.  402. 

Tennessee.  —  Marr  v.  Gilliam,  I 
Cold.  488. 


ADVERSE  POSSESSION. 


(>(,z> 


C.  Particulak  Description  Not  Always  Necessary.  —  If  land 
not  included  in  a  deed  description,  but  lying  contiguous  to  that 
actually  described,  be  occupied  in  like  manner  as  the  other,  it  will 
pass  by  a  deed  following  the  original  description.'"' 

17.  iPeriod  Need  Not  Be  That  Next  Preceding.  —  The  period 
requisite  to  confer  title  by  adverse  possession  need  not  be  that  imme- 
diately preceding  a  given  date.'"' 


Vermont.  —  Alexander  v.  Stewart, 
50  Vt.  87. 

West  Virginia.  —  Ketchum  v. 
Spurlock,   34  W.   Va.   597,   12   S.   E. 

832. 

46.  Rights  of  Successive  Dis- 
seizors May  Be  Transferred  in  Pais. 

If  tlie  successive  owners  of  a  lot 
of  land  for  a  continuous  period  of 
twenty  years  occupy  and  use  a  strip 
of  land  adjoining,  the  possession  of 
which  is  transferred  to  each  suc- 
cessive grantee  but  described  in  none 
of  the  deeds,  the  right  of  the  owner 
of  the  record  title  will  be  barred. 
Wishart  v.  McKnight,  178  Mass. 
356,  59  N.   E.   1028. 

Acts  Evidencing  Privity  of  Pos- 
session  If    one    holding    the    legal 

paper  title  to  a  piece  of  land,  in 
enclosing  it,  include  within  the  en- 
closure a  piece  of  adjoining  land, 
enters  into  possession  of  the  entire 
enclosed  tract  and  then  transfers  his 
legal  paper  title  to  another,  who  goes 
into  possession  of  the  entire  tract, 
this  is  sufficient  evidence  of  a  transfer 
of  possession  to  create  a  privity  and 
tack  the  two  possessions  together  to 
make  out  an  adverse  possession  of 
twenty  years.  Davock  v.  Nealon 
(X.    J.),   32    Atl.    675. 

Rights  Under  Adverse  Possession 
Transferable  in  Pais —  It  is  set- 
tled that  one  who  has  the  possession 
of  land  is  thereby  invested  with  the 
right  to  that  land,  which  in  the 
absence  of  a  better  title  will  be 
enforced  by  law  .  .  .  and  this 
possession,  and  the  right  arising  out 
of  it  may  be  transferred  ///  pais  to 
another."  Wishart  v.  McKnight,  178 
Mass.   356,   59   N.    E.    1028. 

Possession  of  Land  Outside  of 
Deed  Limits  Cannot  Be  Tacked. 
A  claimant  of  land  by  adverse  pos- 
session cannot  tack  to  the  time  of 
his    possession    that    of    a    previous 


holder,  when  the  land  is  not  in- 
cluded in  the  boundaries  in  the  deed 
from  such  holder."  Vicksburg  &  Pac. 
R.  Co.  V.  Le  Rosen,  52  La.  Ann. 
192,  26  So.  854. 

47.  Alabama.  —  Echols  v.  Hub- 
bard, 90  Ala.  309,  7  So.  817;  Hoff- 
man V.  White,  90  Ala.  354.  7  So. 
816. 

California.  —  Unger  v..  Mooney, 
63  Cal.  586,  49  .\m.  Rep.  100;  Can- 
non V.  Stockmon,  36  Cal.  535.  95 
.\m.  Dec.  205;  Webber  r.  Clarke, 
74  Cal.  II,  IS  P^c.  431. 

Minnesota.  —  Dean  v.  Goddard,  55 
Minn.  290,  56  N.  W.  1060. 

Mississippi.  —  Geohegan  r.  Mar- 
shall, 66  Miss.  676,  6  So.  502. 

.Missouri.  —  Allen  v.  Mansfield,  82 
Mo.  688;  Crispen  v.  Hannovan,  50 
.\lo.  536. 

iVfti'  York.  —  Sherman  v.  Kane, 
86  N.  Y.  57- 

North  Caro/ino.  —  Chnstenbury  v. 
King.  85  N.  C.  229. 

Pennsylvania.  —  Union  Canal  Co. 
f .  Young,  I  Whart.  410,  30  Am.  Dec. 
212. 

r^ra.5.  — Branch  1:  Baker,  70  Tex. 
190,  7  S.  W.  808. 

Need  Not  Be  Ten  Years  Imme- 
diately Preceding.  —  "  On  the  con- 
trary we  understand  the  law  to  be 
that  any  ten  years  of  continuous 
adverse  possession  before  suit 
brought  will  vest  title  in  the  holder 
as  efficiently  and  absolutely,  for  all 
purposes  as  would  an  absolute  con- 
veyance from  the  holder  of  the  fee." 
f.chols  V.  Hubbard,  90  Ala.  309,  7 
So.  817.  The  ten  years  relied  on 
need  not  be  those  next  before  the 
action  brought.  Allen  v.  Mans- 
field, 82  Mo.  688;  Unger  v.  Mooney, 
63  Cal.  586,  49  Am.  Rep.  100.  Need 
not  be  twenty  years  iinmediately  pre- 
ceding the  date  upon  which  an 
amended  act  shortening  the  time  to 

Vol.  I 


666 


-iDI 'ERSf.  POSSESSIOX. 


IV.  PRESUMPTIVE  EVIDENCE. 

1.  Presumptions  All  in  Favor  of  True  Owner.  —  The  weight  of 

authorit}'  supports  the  rule  that  every  presuni]5tiou  is  in  favor  of  a 
possession  in  subordination  to  the  title  of  the  true  owner.** 

2.  Owner  Seized  in  Fee  Simple  Presumed  to  Be  Entitled  to  Pos- 
session.—  And,  that  in  the  absence  of  C(>unter\ailing  proof,  one 
shown  to  be  seized  in  fee  simple  is  deemed  in  constructive  pos- 
session and  rightfully  entitled  to  the  actual  possession.*'' 


fifteen  years,  went  into  effect.  Dean 
J'.  Goddard,  55  Minn.  290,  50  N.  W. 
1060. 

48.  United  States.  —  McClurg  v. 
Ross,  5  Wheat.   116. 

Colorado.  —  Evans  v.  Welsh 
(Colo.),    68    Pac.    776. 

Plorida.  —  Barrs  r.  Brace,  38  Fla. 
265,  20   So.  991. 

Georgia.  —  Gay  r.  Mitchell,  35  Ga. 
139,  89  Am.  Dec.  278;  English  v. 
Register,  7  Ga.  387. 

Illinois.  —  Bryan  v.  East  St.  Louis, 
12  111.  App.  390. 

Mississippi.  —  Davis  v.  Bouneau, 
55   Miss.  671. 

Missouri.  —  Meylar  ;'.  Hughes,  60 
Mo.   105. 

New  York.  —  Jackson  v.  Sharp,  9 
Johns.  163,  6  Am.  Dec.  267 ;  Doherty 
V.  Matsell,  119  N.  Y.  646,  23  N.  E. 
994;  Heller  v.  Cohen,  154  N.  Y. 
299,  48  N.  E.  527;  Lewis  V.  N.  Y. 
H.  R,  Co.,  162  N.  Y.  202,  56  N.  E. 
540. 

Tennessee.  —  Marr  v.  Gilliam,  i 
Cold.  488. 

U'iseonsin.  —  Fuller  j'.  Worth.  91 
Wis.  406,  64  X.  W.  995. 

Possession  Presumed  To  Be  Under 
That  One  of  Two  Instruments  Which 
Is  Subservient.  —  When  the  evi- 
dence shows  an  occupant  to  be  in 
possession  under  two  separate  in- 
struments ;  one  subservient  and  the 
other  hostile  to  the  true  owner, 
such  possession,  in  the  absence  of 
positive  notice  to  the  contrary,  will 
be  regarded  as  subservient  only ;  the 
law  raising  a  presumption  in  favor 
of  an  honest  and  against  a  dis- 
honest purpose.  Lewis  v.  N.  Y.  H. 
R.  Co.,  162  N.  Y.  202,  56  N.  E. 
540. 

Presumptive  Evidence.  —  "  And 
this  doctrine  of  adverse  possession 
is  to  be  taken   strictly,  and  nnist  be 


made  out  by  clear  and  positive  proof, 
and  not  by  inference ;  every  pre- 
sumption being  in  favor  of  a  posses- 
sion in  subordination  to  the  title 
of  the  true  owner."  Marr  v.  Gil- 
Ham,    I    Cold.    (Tenn.)    488. 

"  The  presumption  is  that  the  pos- 
session is  in  subordination  to  the 
actual  title."  Heller  z'.  Cohen,  154 
N.  Y.  299,  48  N.  E.  527. 

49.  United  States.  —  Brownsville 
r.  Cavazos,  100  U.  S.  138;  Lamb 
V.  Burbank,  i  Sawy.  227,  14  Fed. 
Cas.  No.  81 12;  Thomas  v.  Hatch,  3 
Sum.  170,  23  Fed.  Cas.  No.  13.899: 
L'.  S.  V.  .\rredondo,  6  Pet.  691  ; 
Lanvell  r.   Stevens,   12  Fed.  559. 

Arkansas.  —  Miller  v.  Fraley,  23 
Ark.  735 ;  Scanlan  v.  Gulling,  63 
Ark.  540,  39  S.  W.  713. 

Massaehusetts.  —  Kennebeck  r'ur- 
chase  v.   Call,    i    Mass.   483. 

Minnesota.  —  Washburn  z\  Cutter, 
17  Minn.  361. 

Neii'  Jersey.  —  Sa.xton  z\  Hunt,  20 
N.  J.  Law  487. 

Nezv  York.  —  Howard  i'.  Howard, 
17  Barb.  663. 

I'ermont.  —  HoUey  v.  Hawley,  39 
Vt.    525,   94   Am.    Dec.    350. 

Washington.  —  Balch  v.  Smith,  4 
Wash.  497,  30  Pac.  648. 

Seizin  Presumes  Possession. 
Where  it  appears  that  the  parties 
are  seized  in  fee  simple  this  gives 
them  constructive  possession  and  the 
right  to  actual  possession,  which 
will  be  presumed  until  the  contrary 
appears.  Lamb  z\  Burbank,  i  Sawy. 
227,   14   Fed.  Cas.   No.  81 12. 

Where  evidence  shows  that  there 
has  never  been  any  possession,  ad- 
verse or  otherwise,  the  possession 
follows  the  legal  title  by  construction. 
Scanlan  z\  Gulling,  63  ."Krk.  S40,  3(> 
S,   W.   71.?. 

Ownership  and  Seizin  Presumed  to 


Vol.  I 


ADVERSE  POSSESSJOX. 


()()7 


3.  Mixed  Possession  Governed  by  the  Same  Rule.  —  The  principle 
applies  also  in  case  of  a  mixed  possession.'"' 

4.  Grant  From  State  May  Be  Presumed.  —  In  support  of  a  claim 
!)}•  adverse  povsessiun,  a  tyrant  from  the  state  may  be  presumed  from 
facts  and  circumstances.^' 


Continue.  —  Wliere  ownership  and 
seizin  are  once  shown  it  will  be 
presumed  to  have  continued  until 
such  presumption  is  overcome  by 
allegation  and  proof  of  adverse  pos- 
session in  some  one  else.  Balch  z'. 
Smith,  4  Wash.  497,  30  Pac.  648. 
legal  Owner  Presumed  in  j^osses- 

sion Every  person  is  presumed  to 

be  in  the  legal  seizin  and  possession 
of  the  land  to  which  he  has  a  per- 
fect title,  until  ousted  by  an  actual 
possession  in  another  under  a  claim 
of  right.  U.  S.  V.  .A.rredondo,  6 
Pet   691. 

^50.  United  States.  — Linveii  z: 
Stevens,  12  Fed.  559;  Brownsville  v. 
Cavazos.  100  U.  S.  138;  National 
Water  Works  Co.  v.  Kansas  City, 
78  Fed.  428. 

Kentucky.  —  AlcConnell  z:  Wil- 
born  (Ky.  App.).  24  S.  W.  627; 
PoUit  T'.  Bland  ( Kv.  .\pp.),  22  S. 
W.  842. 

Louisiana.  —  Wafer  v.  Pratt,  i 
Rob.  41,  36  Am.  Dec.  681. 

Marvlanil.  —  Cheney  f.  Ring-ejciUl.  2 
Har.   &   J.   87. 

Massachusetts.  —  I.each  z\  Woods. 
14  Pick.  461. 

Missouri.  —  Crispen  v.  Hannovan, 
50  Mo.  536 ;  Robert  z'.  Walsh,  19 
Mo.   452. 

Nezv  Hampshire.  —  Bailey  v.  Car- 
leton,  12  N.  H.  9,  ij  Am.  Dec.  190. 

Nezu  Fo;7^  — Culver  z:  Rhodes,  87 
N.  Y.  348. 

Pennsylvania.  —  Union  Canal  Co. 
I'.  Young,  1  Whart.  410,  30  .-Vm.  Dec. 
212. 

Tennessee.  —  Fancher  v.  De  Alon- 
tegre,    i    Head    40. 

South  Carolina.  —  Lloyd  v.  Rawl 
(S.   C),  41    S.   E.   3r2. 

Neither  Concurrent  Occupant  Ac- 
quires   Title    Adversely Evidence 

showing  several  to  have  held  con- 
temporaneous use  and  occupation  of 
property  devolves  the  title  upon  the 
holder  of  the  legal  title.  Wafer  z'. 
Pratt.   I   Rob.  41.  36  .^m.   Dec.  681. 


In  Mixed  Possessions  Legal  Right 

Controls Where    two    persons    are 

in  mi.xed  possession  of  the  same 
land,  one  by  title  the  other  by 
wrong,  the  law  considers  the  one 
who  has  the  title  as  in  possession  to 
the  extent  of  his  right,  so  as  to  pre- 
clude the  other  from  taking  advantage 
of  the  statute  of  limitations.  Cheney 
'■.  Ringgold,  2  Har.  &  J.  (Md.)  87; 
Crispen  v.  Hannovan,  50  Mo.  536. 

"  Where  actual  possession  is 
claimed  by  both  the  law  presumes  it 
to  have  been  with  him  who  has  the 
right."  Pollit  V.  Bland  (Ky.  App.), 
22   S.   W.   842. 

Mixed  Possession The  posses- 
sion follows  the  title,  and  if  the 
owner  and  others  are  in  possession, 
the  law  considers  the  owner  to  have 
the  possession.  Lanvell  v.  Stevens, 
12  Fed.  559. 

Where  there  has  been  a  mi.xed  pos- 
session of  the  parties,  continued  con- 
test and  litigation  for  a  long  time 
before  suit  and  no  actual  possession 
))y  either  claimant  of  a  large  por- 
tion of  the  property,  no  prescriptive 
rights  can  be  claimed.  Brownville 
z\  Cavazos,  100  U.  S.  138. 

"  And  this  rule  applies  as  strongly 
in  favor  of  the  children  and  other 
members  of  the  father's  family  as 
strangers."  Fancher  v.  De  Mon- 
tegre,    I    Head.   40. 

51.  United  States.  —  Jackson  v. 
Porter,  I  Paine  457,  13  Fed.  Cas. 
No.  7143;  Barclay  v.  Howell,  6  Pet. 
498. 

Alabama.  —  Stodder  v.  Powell,  I 
Stew.   287. 

Kentucky.  —  Jorboe  v.  Mc.\tee,  7 
B.  Mon.  279. 

Maine.  —  Crooker  v.  Pendleton,  23 
Me.  339. 

Maryland.  —  Casey  z'.  Inloes,  I 
Gill.   430,  39  .\ni.    Dec.   658. 

Michigan.  —  State  j'.  Dickinson 
(.Mich.),  88  N,  W.  621. 

Missouri.  —  McNair  z\  Hunt.  5  Mo. 
300. 


Vol.  I 


068 


ADVERSE  POSSESSION. 


This  Presumption  May  Be  Rebutted  by  Contrary  Presumptions.  —  But 
the  presunipticn  of  a  .i^rant  nia\-  l)c  rebutterl  by  cdiitrarv  presump- 
tions.''- 

5.  Peaceable  Possession,  Effect  Of.  —  Proof  of  Peaceable  Possession 
Establishes  Prima  Facie  Right.  —  And,  evidence  merely  showing  one 
to  be  in  peaceable  possession  of  land  establishes  a  prima  facie  title 
which  will  defeat  an  adversary  who  neither  asserts  title  in  himself 
nor  shows  it  t(.i  be  in  another.''" 

When  Possession  Presumed  to  Be  Adverse.  —  Possession  accom- 
panied by  the  usual  acts  of  ownership  is  presumed  to  be  adverse 
until  shown  to  he  subservient  to  the  title  of  another. ^^ 

6.  Unexplained  Possession  Shows  Prima  Facie  Title.  —  And,  an 
unexplained  possession  will  be  sufficient  pniiia  jacic  evidence  of  title 
by  adverse  possession. '^^ 


Xorth  Car, lima.  —  Rogers  v.  Mabe, 
4  IJcv.  i8o  ;  Reed  v.  Eanihart,  lo  Ired. 
5l6;  Pliipps  V.  Pierce,  94  N.  C.  514; 
Hamilton  v.  Icard,  114  N.  C.  532,  19 
S.   E.   607. 

Tennessee.  —  Scales  v.  Cockrill,  3 
Head  432 ;  Hanes  v.  Peck,  Mart.  & 
Y.  228;   Gilchrist  v.   McGee,  9  Yerg. 

455- 

]'erinont.  —  Victory  v.  Wells,  39 
Vt.   488. 

Grant  Presumed  Against  the  State. 
A  grant  to  land  may  be  presumed 
against  the  state  from  facts  and  cir- 
cumstances in  cases  where  the 
original  grant  cannot  be  produced 
and  no  record  of  it  can  be  shown. 
State  V.  Dickinson  (Mich.),  88  N. 
VV.  621. 

"  In  order  to  raise  a  presumption 
of  grant  from  the  state  it  is  not 
necessary  to  show  a  continuous  and 
unceasing  possession.  A  break  of 
two  or  three  years  in  the  chain  of 
possession  or  a  failure  to  show  a 
connection  between  successive  occu- 
pants, is  not  a  fatal  defect  in  the 
proof,  where  in  the  aggregate,  the 
actual  possession  has  extended  over 
the  statutory  period."  Hamilton  v. 
Icard,  114  N.  C.  532.  19  S.  E.  607. 

52.  Hurst  V.  McNeil,  i  Wash.  C. 
C.  70,   12  Fed.  Cas.   No.  6936. 

Presumption  of  Grant  May  Be 
Rebutted  by  Contrary  Presumptions. 
Tile  presumption  of  a  grant  arising 
from  lapse  of  time  may  be  rebutted 
by  contrary  presumptions,  and  can 
never  arise  where  all  the  circum- 
stances are  entirely  consistent  with 
the  non-existence   of   the   grant,    nor 

Vol.  I 


where  the  claim  is  at  variance  with 
the  supposition  of  a  grant.  Randale 
V.  Grove,  4  McLean  282,  20  Fed.  Cas. 
No.    11,570. 

53.  Reed  v.  C.  M.  St.  P.  R.  Co., 
71  Wis.  399,  27  N.  W.  225;  Moore 
V.  Chicago  M.  &  St.  P.  R.  Co.,  78 
Wis.  120,  47  N.  W.  273;  Record  v. 
WilHams,    7    Wheat.    59. 

Possession  Prima  Facie  Title. 
"  A  defendant  in  possession  of  land, 
when  sued  in  ejectment,  stands  upon 
his  possession,  and  the  law  requires 
nothing  at  his  hands  in  defense  until 
the  plaintiff  has  made  out  a  prima 
facie  title  and  shown  a  present  right 
under  it  to  recover  the  land."  At- 
kinson :•.  Smith  (Va.),  24  S.  E. 
901. 

54.  Barnes  v.  Light,  116  N.  Y.  34, 
2>  N.  E.  441  ;  Neei  v.  McElheny,  69 
Pa.  St.  300;  Gillispe  v.  Jones,  26 
Tex.  543 ;  Black  ?'.  Tennessee  Coal 
&  Iron  Railroad  Co.,  93  Ala.  109,  9 
So.    537. 

Open  and  Notorious  Possession  and 
Cultivation  Presumed  To  Be  Ad- 
verse. —  In  the  absence  of  evidence 
lo  the  contrary  open  and  notorious 
possession  of  realty  by  occupancy 
and  customary  cultivation  will  be  pre- 
sumed to  be  adverse.  Hammond  v. 
Crosby,  68  Ga.  767. 

Such  actual  possession,  being  an 
open  and  patent  fact,  furnishes  evi- 
dence of  its  own  existence,  and  is 
the  equivalent  of  actual  notice  of  the 
claim  under  which  it  is  held.  Murray 
r.  Hoyle,  92  Ala.  599.  9  So.  368. 

55.  Woolman  v.  Ruehle,  104  Wis. 
(K)3.  80  N.  W.  919;  Bryan  t'.  Spivey, 


ADVERSE  POSSESSION. 


(if)<t 


7.  Presumption  of  Same  Possession  During  Intermediate   Period. 

The  presumption  will  he  admitted  that  during-  a  period  no  evidence 
touches,  the  condition  and  occupancy  of  the  property  were  the  same 
as  they  are  proved  to  have  been  at  the  commencement  and  close  of 
the  period/'" 

V.  WRITTEN  EVIDENCE  NOT  INDISPENSABLE, 

1.  Written  Evidence  Not  Indispensable  to  Prove  Title  or  Color  of 
Title.  —  In  the  absence  of  statutory  requirement  to  the  contrary,  title 
by  adverse  possession  may  be  established  independent  of  any  written 
evidence  tending  to  show  either  title  or  color  of  title  in  such  claim- 
ant." 


109  N.  C.  57,  13  S.  E.  766;  Heller  v. 
Peters,  140  Pa.  St.  648,  21  Atl.  416; 
Rowland  v.  Williams,  23  Or.  515,  32 
Pac.  402;  Keith  v.  Keith,  104  111. 
397- 

Unexplained  Possession  Prima 
Facie  Title. —  "  The  rule  has  heen 
frequently  asserted  that  unexplained 
occupancy,  continued  for  twenty 
years,  raises  the  presumption  that 
such  occupancy  was  under  claim  of 
right  and  adverse.  .  .  .  Such  pos- 
session when  established,  is  con- 
clusive as  to  the  nature  of  the  pos- 
session, unless  rebutted  or  e.xplained 
away  by  some  satisfactory  evidence." 
Bishop  v.  Blever,  105  Wis.  330,  81 
N.  W.  413. 

Possession  of  land  unexplained  is 
presumed  to  be  adverse.  Alexander 
V.  Gibbon,  118  N.  C.  796,  24  S.  E. 
748,   54   Am.    St.   Rep.    757. 

Occupation  lor  ten  years  unex- 
plained will  be  presumed  to  have  been 
made  under  a  claim  of  right  and  ad- 
verse, and  will  authorize  the  pre- 
sumption of  a  grant  unless  contradic- 
ted or  explained.  Swift  v.  Mulkey, 
14  Or.  59,  12  Pac.  76. 

56.  People  v.  Trinity  etc.,  22  N. 
y.  44  ;  Cahill  v.  Palmer,  45  N.  Y.  478  ; 
.\labania  State  Land  Co.  v.  Keyle, 
99  Ala.  474,  13  So.  43. 

57.  United  States.  —  Probst  v. 
Trustees,  129  U.  S.  182 ;  Roberts  v. 
Pillow,  Hempst,  624,  20  Fed.  Cas. 
Xo.  11,909;  Zeilin  v.  Rogers,  21 
Fed.   103. 

Alabama.  —  .Murray  v.  lloyle,  92 
Ala.  559,  9  So.  368;  Lee  v.  Thomp- 
son, 99  Ala.  95,  II  So.  672;  Lucy 
V.  Tennessee  &  C.  R.  Co.,  92  Ala. 
246,  8  So.  806;  Smith  V.  Roberts,  62 


.\la.  83  ;  Wilson  v.  Glenn,  68  Ala.  383  ; 
.\lexander   i\   Wheeler,  78  Ala.    167. 

Arkansas.  —  Trotter  z'.  Neal,  50 
Ark.  340,  7  S.  W.  384. 

California.  —  Tutifrec  v.  Polhemus. 
108  Cal.  670,  41  Pac.  806 ;  Cook  v. 
.McKinney    (Cal.),   II    Pac.   799. 

Georgia.  —  Laromore  v.  Minish,  43 
Ga.  282;  Pandergrast  v.  GuUatt,  10 
Ga.    218. 

Illinois.  —  Noyes  f.  Heffernan, 
153  111.  339.  38  N.  E.  571;  McClellan 
z'.  Kellogg,  17  111.  498;  Weber  v.  An- 
derson,  73   III.  439. 

Indiana.  —  Wood  v.  Kuper,  150 
Ind.  622,  50  N.  E.  755;  Moore  v. 
Hinkle,  151  Ind.  343,  50  N.  E.  882; 
liowen  V.  Swander,  121  Ind.  164, 
22  N.  E.  725;  Roots  V.  Beck.  109 
Ind.   472,  9   N.   E.   698. 

Iozko.  —  Watters  v.  Connelly,  59 
Iowa  217,  13  X.  W.  82. 

Kansas.  —  Anderson  v.  Burnliam, 
S2  Kan.  454,  34  Pac.  1056;  Wood  v. 
•M.   K.  T.   R.   Co.,   II   Kan.  323. 

Kentucky.  —  Spradlin  v.  Spradlin 
13  Ky.  Law  723,  18  S.  W.  14; 
Thompson  v.  Thompson,  93  Ky.  435. 
20  S.  W.  ^73 ;  Taylor  v.  Buck'ner,  2 
A.  K.  Marsh.  18,  12  Am.  Dec.  354; 
Young  V.  Cox,  12  Kv.  Law  ^47,  14 
S.  W.  348. 

Louisiana.  —  Durel  v.  Tennison,  31 
La.  Ann.  538. 

Maine.  —  Jewett  v.  Hussey,  70  Me. 
435;  School  Dist.  V.  Benson,  31  Me. 
381,  52  Am.  Dec.  618;  Moore  v. 
Moore,  61  Me.  417;  .Martin  ;■.  Maine 
Cent.  R.  Co.,  83  Me.  100,  21  Atl.  740; 
Wiggins    v.    Mullen    (Me.),    52    Atl. 

791. 

Alassachusett.t.  —  Sunnier  i'.  Stev- 
ens, 6  Mete.  337. 

Michigan. — San-^craintc   f.  Ttirongo, 


Vol.  I 


•'7(1  AD]-ERSE  POSSESSION. 

2.  Is  Always  of  Primary  Importance  in  Fixing  Limits. —  But,  writ- 
ten evidence  of  title  or  color  of  title  is  always  of  primary  importance 
as  tending  by  construction  to  render  the  actual  occupancy  co-exten- 
sive with  the  muniment  description  not  adverselv  occupied.^*  and  as 


8-  .Mich.  69,  49  N.  W.  497;  Shafer 
V.  Hansen   (Mich.),  35  L.  R.  A.  835. 

Minnesota.  —  Village  of  Glencoe  v. 
Wadsworth,  48  Minn.  402,  51  N.  W. 
377- 

Mississippi.  —  \\'ilson  v.  Williams, 
52  Miss.  487;  Davis  r.  Bowman,  55 
Miss.  671  ;  Magee  v.  Magee,  37  Miss. 
138. 

Missouri.  —  Rannels  v.  Rannels,  52 
Mo.  112;  Minkins  v.  Blumenthal,  27 
Mo.  198;  Bushey  z:  Glenn,  107  Mo. 
331,  17  S.  W.  969;  Mather  v.  Walsh, 
107  Mo.  121,  17  S.  W.  735. 

Montana.  —  Minnesota  &  M.  L. 
Imp.  Co.  z'.  Brasier,  iS'  Mont.  444, 
45   Pac.  632. 

Nebraska. — Fitzgerald  z:  Brewster, 
31  Neb.  51,  47  N.  W.  475;  Omaha 
Loan  &  Trust  Co.  v.  Barrett,  31 
Neb.    803,    48    N.    W.    967. 

New  York. — La  Frombois  r.  Jack- 
son, 8  Cow.  859 ;  Jackson  v.  Olitz,  8 
Wend.  440;  Humbert  v.  Trinity 
Church,   24  Wend.   5S7. 

Ohio.- — McNeeley  v.  Langan,  22 
Ohio  St.  32. 

Oregon.  —  Swift  v.  Mulkey,  14  Or. 
59,  12  Pac.  76. 

Pennsylvania.  —  McCall  7'.  Neeley, 
3  Watts  72;  Prager  v.  Stoud  (Pa. 
St.).  18  Atl.  6.^7;  Watson  v.  Gregg, 
10  Watts  289,  36  Am.  Dec.   176. 

Tennessee.  —  Marr  z'.  Gilliam,  I 
Cold.  488. 

Te.vas.  —  Shcpard  v.  G.  R.  Co.,  2 
Tex.  Civ.  App.  53S.  22  S.  W.  267 ; 
Grimes  v.   Bastrap.  26  Tex.  3 ID. 

rerntont.  —  Jakcway  f.  Barrett,  38 
Vt.  316;  Swift  ?'.  Gage.  26  Vt.  224. 

Washington. — Moore  v.  Brownfield, 
7   Wash.   23,  34   Pac.    199. 

West  Virginia.  —  Parkersburg  In- 
dustrial Co.  V.  Scbultz,  43  W.  Va. 
470,   27   S.    E.   255. 

Paper  Evidence  Unnecessary. 
"  There  is  no  case  to  be  found  which 
holds  that  this  adverse  claim  of  title 
must  be  found  in  some  written  in- 
strument." Probst  z:  Trustees  etc., 
129  U.  S.   182; 

"And  it  follows,  from  this  case, 
and     the     authorities     cited,     that     to 

Vol.  I 


create  the  presumption,  it  is  not  ne- 
cessary that  the  possession,  either  in 
its  origin  or  its  continuance,  should 
l)c  accompanied  by  deeds,  or  other 
writings ;  and  they  are  only  material 
to  extend  the  boundary  where  a 
constructive  possession  is  claimed 
bevond  the  actual  occupation."  Marr 
z'.   Gilliam,    i    Cold.    (Tenn.)    488. 

Title  Equally  Potent  Whether 
With  or  Without  Color "  An  ad- 
verse possession  of  land  which  con- 
tinues unbroken  for  ten  years,  will 
confer  a  title  which  will  sustain  as 
well  as  defeat  an  action  of  ejectment 
and  the  principle  applies  alike  where 
possession  is  held  under  color  or 
claim  of  title  and  where  possession 
was  that  of  a  mere  trespasser."  Lucy 
I'.  Tennessee  it  C.  R.  Co.,  92  Ala. 
246,  8  So.  806. 

Oral  Claim  of  Actual  Occupant 
Sufficient.  —  Where  there  is  an  ac- 
tual occupation  of  the  premises,  an 
oral  claim  is  sufficient  to  sustain  the 
defense  of  adverse  possession ;  it  is 
only  where  a  constructive  adverse 
possession  is  relied  upon,  that  the 
claim  must  be  founded  on  color  of 
title  by  deed  or  other  documental 
semblance  of  right.  Humbert  v. 
Trinity  Church,  24  Wend.    (  N.Y. )  587. 

58.  United  States. —  Brobst  v. 
Brock,  10  Wall.  519;  Elliott  v.  Pearl, 
I  McLean  206,  8  Fed.  Cas.  No.  4386; 
Smith  I'.  Gale,  144  U.  S.  509,  12  Sup. 
Ct.  674;  Clark  f.  Courtney,  5  Pet. 
318;  Fussell  V.  Hughes,  8  Fed.  384; 
Van  Gunden  v.  Va.  Coal  &  Iron 
Co.,  52  Fed.  838;  Kingman  v.  Hol- 
thaus,   59   Fed.   305. 

.Ihilmnia. — Jones  z:  Pelliam,  84 
.•\la.  208,  4  So.  22 ;  Armiston  City 
Land  Co.  ■:■.  Edniondson  (Ala.),  30 
So.  61;  Bonett  v.  Kelley  (Ala.),  30 
So.  824;  Cogsbill  Z'.  Mobile  &  Ground 
Railway  Co.,  92  Ala.  252,  9  So.  512; 
Black  z'.  Tennessee  Coal,  Iron  &  R. 
Co.,  93  Ala.   109,  9  So.  537. 

California.  —  Ayers  z'.  Bensley,  32 
Cal.  620;  Russell  z:  Harris.  38  Cal. 
426,  99  Am.  Dec.  421  ;  McKee  v. 
Greene,  31   Cal.  418;   Hicks  v.  Cole- 


ADI'HRSE  POSSESSION. 


671 


cvinciiiii'  the  nature  and  character  of  the  initial  entr\-  under  which 


man.  25   Cal.122,  85   Am.  Dec.   103; 
Donahue  v.   Gallavan.  43  Cal.  573. 

Florida.  —  Doyle  r.  Wade,  23  Fla. 
90,  I  So.  516,  II  Am.  St.  Rep.  334. 

Georgia.  —  Johnson  v.  Simerly ,  90 
Ga.  612,  16  S.  E.  951 ;  Acme  Brewing 
Co.  V.  Central  R.  &  Banking  Co. 
iGa.).  42  S.   E.  8. 

Illinois.  —  Chicago  &  N.  W.  R.  Co. 
-'.  Gait.  133  III.  657,  23  N.  E.  42s; 
Coleman  z'.  Billings,  89  111.  183; 
Keith  V.  Keith,  104  111.  397;  Hinch- 
man  v.  Whetstone,  23  III.  108:  Dry- 
den  i:  Newman,  116  III.  186,  4  N.  H. 
768. 

Indiana.  —  Bell  t.  Longworth,  6 
Ind.  273 ;  State  v.  Portsmouth 
barings  Bank,  106  Ind.  435,  7  N.  E. 
379;  Roots  f.  Beck,  109  Ind.  472,  9 
N.  E.  698. 

Kentucky.  —  Crish  v.  Brashers,  3 
Litt.  ig;  Harrison  7'.  McDaniel,  2 
Dana   348. 

Maine.  —  Bracket  v.  Persons  Un- 
known, 53   Me.  228. 

Maryland.  —  Hammond  j'.  Ridgely, 
5  Har.  &  J.  245,  9  Am.  Dec.  522. 

.'lassacliusetts.  —  Kennebec  Pur- 
chase V.  Springer,  4  Mass.  416,  3  Am. 
Dec.  277;  Sterns  z:  Woodbury,  10 
Mete.  27. 

Minnesota.  —  Washburn  7'.  Cutter, 
17  Minn.  369;  Miesen  v.  Canfield,  64 
Minn.  513.  67  N.  W.  632. 

.Mississippi.  —  Welborn  i'.  .\nder- 
son.   37   Miss.    155. 

Missouri.  —  Carter  z'.  Hornbeck, 
139  Mo.  238,  40  S.  W.  893;  Frugate 
v.  r'ierce,  49  Mo.  441 ;  Johnson  v. 
Prewitt,  32  AIo.  553;  Lynde  i:  Wil- 
liams. 68  Mo.  360;  Schultz  V.  Lin- 
dill,  30  Mo.  310;  Chapman  v.  Tem- 
pleton,  53  Mo.  463 ;  Harbison  v. 
School  District  No.  i,  89  Mo.  184, 
I  S,  W.  30;  Callahan  i'.  Davis,  103 
-iio.  444,   15   S.  W.  433. 

Xebraska.  —  Omaha  &  R.  V.  R.  Co. 
V.  Richards,  38  Neb.  847,  57  N.  W. 
739-_ 

Neiu  Hampshire.  —  Farrar  v.  Fes- 
.enden,  39  N.  H.  268 ;  Little  v.  Down- 
mg,^  iy  N.  H.  355. 

.Wjf  Jersey.  —  Foulke  v.  Bond,  41 
N.  J.  Law  527. 

AVic  York.  —  Kent  z\  Harcourt,  i2 
Barb.  491  ;  Donohue  v.  Whitney,  133 
N.  V.   178,  .p  N.  E.  848. 


North  Carolina.  —  Barker  v.  South- 
ern R.  Co.,  125  N.  C.  596,  34  S.  E. 
701.  74  Am.  St.  Rep.  658;  Lewis  v. 
John  L.  Roper  Lumber  Co.,  113  N.  C. 
55,  18  S.  E.  52 ;  Hough  V.  Damas, 
4  Dev.  &  B.  .328;  Staton  z\  Mullis, 
92  N.  C.  623;  Scott  V.  Elkins.  83 
N.  C.  424- 

Ohio.  —  Clark  v.  Potter,  32  Ohio 
St.  49;  Humphries  v.  Huffman,  33 
Ohio  St.  395. 

Oregon.  —  Joy  v.  Stump.  14  Or. 
361,   12  Pac.  929. 

Pennsylvania.  —  Susquehanna  etc. 
Co.  V.  Quick,  68  Pa.  St.  189;  Ege 
z:   .Medlar,  82  Pa.   St.  86. 

South  Carolina. — Stanley  z'.  School- 
bred,  25  S.  C.  181 ;  Anderson  v. 
Dorby,  i   Nott.  &  McC.  369. 

Tennessee.  — "Wmters  z'.  Hainer 
(Tenn.),  64  S.  W.  44;  Rutherford  zj. 
Franklin,  i  Swan  321;  Hebard  v. 
Scott,  95  Tenn.  467.  32  S.  W.  39°; 
Bonair  Coal,  Land  &  Lumber  Co. 
z:  Parks.  94  Tenn.  263,  29  S.  W.  130; 
Cooper  V.  Great  Falls  Cotton  Mills 
Co..  94  Tenn.  588.  30  S.  W.  353; 
Hornsby  '•.  Davis  (Tenn.),  36  S.  W. 
159. 

Ti'.ruj-.  —  Coleman  z'.  Flory  (Te.\. 
Civ.  .\pp. ),  61  S.  W.  412;  Allen  z: 
Boggess.  94  Tex.  83.  58  S.  W.  833; 
Hodges  z:  Ross,  6  Tex.  Civ.  App. 
437,  25  S.  W.  975;  Cantagrel  z:  Von 
Lupin,  58  Tex.  570 ;  Porter  v.  Miller, 
84  Tex.  204.  19  S.  W.  467 ;  Meyer  v. 
Kirlicks  (Tex.  Civ.  App.),  25  S.  W. 
652;  Taliaferro  z:  Butler,  77  Tex. 
578,  14  S.  W.  191- 

Vermont.  —  FuUam  v.  Foster,  68 
Vt.  590,  35  Atl.  484;  Aldrich  v. 
Griffith.  66  Vt.  390,  29  Atl.  376. 

Virginia.  —  Andrews  Z'.  Roseland 
Iron  &  Coal  Co.,  89  Va.  .593.  16  S. 
E.  252. 

Il'ashington.  — Upper  z:  Lowell,  7 
Wash.  460,  35  Pac.  363. 

I] 'est  Virginia.  —  Maxwell  v.  Cun- 
ningham, 50  W.  Va.  298,  40  S.  E. 
499;  Jarrett  z'.  Stevens,  36  W.  Va. 
445,  IS  S.  E.  177;  Heavener  v.  Mor- 
gan, 41  W.  Va.  428,  23  S.  E.  874; 
Oney  -■.  Clendenin,  28  W.  Va.  34. 

JFiseonsin.  —  Pepper  Z'.  O'Dowd, 
39  Wis.  538. 

Written  Color  of  Title,  Extent  of 

Vol.  I 


672 


ADl-EKSE  POSSESSION. 


a  claim  is  asserted  in  virtue  of  an  alleged  adverse  possession;^"  but, 
in  the  absence  of  any  such  written  evidence,  no  permanent  rights 
can  be  acquired  beyond  the  limits  which  the  actual  occupancy  in  a 
given  case  may  tend  to  impress  with  the  requisites  of  an  adverse 


possession.  " 

Possession  Under —  Possession  under 
color  of  title  evidenced  by  writing  is 
deemed  to  embrace  all  land  within 
the  description  not  in  the  adverse 
occupancy  of  another.  Brobst  v. 
Brock,   10   Wall.   519. 

And,  this  effect  may  be  accorded 
although  the  land  is  unfenced  and 
actual  residence  on  part  only.  El- 
liott V.  Pearl,  i  McLean  206,  8  Fed. 
Cas.   No.  4386. 

Actnal  Possession  Under  Deed  of 
Part  Extends  to  All.  —  \\  lien  pos- 
session of  land  in  controversy  con- 
sidered alone  is  insufficient  to  sup- 
port an  adverse  claim,  the  actual  pos- 
session of  adjoining  lands  under  a 
deed  covering  the  whole  will  render 
such  possession  coextensive  with  the 
limits  of  the  deed  and  create  title 
by  adverse  possession.  Winters  v. 
Hainer  (Tenn.),  64  S.  W.  44. 

59.  Foulke  v.  Bond,  41  N.  J.  Law 
527 ;  Nelson  v.  Davidson,  160  111. 
254,  43  N.  E.  361 ;  Martin  v.  Skip- 
with,  50  Ark.  141,  6  S.  W.  514;  Ala- 
bama State  Land  Co.  v.  Kyle,  99  Ala. 
474,  13  So.  43 ;  Wilson  Z'.  Atkinson, 
77  Cal.  485,  20  Pac.  66,  11  Am.  St. 
Kep.  299. 

Color  of  Title  Evidences  Claim 
Adverse  to  World.  —  "  Hence,  color 
of  title  even  under  a  void  and  worth- 
less deed,  has  always  been  received 
as  evidence  that  the  person  in  pos- 
session claims  for  himself,  and,  of 
course  adversely  to  all  the  world." 
Pillow  V.  Roberts,  13  How.  477. 

"  And  any  instrument,  however 
defective  or  ineffectual  to  convey 
title  in  fact,  and  even  if  void  on  its 
face,  will  be  sufficient  to  bring  a 
case  within  this  rule  if  Iiy  sufficient 
description  it  purports  to  convey 
title.  Whether  valid  or  void  on  its 
face,  it  characterizes  the  entry  of  the 
occupant  by  showing  the  nature  and 
extent  of  his  claim."  Miesen  v. 
Canfield,  64  Minn.  513,  67  N.  W. 
632. 

Void  Seed,  Claim  Under  Charac- 
terizes    Possession It     was     very 

Vol.  I 


properly  conceded,  on  the  argument 
of  this  cause,  by  counsel  for  the 
appellants,  that  a  claim  of  title,  even 
under  a  paper  altogether  void  and 
inoperative  as  a  deed,  will  yet  char- 
acterize a  possession  as  adverse 
within  the  statute  of  limitations. 
Humbert  v.  Trinity  Church,  24 
Wend.    (N.    Y.)    587. 

A  grant  imperfect  by  omission  to 
describe  the  lands,  otherwise  regular, 
is  admissible  on  behalf  of  a  munic- 
ipal corporation  as  explanatory  of 
tne  character  in  which  it  has  held 
possession  of  the  land  for  a  period 
necessary  to  give  title  by  adverse 
possession.  Grimes  v.  Bastrop,  26 
Tex.  310. 

Effect  of  Void  Deed.  —  Color  of 
title,  even  under  a  void  and  worth- 
less deed,  has  always  been  received 
as  evidence  that  the  person  in  pos- 
session claims  adversely  to  all  the 
world,  and  mere  notice  of  a  better 
title  in  some  other  person  will  not 
prevent  the  operation  of  an  adverse 
possession  under  such  color  of  title. 
A\lclntyre  v.  Thompson,   10  Fed.  531. 

"  It  follows  from  what  has  been 
said  that  there  was  no  error  in  ad- 
mitting the  tax  deed  in  evidence 
although  it  was  void  on  its  face.  It 
was  admissible  for  the  purpose  of 
showing  the  nature  and  e.xtent  of  the 
claim  of  the  occupant  who  entered 
under  it."  Alurphy  z:  Doyle.  37 
Minn.  113,  33  N.  W.  220. 

60.  United  Stales.  —  Jackson  v. 
Porter,  I  Paine  457,  13  Fed.  Cas. 
No.  7143 ;  Barr  v.  Grotz,  17  U.  S. 
213. 

Alabama.  —  Jones  v.  Pelham,  84 
.•\la.  208,  4  So,  22;  Ryan  z'.  Kilpat- 
rick,  66  Ala.  332 ;  Hawkins  -•.  Hud- 
son, 45  Ala.  482. 

.Irkansas.  —  Mooncy  v.  Cooledge, 
30  Ark.  640. 

California.  —  United  Land  Ass'n  v. 
Pacific  Imp.  Co.  (Cal.),  69  Pac.  1064; 
Kile  V.  Tubbs,  23  Cal.  431. 

Georgia.  —  Tripp  •'.  Fausett,  94  Ga. 
330,  21  S.  E.  5/2- 


ADFERSE  POSSESSION. 


()7.^ 


A.  Qualification  of  Rule.  —  The  doctrine  that  written  color 
of  title  operates  constructively  is  subject  to  the  important  qualifica- 
tion that  an  implied  possession  of  different  tracts  of  land  will  be 
carried  no  further  than  the  evidence  may  show  them  to  be  actuallv 
contiguous,  or  in  apparent  actual  use  in  connection  with  that  which 
is  actually  occupied. '^^ 

B.  MiCRE  Trespasser  Acouires  Nothing  Outside  His  Actual 


;«moij.  —  Chicago  &  N.  W.  R. 
Co.  V.  Gait,  133  111.  657,  23  N.  E. 
425;  James  7'.  Ind.  &  St.  Louis  R. 
Co.,  gi  111.  554;  Turiiey  v.  Chamber- 
lain,  15  111.  271. 

Indiana.  —  Prather  v.  Western 
Union  Tel.  Co.,  89  Ind.  501. 

Maine.  —  Richardson  v.  Watts,  94 
Me.  476,  48  Atl.  180. 

Massachuselts.  —  Kennebec  Pur- 
chase V.   Springer,  4   Mass.  415. 

Minnesota.  —  Coleman  v.  Northern 
Pac.  R.  Co.,  36  Minn.  525,  32  N.  W. 

859-  . 

Missouri.  —  Hamilton  v.  Boggess, 
63  Mo.  233 ;  Wilson  v.  Purl,  148  Mo. 
449,  51  S.  W.  90;  Hargis  v.  Kansas 
City  C.  &  S.  R.  Co.,  100  Mo.  210, 
13  S.  W.  680;  Allen  V.  Mansfield, 
108  Mo.  343,   18  S.  W.  901. 

Nebraska.  — Omaha  &  R.  V.  R. 
Co.  V.   Rickards,  38  Neb.  847,  57   N. 

W.  739. 

Nezv  Jersey.  —  Roll  v.  Rea,  50  N. 
J.  Law  264,  12  Atl.  905 ;  Hodges  v. 
Amerman,  40  N.  J.  Eq.  99.  2  Atl.  257; 
Sa.xton  V.  Hunt,  20  N.  J.  Law  487. 

North  Carolina.  —  Harris  v.  Ma.x- 
well,  4  Dev.   &  B.  241. 

Ohio.  —  Humphries  v.  Huffman, 
33  Onio  St.  395. 

Oregon.  —  Swift  v.  Mulkey,  14  Or. 
64,   12   Pac.   76. 

Pennsylvania.  —  Ege  v.  Medlar,  82 
Pa.  St.  86;  Criswell  v.  Altemus.  7 
Watts  566;  Miller  v.  Shaw,  7  Serg. 
&  R.  129. 

Tennesse-e. — .Marr  v.  Gilliam,  i 
Cold.  488;  Pettyjohn  v.  .\kers,  6 
Yerg.  448. 

Te.xas.  —  Whitehead  v.  Foley,  28 
Tex.  268. 

Vermont.  —  Hatch  v.  Vermont 
Cent.  R.  Co.,  28  Vt.  142. 

West  Virginia.  —  Jarrett  v.  Stev- 
ens, 36  W.  Va.  445,  15  S.  E.  177. 

Wisconsin.  —  Illinois  Steel  Co.  v. 
Budzisz,    106    Wis.    499,    81    N.    W. 

43 


I0J7,  80  Am.  St.  Rep.  54,  48  L.  R.  A. 
831. 

Mere    Occupancy    Fixes    Its    Own 

Limit In  absence  of  color  of  title 

claim  is  limited  to  actual  possession 
which  must  be  marked  by  a  fence 
or  clearing  or  cultivation  or  some- 
thing else  visible,  actual,  and 
notorious  so  as  to  be  tantamount 
thereto.  Jarrett  v.  Stevens,  36  W. 
Va.  445,  15  S.  E.  i77- 

While  actual  occupancy  of  a  part 
of  a  tract  of  land,  into  the  posses- 
sion of  which  a  party  has  entered 
under  claim  and  color  of  title,  draw^ 
constructive  possession  of  the  entire 
tract  described  in  the  conveyance,  if 
the  color  of  title  is  inoperative  as  a 
conveyance,  by  reason  of  uncertainty 
in  the  description  of  the  lands,  the 
possession  is  limited  to  the  part  ac- 
tually occupied.  James  v.  Pelham,  84 
Ala.  208,  4  So.  22. 

In  the  absence  of  any  evidence  of 
paper  title  in  an  occupant,  his  title, 
if  any,  is  confined  to  the  e.xtent  of 
his  actual  possession.  Chicago  &  N. 
W.  R.  Co.  V.  Gait,  133  111.  657,  23 
N.  E.  425- 

61.  Alabama.  —  Kerret  v.  Nich- 
olas, 88  Ala.  346,  0  So.  698. 

.Arkansas.  —  Brown  v.  Bocquin,  57 
Ark.  97,  20  S.   W.  813. 

Kentucky.  —  West  v.  McKinney,  92 
Ky.  638,  18  S.  W.  633. 

Maine.  —  Adams  v.  Clapp,  87  Me. 
316,  32  Atl.  gii. 

Missouri.  —  Ware  v.  Johnson,  55 
Mo.  500. 

North  Carolina.  —  Lenoir  v.  South, 
10  Ired.  237. 

Oregon.  —  Willamette  Real  Estate 
Co.  v.  Hendrix,  28  Or.  485,  42  Pac. 
514,  52  Am.  St.  Rep.  800. 

Pennsylvania.  —  Hole  v.  Ritten- 
house,   25    Pa.    St.   491. 

Te.ras.  —  Galveston  Land  &  Imp. 
Co.  V.  Perkins  (Te.x.  Civ.  App.),  26 
S.  W.  256. 

Vol.  I 


674 


ADVERSE  POSSESSION. 


Occupancy.  —  And  a  mere  trespasser,  asserting  no  claim  of  right, 
will  acquire  no  title  beyond  the  limits  which  the  evidence  ma\-  show 
an  actual  occupancy  of."- 

VI.  COLOR  OF  TITLE. 

1.  Is  the  Mere  Semblance  of  Title.  —  Anything  in  writing  con- 
nected with  the  title  to  land  which  serves  to  define  the  limits  of  the 
claim  is  color  of  title."^ 

2.  Void  Instruments,  Evidence  Of.  —  And  the  great  weight  of 
aiithoritv  sustains  the  rule,  that,  in  the  absence  of  statute  to  the 
contrary,  an  instrument  absolutely  inoperative  as  a  medium  for  the 
transmission  of  title  to  land,  may  confer  color  of  title  upon  a  claim- 
ant acting  in  good  faith."'' 


62.  United  States.  —  Potts  v.  Gil- 
l)ert.  .?o  Wash.  C.  C.  475.  19  Fed. 
Cas.  No.  11,347. 

Alabama.  —  Burks  v.  Mitchell,  78 
Ala.  61. 

Arkansas.  —  Ferguson  v.  Paden,  33 
Ark.  150, 

Georgia. — Hall  i'.  Gay,  68  Ga. 
442. 

Illinois.  —  Foster  v.  Letz,  86  111. 
412;  Bristol  V.  Carroll  Co.,  95  111. 
84. 

Massachusetts. — Paignnrd  z'.  Smith, 

8  Pick.  272. 

Mississipp.i. —  Welborn  ;■.  Ander- 
son, 37  Miss.  155. 

Missouri.  —  Rannels  t'.  Rannels.  52 
Mo.  112;  St.  Louis  V.  Gorman,  29 
Mo.  S93.  77  Am.   Dec.   586. 

Nev.'  Jersey.  —  Sa.xton  j'.  Hunt,  20 
N.  J.  Law  487. 

Pennsylvania.  —  Hall  ?'.  Powell,  4 
Serg.  &  R.  456,  8  Am.  Dec.  722 ; 
Bishop  v.  Lee,  3  Pa.  St.  214. 

Te.vas.  —  Bracken  v.  Jones,  63  Tex. 
184;  Whitehead  v.  Foley,  28  Tex. 
268. 

Vermont.  —  Langdon  v.  Teniple- 
tou,  66  Vt.  173,  28  Atl.  866. 

63.  United  States.  —  Hall  v.  Law, 
102  L'.  S.  461 ;  Fields  v.  Columbet, 
4  Sawy.  523,  9  Fed.  Cas.  No.  4764; 
Wright  -'.  Mattison,  18  How.  56. 

Georgia.  —  Connell  v.  Culpepper, 
III  Ga.  805,  35  S.  W.  667;  Burden  v. 
Blain,  66  Ga.  i6g ;  Beverly  v.  Burke, 

9  Ga.  440,  54  Am.  Dec.  351. 
Illinois.  —  Rawsou   v.    Fox,   65    111. 

200. 

.1/(11(1^.  —  Bracket  v.  Persons  Un- 
known, 53  Me.  228. 

Vol.  I 


Missouri.  —  St.  Louis  z'.  Gorman, 
29  Mo.  593,  77  Am,  Dec.  586. 

Oregon.  —  Swift  v.  Mulkey,  17  Or. 
532,  21  Pac.  871. 

South  Dakota.  —  Wood  v.  Conrad, 
2   S.   D.   334,   50   N.   W.   95- 

I'irginia.  —  Sharp  v.  Shenandoah 
Furnace  Co.   (Va.),  40  S.  E.  103. 

West  Virginia.  —  Robinson  v. 
Lowe,  50  W.  Va.  75,  40  S.  E.  454. 

Color  of  Title  Defined.  —  "  Color 
of  title  for  the  purpose  of  adverse 
possession  under  the  statute  of  lim- 
itations as  to  land  is  that  which 
has  the  semblance  or  appearance  of 
title,  legal  or  equitable  which,  in  fact, 
is  no  title."  Sharp  v.  Shenandoah 
Furnace  Co.   (Va.),  40  S.  E.  103. 

Color    of    Title Is    anything    in 

writing  connected  with  the  title  to 
laud  which  serves  to  define  the 
limits  of  the  claim  asserted.  Connell 
V.  Culpepper,  in  Ga.  8o^.  3s  S.  W. 
667. 

"  Mere  color  of  title  is  valuable 
only  so  far  as  it  indicates  the  extent 
of  the  claim  under  it."  Robinson  v. 
Lowe,  50  W.  Va.  75,  40  S.  E.  454. 

"  The  courts  have  concurred,  it  is 
believed,  without  exception,  in  de- 
fining color  of  title  to  be  that  which 
in  appearance  is  title,  but  which  in 
reality  is  no  title."  Wright  v.  Mat- 
tison, 18  How.  56. 

"  A  color  of  title  is  anything  in 
writing  which  serves  to  define  the 
e.xtent  and  character  of  the  claim 
to  the  land,  with  parties  from  whom 
it  may  come,  and  to  whom  it  may  be 
made."  Burdell  v.  Blain.  66  Ga. 
169. 

64.     United  .S7c;/«.  —  Hall  v.  Law, 


ADVERSE  POSSESSION.  675 

3.  Under  Void  Tax  Deed  for  Government  Land.  —  The  fact  that 


120  U.  S.  466 ;  Wright  f.  Mattison, 
18  How.  50;  EUicott  V.  Pearl,  lO 
Pet.  412.  Fed.  Cas.  No.  4386;  Bart- 
lett  V.  Ambrose,  78  Fed.  839;  Mc- 
Intyre  v.  Thompson,  10  Fed.  531 ; 
Roberts  v.  Pillow,  Hempst.  62J  20 
Fed.  Cas.  No.  11,909;  Latta  -•.  Clif- 
ford, 47  Fed.  614;  Pillow  J'.  Roberts, 
13   How.   472. 

Alahama.  —  Torrey  v.  Forbes,  94 
.•Ma.  135,  10  So.  320;  Perry  v.  Law- 
son,  H2  Ala.  480,  20  So.  611. 

Arkansas.  —  Logan  r.  Jelks,  34 
Ark.    547. 

California.  —  Tryon  7',  Huntoon. 
■67  Cal.  325,  7  Pac.  741. 

Connecticut.  —  Taylor  i'.  Danlniry 
Public  Hall  Co.,  35  Conn.  430. 

Georgia.  —  Acme  Pirewing  Co.  v. 
Central  R.  &  Banking  Co.  (Ga.),  42 
S.  E.  8 :  Conyers  v.  Kennan,  4  Ga. 
.308.  78  Am.  Dec.  226:  Ingram  v. 
Little,  14  Ga.  173,  58  .A.m.  Dec.  549. 

Illinois.  —  Nelson  v.  Davidson,  160 
111.  254,  43  N.  E.  361,  52  Am.  St. 
Rep.  338;  31  L.  R.  A.  325;  Brooks  v. 
Brnyn,  35   111.  392. 

Indiana.  —  Van  Cleave  r.  Milliken, 
13  Ind.  105  ;  Irey  v.  Markey,  132  Ind. 
546,  32  N.  E.  309. 

Iowa.  —  Tremaine  v.  Weatherby, 
58  Iowa  615,  12  N.  W.  609;  Sater 
7'.  i\Ieado\vs,  68  Iowa  S07,  27  N.  W. 
481. 

Kansas.  —  Goodman  t.  Nichols,  44 
Kan.  22,  23  Pac.  957. 

Kentucky.  —  Logan  r.  Bull,  78  Ky. 
607:   Smith  r.  Frost,  2  Dana   144. 

Maine.  —  Robinson  7'.  Sweet,  3 
Greenl.  316. 

Maryland.  —  Erdman  '■.  Corse,  87 
Md.  506,  40  .\tl.  107 ;  Gump  z'.  Sibley, 
79  Md.  165,  28  .\t\.  977;  Trustees  of 
Zion  Church  r.  Hilkin,  84  Md.  170, 
35  .\t\.  9;  Kopp  7'.  Herman,  82  Md. 
339.  33  Atl.  646. 

Minnesota.  —  Murphy  v.  Doyle,  37 
Minn.    113,   33    N.    W.   220. 

Mississippi.  —  Hanna  v.  Renfro,  32 
Miss.  125;  Nash  7'.  Fletcher,  44  Miss. 
609. 

Missouri.  —  Wilson  7'.  Purl,  148 
Mo.  449,  34  S.  W.  884;  Hickman  v. 
Link  (Mo.),  7  S.  W.  12;  Hamilton 
7'.  Boggess,  63  Mo.  233 ;  Sutton  v. 
Caseleggi,   77   Mo.   397. 


Nebraska.  —  Twohig  7'.  Leamer,  48 
Neb.  247,  67  N.  W.  152. 

Nezv  Hampshire.  —  Farrar  v.  Fes- 
senden,  39  N.  H.  268;  Gage  v.  Gage, 
30  N.  H.  420. 

A''c7C'  Jersey.  —  Foulke  v.  Bond.  41 
N.  J.  Law  527. 

Neiv  York.  —  Jackson  7'.  Newton. 
18  Johns.   355. 

North  Carolina.  —  Avent  7'.  Arring- 
ton,  105  N.  C.  377,  10  S.  E.  99i- 

North  Dakota.  —  Powen  v.  Kit- 
ching,  10  N.  D.  254,  86  N.  W.  737. 

Ohio.  —  Humphries  7'.  Huffman,  33 
Ohio   St.  395. 

South  Carolina.  —  Lyles  7'.  Kirkpat- 
rick,   9   Rich.    265. 

Tennessee.  —  Hunter  7'.  O'Neal,  4 
Baxter  494. 

Te.ras.  —  Williams  7'.  Bradley 
(Tex.    Civ.   App.l,   67    S.    W.    170. 

Vermont.  —  Chandler  7'.  Spear,  22 
Vt.  ,388;  Aldrich  7-.  Griffith,  66  Vt. 
390.  29  Atl.  376. 

Virginia.  —  Stull  v.  Rich.  Patch 
Iron  Co.,  92  Va.  253,  23  S.  E.  293. 

IVashington. — Ward  7'.  Huggins, 
7  Wash.  617,  32  Pac.  740;  Flint  v. 
Long.   12  Wash.  342,  41   Pac.  49. 

West  Virginia. — Robinson  7'.  Lowe, 
50  W.  Va.  75,  40  S.  E.  454;  Swann 
7'.  Tliayer.  36  W.  Va.  46,  14  S.  E. 
423. 

Wisconsin.  —  Egerton  7".  Bird,  6 
Wis.  527,  70  Am.  Dec.  473 ;  Zweitusch 
7'.  Watkins,  61  Wis.  615.  21  N.  W. 
821. 

Void  Deed  Color  of  Title "Im- 
material whether  the  title  be  valid 
or  not,  provided  the  entry  and  claim 
he  bona  fide  under  that  title."  Erd- 
man 7'.  Corse.  87  Md.  506.  40  .Atl. 
107. 

An  entry  under  a  deed,  void  on  its 
face,  which  describes  an  unfenced 
tract  by  metes  and  bounds  will  im- 
part constructive  possession  to  all 
land  not  actually  occupied  adversely. 
Murphy  7'.  Doyle,  37  Minn.  113,  33 
N.  W.  220. 

"  Hence,  color  of  title,  even  under 
a  void  and  worthless  deed,  has  always 
been  received  as  evidence  that  the 
person  in  possession  claims  for  him- 
self,  and   of  course  adversely   to  all 

Vol.  I 


676 


AD  [/ERSE  POSSESSION. 


the  title  was  in  the  government  when  possession  was  taken  nruler 
a  void  tax  deed  cannot  be  nsed  against  a  claimant  holding  adversely 
for  the  statutory  period  after  the  title  passed  from  the  government."" 

4.  Color  of  Title  May  Aid  Prior  Ineffectual  Entry.  —  A  claimant 
by  acquiring  color  of  title  after  an  ineffective  entry  may  transform 
it  into  one  of  adverse  cliaracter  from  that  time."" 

5.  Different  Kinds  of  Written  Evidence.  —  Written  evidence  tend- 
ing to  establish  color  of  title  may  flow  from  a  multiplicity  of 
sources."' 


the  world."  Pillow  i'.  Roberts,  13 
How.  472. 

Void  Instrument  Will  Give  Color 
of  Title.  —  Any  writing  purporting 
to  convey  the  title  to  land  by  ap- 
propriate words  of  transfer,  and 
describing  the  land,  is  color  of  title, 
though  the  writing  is  invalid,  actually 
void  and  conveys  nothing.  Hickman 
V.  Link    (Mo.),  7   S.   W.   12. 

However  inadequate  to  carry  the 
true  title  and  however  incompetent 
may  have  been  the  power  of  the 
grantor  to  pass  a  title,  yet  a  claim 
asserted  under  the  provisions  of  such 
a  deed  is  strictly  a  claim  under  color 
of  title.  Wright  v.  Mattison.  18 
How.   (U.  S.)   50. 

65.  Chicago.  Rock  Island  &  Pacific 
R.  Co.  V.  Allfree,  64  Iowa  500. 

One  will  gain  title  by  adverse  pos- 
session during  the  statutory  period 
of  limitation,  although  unable  to  show 
a  title  from  the  government  to  him- 
self. Sanitary  District  i'.  Allen.  178 
Til.  3.30,  53  N.  E.   109. 

66.  Jackson  7'.  Thomas,  16  Johns. 
(N.  Y.)  292;  Bank  of  Kentucky  v. 
McWilliams.  2  J.  J.  Marsh.  (Ky.) 
256. 

'  Obtaining  Color  of  Title  After 
Entry  Renders  Holding  Adverse. 
One  acquiring  color  of  title  after 
entry  thereafter  holds  an  adverse 
possession  which  may  mature  into  a 
title.  Hawkins  v.  Richmond  Cedar 
Works,  122  N.  C.  87,  30  S.  E.   13. 

"  An  entry  without  color  of  title  or 
claim  of  right  may  become  adverse 
by  subsequently  acquiring  color  of 
title  or  claim  of  right,  and  holding 
under  it;  but  the  possession  is  only 
adverse  from  the  time  of  acquiring 
such  title  or  claim  of  right."  Wickam 
V.  Henthom  (Iowa),  59  N.  W.  276. 

67.  United  States. — Texas  Pacific 
R.   Co.   V.    Smith.    159  U.    S.   66. 

Vol.  I 


Califitniia.  —  Brind  v.  Gregory,  120 
Cal.  640,  53  Pac.  25. 

Georgia.  —  Wade  v.  Garrett,  109 
Ga.  27b,  34  S.  E.  572 ;  Tumlin  v. 
Perry,  108  Ga.  520,  34  S.  E.  171. 

///mou.  — Wright  v.  Stice,  173  111. 
571,  51  N.  E.  71;  Se.xson  v.  Barker, 
172  111.  361,  50  N.  E.  109. 

Oregon.  —  Clark  zk  Bundy,  29  Or. 
190,  44  Pac.  282. 

New  Jersey.  —  Den  Watson  v. 
Kelty,  16  N.  j.  Law  517. 

]Vest  Virginia. — Hitchcock  v.  Mor- 
rison   (W.  Va).   34   S.   E.   993. 

Need  Not  Be  Recorded  Instrument. 
Aldrich  v.  Griflfith.  66  Vt.  390,  29 
.\tl.  376:  Lewis  V.  Roper  Lum.  Co., 
109  X.  C.   19.   13   S.  E.  701. 

Master's  Deed  Under  Invalid  De- 
cree in  Equity Mullins'  Adm'r  v. 

Carper.    37    W.    Va.    215,    16    S.    E. 

527. 

Instrument  of  Ambiguous  Char- 
acter.—  Westmorland  i\  Westmor- 
land. 92   Ga.  233.   17   S.   E.   1033. 

Will,    If    it    Describes    the    Real 

Estate Blakey  r.     Morris.    S9  Va. 

717.    17    S.    E.    126. 

Irregular  Decree  of  Distribution. 
Brind  ?•.  Gregory.  122  Cal  480.  55 
Pac.  250. 

Partition  Judgment  Confers  Color 

of      Title The      judgment      of      a 

proper  court  making  partition  pur- 
porting on  its  face  to  convey  tit!?., 
will  constitute  good  color  of  title  in 
favor  of  one  claiming  by  adversi- 
possession,  even  though  a  part  of 
the  tenants  in  common  were  not  made 
parties  to  the  suit  in  which  such 
judgment  or  decree  was  rendered. 
Wright  V.  Stice,  173  111.  57h  5i  N.  E. 

71- 

Possession  for  Twenty  Years  Un- 
der Colorable  Partition  Effective. 
Although  a  parol  partition  might  not 
be  originally  good  under  the  statut-.' 


ADVERSE  POSSESSION. 


677 


6.  Written  Evidence  Not  Indispensable.  —  Unless  rendered  so  by 
statute,  written  evidence  is  not  indispensable  to  establish  color  of 
title.-'' 

7.  Facts  Showing  Nature  of  Entry  May  Operate  As  Color  of  Title. 

And,  facts  showing  the  character  and  extent  of  the  entry  and  claim 
may  perform  the  office  of  color  of  title."" 

VII.  ADMISSIBILITY  OF  PARTICULAR  CLASSES  OF  WRITTEN 

EVIDENCE. 
1.  Judgment  Boll  in  Former  Action.  —  The  judgment  roll   in  a 


of  frauds,  yet  lands  holden  in  sev- 
eralty peaceably,  for  twenty  years 
under  the  colorable  partition  will 
amount  to  evidence  of  title  under  the 
statute  of  limitation.  Den  Watson  v. 
Kelly,  i6  N.  J.  Law  517. 

Deed  Under  Void  Decree  Confers 
Color  of  Title.  _  Although  a  deed 
under  a  void  decree  may  be  inadmis- 
sible for  any  other  purpose,  it  is 
competent  to  show  color  of  title,  in 
the  absence  of  any  showing  of  fraud 
conducing  to  such  decree.  Sexson 
V.  Barker,  172  111.  361,  50  N.  E.  109. 

There  is  no  force  in  the  objection 
that  a  decree  of  distribution,  under 
which  one  claims  to  hold  adverse 
possession,  is  erroneous.  Brind  v. 
Gregory,  120  Cal.  640,  53  Pac.  25. 

Master's  Deed.  Though  Irregular, 
Confers  Color  of  Title.  —  A  deed 
made  by  a  special  commissioner  in 
a  chancery  cause,  under  a  decree 
confirming  the  sale,  purporting  to 
convey  the  real  estate  described  in 
the  deed,  gives  color  of  title  in  the 
grantee,  notwithstanding  irregulari- 
ites  in  the  proceedings  in  such  cause 
and  sale.  Hitchcock  v.  Morrison 
(W.  Va.),  34  S.  E.  993. 

Sheriff's  Deed.  Though  Invalid, 
Confers  Color  of  Title.  —  As 
against  one  supplying  no  evidence 
of  title  except  naked  possession  for 
less  than  twenty  years,  a  sheriff's 
deed,  pursuant  to  a  sale  under  a 
justices'  court  execution,  accompanied 
by  possession,  is  good  color  of  title 
upon  which  to  base  title  by  prescrip- 
tion, whether  such  sale  was  valid  or 
not.  no  bad  faith  appearing.  Wade 
V.  Garrett.  109  Ga.  270,  34  S.  E.  572. 

Receiver's  Receipt  Good  Color  of 
Title A  receiver's  pre-emption  en- 
try  receipt   which    embraces   nothing 


tending  to  show  that  the  land  is  not 
subject  to  such  entry,  nor  the  time 
when  entry  may  have  been  made 
upon  the  land  is  "just  title"  within 
the  terms  of  the  Louisiana  statutes 
to  begin  title  by  prescription.  Texas 
Pac.  R.  Co.  V.  Smith,  159  U.  S.  66. 

68.  ///mow.  —  McClellan  v.  Kel- 
logg, 17  111.  498. 

lozva.  —  Hamilton  v.  Wright,  30 
Iowa  480. 

Kentucky.  —  Gregory  v.  Nesbit,  5 
Dana  419;  Houchin  r.  Houchin,  14 
Ky.  Law  453,  20  S.  W.  506. 

Micliigan.  —  Miller  v.  Davis,  106 
Mich.  300,  64  N.  W.  338;  Hyne  v. 
Osborn,  62  Mich.  235,  28  N.  W.  821. 

Mississippi.  —  Greene  v.  Mizelle,  54 
Miss  220. 

Missouri.  —  Cooper  v.  Ord,  60  Mo. 
420;  Hamilton  v.  Boggess,  63  Mo. 
233 ;  Rannels  v.  Rannels,  52  Mo. 
III. 

AVi>'  York.  —  Kent  7'.  Harcourt,  33 
Barb.  491. 

Tennessee.  —  Dyche  v.  Gass,  3 
Yerg.   397. 

Te.vas.  —  Shepard  v.  Galveston  R. 
Co.   (Tex.  Civ.  App.),  22  S.  W.  267. 

J'irginia.  —  Kincheloe  v.  Trace- 
wells.  II  Graft.  587. 

Heir    of    Patentee    Has    Color    of 

Title One   who   enters   upon    land 

as  an  heir  of  the  patentee,  from 
whom  no  conveyance  is  shown,  has 
color  of  title  although  the  patent  was 
not  in  his  possession.  Miller  v. 
Davis,  106  Mich.  300,  64  N.  W.  338. 

69.  Rannels  r.  Rannels,  50  Mo. 
hi;  Miller  v.  Davis,  106  Mich.  300, 
64  N.  W.  338;  Dyche  v.  Gass,  3  Yerg. 
(.Tenn.)    397. 

Color  of  Title  by  Possession  Under 
Parol  Agreement —  Color  of  title 
may    be    made    through    conveyances 

Vol.  I 


678 


ADVERSE  POSSESSIO.y. 


forcible  entry  case  involving;  the  disputed  premises,  is  admissible  on 
behalf  of  the  one  in  whose  favor  judjjnient  was  rendered,  as  tending 
to  show  that  such  party  had  maintained  an  adverse  possession  for 
the  statutory  period."" 

2,  All  Writings  Tending  to  Show  Nature  of  Claim  Asserted,  —  Any 
writing-  tending;  to  show  the  nature  of  the  claim  asserted  to  the  land 
will  be  admissible  whether  recorded  or  not.'^ 


or  bonds  and  contracts,  or  bare  pos- 
session nnder  parol  agreements.  Ed- 
gerton  z'.  Bird,  6  Wis.  527,  70  Am. 
Dec.  473. 

70.  United  States.  —  Sharon  i'. 
Tncker,  144  U.  S.  533- 

Alabama.  —  Bishop  v.  Tructt,  85 
Ala.  376,  5  So.  154;  Barron  v.  Barron, 
122  Ala.   194,  25   So.  55. 

California.  —  Unger  :■.  Roper,  53 
Cal.  39;  Fredricks  v.  Judah.  73  Cal. 
604,  15  Pac.  305;  Spotts  V.  Hanley, 
85  Cal.  155,  24  Pac.  738;  Dillon  7'. 
Center,  68  Cal  561,  10  Pac.  176. 

Missouri.  —  Hickman  v.  Link 
(Mo.),  7   S.  W.   12. 

North  Carolina.  —  Faulcon  v.  John- 
ston, 102  N.  C.  264,  9  S.  E.  394. 

Texas.  —  Rodrignez  z:  Lee,  26  Tex. 
32;  Thonvernin  v.  Rodrignez.  24 
Tex.  468. 

Vermont.  —  Hollister  r.  Yonng,  42 
Vt.  403. 

"  Though  in  an  action  of  unlaw- 
ful detainer  the  title  to  the  land  can- 
not be  inquired  into,  a  judgment  in 
.such  action  is  an  adjudication  that 
the  defendant  therein  did  not  have 
and  hold  adverse  possession  at  the 
time  the  action  was  instituted,  that 
his  possessory  interest,  whatever  may 
be  its  character  and  extent,  had  ter- 
minated, and  that  the  plaintiff  therein 
is  lawfully  entitled  to  possession." 
Bishop  V.  Truett,  85  Ala.  376,  5  So. 
'54- 

In  an  action  in  which  there  was 
evidence  tending  to  show  that  the 
adverse  possession  of  the  land  by 
one  of  the  claimant's  grantors  had 
been  interrupted  and  broken  by  the 
entry  of  another  person,  it  was  com- 
petent in  a  rebuttal  of  this  to  intro- 
duce the  record  in  an  unlawful  de- 
tainer suit  brought  by  the  claimant 
against  such  intruders  which  had 
been  prosecuted  successfully.  Barron 
T.    Harron.   122   Ala.    194,  23   So.   55. 

Equitable  Action  to  Confirm  Title 

Vol.  I 


by  Adverse   Possession "  The  title 

by  adverse  possession,  of  course, 
rests  on  the  recollection  of  witnesses ; 
and  by  a  judicial  determination  of  its 
validity  against  any  claim  under  the 
former  owners,  record  evidence  will 
be  substituted  in  its  place."  Sharon 
'I'.  Tucker,  144  U.  S.  533. 

71.  Alabama.  —  ^\ob\\<i  &  M.  R. 
Co.  I'.  Gilmer,  85  Ala.  422,  5  So.  I,j8. 

California.  —  Dougherty  j'.  Miles, 
97  Cal.  568;  Fredricks  ;■.  Jndah.  7:^ 
Cal.  604,  IS  Pac.  305;  Baldwin  '•. 
Temple,  lOi  Cal.  396,  35  Pac.  1008. 

Connecticut.  —  St.  Peter's  Church 
V.   Beach,  26  Conn.  354. 

Georgia.  —  Carstarphcn  i'.  Holtj  96 
Ga.  703.  23  S.  E.  904. 

Louisiana.  —  \\'inston  v.  Prevost,  6 
La.   Ann.    164. 

Pennsylvania.  —  Collins  v.  Lynch, 
167  Pa.  "St.  63s,  31   Atl.  921. 

Tennessee.  —  Bleidorn  v.  Pilot  Mt. 
Coal  &  Mining  Co.,  89  Tenn.  204. 
15  S.  W.  737;  Meriwether  r.  V'aulx, 
5  Sneed  300 ;  Jones  f.  Perry,  10  Yerg. 
59.  30  Am.   Dec.  430. 

Texas.  —  Kimbro  v.  Hamilton.  28 
Tex.  560;  Ortiz  v.  Dc  Benavides,  61 
Tex.  60. 

I'ermcnt.  —  Spaulding  v.  Warren. 
25  Vt.  316. 

Virginia.  —  Atkinson  v.  Smith 
(Va. ),  24  S.  E.  901;  Sulphur  Mines 
Co.  V.  Thompson's  Heirs,  93  Va. 
.293,   25    S.    E.   232. 

Former  Leases  Admissible  to  Ex- 
plain Nature  of  Second  Entry. 
"  The  leases  were  properly  admitted 
in  evidence.  Tliey  were  admissible  to 
show  the  character  of  plaintiff's  pos- 
session— whether  for  himself,  or  as 
tenant  of  Ferguson.  The  plaintiff 
testified  that  he  took  possession  in 
1867,  '  to  take  care  of  the  tract 
under  the  same  old  agreement.'  The 
leases  contained  this  provision : 
'  .^nd  to  pay  the  rent  as  above  stated 


ADVERSE  POSSESSION. 


()7'» 


3.  Deed  Muniments  of  Adverse  Claimants.  —  Deeds  not  offered  by 
one  claimant  may  be  introduced  by  his  adversary  as  tending  to  sliow 
the  time  and  extent  of  the  claim  of  the  earlier  occupant. '-' 

Deeds  Showing  Incipient  Title.  —  Deeds  are  admissible  which  tend 
to  show  the  character  of  the  occupancy  upon  which  the  claim  of 
title  is  predicated.''^ 

VIII.  EVIDENCE  OF  PARTICULAR  ACTS. 

1.  All  Acts  of  an  Occupant  Tending  to  Show  Claim  of  Ownership 
Admissible.  —  All  acts  on  the  part  of  an  occupant  tending  to  show 
a  claim  of  ownership  of  the  premises  are  admissible  in  support  of  a 
title  by  adverse  possession.''* 


during  the  term ;  also  the  rent  as 
above  stated  for  such  further  term 
as  the  lessee  may  hold  the  same.' 
It  was  for  the  jury  to  determine 
whether  plaintiff  re-entered  upon  the 
premises  under  the  terms  of  the 
lease,  or  under  the  parol  agreement 
testified  to  by  plaintiff."  Fredricks 
V.  Judah,  73  Cal.  604,   15   Pac.  305. 

Acceptance  of  Lease  Evidence  of 
Admission  Against  Interest.  —  "  It 
is  quite  true  that,  where  the  owner 
of  land  accepts  a  lease  from  another, 
it  does  not  destroy  his  title  to  the 
land.  Where,  however,  the  lessee  is 
in  possession  without  title,  it  is  a 
pregnant  admission  of  the  fact,  and 
may  be  used  as  evidence  tending  to 
show  that  he  did  not  claim  to  hold 
the  land  adversely  to  the  party  from 
whom  he  accepted  the  lease."  Bald- 
win v.  Temple,  106  Cal.  396,  35  Pac. 
1008. 

Unregistered  Will  Probated  in 
Another  State Neither  an  occu- 
pant nor  a  good  faith  purchaser  under 
him  will  stand  uuaflFected  by  an  un- 
registered foreign  will  under  which 
the  statute  does  not  run  against  an 
estate  in  remainder  in  such  land. 
Bleidorn  v.  Pilot  Mt.  Coal  &  Mining 
Co..  89  Tenn.  204,  15  S.  'W.  737. 

Unrecorded    Private    Survey A 

private  survey  and  map  never  re- 
corded and  not  referred  to  in,  nor 
made  a  part  of  the  deed  under  which 
a  party  claims,  cannot  be  considered 
color  of  title,  though  admissible  to 
show  the  character  of  his  claim  of 
right.  Sulphur  Mines  Co.  v.  Thomp- 
son's Heirs.  93  Va.  293,  25  S.  E.  232. 

72.     Shepard  v.  Hayes,  16  Vt.  486. 


73.  Elder  v.  McClosky,  70  Fed. 
529;  Dangerfield  v.  Paschal.  11  Te.x. 
579;  Emmanuel  v.  Gates.  53  Fed.  772. 

Deeds  Showing  Incipient  Title. 
"  It  is  suggested  that  the  fact  that 
these  deeds  from  Morgan  were  made, 
and  possession  begun  under  them, 
before  the  claimant's  right  of  entry 
accrued,  should  prevent  their  having 
any  effect  to  oust  the  latter.  The 
contention  is  without  merit.  The 
question  is  whether  the  possession  of 
the  defendants  was  adverse  after  the 
life  tenant  died.  There  was  no 
change  in  the  claim  or  character  of 
the  possession  after  the  life  estate 
terminated.  It  continued  as  before, 
and  we  can  only  know,  its  nature  by 
reference  to  the  circumstances  under 
which  it  began  and  was  continued. 
Thus,  the  warranty  deeds  from  Mor- 
gan prior  to  the  falling  in  of  the  life 
estate  are  of  first  importance  in  show- 
ing whether  the  possession  taken  by 
virtue  of  them  was  intended  to  be, 
and  was  in  fact,  adverse,  when  con- 
tinued after  the  time  at  which  claim- 
ants' right  of  entry  accrued."  Elder 
V.  McCloskey,  70  Fed.  529.  See  also 
Dangerfield  v.   Paschal,   11   Te.x.  579, 

74.  Alabama.  —  Barron  v.  Barron. 
122  Ala.  194,  25  So.  55;  Stiff  V.  Cobb. 
126  Ala.  381,  28  So.  402;  Abbett  v. 
Page.  92  Ala.  571,  9  So.  332. 

California.  —  Frick  z'.  Sinon,  75 
Cal.  439.   17  Pac.  439;   Sill  v.  Reese, 

Kentucky.  —  Hillman  ;■.  White, 
(  Ky.  .\pp.),  44  S.  W.   III. 

Maine.  —  Carter  7'.  Clark,  92  Me. 
22s.  42  .\tl.  398. 

Maryland.  —  Jacob   Tome    Inst.    :■. 
Crothers,  87  Md.  569,  40  Atl.  261. 
47  Cal.  294. 

Vol.  I 


()80 


.4D VERSR  POSSESSION. 


2.  Payment  of  Taxes  Admissible.  —  Independent  of  statutes  bear- 
ing directly  upon  the  question,  payment  of  taxes  by  an  occupant 
claiming  adversely  is  always  competent  evidence  in  support  of  such 
claim." 

IX.  DECLARATIONS  OF  AN  OCCUPANT. 

1.  Admissible  to  Explain  Character  and  Extent  of  Claim.  —  The 

acts  and  declarations  of  a  person,  while  in  the  occupation  of  a  tract 


Nczv  Hampshire.  —  Fellows  v.  Fel- 
lows, 37  N.  H.  75. 

North  Carolina.  —  Bryan  v.  Spivey. 
109  N.  C.  57,  13  S.  £.'766;  McLean 
r.  Smith,  114  N.  C.  356.  19  S.  E.  279. 

Pennsylvania.  —  Sailor  v.  Hert- 
zogg,  10  Pa.  St.  296. 

So^^th  Carolina.  —  Metz  v.  Metz,  48 
S.  C.  472.  26  S.  E.  787- 

Texas.  ■ —  Bradshaw  v.  Mayfield. 
iS  Tex.  21  ;  Pa.xton  v.  Meyer,  67  Tex. 
96.  2  S.  W.  817. 

Sale  of  Part  of  Land  by  Occupant. 
On  an  issue  as  to  the  adverse  pos- 
session of  land,  it  is  competent  to 
show  that  the  claimant  in  possession 
sold  a  portion  of  the  land  in  contro- 
versy as  tending  to  show  the  nature 
and  character  of  the  claim  asserted 
by  such  occupant.  Barron  v.  Barron, 
122  Ala.   194.  25   So.   55. 

Sale  of  Part  and  Mortgraging 
Balance Sale  of  part  and  mort- 
gage of  whole  premises  in  possession 
of  claimant,  are  acts  of  ownership 
proper  to  consider  in  determining 
character  of  claim.  StifT  tv  Cnhli. 
126  Ala.  ,s8r,  28  So.  402. 

Collecting    Rent,     Consenting    to 

Erection   of  Buildings In  support 

of  a  claim  of  an  adverse  possession, 
it  is  competent  for  such  claimant  to 
show  that  persons  in  the  occupancy 
of  such  premises  have  paid  rent  to 
him  as  tenants  and  erected  buildings 
on  the  premises  by  his  consent.  Ja- 
cob Tome  Inst.,  etc.  v.  Crothers,  87 
Md.   596,  40  Atl.  261. 

Receipt   of  Rents On  the  issue 

of  adverse  possession,  it  is  compe- 
tent to  prove  by  a  witness  that  he 
knew  that  an  occupant  received 
rents  of  the  land  and  had  possession 
of  it  and  paid  the  taxes,  as  tending 
to  show  the  character  in  which  such 
occupant  held  the  land  in  question. 
Metz  V.  Metz,  48  S.  C.  472,  26  S.  E. 
787. 


75.  United  6"/a(«.  —  Fletcher  v. 
Fuller.  120  U.  S.  534,  7  Sup.  Ct.  667 ; 
Holtzman  v.  Douglass,  168  U.  S.  278; 
Ewing  V.  Burnet,  II  Pet.  54. 

Alabama.  —  Green  v.  Jordan,  83 
.Ala.  220,  3  So.  513,  3  .^m.  St.  Rep. 
711. 

Illinois.  —  Davis  v.  Easley,  13  111. 
192. 

Maine.  —  Carter  v.  Clark,  92  Me. 
22;    42  Atl.  398. 

Minnesota.  —  Murphy  f.  Doyle.  37 
Minn.  113.  33  N.  W.  220:  Dean  v. 
C.oddard,  55  Minn.  290,  5  N.  W. 
1060;  Wheeler  v.  Gorman,  80  Minn. 
462,  83  N.  W.  442. 

Missouri.  —  St.  Louis  Public 
Schools  V.  Risley.  40  Mo.  356;  Dra- 
per f.  Shoot.  25  ^lo.  197.  69  Am. 
Dec.  482. 

New  York.  —  Miller  v.  Long  Is- 
land R.  Co.,  71   N.  Y.  380. 

North  Carolina.  —  Pasley  v.  Rich- 
ardson, 119  N.  C.  449,  26  S.  E.  32. 

Pennsylvania.  —  Sailor  v.  Hert- 
zogg,   10  Pa.  St.  296. 

Vermont.  —  Paine   v.   Hulchins,  49 

\'t.   314. 

Payment  of  Taxes,  Effect  as  Evi- 
dence.—  Whilst  payment  of  taxes  is 
not  evidence  of  an  ouster  of  the  true 
owner,  the  question  of  adverse  pos- 
session depends  on  so  many  circum- 
stances that  such  fact  is  to  be 
weighed  by  the  jury  in  considering 
it.  ■'  It  would  be  an  argument 
against  one  claiming  to  hold  land 
that  he  should  for  twenty  years  fail 
to  pay  the  annual  assessments  upon 
it."  Draper  v.  Shoot.  25  Mo.  197,  69 
.■\m.   Dec.  422. 

Payment  of  taxes  on  one  entire 
tract,  though  not  constituting  pos- 
session, shows  claim  of  title  and.  is 
material  and  competent  evidence  for 
that  purpose.  Murphy  v.  Doyle,  37 
Minn.  113,  33  N.  W.  220. 


Vol.  I 


ADITlRSE  POSSilSSIOX. 


681 


of  land,  may  be  given  in  evidence  to  explain  the  character  and 
extent  of  his  claim  and  possession.'"  See  "Admissions"  and 
"  Declarations." 


76.  United  States.  —  Ricard  v. 
Williams.  7  Wheat.  59;  Jackson  z'. 
Porter,  i  Paine  457,  13  Fed.  Cas.  No. 
7143;  Ward  V.  Cochran,  71  Fed.  127; 
Dodge  V.  Trust  Co.,  93  U.  S.  379- 

.4;o6(7»ia.  — Nashville  C.  &  St.  Co. 
I'.  Hammond,  104  Ala.  191,  15  So. 
935;  Beasley  v.  Howell.  117  Ala.  499. 
22  So.  989;  Jones  V.  Williams,  108 
Ala.  282,  19  So.  317;  Kirkland  v. 
Trott.  66  Ala.  417. 

California.  —  Cannon  v.  Stockman, 
36  Ca!.  1535;  Clarke  v.  Clarke,  133 
Cal.  667;  Dillon  V.  Center,  68  Cal. 
561,  ID  Pac.  176;  Baldwin  v.  Temple, 
loi  Cal.  396,  35  Pac.  1008;  Von 
Glahn  v.  Brennan,  81  Cal.  261  ; 
McCracken  v.  San  Francisco,  16  Cal. 
591  ;  Stockton  Savings  Bank  v.  Sta- 
ples. 98  Cal.   189,  32  Pac.  96. 

Connecticut.  —  Turner  v.  Baldwin. 
44  Conn.  121  ;  St.  Peter's  Church  v. 
Beach,  26  Conn.  354;  Williams  v. 
Ensign,  4  Conn.  456 ;  Comins  v. 
Comins,  21  Conn.  413 ;  Saugatuck 
Congl.  Soc.  V.  East  Saugatuck 
School  District,  53  Conn.  478.  2  Atl. 

Florida.  —  Watrous  v.  Morrison, 
y,?,  Fla.  261,  14  So.  805. 

Georgia.  —  Clements  v.  Wheeler. 
62  Ga.  53 ;  Walker  v.  Hughes,  90  Ga. 
52.  IS  S.  E.  912;  Wade  v.  Johnson, 
94  Ga.  348,  21  S.  E.  569;  Wood  V. 
^IcGuire,  17  Ga.  303. 

Illinois.  —  Davis  v.  Easley.  13  III. 
192;  Brooks  V.  Bruyn,  24  111.  373; 
Homer  i\  Renter,  152  111.  106,  38  N. 
E.  747- 

loiva.  —  Davidson  v.  Thomas. 
(Iowa.)  86  N.  W.  291. 

Kentucky.  —  Crutchlow    v.    Beatty, 

15  Ky.  Law  464.  23  S.  W.  960;  Haf- 
fendorfer  v.  Gault.  84  Ky.  124 ;  Smith 
V.  Morrow,  7  T.  B.  Mon.  234. 

Louisiana.  —  Davidson  %•.  Mat- 
thews, 3  La.  Ann.  316. 

Maine.  —  Moore  v.  Moore,  21  Me. 
350;  Lamb  V.  Foss,  21  Me.  240; 
School  Dist.  V.  Benson,  31  Me.  381. 
52  Am.  Dec.  618. 

Maryland.  —  Keener    j'.     Kaufman, 

16  Md.  296. 


Massachusetts.  — Shumway  v.  Hol- 
brook,  I  Pick.  114,  11  Am.  Dec.  153; 
Church  7'.  Burghardt,  8  Pick.  327; 
Hale  r.  Silloway,  i  Allen  21 ;  Pro- 
prietors V.  Bullord,  2  Mete.  363. 

Michigan.  —  Bower  v.  Earl,  18 
Mich.  367 ;  Youngs  v.  Cunningham, 
57  Mich.  153,  23  N.  W.  626. 

Missotm.  —  Mier  v.  Mier,  105  Mo. 
17,  16  S.  W.  223 ;  Tomlinson  v. 
Lynch.  32  Mo.  160;  Crawford  v. 
.'\hrens,  103  Mo.  88,  15  S.  W.  341. 

iV^'fera.j/^fl.  —  Webb  v.  Thiele,  56 
Neb.  752,  77  N.  W.  56;  Roggencamp 
V.  Converse,  It  Neb.  105,  17  N.  W. 
.361. 

New  ]'()ri-.  —  Tindale  v.  Powell, 
88  Hun  193,  34  N.  Y.  Supp.  659; 
Jackson  v.  McCall.  10  Johns.  377.  6 
.\m.  Dec.  343 ;  Donahue  j'.  Case,  61 
N.  Y.  631  ;  Jackson  r.  Miller,  6 
Wend.  228,  21   Am.  Dec.  316. 

North  Carolina.  —  Kirby  i'.  Mas- 
ten,  70  N.  C.  540;  Marsh  t'.  Hamp- 
ton, 5  Jones  382 ;  Cansler  z'.  Fete,  5 
Jones  424;  Guy  v.  Hall,  3  Murph. 
150;  Nelson  v.  Whitfield,  82  N.  C.  46. 

Pennsylvania.  —  Handley  !■.  Bar- 
rett, 176  Pa.  St.  246.  35  .\tl.  133; 
Susquehanna  &  R.  Co.  v.  Quick,  68 
Pa.  St.  189;  Sailor  1'.  Hertzogg,  10 
Pa.  St.  296;  Calhoun  z:  Cook,  9  Pa. 
St.  226;  Kennedy  z:  Wible,  (Pa.),  11 
Atl.  98. 

South  Carolina.  —  Metz  v.  Metz, 
48  S.  C.  472.  26  S.  E.  787 ;  Leger  v. 
Doyle,  II  Rich.  Law  109,  70  Am. 
Dec.  240;  Bell  v.  Talbird,  i  Rich.  Eq. 
361 ;  Markley  v.  Amos,  2  Bailey  603, 
42  Am.  Rep.  834. 

Tennessee.  —  Carnahan  z\  Wood, 
T,2  Tenn.  500. 

Texas.  —  Williams  v.  Rand,  g  Tex. 
Civ.  App.  6^1,  30  S.  W.  S09;  Bruce 
z:  Washington.  80  Tex.  368,  15  S.  W. 
1 104;  Mooring  r.  McBride,  62  Tex. 
309;  Hurley  v.  Lockett,  72  Tex.  262. 
12  S.  W.  212;  Lochausen  v.  Laugh- 
ter. 4  Tex.  Civ.  App.  291,  23  S.  W. 
tI3;  Satterwhite  v.  Rosser,  61  Tex. 
'166. 

l\'rnwnt.  —  Soule  z\  Borlow,  48 
Vt.  132;  Wing  Z'.  Hall,  47  Vt.  182; 
Day  V.  Wilder,  47   Vt.   584;   Coffrin 

Vol.  I 


682 


ADl'ERSB  POSSESSION. 


A.  Conduct  and  Admissjons  Aftkr  Statutory  Period  Ensues. 
Where  the  evidence  on  the  subject  of  adverse  possession  is  inconcki- 
sive,  the  acts  and  conduct  of  a  claimant  subsequent  to  the  comple- 
tion of  the  statutory  period  teniHng  to  characterize  such  prior  pos- 
session are  admissible  against  him."' 

B.  Admissions  Not  Prk.tudici.vl  After  Title  Acquired.  —  But 
after  a  claimant  has  held  adversely  for  a  period  sufficient  to  vest 
title,  his  admission  thereafter  that  the  title  is  in  another  will  not 
operate  to  divest  him  of  title.'" 


V.    Cole,    67    Vt.    226,    31    All.    m; 
Brown  v.  Edson,  22  Vt.  357. 

Virginia.  —  Blakey  ■<■.  Morris,  89 
Va.  717,  17  S.  E.  126:  Erskine,  v. 
North,  14  Gratt.  60. 

Wisconsin.  —  Roebke  v.  Andrews, 
26  Wis.  311;  Lamoreaiix  v.  Huntley, 
68  Wis.  34,  31  N.  W.  331  ;  Bartletl  r. 
Secor,  56  Wis.  520.   14  N.  W.  714. 

Declarations  of  Claimant  Admis- 
sible Whether  in  Derogation  of  His 

Title     or     Otherwise Declarations 

made  by  a  claimant  while  in 
possession  tending  to  show  in  what 
character  he  was  then  occupy- 
ing the  property,  held  competent. 
the  court  saying :  "  The  testi- 
mony was  relevant  and  compe- 
tent for  the  purpose  of  showing  that 
Flannagan  claimed  to  be  the  owner 
of  the  property  in  fee  simple ;  that 
such  claim  was  made  openly  to  all 
inquirers,  and  that  it  was  not  kept 
secret.  The  better  view  is  that  such 
declarations,  when  made  in  good 
faith  by  persons  who  are  at  the  time 
in  possession  of  land  or  tenements, 
arc  verbal  acts,  which  may  be  ad- 
mitted for  the  purpose  of  showing 
the  character  of  the  possession, 
whether  they  are  in  disparagement  of 
the  declarant's  title  or  otherwise." 
Ward  V.  Cochran,  71  Fed.  127.  Cit- 
ing Patterson  v.  Reigh,  4  Pa.  St. 
201.  45  .\m.  Dec.  684;  Blakey  v. 
.Morris.  89  Va.   717,    17   S.    E.    126. 

Declarations  Indicating  Non-Claim 
Inconclusive.  —  On  an  issue  of  ad- 
verse possession,  where  the  proof 
tends  to  show  a  continuous  exclusive 
possession  for  the  statutory  period  by 
acts  indicating  dominion  over  the 
land,  the  fact  that  there  was  proof 
of  declarations  of  the  occupant  indi- 
cating that  he  did  not  at  first  claim 
ownership  does  not  conclusively  re- 
but the  inference  of  a  claim  of  right 


derivable  from  his  acts.  The  issue 
is  for  the  jury.  Webb  v.  Thiele,  56 
Neb.  752,  77  N.  W.  56. 

Taking  a  deed  for  land  which  is 
part  of  a  larger  tract  belonging  to  tlu' 
vendor,  will  not  prevent  the  grantee 
from  acquiring  by  adverse  possession 
•a  title  to  land  lying  outside  of  his 
deed,  but  forming  a  part  of  the  tract 
from  which  his  purchase  was  made. 
Handley  v.  Barrett.  176  Pa.  St.  246. 
.55  Atl.'i33. 

Declarations  Showing  Verbal  Ex- 
change   of    Land Declarations    by 

one  before  formally  conveying  land 
that  he  had  verbally  agreed  to  ex- 
change a  part  of  it  to  an  adjoining 
owner  are  admissible  in  support  of 
the  latter's  claim  of  title  to  it  by  ad- 
verse possession.  Davidson  v. 
Thomas,   (Iowa),  86  N.  W.  291. 

77.  Sage  v.  Rednick,  69  Minn. 
362,  69  N.  W.  1096;  Todd  r.  Weed. 
84  Minn.  4,  86  N.  W.  756;  Mier  v. 
Mier,  105  Mo.  411,  16  S.  W.  22^: 
Neel  V.  McElhenny,  69  Pa.  St.  300; 
Williams  v.  Rand,  9  Tex.  Civ.  .\pp. 
631,   T,o  S-  W.  509.. 

Declarations  After  Statutory  Pe- 
riod Ends —  "  But  the  very  question 
was,  as  to  the  nature  and  character 
of  that  antecedent  possession ;  and 
the  acts  and  declarations  of  the  par- 
ties owning  the  estates,  made  after 
thirty  years,  which  had  a  tendency  to 
show  their  motives  and  views  during 
the  thirty  years,  were  proper  to  show 
the  nature  of  the  occupancy  and  re- 
but the  inference  which  would  other- 
wise follow  from  the  fact  of  pos- 
session." Church  f.  Burkhardl,  8 
Pick.  (Mass.)  327. 

78.  Jones  v.  Williams.  loS  .Ma, 
282,  19  So.  317. 

Recognizing  Superior  Title  After 
Adverse  Title  Gained,  Harmless. 
I'.vidcnce    tending   to    show    that    (ine 


Vol.  I 


inri-h'sii  I'ossiissjox. 


683 


2.  Declarations  As  to  Source  of  Title  Incompetent.  —  The  excep- 
tion to  the  general  rule  adniitting  declarations  of  one  in  possession 
explanatory  of  it,  as  constituting-  part  of  the  res  gestae,  does  not 
authorize  the  reception  of  evidence  touching  the  source  of  title  not 
explanatory  nf  the  possession.'" 

3.  Although  the  Declarant  Be  Not  Living.  —  Declarations  or 
admissions  made  by  a  party  when  in  possession  of  real  estate,  and 
afterwards  deceased,  are  admissible  as  competent  evidence  to  show 
the  character  of  his  possession,  but  not  for  the  purpose  of  building 
up  or  destroying  the  record  title.'" 

X.  REPUTATION. 

1.  Proof  of  Particular  Landmarks.  —  It  is  competent  for  a  claim- 
ant to  prove  that  particular  landmarks,  such  as  trees,  streams,  or 
lines,  constituted  according  to  the  general  report,  parts  of  his 
boundary.*^ 

A.  Occupant  May  Show  He  Was  Reputed  Owner  of  Lanu 
IN  Question.  —  And,  that  he  was  commonly  reputed  to  own  the 
land  in  the  community  where  it  is  situated,  in  cases  where  there  is 
nothing  tending  to  show  that  the  owner  of  the  legal  title  had  actual 
knowledge  that  the  land  was  being  held  against  him  under  claim 
of  right. "■- 


whose  alleged  adverse  possession  of 
unimproved  land  arose  upon  a  parol 
gift  from  the  owner  has  since  recog- 
nized the  title  of  the  latter,  will  not 
impair  such  right  by  adverse  posses- 
sion unless  transpiring  within  the 
statutory  period.  Lee  v.  Thompson, 
99  Ala.  95,   ii    So.  672. 

79.  Jones  v.  Pelham,  84  Ala.  208. 
4  So.  22 ;  Swerdferger  v.  Hopkins, 
67  Vt.  lib,  31  Atl.  153;  Kimhal  v. 
Ladd.  42  Vt.  747;  Mooring  z\ 
McBride,  62  Tex.  306;  Gilbert  r. 
Odum,  69  Tex.  670,  7  S.  W.  510. 

80.  Decker  v.  Decker,  (Neb.),  89 
N.  VV.  795;  Sutton  V.  Casselleggi,  5 
Mo.  .'\pp.  11;  Osgood  I'.  Coats,  1 
Allen  (Mass.)  77;  Gilbert  z'.  Odum, 
69  Tex.  670,  7  S.  W.  510;  Morrill  ?•. 
Titcomb,  8  Allen  (Mass.)  100;  Mas- 
terson  v.  Jordan,  (Tex.  Civ.  App.) 
24  S.  W.  549- 

81.  Shaffer  ;•.  Gaynor.  117  X.  C. 
15.  ->3   S.   E.   154- 

General  Notoriety  of  Fact  Once 
Established  May  Be  Shown. 
Whilst  the  existence  of  the  fact  can- 
not be  proved  by  reputation  or  noto- 
riety, it  is  competent  after  a  fact  has 
been  shown  to  exist  to  show  the  gen- 


eral notoriety  of  it  in  the  neighbor- 
hood, in  order  to  charge  the  resident 
of  the  vicinity  with  notice  of  it. 
Tennessee  Coal  Iron  R.  Co.  !■.  Linn, 
123  .\la.   112,  25  So.  245. 

Reputed   Boundaries "  The    first 

town  plat  was  filed  si.xty  years  ago. 
The  streets  have  been  recognized  as 
public  highways  ever  since,  and  cer- 
tainly evidence  of  general  repute  as 
to  the  location  of  the  boundaries  of 
these  streets  is  admissible."  Klinker 
r.    Schmidt.    (Iowa),  87   N.   \V.   661. 

t2.  Mc.\uliff  i:  Parker,  10  Wash. 
141,  38   Fac.  744. 

Generally  Reputed  To  Be  Owner. 
It  is  competent  to  prove  that  it  was 
generally  understood  in  the  neighbor- 
hood not  only  that  one  pastured  his 
cattle  on  lands,  but  that  he  did  so 
under  claim  of  ownership,  and  that 
his  claim  and  the  character  of  his 
possession  were  such  that  he  was 
generally  reputed  the  owner,  as  hav- 
ing an  important  bearing  upon  the 
notoriety  of  his  possession.  Max- 
well Land-Grant  Co.  v.  Dawson,  i^i 
U.  S.  586,   14  Sup.  Ct.  458. 

Reputation  of  Claim  of  Ownership. 
"  Defendant    having    shown    liis    pos- 

Vol.  I 


()«4 


ADVERSE  POSSESSION. 


\>.  Klle  Kot  Uniform.  —  This  rule  is  not  of  uniform  recoeni- 
tion."-^ 

XI.  WHERE  ADVERSE  CLAIM  IS  MADE  BY  PUBLIC. 

Evidence  Must  Show  Definite  Use.  —  Where  adverse  claim  is  made 
by  the  pubhc,  the  evidence  must  be  such  as  to  fix  the  character  and 
extent  of  the  use  with  practical  certainty.** 

XII.  AS  BETWEEN  LANDLORD  AND  TENANT. 

By  Tenant  Against  Landlord Evidence  of  Disclaimer  Known  to  land- 
lord Initiates  Adverse  Occupancy.  —  A  tenant  nia\  initiate  an  adverse 
occupancy  against  his  landlord  by  the  denial  of  all  subserviency  to 
him  brought  distinctly  to  his  knowledge.*'^ 


session  for  the  requisite  length  of 
time,  under  tax  titles  which  are  now 
conceded  to  be  invaHd,  was  sulTered 
to  prove  that  the  land  was  generallj- 
understood  to  be  and  called  his.  in 
the  neighborhood.  Exception  was 
taken  to  this  evidence,  but  we  think 
it  was  competent.  It  tended  to  es- 
tablish the  notoriety  of  defendant's 
possession,  and  claim  of  title,  whicli 
were  important  facts  in  his  defense." 
Sparrow  f.   Hovey,  44  Mich.  63. 

In  an  action  of  ejectment  it  was 
held  competent  for  the  defendant  to 
show  that  during  a  given  period,  it 
was  generally  understood  and  known 
in  the  vicinity  of  llic  lands  in  dis- 
pute that  they  were  claimed  by  a 
company  as  its  own.  Woods  i'.  Mon- 
tevallo  Coal  &  Transp.  Co..  84  .Ma. 
560,  3  So.  475,  5  Am.  St.  Rep.  393. 

83.  .A.twood  V.  Caiirike,  86  Mich. 
99,  48  N.  W.  950;  Walker  v.  Hughes. 
90  Ga.  52.  15  S.  E.  912;  Casey  z>.  In- 
loes,  I  Gil!  (Md.)  430,  39  Am.  Dec. 
658;  Beecher  v.  Galvin,  71  Mich,  301. 
,^9  X.  W.  460, 

Ownership  Cannot  Be  Proved  by 
Reputation.  —  It  is  not  competent  to 
^hcl^v  liy  reputation  and  general  un 
(lerstanding  in  the  neighborhood  that 
the  plaintiffs  in  this  class  of  actions 
owned  or  had  title  to  the  land ;  and  it 
is  error  to  permit  a  witness  to  testify 
that  "  the  land  was  generally  known 
and  considered  as  belonging  to  the 
plaintiff;"  that,  "it  was  understood 
and  known  in  the  community  as 
plaintiff's  land."  Goodson  v.  Brotli- 
ers.    III    Ah.   589,  20   So.  443. 

Testimony  that  the  claimant  was 
generally  understood  to  be  the  owner 

Vol.  I 


of  the  land  in  controversy  is  inadmis- 
sible in  support  of  claim  of  title  by 
adverse  possession.  Preston  v.  Hil- 
burn,  (Tex.  Civ.  App.),  44  S.  W.  698. 

84.  Wyman  v.  State,  13  Wis.  663; 
Stephens  v.  Murrv,  132  Mo.  468,  34 
S.  W.  56. 

Evidence  Must  Establish  the  Use 

With  Practical  Certainty "  Where 

tile  public  have  acquired  the  right  to 
a  public  highway  by  user,  they  are 
not  limited  in  width  to  the  actual 
beaten  path.  The  right  carries  with 
it  such  width  as  is  reasonably  neces- 
sary for  the  public  easement  of 
travel,  and  the  width  must  be  deter- 
mined from  the  facts  and  circum- 
stances peculiar  to  each  case.  The 
highway  having  been  permanently 
fenced  the  usual  width  of  highways 
in  the  locality,  and  the  width  recog- 
nized by  the  owner  of  the  fee  and 
the  public,  when  there  has  been  such 
recognition,  are  permanent  facts 
from  which,  in  connection  with  other 
evidence,  width  may  be  inferred." 
Whitesides  v.  Green,  13  Utah  341,  44 
Pac.  1032. 

Change   of  Roadway,   When   Will 

Not  Impair  Right "  Tne  track  by 

reason  of  washing  or  other  causes, 
by  consent  of  the  traveling  public 
who  use  it  changes  a  few  feet  some- 
times to  one  side  of  the  33  feet  and 
sometimes  to  the  other,  but  the  road 
remains  substantially  the  same.  Sucli 
a  change  in  a  roadbed  acquired  by 
prescription  would  not  destroy  the 
right."  Kurtz  ■:■.  Hoke,  172  Pa.  St. 
16.1,  3.^   Atl.   549. 

85.  Alahatna.  —  I)c  Jarncttc  v. 
Mcnanicl,  ()3   .\la.   215,   9   So.   570. 


ADVERSE  POSSESSION. 


(i.S.T 


XIII.  AS  BETWEEN  CO-OWNERS  —  PRESUMPTIONS. 

Presumption  That  Possession  of  One  Is  for  Benefit  of  All.  —  The  pos- 
session of  the  whole  by  one  co-owner  will  be  presumed  to  be  for 
the  benefit  of  all,  agreeably  to  their  several  rights,  until  notice  of  a 
different  intent  on  his  part  is  imparted  to  them.*'^ 

1.  This  Is  Simply  a  Rule  of  Evidence.  —  The  presumption  of 
amicable  relations  between  tenants  in  common  is  merely  a  rule  of 
evidence,  liable  to  be  overcome  by  the  circumstances  of  any  particu- 
lar case  involving  the  question  whether  in  fact  the  possession  was 
adverse,  and  is  not  a  rule  of  law  denying  the  application  of  the 


California.  —  Thompson  i'.  Pioche, 
44  Cal.  508;  Abbey  Homestead  Ass'n 
V.  Willard.  48  Cal.  614. 

Florida.  —  Wilkins  v.  Pensacola 
City  Co.,  36  Fla.  36,  18  So.  20;  Winn 
V.  Strickland,  u  Fla.  610.  16  So. 
606. 

Illiiwis.  —  Lowe  v.  Emerson,  48  111. 
160. 

Michigan.  —  Ryerson  v.  Eldred,  18 
Mich.  12. 

Mississil>l>i. — Jones  v.  Madison  Co., 
72  Miss.  777,  18  So.  87 ;  Greenwood 
V.  Moore  (Miss.),  30  So.  609. 

Missouri.  —  Cook  v.  Farrah,  105 
Mo.  492,  16  S.  W.  692 ;  Pilaris  v. 
Jones,  122  Mo.  125.  26  S.  W.  1032; 
Hamilton  v.  Boggess,  63  Mo.  233. 

Nebraska.  —  Shields  v.  Harbach, 
49  Neb.  262,  68  N.  W.  524. 

xVi'ti'  Jersey.  —  Horner  v.  Leeds,  2$ 
N.  J.  Law  106. 

Neic  York.  —  Bedlow  v.  New  York 
Floating  Dry  Dock  Co.,  112  N.  Y 
263,  19  N.  E.  800,  2  L.  R.  A.  629. 

Oregon.  —  Nessley  v.  Ladd,  29  Or. 
354,  45   Pac.  904. 

South  Carolina.  —  Trustees  v.  Jen- 
nings, 40  S.  C.  168,  18  S.  E.  257,  42 
Am.  St.  Rep.  854. 

Vermont.  —  Sherman  v.  Transp. 
Co.,  31  Vt.  162. 

IVest  Virginia.  —  Swann  v.  Young, 
36  W.  Va.  57,  14  S.  E.  426 ;  Swan  v. 
Thayer,  36  W.  Va.  46,  14  S.  E.  423 ; 
Voss  I'.  King,  3i  W.  Va.  236.  10 
S.  E.  402. 

Evidence  of  Repudiation  of  Ten- 
ancy. —  ••  The  law  is  well  seuled  that 
a  tenant,  after  the  e.xpiration  of  his 
lease,  may  disavow  and  disclaim  his 
title    and    the    title    of    his    landlord. 


and  drive  the  landlord  to  his  action 
for  the  recovery  of  the  possession 
within  the  period  of  the  statute  of 
limitations,  but  before  any  foundation 
can  be  claimed  for  the  operation  of 
the  statute  in  such  a  case,  a  clear, 
positive  and  continued  disclaimer  and 
disavowal  of  the  landlord's  title,  and 
assertion  of  an  adverse  right  must 
be  brought  home  to  the  landlord  by 
clear,  positive  and  distinct  notice." 
Wilkins  i'.  Pensacola  City  Co.,  36 
Fla.  36,  18  So.  20. 

86.     United  States.  — Elder  z'.  M. 
Claskey,  70  Fed.  529;  Zellers   Lessee 
V.   Eckert.  4  How.  289. 

California.  —  Brown  r.  McKay.  125 
Cal.  291,  57  Pac.  looi  ;  Reed  v. 
Smith,  I2t  Cal.  491,  58  Pac.  139; 
Scadden  Flat  G.  M.  Co.  v.  Scaddcn. 
121   Cal.  33,  53   Pac.  44°- 

Missouri.  —  Stevens  i'.  Martin 
(Mo.>,  68  S.  W.  347- 

Pcnnsylz'ania.  —  Watson  ;■.  Gregg. 
10  Watts  289,  36  Am.  Dec.   176. 

Tennessee.  —  Woodruff  i:  Roysden, 
105  Tenn.  491,  58  S.  W.  1066.  So  .\m. 
St.  Rep.  905. 

Vermont.  —  Holley  v.  Hawley,  39 
Vt.  525,  94  Am.  Dec.  330;  Roberts 
I'.  Morgan,  30  Vt.  319;  Leach  z'. 
Beattie,   33   Vt.    195. 

One  Tenant  in  Common  Holds  for 
Benefit  of  All.  —  "Under  auiliority 
above  cited"  (Mo.  cases)  "where  a 
tenant  in  common  takea  possession 
of  a  tract  of  land,  in  which  he  has  an 
undivided  interest,  unless  he  man- 
ifests a  contrary  intention  he  is 
presumed  to  hold  possession  as  well 
for  his  co-tenants  as  for  himself." 
Stevens  v.  Martin  (Mo.),  68  S.  W. 
M7- 


Vol.  I 


686 


AD  I 'ERSE  POSSESSION. 


statute  of  limitations  to  persons  sustaining-  the  relations  of  tenants 
in  common.'" 

2.  Evidence  Must  Show  Distinct  Acts  of  Adverse  Claim  to  Oust  Co- 
Owner.  —  And,  in  order  to  avoid  such  fiduciary  relation  and  estab- 
lish one  inimical  to  the  rights  of  his  co-tenants  the  evidence  must 
show  distinct  acts  of  repudiation  and  assertion  of  an  adverse  claim 
brought  home  ti)  his  co-tenants.^' 

3.  Entry  and  Claim  Under  Deed  of  Whole  by  One  Co-Owner  May 


87.  United  States.  —  Zcllers  r. 
Eckerl.  4  How.  289 ;  Clymers'  T^essec 
i'.  Dawkins.  3  How.  674. 

California.  —  Trenouth  v.  Gilbert, 
86  Cal.  584,  25  Pac.  126;  Unger  v. 
Mooney,  63  Cal.  586.  49  Am.  Rep. 
100;  Packard  v.  Moss,  68  Cal.  123. 
8  Pac.  818. 

Connecticut.  —  Newell  7'.  Wood- 
ruff, 30   Conn.  492. 

Massachusetts. — Cummings  v.  Wy- 
man.  10  Mass.  465;  Leonard  v. 
Leonard,  7  Allen  277. 

New  Jersey.  —  Foulke  v.  Bond,  41 
N.  J.  Law  527. 

Nev.'  York.  —  Baker  v.  Oakwood, 
123  N.  Y.  16,  25  N.  E.  312;  Zaph  v. 
Carter,   70  App.   Div.   395,  75   N.   Y, 

Te.vas.  —  Beall  v.  Evans,  i  Tex. 
Civ.  App.  443,  20  S.  W.  945;  Puckett 
z:  .McDaniel,  8  Tex.  Civ.  App.  630, 
28  S.  W.  360. 

Distinction      Between      Strangers 

and  Tenants  in  Common "In  the 

acquisition  of  title  by  adverse  pos- 
session the  distinction  between 
strangers  and  tenants  in  common 
relates  to  the  character  of  the  evi- 
dence necessary  to  prove  that  the  pos- 
session was  adverse."  Foulke  z\ 
Bond,  41   N.  J.  Law  527. 

Evidence  to  Show  Adverse  Posses- 
sion of  Tenant  in  Common.  —  "  The 
only  distinction  in  this  class  of  cases 
and  those  in  which  no  privity  be- 
tween the  parties  existed  when  the 
possession  commenced  is  in  the 
degree  of  proof  required  to  establish 
the  adverse  character  of  the  posses- 
sion. The  statute,  therefore,  does 
not  begin  to  operate  until  the  pos- 
session, before  consistent  with  the 
title  of  the  true  owner,  becomes 
tortious  and  wrongful  by  disloyal 
acts  of  the  tenant,  which  must  be 
open,    notorious,    so    as    to    preclude 


all  doubt  as  to  the  character  of  the 
holding  or  want  of  knowledge  on 
the  part  of  the  owner."  Zellers  v. 
Eckert,  4  How.  289.  "  It  is  true  that 
the  entry  and  possession  of  one  ten- 
ant, in  common  of  and  into  land  held 
in  common  is  ordinarily  deemed  the 
entry  and  possession  of  all  the  ten- 
ants, and  this  presumption  will  pre- 
vail in  favor  of  all  until  some  noto- 
rious act  of  ouster  or  adverse  pos- 
session by  the  party  so  entering  into 
possession  is  brought  home  to  the 
knowledge  or  notice  of  the  others." 
Clvmers'  Lessee  v.  Dawkins,  3  How. 
Pr.    (N.    Y.)    674- 

88.  England.  — Doe  v.  Taylor,  5 
Barn.  &  A.  575. 

United  States. — Prescott  i'.  Nevers, 
4  Mason  330,  19  Fed.  Cas.  No.  11,- 
390;   Zellers  v.   Eckert,  4  How.  289. 

Arkansas.  —  McNeely  z\  Terry,  61 
Ark.  527,  3.3  S.  W.  953- 

California.  —  Brown  v.  McKay,  125 
Cal.  29,  57  Pac.  looi ;  Packard  v. 
Johnson.  57  Cal.  180;  Gage  r.  Dow- 
ney, 94  Cal.  241.  29  Pac.  635:  Seaton 
T.  Son,  32  Cal.  48T  ;  Gregory  v.  Greg- 
ory, 102  Cal.  50,  36  Pac.  364. 

Connecticut. — Newell  i'.  Woodruff, 
30  Conn.  492:  White  r.  Beckwith,  62 
Conn.   79,   25   Atl.   400. 

Delaware.  —  Mulbourn  v.  David,  7 
Houst.  209.  30  At\.  971. 

Florida.  —  Coogler  v.  Rogers.  25 
Fla.  8s3,  7  So.  391. 

/«i)io/.!.  —  Ball  r.  Palmer,  81  111. 
370;  Nickrans  '<.■.  Wilk.  161  111.  76, 
43  N.  E.  74'- 

/Hrfffliia.  —  Price  v.  Hall.  140  Ind. 
314,  39  N.  E.  941. 

Kentucky.  — Ws.rd  v.  Ward,  15  Ky 
Law  706,  25  S.  W.  112. 

Maine.  —  Mansfield  v.  McGinniss. 
86   Me.   118.  29  Atl.  956. 

Michigan.  —  Pierson  v.  Conley,  95 
Mich.  619,  55  N.  W.  .187. 


Vol.  I 


A  I)  I  -RRSH  POSSESSION. 


()87 


Evidence  Ouster  of  Others.  —  And.  an  entry  and  claim  of  owiiciship 
under  a  deed  from  one  co-tenant  ])urporting-  to  convey  the  entire 
estate  in  fee  may  evidence  an  adverse  possession  amounting  to  a  dis- 
seizin of  the  other  co-tenants.*" 


Mississifpi.  —  Bentley  v.  Callaghan 
(Miss.),  30  So.  709;  Alsobrook  v. 
Eggleston,  69  Miss.  8.^3,  13  So.  850. 

Xeu.'  Jersey.  —  Foulkc  v.  Bond,  41 
N.  J.   Law  527. 

Neiv  FoW^.  — Culver  r.  Rhodes.  87 
N.  Y.  348. 

Ohio.  —  Youngs  f.  Heffner,  36 
Ohio  St.  232. 

Pennsylvania.  —  Forward  f.  Deetz. 
32  Pa.  St.  69:  Hawk  r.  Senseman,  6 
Serg.  &   R.   21. 

Texas.— Tea]  v.  Terrell,  58  Tex. 
257 ;  Baily  i'.  Trammel,  27  Tex.  317 ; 
Beall  V.  Evans,  t  Tex.  Civ.  App.  443. 
20  S.  W.  945. 

Virginia. — Pillow  r.  Southwest  Va. 
Imp.  Co.,  92  Va.  144,  23  S.  E.  32. 

Wisconsin.  —  Sydor  7\  Palmer.  29 
Wis.  226. 

Ouster  of  One  Tenant  in  Common 
by  Another In  order  ihat  pos- 
session by  one  tenant  in  common 
shall  operate  as  an  ouster  of  his  co- 
tenants  the  evidence  must  be  such  as 
to  justify  them  in  bringing  eject- 
ment against  him.  Bentley  z\  Cal- 
laghan  (Miss.),  30  So.  709. 

"  As  betw-een  tenants  in  common. 
adverse  possession  begins  with  an 
actual  ouster.  Nothing  short  of  an 
actual  ouster  will  sever  the  unity  of 
possession."  Seaton  v.  Son,  32  Cal. 
481. 

Tenancy  in  Common.  —  Repudia- 
tion of  co-tenancy  nurst  always  ap- 
pear clear,  for  acts  and  declarations 
of  the  party  in  possession  are  con- 
strued much  more  strongly  against 
him  than  when  there  is  no  privity  of 
title.  Teal  1'.  Terrell,  58  Tex.  257. 
A  higher  degree  of  proof  is  required 
to  show  an  ouster  of  one  tenant  in 
common  by  another  than  in  cases 
where  this  relation  does  not  subsist. 
Newell  V.  Woodruff,  32  Conn.  492. 

89.  Arkansas.  —  Brown  v.  Boc- 
quin,  57  Ark.  97,  20  S.  W.  813. 

California.  —  Packard  j'.  Moss,  68 
Cal.  123.  8  Pac.  818. 

Councclicut.  —  Clark  r.  Vaughn,  3 
Conn.    191. 


Mississippi.  —  Harvey  ■;:  Briggs, 
68  Miss.  60.  8  So.  27=;,  10  L.  R.  A. 
62. 

Neiv  Hampshire.  —  New  Market 
Mfg.  Co.  v.  Pendergast,  24  N.  H.  54. 

Neiv  Jersey.  —  Foulke  r.  Bond,  41 
N.  J.  Law  527. 

Next.'  York.  —  Jackson  v.  Smith.  13 
Johns.  40(j;  Bogardus  f.  Trinity 
Church,  4  Paige  178;  Clapp  z:  Bro- 
maghan,  9  Cow.  5J0 ;  Sweetland  v. 
Buell,  69  N.  Y.  St.  733,  35  N.  Y. 
Supp.  346. 

Nortli  Carolina.  —  Ross  ?'.  Durham. 
20  N.   C.  54. 

Pennsylvania.  —  Longwell  v.  Bent- 
ley, 23  Pa.  St.  99;  Culler  t'.  Motzer, 
13  Serg.  &  R.  356. 

Tennessee. —  Marr  v.  Gilliam,  i 
Cold.  488;  Weisinger  v.  >[urphy,  39 
Tenn.  674. 

IVest  Virginia.  —  Bennett  v.  Pierce. 
50  W.  Va.  604,  40  S.  E.  .395. 

Grantee  of  One  Tenant  in  Common 
of  \viioIe  Estate  May  Oust  Other 
Tenants.  —  "  But  when  one  tenant  in 
common  assumes  to  sell  and  convey 
the  entire  estate  in  the  premises, 
and  apparently  does  so  by  warranty 
deed,  and  his  grantee  takes  it  as  such, 
and  goes  into  possession,  claiming 
title  to  the  whole,  the  possession  thus 
taken  by  the  grantee  and  held  by  him 
may  be  treated  as  an  ouster  of  the 
co-tenants,  and  constitutes  an  ad- 
verse possession,  and  by  its  con- 
tinuance for  the  requisite  time  will 
ripen  into  a  title  as  against  them. 
Clapp  V.  Bromagham.  9  Cow.  530; 
Bogardus  v.  Trinity  Church,  4  Paige 
178;  Town  V.  Needham,  3  Paige  545; 
Florence  v.  Hopkins,  46  N.  Y.  186; 
Baker  v.  Oakwood,  123  N.  Y.  16,  25 
N.  E.  312."  Sweetland  v.  Buell,  69 
N.  Y.  St.  7iZ,  35  N.  Y.  Supp.  346. 

Presumption  that  the  entry  of  one 
co-tenant  is  for  the  benefit  of  all  does 
not  apply  where  the  grantor's  con- 
veyance is  of  the  whole  estate  by  one 
of  the  co-tenants,  such  an  entry  being 
a  disseizin  of  the  other  co-tenants. 
Foulke  c'.  Bond,  41  N.  J.  Law  527. 

Vol.  I 


688 


.  [iniiRSE  POSSESSION. 


4.  Conveyance  of  Whole  by  One  Co-Tenant  Not  Notice  of  Exclusive 
Claim.  —  The  conveyance  by  one  joint  tenant,  or  tenant  in  common, 
of  all  his  interest  in  real  estate,  though  the  land  is  described  in  such 
manner  as  to  pass  the  whole  under  the  deed,  if  the  grantor  had 
owned  the  whole  is  not  notice  of  itself  to  the  other  joint  owner  of 
any  such  exclusive  claim  to  the  land  as  w'ill  oust  him  of  his  legal 
seizin  in  the  hind.'"' 

5.  But  Such  Deed  When  Recorded  May  Have  That  Effect.  —  But 
if  duly  recorded,  such  deed  may  operate  to  such  effect.''^ 

6.  Sole  Possession  Not  Evidence  of  Ouster  in  Itself.  —  Sole  pos- 
session will  not  operate  as  evidence  uf  an  ouster  unless  supported 
by  claim  of  exclusive  right. "- 

7.  Acts  May  Operate  As  Positive  Notice.  —  iJiit  the  acts  of  an 
occu])anl  ma\'  create  such  notorious  evidence  of  his  adverse  claim 


Claiming  Under  Deed  of  One  Ten- 
ant in  Common  Adverse  to  Others. 

Sale  or  conveyance  of  the  entire 
estate  by  one  tenant  in  common  to  a 
stranger  who  enters  into  possession 
under  a  deed  claiming  title  to  the 
entirety,  and  openly  exercises  acts  of 
exclusive  ownership  works  a  dis- 
seizin, and  makes  the  possession  of 
such  purchaser  adverse  to  his  ven- 
dor's co-tenants.  Bennett  v.  Pierce, 
50  W.  Va.  604,  40  S.  E.  395- 

90.  Roberts  v.  ^lorgan,  jo  Vi. 
320;  Hardee  z/.  Wcathington  (\.  C. ). 
40    S.    E.   855. 

91.  Deed  of  Whole  by  One  Tenant 
in  Common.  —  Policy  of  Recording 
Acts,  —  The  policy  of  recording  acts 
substitutes  the  constructive  notice 
arising  from  the  publicity  of  record 
in  the  place  of  notoriety  of  investi- 
ture by  livery  of  seizin  at  common 
law.  Foulke  v.  Bond,  41  N.  J.  Law 
527- 

Possession  Under  Deed  of  All  Irom 
One  Tenant  in  Common  Is  Adverse. 
"  It  does  not  appear  that  Tyler  had 
notice  or  knowledge  of  the  defect  in 
his  title.  But  whether  he  had  such 
knowledge  or  not,  it  is  very  clear 
that  he  was  in  possession,  claiming 
the  entire  title;  and  this  undoubtedly 
was  an  adverse  possession,  which, 
being  open  and  notorious,  amounts  to 
a  disseizin.  To  constitute  a  disseizin, 
it  is  not  necessary,  at  the  present  day, 
to  prove  the  forcible  expulsion  of 
the  owner;  nor  is  it  necessary  for  a 
tenant  in  common  to  prove  an  actual 

Vol.  I 


ouster  of  the  co-tenant.  If  he  enters, 
claiming  the  whole  estate,  the  entry 
is  adverse  to  the  other  tenants.  The 
intention  so  to  hold  the  estate  must 
be  manifest,  as  it  is  in  the  present 
case;  and  the  open  and  notorious 
possession  of  Tyler  was  constructive 
notice  of  a  claim  adverse  to  those 
heirs  of  Moore  who  had  not  conveyed 
their  title.  If  they  had  notice  by 
the  deeds  to  Hale,  and  by  him  to 
Tyler  (which  were  duly  recorded), 
they  must  have  known  that  the  latter 
never  entered  as  tenant  in  common, 
but  that  he  entered  as  purchaser  of 
the  entire  estate."  Parker  v.  Pro- 
prietors, 3  iMetc.   (Mass.)  91. 

92.  Parker  v.  Locks  &  Canals,  3 
Mete.  (Mass.)  91;  Bentley  v.  Calla- 
ghan  (Miss.),  30  So.  709. 

Mere  Occupancy  of  One  Tenant  in 
Common  Not  Evidence  of  Adverse 
Claim "But  the  sole  silent  occu- 
pation by  one,  of  the  entire  property, 
claiming  the  whole  and  taking  the 
wliole  profits,  with  no  account  to,  or 
claim  by  the  others,  accompanied 
with  no  act  which  can  amount  to  an 
ouster,  or  give  notice  to  nis  co- 
tenant  that  his  possession  is  adverse, 
cannot  be  construed  into  an  adverse 
possession."  Marr  v.  Gilliam,  i 
Cold.    (Tenn.)   488. 

Ouster  of  One  Tenant  in  Common, 
"  An  ouster  or  disseizin  is  not  to  bo 
presumed  from  the  mere  fact  of  sole 
possession ;  but  it  may  be  proved  by 
such  possession,  accompanied  b,v  a 
notorious  claim  of  e.xclusive  right.'' 
Bradstreet  v.  Huntington,  5  Pet.  402. 


ADVERSE  POSSESSfON. 


689 


as  to  render  it  unnecessary  to  show  either  positive  notice  to  a  co- 
tenant,  or  facts  showing  a  probable  actual  knowledge  on  his  part."^ 
8.  Conclusive  Presumptions.  —  And,  from  such  acts  conclusive 
presumptions  mav  arise  in  favor  of  an  occupant,  as  against  all 
adverse  claimants."'' 


93.  United  States.— Ek\er  v.  Mc- 
Claskey,  74  Fed.  581. 

California.  —  Packard  v.  Johnson, 
57  Cal.  180;  Unger  v.  Mooney,  63 
"Cal.  586,  49  Am.  Rep.  100. 

Illinois.  —  Dugan  v.  Follett,  100 
111.   581. 

Massachusetts.  —  Sullivan  v. 
Holmes,  8  Cush.    (Mass.)   252. 

Missouri.  —  Warfield  v.  Lindell,  30 
Mo.  272;  Lapeyre  v.  Paul,  47  Mo. 
586. 

Neu'  York.  —  Culver  v.  Rhodes, 
87   N.  Y.  348. 

Tennessee.— W?irx  v.  Gilliam,  i 
Cold.  488- 

Actual  Ouster  of  Tenant  in  Com- 
mon Not  Indispensable —  "  While 
mere  possession  alone,  except  pos- 
sibly in  very  extreme  cases,  will  not 
be  sufficient  of  itself  to  establish  an 
adverse  holding  by  one  tenant  in 
common  against  another,  yet  in  such 
case  other  circumstances,  short  of  an 
ouster,  may  be  sufficient  for  that 
purpose."     Dugan  v.  Follett,   100  111. 

581. 

Notice    of    Ouster    of    Co-Tenant 

May    Be    From    Acts "  It    is    not 

necessary  that  he  should  give  actual 
notice  of  his  ouster  or  disseizin  of 
his  co-tenant  to  him.  He  must,  in 
the  language  of  the  authorities,  bring 
it  home  to  his  co-tenant.  But  he  may 
do  this  by  conduct,  the  implication 
of  which  cannot  escape  the  notice  of 
the  world,  or  of  any  one,  though  not 
a  resident  of  the  neighborhood,  who 
has  an  interest  in  the  property,  and 
exercises  that  degree  of  attention  in 
respect  to  what  is  his  that  the  law 
presumes  in  every  owner."  Elder  v. 
McClaskey,  74  Fed.  529. 

One  Tenant  in  Common  Acquires 

Title    by    Adverse    Possession "  It 

appears,  then,  that  by  consent  of  the 
other  heirs,  Mr.  and  Mrs.  Richard 
Snllivan  entered  on  the  estate  as 
owners,  claiming,  whether  by  valid 
title  or  not  is  immaterial,  but  in  fact 
claiming  to  hold  the  whole  estate  in 


44 


severalty.  This  was  done  with  full 
notice  to  John  L.  Sullivan,  and  there- 
fore as  against  him,  amounted  to  a 
constructive  disseizin.  After  such 
entry  by  Richard  Sullivan,  his  ex- 
clusive, adverse  and  uninterrupted 
possession,  as  stated  in  the  facts, 
and  the  entire  acquiescence  of  John 
L.  Sullivan,  under  circumstances  of 
embarrassment  and  insolvency,  with- 
out claim,  are  sufficient  proof  both 
of  a  non-appearing  grant,  and  also 
of  an  ouster,  continued  until  all 
right  of  entry  was  barred,  before 
the  levy  of  the  tenant's  execution." 
Sullivan  v.  Holmes,  8  Cush.   (Mass.) 

94.  Van  Dyke  v.  Van  Buren,  1 
Caines  (N.  Y.)  464;  Cummings  v. 
Wynian,  10  Mass.  465. 

Conclusive  Presumptions —  "  It  is, 
how-ever.  well  settled  that  the  ex- 
clusive and  uninterrupted  possession 
by  one  tenant  in  common,  of  land 
for  a  great  number  of  years — say 
for  twenty  or  more — claiming  the 
same  as  his  own,  without  any  ac- 
count with  his  co-tenants,  or  claim 
on  their  part — they  being  under  no 
disability  to  assert  their  rights — be- 
comes evidence  of  a  title  to  such 
sole  possession ;  and  the  jury  are 
authorized  to  presume  a  release,  an 
ouster,  or  other  thing  necessary  to 
protect  the  possessor;  and  the  actioti 
of  ejectment  by  his  co-tenants,  in 
such  case,  is  barred.  The  pre- 
sumption is  an  inference  of  fact  to 
be  dravv'n  by  the  jury,  to  whom  the 
evidence  is  to  be  submitted.  4  Dev. 
223-290;  Cowper  217;  6  Cowen  632; 
I  Sneed  279.  It  is  made  without 
any  reference  to  our  statute  of  lim- 
itations, and  in  no  analogy  to  it." 
Marr  v.  Gilliam,  1  Cold.  ( Tenn. ) 
488. 

Evidence     From     Possession     and 

Acts Where   one   of   several   heirs 

had  taken  exclusive  possession  of 
land  to  which  all  were  entitled  as 
tenants    in    common,    and    had     im- 

Vol.  I 


690 


ADVERSE  POSSESSION. 


9.  Evidence  of  Parol  Partition.  —  Tlie  exclusive  possession  in 
severalty  by  co-parceners  of  the  various  parts  of  the  common  land 
acquiesced  in  for  a  great  number  of  years  will  authorize  an  infer- 
ence of  parol  partition,  unless  other  circumstances  rebut  such  pre- 
sumption."^ 

10.  Exclusive  Possession  Under  Invalid  Partition  Proceedings. 
Exclusive  possession  of  one  tenant  in  common  under  ])artition  pro- 
ceedings invalid  against  his  co-tenant  may  ripen  into  title  of  the 
entire  estate. °° 

XIV.  FRAUDULENT  ENTRY. 

1.  Occupant  Gains  No  Rights  by  Fraudulent  Entry.  —  A  posses- 
sion taken  and  held  in  such  manner  as  to  evince  a  fraudulent  pur- 
pose of  concealing  the  existing  conditions  of  the  premises  from  the 
true  owner,  will  riOt  ripen  into  title  by  adverse  possession.'"' 


proved  it  without  interference  from 
tlie  others,  though  they  Hved  in  the 
immediate  neighborhood,  and  no  pos- 
sessory action  was  brought  by  them, 
or  by  their  heirs  or  representatives 
for  more  than  twenty-five  years  after 
their  death,  it  was  held  that  no  pos- 
session could  probably  be  found  that 
was  not  adverse  and  exclusive  within 
the*  statutory  period  of  limitation, 
and  that  there  could  be  no  recovery 
in  tlie  right  of  the  excluded  owners. 
Campan   v.    Dubois.   39   Mich.   274. 

When    Parol   Demise    of    One   Co- 
Grantee  Will  Be  Presumed One  of 

three  joint  grantees  paying  no  part 
of  the  purchase  moncj'.  nor  claiming 
any  possession  or  title  under  the 
deed  during  a  period  of  more  than 
forty  years,  during  which  exclusive 
possession  of  the  real  estate  has  been 
with  his  co-grantees,  will  be  con- 
sidered as  having  made  a  parol 
demise  of  all  his  interests  in  the 
property  to  such  co-grantees,  and 
they  will  be  deemed  to  hold  a  valid 
title  to  the  property  as  against  any 
claim  that  he  might  afterwards 
assert.  Webster  v.  Holland,  58  Me. 
168. 
95.  Berry  "'.  Seawell.  65  Fed.  74J 
Evidence  of  Parol  Partition. 
■  We  think  that,  in  the  absence  of 
ividcnce  to  the  contrary,  the  fact 
that  co-tenants  of  a  tract  of  land 
have  occupied  the  several  portions 
in  severalty  for  more  than  fifty  years, 
with  the  knowledge  and  consent  of 
each   other,   and   have   exercised   ex- 


clusive ownership  and  control  over 
the  respective  shares,  without  ob- 
jection or  claim  on  the  part  of  the 
other  co-tenants,  raises  a  strong  pre- 
sumption of  fact  that  there  was  a 
mutual  division  by  agreement,  ex- 
press or  tacit,  of  the  land,  between 
the  co-tenants  according  to  the 
lines  of  exclusive  occupancy."  Allen 
r.   Seawell.  70  Fed.  561. 

Evidence    of    an    Executed    Parol 

Partition "  Under   this   agreement 

Polhemus  selected  a  section  which 
he  gave  to  his  daughter,  the  plaintiflf 
herein.  She  entered  into  the  pos- 
session thereof,  claiming  the  same ; 
has  had  the  exclusive  possession  for 
more  than  fifteen  years ;  has  culti- 
vated the  same  and  has  made  im- 
provement thereon  to  the  value  of 
seven  thousand  dollars ;  and  said  cul- 
tivation and  making  of  improve- 
ments were  known  to  Robinson  and 
all  the  co-tenants.  This  is  a  strong 
showing  and  clearly  indicates  an  ex- 
ample of  an  e.xecuted  parol  par- 
tition." Tuflfree  v.  Polhemus.  108 
Cal.   670,   41    Pac.   806. 

96.  Elder  v.  McClaskey,  70  Fed. 
529;  Clymess'  Lessee  v.  Dawkins, 
3  How.  Pr.  (N.  Y.)  674. 

97.  California.  —  Thompson  v. 
Pioche,  44  Cal.  508;  Reay  v.  Butler, 
95  Cal.  206,  30  Pac.  208;  Walsh  v. 
Hill,  38  Cal.  481. 

Georgia.  —  Parker  r.  Salmons, 
loi  Ga.  160,  28  S.  E.  681. 

Indiana.  —  Pennington  v.  Flock, 
93  Ind.  378. 


Vol.  I 


ADVERSE  POSSESSION. 


6<n 


2.  Fraudulent  Purpose  Must  Appear  From  Acts.  —  But,  there 
must  be  evidence  of  acts  tending  to  show  such  fraudulent  purpose, 
other  than  constructively."* 

3.  Evidence  of  Later  Acts  May  Render  Fraudulent  Entry  Unim- 
portant. —  And,  possession,  although  accomplished  b)'  a  trick  may 
be  so  maintained  as  to  give  notice  of  an  adverse  claim. ^^ 

4.  Knowledge  That   Claimant's  Title  Is  Bad  Immaterial.  —  Nor 


/oii'fl.  —  Lilchliekl  v.  Seuell,  97 
Iowa  247,  66  N.  W.  104. 

Kcnlnckx.  —  Buford  v.  Cox,  =;  J.  J. 
Marsh.   582. 

S n>.'  Jersey.  —  Foulke  v.  Bond,  41 
N.J.  Law  527. 

Texas.  —  Te.xas  Land  Cn.  v.  Wil- 
liams, 51  Tex.  51. 

Possession  by  One  Fraudulently 
Withholding  Knowledge  of  True 
Owners The  grandfather  of  an  in- 
fant three  years  old  conveyed  a  tract 
of  land  to  her,  in  consideration  of 
love  and  aflfection,  by  a  deed  which 
he  placed  in  the  custody  of  her 
father,  who  took  possession  of  the 
land,  occupying  it  until  long  after  she 
became  twenty-one  years  old,  and 
assimiing  ownership,  rented  a  por- 
tion of  the  land  to  her,  keeping  her 
in  ignorance  of  such  deed.  It  was 
held  that  such  possession  was  not 
of  the  character  to  ripen  into  title 
by  adverse  possession.  Parker  :•. 
Salmons,  lOi  Ga.  160,  28  S.  E.  681. 

Actual    Knowledge    of    Invalidity 

of      Claim      Destroys      It "Now, 

while  it  is  true  that  a  void  deed,  or 
one  given  without  right  or  title  by 
the  grantor,  or  even  a  tax  deed  void 
on  its  face,  may  be  sufficient  to  give 
color  of  title,  yet,  such  a  rule  has  no 
application  to  one  who  actually 
knows  that  he  has  no  claim,  or  title, 
or  right  to  a  title."  Litchfield  v. 
Sewell,  97  Iowa  247,  66  N.  W.  104. 

"  Adverse  possession,  to  avoid  a 
deed  by  the  true  owner,  must  be 
bona  fide  under  a  claim  of  title  and 
belief  by  the  tenant  that  the  land  is 
his."  Pennington  7'.  Flock,  93  Ind. 
378. 

The  e.xtent  of  the  constructive 
possession  acquired  under  color  of 
title,  whether  by  the  owner  in  person 
or  by  his  tenants,  depends  upon 
whether  it  is  bona  fide,  and  under 
such  color  of  right,  that  others  can 
understand  its  character  and  extent. 


Te.xas  Land  Co.  v.  Williams,  51 
Te.x.  51. 

98.  California.  —  Wilson  v.  At- 
kmson,  77   Cal.  485,  20   Pac.  66. 

Georgia.  —  Parker  v.  Salmons,  JOi 
Ga.  160,  28  S.  E.  681 ;  Hall  v.  Gay, 
68  Ga.  442;  Brady  v.  Walters,  55 
Ga.  25. 

Illinois.  —  Dickenson  v.  Breeden, 
30  111.  279;  Hodgen  t:  Henrichsen, 
85   111.  259. 

•Vt'zc  Jersey.  —  Foulke  v.  Bond,  41 
N.  J.  Law  527;  Saxton  v.  Hunt, 
20  N.  J.  Law  487 ;  Cornelius  v. 
Giberson,  25  N.  J.  Law  1. 

Fraud In   order   that   a   grantor 

shall  be  deprived  of  the  legal  ad- 
vantages attending  an  entry  under 
color  of  title  upon  the  ground  of  bad 
faith,  the  evidence  must  clearly  show 
his  knowledge  of  the  invalidity  of 
the  title  and  an  intent  to  defraud 
the  real  owner.  Foulke  :■.  Bond,  41 
N.  J.  Law  527. 

Fraud  Must  Be  Brought  Home  to 

Occupant "Adverse    possession    is 

one  of  intention,  and  it  turns  upon 
the  good  faith  of  the  person  setting 
it  up.  The  facts  must  be  such  as  to 
affect  his  conscience  and  they  must 
be  brought  home  to  him."  Parker 
V.  Salmons,  101  Ga.  160.  28  S.  E. 
681. 

99.  San  Francisco  v.  Fulde,  37 
Cal.  349,  99  Am.  Dec.  278;  Strange 
v.  Durham,   i   Brev.   (S.  C.)   83. 

Possession,  Although  Obtained  by 
Trick,  Is  Notice  of  Adverse  Claim, 
"  One  may  enter  clandestinely  or  by 
a  trick;  but  when  he  is  once  in, 
and  continues  there,  claiming  to  hold 
the  land  as  his  own,  the  possession, 
it  would  seem,  cannot,  in  its  nature, 
be  secret,  but  is  necessarily  visible. 
There  can  be  no  question  of  the 
object  of  the  defendant  in  taking 
possession,  nor  of  its  character 
throughout — that  it  was  adverse." 
Lenoir  v.   Smith,  32  N.   C.  237. 


Vol.  I 


692 


ADVERSE  POSSESSION. 


will   knowledge  that  his  title  is  invalid  prevent  an   nccnpant   from 
acquiring  a  good  one  by  adverse  possession.^ 

5.  Need  Not  Show  Claimant's  Absolute  Good  Faith.  —  The  rule 
fixed  by  the  weight  of  anthority  is,  that  it  is  not  necessary  to 
establish  a  title  by  adverse  possession  that  the  evidence  show  entire 
good  faith  upon  the  part  of  such  occupant. - 


1-  United  States.  —  Gaines  v.  Ag- 
nelly,  i  Woods  238.  9  Feci.  Cas.  No. 
5173;  Alexander  t'.  Pendleton.  8 
Craneh  462. 

Alabama.  —  Alexander  r.  Wheeler, 
69  .\la.  332;  Baucum  v.  George,  65 
Ala.  259;  Manly  v.  Turnipseed,  ^y 
Ala.  522. 

Georgia.  —  Wood  v.  McGuire,  17 
Ga.  303 ;  Lee  z:  Ogden,  83  Ga.  325,  10 
S.  E.  349- 

Illinois.  —  Russell  t'.  Mandcll,  73 
III.  136;  Bnrgett  z:  Taliaferro.  118 
111.  503,  9  N.  E.  334. 

Massacluisetts.  —  Warren  z\  Bow- 
dran,  156  Mass.  280,  31  N.  E.  300. 

Nezc  Jersey.  —  Cornelius  v.  Giber- 
son,  25  N.  J.  Law   I. 

Nezv  York.  —  Bogardus  z:  Trinity 
Church,  4  Sandf.  Ch.  633. 

North  Carolina.  —  Den  z\  Leggat, 
7  N.  C.  539;  Whitfield  V.  Hill,  58 
N.  C.  316. 

Pennsylvania.  —  Brown  z'.  Mc- 
Kinney.  9  Watts  565.  36  Am.  Dec. 
1.39- 

Tennessee.  —  Love  v.  Love,  10 
Tcnn.  288. 

West  I'irginia.— Jones  v.  Lemon, 
26  W.  Va.  629;  Swann  z:  Young, 
36  W.  Va.  57,   14  S.   E.  426. 

Knowledge  of  Bad  Title  Not  In- 
imical to  Right  by  Adverse  Holding. 
Knowledge  that  a  man's  title  is  bad 
will  not  prevent  his  getting  a  good 
one  in  twenty  years.  Warren  z'. 
Bowdran,  156  Mass.  28a.  31  N.  E. 
300. 

2.  United  States.  — OVw-vr  V.  Pul- 
man,  24  Fed.   127. 

Alabama.  —  Smith  v.  Roberts.  62 
.-Ma.  83;  Murray  z\  Hoylc,  97  Ala. 
588,  II   So.  797. 

California.  —  San  Francisco  v. 
Fuldc,  y/  Cal.  349,  99  Am.  Dec.  278. 

Illinois. — Hardin  v.  Gouveneur,  69 
111.   140. 

Indiana.  —  Moore  v.  Ilinkle,  151 
Ind.   343,  50  N.   E.  822. 

Vol.  I 


Kansas.  —  .\nderson  v.  Burnham, 
52   Kan.   454,   34    Pac.    1051. 

Massaehusetts.  —  Warren  v.  Bow- 
dran, 156  Mass.  280,  31   N.  E.  300. 

Missouri.  —  Wilkerson  v.  Filers. 
114   Mo.  245,  21   S.  W.  514. 

Nebraska.  —  Lantry  z:  Wolff,  49 
Neb.  374.  68  N.  W.  494;  Fitzgerald 
z:   Brewster,   31    Neb.   51.   47   N.   W. 

475- 

Nezi.'  York.  —  Humbert  v.  Trinity 
Church,  24  Wend.  587 :  Sands  z'. 
Hughes,   Si   N.   Y.   287. 

Oregon. —  Morrison  z\  Holladay, 
27  Or.  175,  39  Pac.  HOC. 

South  Carolina.  —  Strange  v.  Dur- 
ham,  I   Brev.  83. 

Tennessee.  —  Love's  Lessee  v. 
Shields,  3  Yerg.  405 ;  York  v.  Bright, 
2^  Tenn.  312. 

ll'iseonsin.  —  McCaiui  z\  Welch. 
106  Wis.  142,  81  N.  W.  996;  Lamp- 
man  Z'.  'V'an  .-Mstyne,  94  Wis.  417, 
69   N.   W.    171. 

Fraud  of  Occupant  No  Excuse  for 
Laches  of  Owner —  Xeitiier  fraud 
in  obtaining  nor  continuing  the  pos- 
session, nor  knowledge  on  the  part  of 
a  claimant  that  his  claim  is  un- 
founded, wrongful  and  fraudulent 
will  excuse  the  negligence  of  tlie 
owner  in  not  bringing  his  action 
within  the  prescribed  period ;  nor 
will  his  ignorance  of  tlie  injury,  until 
the  statute  has  attached,  excuse  him, 
though  such  injury  was  fraudulently 
concealed  by  the  contrivance  of  the 
wrongdoer.  Humbert  z\  Triiiilv 
Church,  24  Wend.    CN.   Y. )    587. 

Fraudulent  Deed,  Grantee  May 
Lawfully  Hold  TJnder.  — ''  Even  a 
fraudulent  deed  may  be  color  of  title 
and  become  a  good  title  if  the 
fraudulent  grantee  holds  actual  ad- 
verse possession  for  seven  years 
against  the  owner,  who  has  a  right 
of  entry  and  a  right  of  action  to 
recover  possession,  and  is  under  no 
disability  mentioned  in  the  statutes." 
Oliver  z:  Pullum.  24  Fed.  127.     "  The 


ADVERSE  POSSESSION. 


693 


Contrary  Doctrine.  —  In  some  jiirisdictioiis  the  distinction  is  main- 
tained that  whilst  void  instruments  may  confer  color  of  title,  if  the 
evidence  show  that  an  occupant  knows  his  paper  title  is  void,  it  will 
avail  him  nothing.'' 

XV.  CONFLICTING  POSSESSIONS. 

1.  Older  Possession  Succeeds.  —  If  neither  claimant  has  the  true 
title,  the  older  yiosscssion  will  succeed.* 

2.  Evidence  to  Supplant  Must  Be  Same  As  to  Create.  —  And,  the 
rights  acquired   will   not  be  destroyed  by  a   subsequent  entry  and 


fact  that  defendant  procured  a  deed 
by  fraud  if  it  were  so,  and  fraud- 
ulently obtained  possession,  would 
make  no  difference.  The  statute 
makes  no  exception  for  fraud,  and 
will  run  in  favor  of  a  possession  ob- 
tained by  fraud."  York  v.  Bright, 
23  Tenn.  312;  .McCann  v.  Welch,  106 
Wis.  142,  81   N.  W.  996. 

3.  Litchfield  t'.  Sewell.  g-  Iowa 
274,  66  N.  W.  104;  Kopp  I'.  Kerman, 
82  Md.  339,  i^,  Atl.  646;  Saxton  v. 
Hunt,  20  N.  J.  Law  487. 

Knowledge  Must  Be  Actual But 

It  is  held  that  the  knowledge  must 
be  actual  and  not  such  as  would 
arise  from  the  legal  construction  of 
the  instrument.  Wilson  v.  .\tkin- 
son,  77   Cal.  485.  20  Pac.  66. 

4.  United  States. — Green  v.  Liter. 
8  Cranch  229;  Hunt  z:  Wickliffe, 
2  Pet.   201. 

.■llalwDia.  —  Reddick  i\  Long,  124 
.\la.  260,  27  So.  402 ;  Pavne  t.  Craw- 
ford   (Ala.),  30   So.  824". 

Georgia.  —  Flannery  v.  Hightower. 
97  Ga.  592.  25  S.  E.  371 ;  King  v. 
Sears,  91   Ga.  577,   18  S.  E.  830. 

Illi)wis.  —  Brooks  f.  Bruyn,  iS  III. 
539;  Riverside  Co.  v.  Townsend,  120 
111.  9,  9  N.  E.  65;  Bowman  v.  Wet- 
tig.  39  111.  416;  Herbert  v.  Herbert, 
I    111.  354,  12  Am.   Dec.   192. 

Louisiana.  —  Michel  f.  Stream.  48 
La.   340.   19   So.  215. 

Massachusetts.  —  Pettigill  v.  Boyn- 
ton  (Mass.),  29  N.  E.  655;  Institu- 
tion of  Savings  7:  Burnham,  128 
.Mass.  458;  Perry  !■.  Weeks,  137 
-Mass.  584;  Thoreau  r.  Pallies,  i 
Allen  425. 

Mississil^t'i.  —  Kerr  'c\  Parish,  52 
.Miss.   101. 

Missouri.  —  Mather  i'.  Walsh,  107 
.\lo.     121,     17    So.    755;     Fugate     v. 


Pierce,  49  Mo.  441  ;  Farrar  v.  Hein- 
rich,  86  Mo.  521. 

Nebraska.  —  Ballard  z\  Hansen,  ;}3 
Neb.  861,  51   N.  W.  295. 

Neiv  York.  —  Smith  v.  Burtis.  6 
Johns.  197 ;  Smith  v.  Lorillard,  10 
Johns.  338 ;  Jackson  v.  Harder,  4 
Johns.  202,  4  Am.  Dec.  262 ;  Thomp- 
son   V.    Burhans,    79    N.    Y.    93. 

North  Carolina. — Graham  v.  Hous- 
ton,  15   N.   C.   232. 

Pennsylvania.  —  Green  t.  Killum. 
2,^   Pa.   St.  254. 

rt-niiofi/.  —  Wing  v.  Hall.  47  Vt. 
182;  Hughes  V.  Graves,  39  Vt.  359, 
94  Am.  Dec.  331. 

Prior  Possession  Short  of  Twenty 
Years  Defeats  an  Intruder  Who  Has 
Held  Less  Than  Twenty  Years. 
Evidence  showing  a  prior  possession 
short  of  twenty  years  under  claim 
of  right  will  defeat  a  subsequent 
possession  of  less  than  twenty  years 
when  no  other  evidence  of  title  is 
adduced  on  either  side.  Smith  v. 
Lorillard,    10  Johns.    (N.   Y.)    338. 

"  The  proof  here  adduced  was 
prima  facie  evidence,  both  of  title 
and  of  right  of  possession,  and  was 
sufficient  to  put  the  defendant  on 
his  defense.  It  was  not  necessary 
that  the  plaintiff  should  have  shown 
a  possession  of  twenty  years,  or 
a  paper  title.  L'pon  this  state  of  the 
case,  the  mere  naked  possession  of 
the  defendant  could  not  prevail 
against  it."  Herbert  v.  Herbert,  I 
111.   354.    12   Am.   Dec.    192. 

Evidence  insufficient  to  establish  a 
title  by  adverse  possession  against  a 
true  owner  may  be  valid  as  against 
a  mere  intruder  having  no  pretense 
of  title.  Pettigill  v.  Boynton, 
(Mass.),  29  N.  E.  655. 


Vol.  I 


694 


IDFERSU  POSSESS f OX. 


occupation  by  the  opposing  claimant  until  it  has  ripened  into  a  title' 
by  adverse  possession.^ 

XVI.  CLAIMS  UNDER  CONFLICTING  TITLES. 

Overlapping  Grants  —  \\'herc  there  is  an  interlock  between  two 
tracts  of  land  claimed  under  different  titles,  the  fact  of  actual  pos- 
session under  such  respective  titles  will  practically  determine  the 
rights  of  adverse  claimanti;  tu  the  disputed  territory." 


5.  Alabaiua.  —  Reddick  v.  Long. 
124  Ala.  260,  27  So.  402;  JMills  r. 
Clayton,  73  Ala.  359:  Strange  7'. 
King.  84  Ala.  212,  4  So.  600;  .An- 
derson z:  Melear.  56  Ala.  621  :  Mnr- 
ray  v.  Hoyle,  92  Ala.  559.  9  So.  368. 

California.  —  Longford  v.  Poppe, 
56  Cal.  7.3- 

Mississifyfti.  —  Harper  i\  Tapley.  35 
Miss.   506. 

Xew  Jersey.  —  Spottiswoode  v. 
Morris  &  E.  R.  Co.,  61  N.  J.  Law 
322,  40  .\tl.  505. 

Neiv  York.  —  Sherman  ?'.  Kane, 
86  N.  Y.  57. 

Pennsylvania.  — Schall  v.  Williams 
Valley  R.   Co.,  35   Pa.   St.   191. 

Te.ras.  —  Spofford  v.  Bennett,  55 
Tex.  293. 

Actual  possession  of  a  part  of  a 
tract  under  patent  from  the  state  in 
1862,  was  held  sufficient  to  e.xtend 
constructive  possession  over  a  dis- 
puted tract,  as  against  one  claiming 
under  a  patent  from  the  United 
States  who  had  not  taken  actual 
possession  of  such  disputed  strip  un- 
til in  the  year  1874.  Longford  r. 
Poppi,  S6  Cal.  73. 

6.  United  Stales.  —  llunnicull  t'. 
Peyton,   102  U.   S.   333. 

California.  —  Davis  v.  Perley,  .30 
Cal.  630;  Kimball  i'.  Stormer,  65 
Cal.  116,  3  Pac.  408;  Labory  v.  Los 
.'\ngeles  Orphans'  Asylum,  97  Cal. 
270,  32  Pac.  231. 

Kentucky.  —  SwafFord  i\  Herd, 
(Ky.),  65  S.  W.  803;  Kruth  v.  Kahn. 
(Ky.),  65  S.  W.  18;  .McDowell  r. 
Kenny,  3  J.  J.  Marsh,  516;  Flynn  v. 
Sparks,  10  Ky.  Law  960,  1  t  S.  W. 
206. 

Maryland.  —  Hammond  ■;•.  War- 
field,  2  Har.  &  J.   151. 

Missouri.  —  Schultz   t.    Lindell,    30 

Vol.  I 


Mo.  310;  Crispen  v.  Hannavan,  50 
Mo.  536 ;  Ozark  &  Plateau  Land  Co. 
z'.  Hay,  105  Mo.  143.  16  S.  W.  957. 

North  Carolina.  —  Green  z:  Har- 
mon, 15  N.  C.  158;  McLean  z'.  Smith, 
106  N.  C.  172,  II  S.  E.  184:  Boomer 
v.  Gibbs,  114  N.  C.  76,  19  S.  E.  226; 
.\sbury  z:  Fair,  lii  N.  C.  251,  16  S. 
E.  467- 

Pennsyk'onia.  —  .'^rden  z'.  Grove, 
18  Pa.  St.  377;  Beaupland  v.  Mc- 
Keen,   28   Pa.    St.    124.   70   .\m.   Dec. 

115- 

Tennessee. —  Milchcll  z\  Church- 
man, 4  Hiiniph.  218;  Berry  z:  Wal- 
den,  4  Hayw.  175;  Creech  z'.  Jones, 
37  Tenn.  631  ;  \Vhitc  z'.  Lavender,  37 
Tenn.  648 ;  Peck  z'.  Houston,  5  Lea 
227;  Coal  Creek  Mining  Co.  r.  Heck, 
IS  Lea  497. 

Te.ras.  —  Parker  z:  Baines,  65 
Tex.  605;  Evitts  z:  Roth,  61  Tex. 
81  ;  Cook  z'.  Lister,  15  Tex.  Civ.  App. 
31,  38  S.  W.  380;  Roach  V.  Fletcher, 
II  Tex.  Civ.  App.  225,  32  S.  W.  iS, ; 
Porter   v.    .Miller,    (Tex.),   13    S.   W. 

555- 

I'ernwiit.  —  Ralpli  z\  Bavlev,  11 
Vt.  521. 

/  irginia.  —  Shanks  v.  Lancaster,  5 
Gratt.  no,  50  .\m.  Dec.  108;  Clinc 
V.  Catron,  22  Gratt.  378;  Harnian  v. 
RatlifT,  93  Va.  249,  24  S.  E.  1023; 
Fry  V.  Stowers.  98  Va.  417,  36  S.  E. 
232 ;  Sulpliur  Mines  Co.  v.  Thomp- 
son's Heirs,  93  Va.  293,  25  S.  E. 
232;  Stull  V.  Rich  Patch  Iron  Co.,  92 
Va.  253,  23  S.  E.  293. 

West  Virginia.  —  Congrove  z\  Bur- 
dett,  28  W.  Va.  220;  White  v.  Ward, 
35  W.  Va.  418,  14  S.  E.  22;  Wilson 
V.  Braden,  48  W.  Va.  196,  .^6  S.  E. 
367;  Ilsley  V.  Wilson,  42  W.  Va.  757, 
26  S.  E.  551. 

Wisconsin.  —  Wilson  z\  Henry,  40. 
Wis.  594. 


ADVERSE  POSSESSION. 


W; 


XVII.  POSSESSION  MAINTAINED  BY  MISTAKE. 

Mistaken    Boundaries Possession    Restricted    to    True    Line,    When. 

Possession  maintained,  however  long,  to  a  given  extent  under  the 
mistaken  behef  that  it  corresponds  with  the  true  boundary  line, 
beyond  which  it  was  not  intended  to  assert  any  claim,  will  not  be 
competent  evidence  in  support  of  a  claim  of  title  by  adverse  pos- 
session to  anything  not  actually  embraced  by  the  true  boundary.' 

XVIII.  ADVERSE  POSSESSION  AND  ACOUIESCENCE 
DISTINGUISHED. 

This  doctrine,  however,  is  to  be  distinguished  from  that  appar- 


7.  Alabama.  —  Humes  v.  Bern- 
stein, 72  Ala.  546;  Brown  v.  Cocker- 
ell,  33  Ala.  38;  Alexander  v. 
Wheeler,  69  Ala.  32,2 ;  Davis  v. 
Caldwell,  107  Ala.  526,  18  So.  103. 

California.  —  Quinn  v.  Windmiller, 
67  Cal.  461,  8  Pac.  14;  Gordon  v. 
Booker,  97  Cal.  586,  32  Pac.  593 ; 
Woodward  z'.  Farris,  109  Cal.  12,  41 
Pac.  781;  Smith  v.  Roberts  (Cal.),  9 
Pac.  104;  Powers  ''.  Bank  of  Oro- 
ville,  136  Cal.  486,  69  Pac.  151. 

Connecticut.  —  Huntington  v. 
Whaley,  29  Conn.  391. 

Florida.  —  Watrous  v.  Morrison. 
33  Fla.  261.  14  So.  805,  39  .\m.  St. 
Rep.  99. 

Georgia.  —  Howard  v.  Reedy,  29 
Ga.  152,  74  Am.  Dec.  58. 

Indiana.  —  Silver  Creek  Cement 
Corp.  t'.  Union  Lime  &  Cement  Co., 
138  Ind.   297.   35   N.   E.    125. 

Iowa.  —  Miller  v.  Mills  Co.,  in 
Iowa  654,  82  N.  W.  1038;  Palmer  v. 
Osborn  (Iowa),  87  N.  W.  712: 
Goldsborough  i'.  Pidduck.  87  Iowa 
599^  54   N.   W.  431. 

Kansas. — Winn  v.  .\beles,  35  Kan. 
85,  10  Pac.  443. 

Kentucky.  —  Smith  v.  Morrow,  7 
J.  J.  Marsh.  442. 

Maine.  —  Worchester  v.  Lord,  56 
Me.  265.  96  Am.  Dec.  456 ;  Preble  v. 
Maine  Cent.  R.  Co..  85  Me.  260,  27 
Atl.   149. 

Maryland.  —  Davis  v.  Furlow,  27 
Md.  536. 

Missouri.  —  Crawford  v.  Ahrens, 
103  Mo.  88.  15  S.  W.  341 ;  Finch  v. 
Ullman,  105  Mo.  255,  16  S.  W.  863; 
McWillianis  v.  Samuel,  123  Mo.  659. 
27  S.  W.  550;  Handlan  ?'.  McManiis, 
TOO  Mo.   124,    13   S.  W.   207;   .'\dkins 


V.  Tomlinson,  121  Mo.  487,  26  S.  W. 

573- 

New  Hampshire.  —  Smith  v.  Hos- 
mer,  7  N.  H.  436,  28  Am.  Dec.  354. 

Oregon. — King  v.  Brighani,  23  Or. 
262,    31    Pac.    601. 

Wisconsin.  —  Fuller  v.  Worth,  91 
Wis.  406,  64  N.  W.  995. 

Possession  Under  Mistake  as  to 
True  Line  Not  Admissible —  The 
possession  of  two  co-terminous  pro- 
prietors under  mistake  or  ignorance 
of  the  true  line  dividing  their  prem- 
ises, and  without  intending  to  claim 
beyond  the  true  line,  when  discovered, 
will  not  work  a  disseizin  in  favor  of 
either.  Crawford  v.  Ahrens,  103 
Mo.  88,  IS  S.  W.  341.  "But  neither 
they  nor  their  grantors  have  ever 
claimed  land  between  the  true 
boundary  as  we  have  found  it,  and 
this  ridge,  save  as  a  part  of  said 
lots.  It  is  the  case  of  a  mistake  in 
the  boundaries,  and  the  doctrine  of 
Grube  v.  Wells,  34  Iowa  148,  and 
the  long  line  of  cases  following  it, 
must  be  applied."  Palmer  z'.  Os- 
borne (Iowa),  87  N.  W.  712.  One 
making  no  claim  of  ownership  to 
land  beyond  description  of  his  deed 
is  not  holding  adversely.  Ross  v. 
Gould.  5  Me.  204.  If  one  place  his 
enclosure  not  claiming  that  his 
fences  are  upon  the  true  line,  but 
eX-pecting  to  move  them  to  the  true 
line  when  it  should  be  determined,  he 
is  not  claiming  adversely.  Wood- 
ward v.  Farris,  109  Cal.  12,  41  Pac. 
781. 

Party    Wall Mere    belief    of    an 

adjoining  occupant  and  owner  that 
he  owns  to  the  center  of  a  divisional 
wall    wholly    on    the    adjoining    land 

Vol.  I 


696 


ADVERSE  POSSESSION. 


cntly  recognized  by  the  current  of  authority  respecting  the  location 
of  permanent  boundary  lines  by  long  acquiescence  of  the  co-termin- 
ous  land  owners,  which  it  is  not  deemed  practical  to  consider  dis- 
tinctively in  connection  with  adverse  possession.* 

1.  Claiming^  Ownership  to  Mistaken  Lines.  —  Although  mere  occu- 
pancy by  one  co-terminous  owner  coincident  with  what  is  erro- 
neously believed  to  be  the  true  boundar\-  line  is  not  presumed  to  be 
adverse,  it  will  be  impressed  with  that  character  by  evidence  that 
a  claimant  asserting  it  to  be  the  true  lino,  held  the  premises  up  to 
it  claiming  them  as  his  own." 


without  anything  evincing  it  af- 
firmatively will  not  constitnle  adverse 
possession.  Huntington  ?■.  Whaley. 
29  Conn.  391. 

8.    Sec  article   "  Boundaries." 

California, — Quinn  %■.  Windmiller, 
(37  Cal.  461,  8  Pac.  14;  Irvine  v. 
--\dler,  44  Cal.  559. 

Florida.  —  Watrous  z'.  Alorrison, 
33  Fla.  261,  14  So.  805.  39  Am.  St. 
Rep.  99. 

Illinois. —  Kerr  v.   Hilt,  75  111.   51. 

Ioii.'a.  —  Klinker  v.  Schmidt 
(Iowa),  87  N.  W.  661;  Palmer  v. 
Osborne  (Iowa),  87  N.  W.  712;  Mil- 
ler V.  Mills  Co.,  Ill  Iowa  654.  82 
X.    W.    1038. 

Kansas.  —  Zimmerman  v.  Gunther 
(Kan.  App.),  63  Pac.  657. 

Michigan.  —  Carpenter  v.  Monks, 
81    Mich.   103,  45   N.   W.  477. 

Neiv  York.  —  Sherman  v.  Kane,  86 
N.  Y.  57. 

Pennsylvania.  —  Reitcr  !■.  Mc- 
Junkin,   173  Pa.   St.  82.  33  Atl.   1012. 

l/isconsin.  —  Illinois  Steel  Co,  v. 
Budzisz,    106    Wis.     499,    82    N,    W. 

S.U- 

Adverse  Possession,  and  Acquies- 
cence Distinguished.  —  "  We  appre- 
hend the  distinction  between  the 
doctrine  of  the  cases  which  deny 
efficacy  to  an  occupancy  founded  on 
mistake  and  those  which  recognize 
occupancy  to  a  line  established  by  ac- 
quiescence, to  be  this :  that  in  the 
one  case  the  assertion  of  title  .  is 
presumed  to  be  limited  to  the  prem- 
ises covered  by  the  grant  under  which 
the  possession  is  claimed,  while  in 
the  other  case  there  is  a  wholly  in- 
dependent basis  for  the  assertion  of 
title,  to  wit :  acquiescence  of  the  ad- 
joining owner."  Klinkner  r.  Schmidt 
(Iowa).  87   N.   W.  661. 

Vol.  I 


Acquiescence  Not  Presumed. 
"  This  acquiescence  is  not  to  be  pre- 
sumed from  the  mere  fact  of  no- 
torious possession  by  the  adverse 
claimant  to  a  line  which  himself 
established.  It  must  be  shown  by 
proof  of  an  express  agreement  or  of 
facts  from  which  an  agreement  may 
be  implied."  Klinkner  ?■.  Schmidt 
(Iowa).  87  N.  W.  661.  This  doc- 
trine is  substantially  one  of  prac- 
tical location  by  acquiescence.  Sher- 
man  7'.    Kane.  86   N.   Y.   57. 

Fence  Concedes  Title  by  Adverse 
Possession  After  Twenty-one  Years. 
"  The  maintenance  of  a  line  fence 
between  owners  of  adjoining  lands 
by  their  acts,  up  to  which  each 
claims  and  occupies,  is  a  concession 
by  each  of  the  open,  adverse  pos- 
session by  the  other  of  that  which  is 
on  his  side  of  such  division  fence, 
which,  after  twenty-one  years,  will 
give  title,  though  subsequent  sur- 
veys may  show  that  the  fence  was 
not  exactly  upon  the  surveyed  line." 
Reiter  v.  Mcjunkin,  173  Pa.  St.  82, 
33  Atl.   1012. 

"  Where  owners  of  adjacent  lands 
liave  a  resurvey  of  their  dividing 
line  made,  readjust  their  fences,  cul- 
tivation, and  occupancy  of  their  re- 
spective premises  to  the  line  just 
established,  and  they  and  their  gran- 
tees acquiesce  in  the  correctness  of 
the  lines  as  established  by  such  sur- 
vey for  more  than  fifteen  years,  such 
occupancy  is  sufficient  to  start  and 
uphold  the  statute  of  limitations  to 
the  lands  thus  occupied."  Zimmer- 
man v.  Gunther  (Kan.  App.),  63 
Pac.   657. 

9.  United  Slates.  —  Brown  v. 
Lette,  2  Fed.  440;  Harvy  r.  Tyler, 
2  Wall.  349;  Probst  z'.  Trustees.  129 
U.  S.  191,  9  Sup.  Ct.  263. 


ADVERSE  POSSESSION. 


(>'»7 


2.  Claim  of  Ownership  Beyond  His  True  Line.  —  .\nd,  the  same 
doctrine  obtains  where  a  land  owner,  by  mistake,  incloses  and  holds 
beyond  his  true  boundaries,  claiming  the  premises  as  his  own.'" 


.4/a6a»ia.— Barrett  v.  Kelly  (.Ma.). 
30  So.  824. 

California.  —  Woodward  v.  Farris. 
109  Cal.  12,  41  Pac.  781 ;  Lucas  v. 
Provinces,  130  Cal.  270,  62  Pac.  509; 
Powers  V.  Bank  Oroville,  136  Cal. 
486.  69   Pac.    151. 

Connecticut.  —  French  v.  Pearce.  8 
Conn.  440,  21   .^m.   Dec.  680. 

Florida.  —  Watrous  v.  Morrison. 
33  Fla.  261,  14  So.  805,  39  Am.  St. 
Rep.  99. 

Illinois.  —  McNaniara  v.  Seaton, 
82   111.  498. 

Indiana.  —  Dyer  v.  Eldridge,  136 
Ind.   654,  36  N.   E.   522. 

/ozt'a.  — Miller  7'.  Mills  Co.,  ni 
Iowa  654,  82  N.  W.  1038. 

Kansas.- — Conrad  r.  Sockett.  8 
Kan.  App.  635,  56  Pac.  507. 

Kentucky.  —  Louisville  &  N.  R.  Co. 
z:  Quinn,  94  Ky.  310,  22  S.  W.  221. 

Maine.  —  .\bbott  <■.  Abbott,  51  Me. 
575;  Hitchings  f.  Morrison,  72  Me. 
331  ;  Preble  v.  Elaine  Cent.  R.  Co., 
S5  Me.  260,  27  Atl.  149. 

.Michigan.  —  Bunce  1:  Bidwell,  43 
Mich.  542,  5  N.  \V.  1023 ;  Van  Der 
Groef  I'.  Jones,  loS  ^Iich.  6^,  65 
N.  W.  602. 

Minnesota.  —  Ramsey  v.  Glenny. 
45  Minn.  401,  48  N.  \V.  322,  22  Am. 
St.  Rep.  736. 

Missouri.  —  Battner  ■:■.  Baker,  108 
Mo.  311.  18  S.  W.  911:  McWilliams 
V.  Samuel,  123  Mo.  659,  27  S.  W. 
550;  Brutnmel  r'.  Harris,  T48  Klo. 
4,^0.  50  S.  W,  93;  Mather  r.  Walsh, 
107   Mo.   121.   17   S.  W.  755. 

Nebraska.  —  Obernalte  z\  Edgar. 
28  Neb.  70.  44  N.  W.  82;  Levy  z\ 
Yerga,  25  Neb.  764.  41  N.  W.  773. 

Ohio.  —  Yetzer  z:  Thoman,  17 
Ohio    St.    130,   91    Am.    Dec.    122. 

Te.vas.  —  Blisso  v.  Casper,  14  Tex. 
Civ.   App.   19,  36  S.  W.  345. 

ll'isconsin.  —  .^vers  z'.  Reidel.  84 
Wis.   276,  54  N.  W.   588. 

Claiming  by  Mistake  Effectual. 
"  It  is  the  fact  that  possession  is 
held,  and  that  title  is  claimed,  which 
make  it  adverse  possession,  or  claim, 
or  both,  though  they  may  have  re- 
sulted from  a  mistake;  hut  it  is  their 


existence  and  not  their  cause  that 
the  law  considers,  and  existing,  they 
constitute  adverse  possession."  Met- 
calfe  z\    McCutchen,   60   Miss.    145. 

Claiming  to  an  Erroneous  Divi- 
sion Line  May  Ripen  Into  Title. 
Possession  by  a  co-terminous  owner 
up  to  a  line  erroneously  believed  to 
be  the  true  line  is  not  presumably 
adverse,  but  may  be  rendered  so  if 
the  claimant  claims  it  as  the  true 
line  and  holds  the  property  up  to  it, 
claiming  it  as  his  own.  Barrett  "'. 
Kelly   (Ala.).  30  So.  824. 

Doctrine  of  Intent  When  Claim- 
ing to  Erroneous  Line "  No  ques- 
tion is  raised  as  to  the  extent,  du- 
ration or  continuity  of  the  defend- 
ant's occupation.  If  it  was  not  ac- 
companied by  a  claim  of  title,  but 
was  merely  inadvertence  or  mistake 
as  to  the  extent  of  his  land,  without 
intention  to  claim  title  to  the  extent 
of  his  occupation,  but  only  to  the 
bounds  described  in  his  deed,  then 
the  verdict  is  against  law.  Lincoln 
z:  Edgecomb,  31  Maine  354;  Abbott 
z'.  Abbott,  51  Maine  584;  Worchester 
V.  Lord,  sniyra,  and  the  earlier  cases 
therein  cited :  Dow  z\  McKenny,  64 
Maine  138;  but  if,  on  the  contrary, 
he  did  claim  title  clear  to  the  fence 
which  was  not  on  the  true  line  as 
described  in  the  deed,  although  he 
by  mistake  supposed  it  was,  the  ver- 
dict is  not  against  law.  Abbott  v. 
.'\bbott,  supra.  If.  however,  the  evi- 
dence is  not  sufficient  to  warrant  the 
jury  in  finding  such  claim  to  title, 
tlien  the  verdict  is  against  evidence, 
and  should  be  set  aside  for  that 
cause ;  otherwise  there  should  be 
judgment  on  the  verdict."  Hutchings 
z\   Morrison,  72  Me.  331. 

"  If,  however,  such  possession, 
though  taken  by  mistake,  is  with  the 
intention  to  claim  title  to  the  divi- 
sion line,  and  thus,  if  necessary, 
acquire  title  by  prescription,  it  may 
ripen  into  title."  Miller  z'.  Mills  Co., 
Til    Iowa  654,  82  N.  W.   1038. 

10.  United  States.  —  Brown  z: 
Lette.  2  Fed.  440. 

.Uabama.  —  Hofifman   z'.   White.  90 

Vol.  I 


698 


ADVERSE  POSSESSION. 


3.  Grantee  Must  Show  Intent.  —  But,  in  such  conflict  between  a 
boundary  adhered  to  and  the  line  fixed  by  the  deed  of  an  occupant, 
the  evidence  to  sustain  his  claim  to  the  disputed  strip  must  be  of  a 
character   to   overcome   the   presumption   that   his   entry   and   pos- 


Ala.     354,     7     So.    '816;     Taylnr     r. 
Fomby,  116  Ala.  621,  22  So.  910. 

California.  —  Grimm  v.  Curley,  43 
Cal.  250;  Woodward  v.  Karris,  log 
Cal.  12.  41  Pac.  781  ;  Silvarer  v.  Han- 
sen, yy  Cal.  579,  20  Pac.  136. 

Connecticut.  —  French  v.  Pearce,  8 
Conn.  440,  21  Am.  Dec  680. 

Illinois.  —  McNamara  v.  Seaton, 
82   III.  498. 

Indiana.  —  Riggs  v.  Riley,  113  Ind. 
208,    15    N.   E.   253. 

lozva.  —  Meyer  v.  Weigman,  45 
Iowa  579;  Crapo  v.  Cameron,  61 
Iowa  447,  16  N.  W.  523. 

Kansas.  —  Moore  v.  Wiley,  44  Kan. 
736,    25    Pac.    200. 

Kentucky.  —  Smnmers  v.  Green,  4 
J.  J.  Marsh.   137. 

Maine.  —  Hitchings  v.  Morrison, 
72  Me.  331. 

Massachusetts.  —  Harrison  v.  Do- 
Ian,  172  Mass.  395,  52  N.  E.  513; 
Beckman  v.  Davidson.  162  Mass. 
347,  39  N.  E.  38;  Thacker  v.  Gnar- 
denier,  48  Mass.  484. 

Michigan.  —  Bunce  v.  Bidwell,  43 
Mich.  S42,  S  N.  W.  1023. 

Minnesota.  —  Seymour  v.  Carli,  31 
Minn.  81,  16  N.  W.  495;  Vandell  v. 
St.  Martin,  42  Minn.  163.  44  N.  W. 
525;  Brown  j'.  .Morgan,  44  Alinn.  432, 
46  N.  W.  913. 

Mississit't'i.  —  Metcalf  ?■.  McCut,- 
chen,  5o  Miss.   145. 

.Missouri.  —  Cole  v.  Parker,  70  Mo. 
372;  Mather  v.  Walsh,  107  Mo.  121, 
17  S.  W.  755;  Hamilton  v.  West, 
63  Mo.  93;  Keen  v.  Schnedler,  15 
Mo.  App.  590;  Battner  v.  Baker,  108 
Mo.   311.    18   S.   W.   911. 

Nebraska.  —  Levy  v.  Yerga,  25 
Neb.  764,  41  N.  W.  773 ;  Obernalte 
i:  Edgar,  28  Neb.  70,  44  N.  W.  82. 

Nexv  Hampshire.  —  Wendell  -•. 
Moulton,  26   N.   H.  41. 

Tennessee.  —  Erck  r.  Church,  87 
Tenn.  575,   11   S.  W.  794. 

Te.vas.  —  Bisso  1'.  Casper,  14  Tex. 
Civ.  App,  19,  36  S.  W.  345:  Daught- 
rey  v.  New  York  &  T.  Land  Co. 
CTcx.  Civ.  App.),  61    S.  W.  947. 

Vol.  I 


It  is  clear  that  appellant  believed, 
when  he  erected  his  fence  along  La 
Parita  creek,  and  still  believes,  that 
the  land  in  controversy  was  and  is 
a  portion  of  the  Segura  grant,  and 
he  claimed  and  held  it  for  over  ten 
years  as  a  part  of  that  grant.  The 
fact  that  it  was  not  a  part  of  that 
grant  would  not  affect  his  adverse 
holdings,  because  he  placed  his 
fence  along  La  Parita  creek  with 
the  intention  of  claiming  and  hold- 
ing all  within  his  inclosure  as  his 
own.  Danghtrev  v.  New  York  &  T. 
Land  Co.  (Tex.  Civ.  App.),  61  S. 
W.  947- 

If  one,  by  mistake,  inclose  the  land 
(if  another,  and  claim  it  as  his  own 
to  certain  fixed  monuments  or 
boundaries,  his  actual  and  uniuterrup- 
ted  possession  as  owner  for  the 
statutory  period  will  work  a  disseizin 
and  his  title  will  be  perfect.  Levj' 
z'.  Yerga,  25  Neb.  764,  41  N.  W.  773. 

If,  by  a  mistake  in  a  deed,  a  por- 
tion of  tlie  premises  intended  to  be 
included  be  omitted,  and  the  grantor 
occupies  the  portion  so  omitted,  un- 
interruptedly and  under  claim  of 
right  for  the  statutory  period,  he 
will  acquire  a  prescriptive  title. 
Vandell  v.  St.  Martin,  42  Minn.  163, 
44  N.  W.  525. 

Claiming  All  Within  Fence  Gives 
Title One  purchasing  land  en- 
closed by  a  fence,  who  claims  title 
to  all  within  such  enclosure,  holds 
adverse  possession  as  to  the  entire 
tract,  although  he  may  believe  he  is 
only  claiming  to  the  extent  of  the 
boundaries  of  his  deed,  which  do 
not  as  a  matter  of  fact  embrace  all 
the  land  so  fenced.  Bisso  z'.  Casper. 
14  Tex.  Civ.  App.  19,  36  S.  W.  345; 
citing  Hand  7'.  Swann,  i  Tex.  Civ. 
.•\pp.  240,  21   S.  W.  282. 

Where  one  through  mistake  takes 
possession  under  a  deed  of  more 
land  than  it  conveys,  he  may,  not- 
withstanding, begin  later  an  adverse 
occupancy  of  the  excess.  Mather 
V.    Walsh,    707    Mo.    121,    17    S.    W. 


AD]' ERSE  POSSESSION. 


(i<j<) 


session  extended  no  farther  than  his  deed  Hmits,  and  show  that  his 
attitude  during  the  entire  statutory  period  was  of  such  nature  as  to 
render  his  possession  adverse  to  the  true  owner. '^ 

4.  Mistaken  Belief  That  Land  Is  Public,  Abortive.  —  No  period  of 
occupancv  under  the  erroneous  belief  that  the  land  belongs  to  the 
state  will  furnish  any  evidence  in  support  of  a  claim  of  title  by 
adverse  possession  against  the  true  owner. '^ 

Contrary  Doctrine.  —  This  rule  is  not  recognized  in  sotne  jurisdic- 
tions.''' 

XIX.  TITLE  ACQUIRED  BY  ADVERSE  POSSESSION. 

1.  Is  Evidence  Under  All  Circumstances.  —  Adverse  possession 
ripened  into  title  operates  as  plenary  proof  in  favor  of  such  claim- 
ant affirmatively  and  defensively. '•* 


11.  Anderson  v.  Jackson,  69  Tex. 
346,  6  S.  W.  575;  Haskins  v.  Cox, 
2  B.  Mon.   (Ky.)   306. 

Burden  on  Claimant  to  Show  Ad- 
verse Claim  Beyond  His  Deed 
Boundaries.  —  One  in  possession  of 
land  under  a  deed  who  occupies  co- 
extensive with  the  line  of  a  fence 
which  incloses  land  not  covered  by 
such  deed,  is  presumed  to  have  en- 
tered pursuant  to  his  deed,  and  the 
burden  of  showing  the  contrary  rests 
upon  him.  Fuller  v.  Worth.  91  Wis. 
406,  64  N.  W.  995. 

Disclaimer.  When  Inconclusive. 
Where  a  purchaser  goes  into  posses- 
sion under  a  deed  which  does  not 
describe  the  lands  as  they  are  fenced, 
after  holding  the  lands  thus  fenced 
exclusively  for  over  forty  years, 
claiming  them  as  his  own,  he  will  be 
held  to  have  acquired  a  title,  not- 
withstanding he  may  have  dis- 
claimed ownership  of  all  land  not 
described  by  his  deed.  Bishop  v. 
Bleyer,  105  Wis.  330,  81  N.  W.  413. 

12.  Leon  &  H.  Plum  Land  Co.  v. 
Rogers,  u  Tex.  Civ.  App.  184.  32 
S.  W.  713. 

Occupant's  Mistaken  Belief  As  to 
State  Ownership  Concludes  His 
Claim.  —  Evidence  showing  the  oc- 
cupancy of  land  under  the  belief  that 
it  belonged  to  the  state,  will  not  sus- 
tain the  claim  of  title  by  adverse 
possession  as  against  the  true  owner 
of  the  land.  Schleicher  :■.  Gatlin,  85 
Tex.   270.  20   S.  W.    120. 

Evidence  showing  that  one  entered 


into  possession  of  land  of  the  state 
under  the  mistaken  claim  that  it  was 
vacant  public  land  of  the  United 
States,  intending  to  obtain  title 
from  the  government,  will  not  sustain 
a  claim  of  title  by  adverse  posses- 
sion. Beale  v.  Hite,  35  Or.  176,  57 
Pac.  322. 

13.  Clemens  v.  Runckel.  34  Mo. 
41.  84  Am.  Dec.  69;  Mc^Lanus  v. 
O'Sullivan,  48  Cal.  7 ;  Miller  v.  State, 
38  Ala.  606;  Clark  v.  Gilbert.  39 
Conn.  94. 

14.  United  States.  —  Racket  z\ 
Marmet  Co.,  52  Fed.  268. 

Alabama.  —  Wilson  v.  Glenn.  68 
.\la.  183;  Murray  "■.  Hoyle,  92  Ala. 
5^9,  9  So.  368;  Burks  r.  Mitchell, 
78   Ala.   61. 

Arkansas. — Jacks  f.  Chaffin,  34 
.\rk.    534. 

Illinois.  —  Sanitary  District  i'. 
Allen,  178  111.  330,  53  N.  E.  109;  Mc- 
Duffee  V.  Sinnott.  119  III.  449.  1°  N. 
E.   385. 

Indiana.  —  Roots  v.  Beck,  109  Ind. 
472,  9  N.  E.  698. 

/oti'a.  —  Cramer  t.  Clow,  81  Iowa 
255.  47  N.  W.  59- 

Kentuekw  —  Sutton  1'.  Pollard.  96 
Ky.   640.  29   S.   W.   637. 

Maine.  —  Magoon  '■.  Davis.  84 
Me.   178.  24  Atl.  809. 

Missotii-i.  —  Lynde  v.  Williams,  69 
Mo.  -^do;  Swenson  7:  Lexington.  69 
Mo.  \s7. 

Xebraska.  —  Lantry  r.  W  olf.  49 
Neb.  374.  68  N.  W.  494- 

.Vf7c  York.  — CahiW  v.  Palmer,  45 
N.  Y.  478;  Barnes  x:  Light.  116  N.  Y. 

Vol.  I 


70(1 


.Wl'ERSB  POSSESSION. 


2.  Survives  Default  in  Ejectment.  —  One  having  title  by  adverse 
possession,  but  dispossessed  pursuant  to  a  default  in  an  action  of 
ejectment,  may  afterwards  recover  the  premises  from  such  adverse 
claimant.''* 

3.  Evidence  of  May  Be  Perpetuated  by  Decree  in  Equity.  —  A  title 
arising  from  adverse  possession  ma)'  be  made  evidence  of  record  by 
a  bill  in  equity."' 


34,  22  X.  E.  441  ;  Paige  v.  Waring, 
103^  N.  V.  636,  8  N.  E.  476. 

North  Carolina.  —  .\vant  z:  \r- 
rington.   105   N."  C.  377,   lO  S.   E.  991. 

Pciiiisvli'aiiiai  —  Mead  ?'.  LefHnsr- 
well,  83   Pa.   St.    187. 

Sciitli  Carolina.  —  Busby  z'.  Flor- 
ida Cent.  &  P.  R.  Co..  45  S.  C.  312. 
23  S.  E.  50. 

I'crmont.  —  Hugbe.s  v.  Graves,  39 
Vt.  359,  94  .\ni.  Dec.  331. 

Virginia.  —  Middleton  v.  Jolms.  4 
Gratt.    129. 

West  Virginia.  —  Parkerbury  In- 
dustrial Co.  t:  Scbultz.  43  W.  Va. 
470.  27  S.  E.  255. 

"  The  counsel  for  the  appellant  in- 
sists that  an  adverse  possession,  al- 
though for  the  length  of  time  re- 
quired by  statute  to  bar  the  true 
owner,  is  available  only  as  defense 
to  a  suit  brought  by  such  owner  for 
the  recovery  of  the  land.  In  this 
the  counsel  is  in  error.  When  the 
possession  is  actual,  exclusive,  open 
and  notorious,  under  a  claim  of  title 
adverse  to  any  and  all  other  for  the 
time  prescribed  by  statute,  such  pos- 
session establishes  a  title.  To  up- 
hold it,  a  grant  from  the  true  owner 
to  such  party  may  be  presumed." 
Cahill   J'.    Palmer.  45   N.    f.  478. 

Title  Available  for  all  Purposes. 
One  having  acquired  title  by  adverse 
possession  may  interpose  it  in  de- 
fense of  an  actiou  brought  against 
himself  and  may  maintain  an  action 
upon  it  in  bis  own  behalf  against 
one  entering  after  the  statutory  period 
had  run.     Sanitary  District  v.  Allen, 

178  111.  ^^o.  s^  N.  E.  109. 

"  .'\n  action  of  ejectment,  founded 
only  on  adverse  possession,  can  be 
maintained  even  against  the  true 
owner."  Lantry  i'.  Wolf,  49  Neb. 
374.  68  N.  W.  494;  Barnes  7\  Light. 
116  N.  Y.  34,  22  N.  E.  441. 

15.  Jackson  z:  Oltz,  8  Wend.  (N. 
Y.)  40. 


16.  United  States.  —  Sharon  v. 
Tucker,  144  U.  S.  553 ;  Alexander  v. 
Pendelton,  8  Cranch  462 ;  Four  Hun- 
dred and  Twenty  Mining  Claim  v. 
Bullion  Mining  Co.,  3  Sawy.  634, 
9  Fed.  Cas.  No.  4989. 

Alabama.  —  Lucy  t'.  Tenn.  &  Coosa 
R.  Co.,  92  Ala.  246,  8  So.  806;  Tor- 
rent Fire  Engine  Co.  No.  5  v.  City 
of  Mobile,  lOi  Ala.  559,  14  So.  557. 

Arizona.  —  Pacheco  v.  Wilson 
(Ariz.),  18  Pac.  597. 

California.  —  Arrington  z'.  Liscom, 
34  Cal.  365. 

Illinois.  — Walker  z:  Converse,  148 
111.   622,   36   N.   E.   202. 

lozva.  —  Quinn  z\  Quinn.  76  Iowa 
565,  41  N.  W.  316;  Independent 
Dist.  of  Oakdale  z'.  Fagen,  94  Iowa 
676.  63  N.  W.  456;  Cramer  v.  Claw. 
81    Iowa   255,  47   N.   W.   59. 

Kcntuckv. — Vallandingham  z:  Tav- 
lor  (Ky.),"64  S.  W.  725. 

Nebraska.  —  Ballon  z'.  Sherwood, 
:^2  Neb.  666.  49  N.  W.  790;  Tour- 
telotte  v.  Pearce,  27  Neb.  <^y,  42 
N.   W.   915. 

Yfic  Jersey.  —  Yard  z\  Ocean 
Beach  .\ss'n.  49  N.  J.  I'.q.  .306,  24 
.\tl.  729. 

Oregon.  —  Parker  z\  Metzger.  T2 
Or.   407.  7   Pac.   518, 

And    by    an    Ordinary    Action    to 

Quiet    Title .\rrington    z\    Liscom. 

34  Cal.  386 ;  Fredericks  ?•.  Judah,  73 
Cal.  605.  15  Pac.  305;  .Alexander  v. 
Pendleton,  8  Cranch  462 ;  Powers  Z'. 
Bank  of  Oroville.  1,36  Cal.  301,  69 
Pac.   151. 

Recollection  of  Witnesses  May  Be 
Established  by  Decree.  —  "  The 
same  principle  which  leads  a  court 
of  equity,  upon  proper  proof,  to  es- 
lablish  by  its  decree  the  existence 
of  a  lost  deed,  and  thus  make  it 
matter  of  record,  must  justify  it, 
upon  like  proof,  in  declaring  by  its 
decree  the  validity  of  a  title  resting 
in   the   recollection  of  witnesses,  and 


Vol.  I 


ADVERSE  POSSESSION. 


roi 


4.  Evidence  of  Verbal  Surrender  Inoperative.  —  Evidence  showing 
a  verbal  surrender  of  possession  adversely  maintained  for  the  period 
necessary  to  invest  an  occupant  with  a  superior  title  will  not  pre- 
clude him  from  thereafter  asserting  it." 


thus  make  the  evidence  of  tlic  title 
a  matter  of  record."  Sharon  v. 
Tucker.  144  U.  S.  533- 

17.  Alabama. — Lee  r.  Thompson, 
99  .\la.  95.  II  So.  672. 

Arkansas.  —  Parham  i\  Dednian. 
66  Ark.  26.  48  S.  W.  673. 

Maine.  —  School  District  z\  Ben- 
son. 31   Me.  384.  52  Am.  Dec.  618. 

North  Carolina.  —  ."Vvent  v.  Ar- 
rington,  105  N.  C.  377.  10  S.  E.  991. 

Vermont.  —  Austin  v.  Bailey,  iy 
Vt.  219;  Tracey  v.  Atherton,  36  Vt. 
503;  Hodges  V.  Eddy,  41  Vt.  485. 

An  oral  promise  by  one  after  he 
has  acquired  title  to  land  by  adverse 
possession  to  the  former  owners  that 
if  they  will  let  his  tenant  occupy 
the  same  for  a  certain  time,  he  will 
surrender    possession    to    them    and 


pay  rent,  will  not  devest  him  of  title. 
Such  promise,  being  without  con- 
sideration and  not  evidenced  by 
writing,  is  within  the  statute  of 
frauds.  Parham  v.  Dedman.  66  .'Xrk. 
-'6.  48  S.  W.  673. 

Title  Cannot  Pass  by  Verbal  Sur- 
render  "If  Gamsby  and  the  Hea- 

tons  had  acquired  title  by  fifteen 
years  of  adverse  possession,  such 
title  thereby  became  perfect,  and  was 
as  good  as  a  paper  title  by  the  record 
from  the  original  proprietors.  It  was 
no  longer  a  mere  possessory  right. 
It  had  ripened  into  a  legal  estate  in 
fee  in  the  land.  This  being  so,  it  is 
quite  obvious  that  such  an  estate, 
such  a  title,  cannot  pass  by  mere  ver- 
bal surrender."  Austin  v.  Bailey,  yj 
Vt.  219. 


ADVICE  OF  COUNSEL.— See  Attorney  and  Client. 


Vol.  I 


AFFIDAVITS. 

By  Frank  S.  Adams. 

I.   DEFINITION,   703 

II.  THE  DECLARATION,  703. 

1.  In  General,  703 

2.  Language  of  Statute,  704 

3.  Immaterial   Words  Omitted,  705 

4.  Clerical  or  Grammatical  Errors,  705 

5.  Should  State  Facts,  A^ot  Conclusions,  706 

III.  THE  OATH,  707 

1.  Necessity  Of,  707 

2.  Hozv  Adnnnistcrcd,  joy 

3.  H01V  Shozvn,   708 

■  A.  By  Jurat,  708 
B.  No  Particular   IVords  Necessary  to  Shozv,  709 

4.  Where  Affidavit  Is  Used  As  Foundation  of  Proceedings, 

710 

5.  Where  Administered,  710 

A.  In  General,  710 

B.  Necessity  of  Shoxving,  710 

C.  Ho-iv  Shown,   711 

D.  Presumption  As  to  Jurisdiction,  711 

E.  Venue,  Matter  in  Pais,  711 

F.  May  Be  Established  by  Parol,  712 

G.  Variance  Between    Venue  and  Jurat,  712 
H.  Appearance  of  Affiant  Before  Officer,  713 

IV.  AUTHORITY  OF  OFFICER,  713 

1.  Officer  Must  Have  Authority,  713 

2.  Necessity  of  Shoiving,  714 

3.  How  Shown,  714 

A.  By  Jurat  or  Certificate  of  Officer,  714 

B.  Anyzi'hcrc  on   Face  'of  Instrument.  714 

C.  By  Extrinsic  Evidence,  714 

D.  Judicial  Notice  of  Official  Clianictcr,  715 

E.  Foreign  Affidavits,  716 

V.  THE  AFFIANT,  716 

1.  Identitication  of  Affiant.  716 

A.  In   General,  71C) 

B.  By  Signature,  717 

C.  By  Jurat,  718 

Vol.  I 


AFFIDA]'rrS. 


703 


2.  When  Must  State  Capacity  of  Affiant,  718 

3.  Name  May  Be  Omitted  From  tlie  Bod\<,  yu) 

4.  Agents  and  Attorneys,  719 

5.  Presumption   of  Authority  to  Make,  720 

6.  IVherc  Statute  Designates  Affiant.  721 

VI.  IDENTIFICATION  OF  CAUSE,  721 

1.  Cause  or  Proceeding  Must  Be  Identified.   721 

2.  Where  Cause   Clearly  Appears.   722 

3.  Identified  With  Wro)ig  Cause,  yz}, 

4.  When  No  Cause  Is  Pending.  724 

5.  Rule  Not  Universal,  724 

6.  Waiver  of  Irregularity,  725 

7.  When  Used  As  Foundation  for  ll'rits,  725 

VII.  AS  AN  INSTKITMENT  OF  EVIDENCE,  726 

SCOPE  OF  THE  ARTICLE. 

This  article  is  intended  to  cover  the  competency  and  sufficiency 
of  affidavits  when  offered  as  evidence  to  estabHsh  some  fact  in  con- 
troversy. Therefore,  questions  as  to  the  use  of  affidavits  as  the 
foundation  for  provisional  remedies,  such  as  attachments,  are 
omitted.  So  questions  of  practice  merely  relating  to  the  use  and 
sufficiency  of  affidavits  are  avoided  as  not  within  the  scope  of  this 
work. 

I.  DEFINITION. 

An  affidavit  is  a  written  declaration  under  oath,  sworn  to  by  the 
[lerson  making  the  declaration,  before  some  person  authorized  to 
administer  oaths ;'  and  is  distinguished  from  a  deposition  in  that  it 
is  made  without  notice.- 

II.  THE  DECLARATION. 

1.  In  General.  —  To  render  an  affidavit  competent  as  evidence, 
the  probative  facts  alleged  therein  should  be  stated  in  such  manner 
and  with  such  exactness  as  to  have  the  direct  and  positive  sanction 


1.  Alabama.  —  Watts  v.  Womack, 
44    Ala.    60s.. 

Illinois.  —  Harris  v.  Lester,  80  111. 
307 ;   Hays  !■.   Loomis,  84  111.   18. 

Kentucky.  —  Bishop  7'.  McQuerry, 
1,3    Bush    417. 

.Michigan.  —  Knapp  z'.  Duclo,  i 
-Mich.   N.   P.   189. 

Missouri.  —  Barhydt  v.  Alexander, 
59   Mo.   App.    188.' 

Nebraska.  ■ —  Bautley  v.  Finney,  43 
\eb.  794,  62  N.  W.  213. 


Neiv  Jersey.  —  Hetsman  v.  Gar- 
rard, 16  N.  J.  Law  124. 

South  Carolina.  —  State  v.  Sulli- 
van, 39  S.  C.  400,  17  S.  E.  865. 

Tennessee.  — Grove  2\  Campbell,  9 
Yerg.  7. 

Texas.  —  Shelton  v.  Berry,  19  Tex. 
IS4,  IS  Am.  Dec.  326. 

P'irginia.  —  Hawkins  v.  Gibson,  i 
Leigh    476. 

8.  Stimpson  v.  Brooks,  23  Fed. 
Cas.  No.  I3,4S4;  City  of  Atchison  v. 

Vol.  I 


704 


AFFIDAVITS. 


of  the  party's  oath  to  its  truth  so  as  to  bind  his  conscience  and  sub- 
ject him  to  the  penahies  of  the  law  in  case  the  statement  is  untrue.^ 
2.  Language  of  Statute.  —  An  affidavit  need  not  follow  the 
language  of  the  statute  authorizing  it ;  words  of  equivalent  import 
suifice.*     Indeed,  an  affidavit  following  the  statute  verbatim  may  be 


Bartholow,  4  Kan.  124;  Bishop  v. 
]\IcQuerry.  76  Ky.    (13  Bush)   417. 

3.  England.  —  Watson  v.  Walker, 
I    Moore  &   S.  437. 

United  States.  —  Blake  Crusher 
Co.  V.  Ward,  3  Fed.  Cas.  No.  1505. 

Kentucky.  —  Peers  v.  Carter,  4 
Litt.  268. 

Neiv  Yorlc.  —  Van  Wyck  v.  Reid, 
10  How.  Pr.  366;  People  '•.  Becker, 
20  N.  Y.  354;  People  i'.  Sutherland, 
81  N.  Y.  I. 

Tc.ras.  —  Mays    v.    Lewis,    4    Tex. 

38-   .. 

II  iscoiisui.  —  Quarks  Z'.  Rohinson, 
I  Chand.  29,  32  note,  2  Pinn.  97; 
Miller  z>.  Munsou,  34  Wis.  579,  17 
Am.  Rep.  461. 

In  Redemption  Proceedings. 
"  The  affidavit  on  which  the  right  of 
the  original  purchaser  was  sought 
to  he  acquired,  was,  in  my  opinion, 
defective  in  the  manner  of  stating 
the  amount  due  upon  the  mortgage. 
It  says :  '  That  there  is  actually  due 
or  to  become  due  on  said  mortgage, 
at  this,  the  time  of  claiming  a  right 
to  purchase  or  redeem  thereon,  over 
and  above  all  payments,  the  sum  of 
$6433,  as  claimed  by  this   deponent.' 

"  The  statute  requires  an  affidavit, 
stating  the  true  sum  due,  or  to  be- 
come due,  over  and  above  all  pay- 
ments. The  sum  thus  stated  is  the 
amount  which  any  other  person  seek- 
ing, in  pursuance  of  the  statute,  to 
subsequently  acquire  the  same  right, 
must  pay.  There  is,  therefore,  good 
reason  for  saying  that  the  statement 
shall  be  made  in  such  manner  as  to 
have  the  direct  and  positive  sanction 
of  the  party's  oath  to  its  truth ; 
and  that,  not  only  so  as  to  bind  his 
conscience  by  the  solemnity  of  an 
oath,  but  also  to  subject  him  to  the 
penalties  of  the  law  in  case  the  state- 
ment is  untrue."  People  v.  Becker, 
20  N,   Y.  354. 

4.  Alabama.  —  Graham  v.  Rufif,  8 
Ala.  171;  Ware  v.  Todd,  I  .-Ma.  199; 

Vol.  I 


Free  v.  Ilukill,  44  Ala.  197;  Hafley 
!■.    Patterson,    47    Ala.    271. 

Arkansas.  —  Mandel  v.  Peet,  18 
Ark.   236. 

Georgia.  —  Chambers  v.  Sloan,  19 
Ga.  184;  Kennon  v.  Evans,  36  Ga. 
89. 

Indiana.  —  Story  v.   Story,  32   Ind. 

137- 

/oK'O.  —  Wiltse  V.  Stearns,  13  Iowa 
282. 

Louisiana.  —  Parmele  v.  Johnston, 
IS  La.  Ann.  429;   Sawyer  v.  Arnold, 

I  La.  Ann.  315. 

Maryland.  —  Stanhope  v.  Dodge, 
52   .Aid.  483. 

Michigan.  —  Cross  v.  McMaken, 
17  Mich.  511,  97  Am.  Dec.  203; 
Mathews  v.  Densmore,  43  Mich.  461, 

5  N.   W.  669. 

Mississippi.  —  Wallis    v.    Wallace, 

6  How.  254;  Lee  r.  Peters,  I   Smed. 

6  Al.  503;  Dandridge  z:  Stevens, 
12  Smed.  &  M.  723;  Commercial 
Hank  v.  Ullman,  10  Smed.  &  M. 
411. 

.Missonri.  —  Curtis  '■.  Settle,  7  Mo. 

4.S2- 

Ne'u'    York.  —  Schwartz    f.    Allen, 

7  N.  Y.  Supp.  5;  Van  Kirk  v.  Wilds, 

I I  Barb.    520. 

IVisconsin.  —  Oliver  v.  Town,  28 
Wis.  328 ;  Russell  v.  Ralph,  53  Wis. 
328,   10  N.  W.  S18. 

In     Affidavit    of    Claim     Against 

Estate Where  a  claim  filed  against 

an  estate  contained  a  statement  of 
debits  and  credits  and  closed  with 
the  statement  "Amount  due  $741.50" 
and  the  affidavit  verifying  the  ac- 
count was  as  follows:  "I,  Harriet 
H.  Story,  of  Underbill,  in  the  County 
of  Chittenden,  and  State  of  Ver- 
mont, of  lawful  age,  on  oath  depose 
and  say  that  the  within  is  a  correct 
account  of  the  number  of  weeks 
that  I  worked  for  my  stepfather,  in 
his  family,  which  was  done  at  his 
special  request,  since  I  arrived  at 
the  age  of  18  years,  giving  correct 
statenie}if    of    the    debit    and    credit, 


AFFIDAVITS. 


705 


insufficifiit.^ 

3.  Immaterial  Words  Omitted.  —  The  omission  of  words,  not 
material  to  the  sense,  will  not  vitiate  an  affidavit,  if,  by  those  remain- 
ing-, the  sense  and  scope  of,  the  law  are  fulfilled. ° 

4.  Clerical  or  Grammatical  Errors.  —  Where  the  meaning  clearly 
appears  an  affidavit  is  not  vitiated  by  mere  clerical  or  grammatical 
errors.' 


according  to  the  best  of  my  knoivl- 
edgc  and  belief."  Held,  that  the 
words  itaHcized  in  the  affidavit,  taken 
in  connection  with  the  fact  that  the 
claim  showed  the  "  amount  due," 
was  a  substantial  comphance  with 
the  statute  requiring  the  claimant  to 
attach  to  tlie  claim  an  affidavit,  "  to 
the  effect  that  the  same  is  justly 
due  and  wholly  unpaid,"  and  that  it 
was  not  necessary  to  follow  the 
words  of  the  statute;  the  affidavit  be- 
ing to  the  effect  that  the  claim  was 
justly  due  and  wholly  unpaid  was 
sufficient.  Story  v.  Storv,  32  Ind. 
137- 

5.  Miller  ?■.  Munson,  34  Wis.  579, 
17  Am.  Rep.  461  ;  Klenk  v.  Schwalm, 
19  Wis.  124:  Goodyear  Rubber  Co. 
V.  Knapp,  61  Wis.  103,  20  N.  W. 
651  ;  Spring  f.  Robinson,  2  Finn. 
(Wis.)   97. 

In  Affidavit  for  Attachment. 
Where  the  statute  authorized  an  at- 
tachment upon  affidavit  that  defend- 
ant has  assigned,  disposed  of,  or 
concealed,  or  is  about  to  assign, 
dispose  of  or  conceal  any  of  his 
property  with  intent  to  defraud  his 
creditors,  and  the  affidavit  was  in 
the  precise  language  of  the  statute 
the  court  said  :  "  This  is  sometimes 
sufficient,  but  not  so  in  all  cases. 
We  must  look  for  some  other  test 
by  which  to  determine  its  sufficiency. 
The  proceeding  by  attachment  is 
very  summary  and  violent.  The 
purpose  of  the  law  which  requires 
that  a  certain  affidavit  be  made 
before  the  writ  can  issue,  is  to 
protect  the  alleged  debtor  from  so 
severe  a  process,  unless  the  creditor 
or  some  person  in  his  behalf,  under 
the  responsibilities  of  an  oath,  shall 
assert  the  existence  of  certain  facts 
which  the  law  adjudges  good 
grounds  for  issuing  the  writ.  This 
requirement  of  the  law  would  afford 
the  debtor  no  protection  whatever, 
unless  the  affiant  is  liable  to  be  pun- 

45 


ished  criminally  if  he  willfully 
swears  falsely  in  such  affidavit. 
Hence,  although  the  affidavit  be  in 
the  very  words  of  the  statute,  it  is 
not  sufficient,  unless  perjury  could 
be  assigned  upon  it."  The  affidavit 
was  held  insufficient  as  the  words 
"any  of  his  property"  following  the 
language  of  the  statute  rendered  the 
affidavit  meaningless.  ^Tiller  v. 
Munson,  34  Wis.  '^79,  17  .\m.  Rep. 
461. 

6.  Omission  of  Immaterial  Words. 
Jean  f.  Spurrier,  35  Md.  no. 

Where  the  word  "  the "  was 
omitted  in  the  statement,  he  says 
that  "  statements  in  the  foregoing 
petition  are  true,"  the  court  held 
that  it  was  manifest  that  it  was  a 
mere  omission  of  the  draughtsman, 
and  that  being  the  case,  it  was  sub- 
stantiallv  sufficient.  Clark  t'.  Miller, 
88  Ky.  108,  10  S.  W.  277. 

The  omission  of  the  words.  "  In 
some  manner  "  from  an  affidavit  for 
attachment  under  a  statute  requiring 
an  affidavit  to  state  that  the  defend- 
ant "  is  in  some  manner  about  to 
dispose  of  his  property  with  intent  to 
defraud  his  creditors,"  was  held  not 
to  vitiate  the  attachment.  Drake  v. 
Hager,  10  Iowa  556. 

Where  in  alleging  the  defendant's 
indebtedness,  the  word  "  is  "  was 
omitted  before  the  word  ''  indebted," 
it  was  held  that  without  that  word 
the  language  plainly  alleged  indebt- 
edness. Buchanan  v.  Sterling,  63 
Ga.  227. 

But  where  the  grounds  upon  which 
an  attachment  is  sought  are  to  be 
written  in  a  blank  space  in  the 
printed  form,  and  the  space  is  not 
filled  in,  so  that  by  the  omission  of 
the  words  the  grounds  are  not  al- 
leged, the  omission  is  fatal  to  the 
affidavit.  Black  Z'.  Scanlon,  48  Ga. 
12. 

7.  Bromley  7'.  Foster,  i  Chit.  562, 
18  Eng.   C.   L.   ,307.  note. 

Vol.  I 


ro6 


AFFIDAVITS. 


5.  Should  State  Facts,  Not  Conclusions.  —  As  it  is  the  office  of  an 
affidavit  to  present  to  the  court  the  evidence  from  which  it  may 
draw  its  conclusions,  the  facts  upon  which  such  conclusions  are  to 
be  drawn  must  be  stated.  An  affidavit  containing  only  opinions  and 
conclusions  of  affiant  is  insufficient  and  cannot  be  considered.' 


Where  the  Affidavit  for  Publica- 
tion uf  citation  stated  that  tlie  resi- 
dence of  the  defendant  was  "  known 
to  affiant"  (instead  of  unknown,) 
"  and  that  in  consequence  personal 
service  cannot  be  had  on  him,"  the 
mistake  was  held  immaterial.  Pier- 
l)ont   i:    Pierpont,   19  Tex.   227. 

On  Appeal  by  several  executors 
from  the  decision  of  the  probate 
court,  allowing  a  claim  against  the 
estate  of  their  testator,  one  of  them 
filed  an  affidavit,  stating  that  "  affiant 
is  aggrieved  "  instead  of  "  affiants 
are  aggrieved."  Held  to  be  a  cleri- 
cal misprision,  and  that  the  affidavit 
was  substantially  good.  Ross  v. 
Davis,  13  Ark.  293. 

Chattel  Mortgage. —Where  it  was 
contended  that  a  chattel  mortgage 
was  void  because  the  affidavit  to  the 
mortgage  stated  that  the  instrument 
"was"  made  in  good  faith  instead 
of  "  is "  made  in  good  faith,  the 
court  held  that  there  was  no  merit 
in  the  contention.  Vincent  v.  Sno- 
qualmie  ]\Iill  Co.,  7  Wash.  566,  35 
Pac.  396. 

Attachment A'  clerical   error   in 

stating,  as  the  ground  for  attach- 
ment, that  defendant  "  his  "  disposed 
of  his  property  with  intent  to  de- 
fraud creditors,  is  no  ground  for 
quashing  the  attachment,  when  the 
context  clearly  shows  that  "  has  " 
was  intended.  Corrigan  v.  Nichols, 
6  Tex.  Civ.  App.  26.  24  S.  W.  952. 

8.  Dreyfus  v.  Otis,  54  How.  Pr. 
(N.  Y.)  405;  Morris  z:  Talcott,  96 
N.  Y.  100;  Hecht  v.  Levy,  20  Hun 
(N.  Y.)  54;  Baker  v.  Akerman,  77 
Ga.  89;  Hinman  ?'.  Wilson,  2  How. 
Pr.  (N.  Y.)  27;  Markey  t'.  Diamond, 
46  N.  Y.  St.  283,  19  N.  Y.  Supp.  181 ; 
Brown  v.  Keogh,  39  N.  Y.  St.  225, 
14  N.  Y.  Supp.  915;  Cattaraugus 
Cutlery  Co.  v.  Case,  30  N.  Y.  St. 
961,  9  N.  Y.  Supp.  862;  Mechanics' 
Bank  r.  Loucheim,  5=  Hun  396,  8 
N.  Y.  Supp.  520 ;  Westervelt  v. 
.\grumaria  Sicula  Societa,  etc.,  58 
Hun     147,     II     N.     Y.     Supp.     340; 


Hodgman  v.  Barker,  60  Hun  156,  14 
N.  Y.  Supp.  574;  Perkins  v.  Gibbs, 
I  Baxt.  (Tenn.)  171  ;  Delaplain  v. 
.'Vrmstrong,  21  W.  Va.  211. 

Facts  Must  Be  Stated.  •—  Where 
a  complaint  and  affidavit  upon  which 
an  order  of  arrest  was  granted  set 
forth  that  the  defendant  represented 
to  plaintiff  that  said  "  Maria  N. 
Winne  was  solvent  and  in  good 
credit,  and  worth  the  sum  of  one 
hundred  thousand  dollars  over  all 
her  debts  and  liabilities."  and  that 
she  owned  real  estate  in  the  City  of 
New  York,  free  and  unincumbered, 
worth  over  fifty  thousand  dollars ; 
that  said  representations  as 
to  the  solvency  of  Maria  N.  Winne 
were  false  and  fraudulent  and  un- 
true, and  were  made  with  the  pre- 
conceived design  and  intent  of  de- 
frauding this  plaintiff,  and  as  a  mat- 
ter of  fact,  said  Winne  was  insolvent, 
and  was  a  woman  without  means, 
and  deponent  has  since  ascertained 
from  persons  who  know  said  Maria 
N.  Winne  that  she  was  residing  at 
226  First  street,  Albany,  on  the  top 
floor  of  a  tenement,  at  a  rental  of  $9 
per  month,  and  that  she  had  been 
supported  in  part,  for  past  years,  by 
the  Toadies'  Aid  Society  of  St.  Paul's 
Church,  in  the  City  of  Albany." 
Held,  that  the  affidavit  was  insuffi- 
cient ;  that  affiant  should  have  stated 
when,  and  how,  and  from  whom, 
and  what  were  the  facts  upon  which 
he  predicated  his  conclusiims  that 
said  Winne  was  insolvent,  etc.  To 
authorize  an  order  of  arrest,  facts 
and  not  conclusions  must  be  stated. 
Iron  Co.  V.  Baudman.  2  Wkly.  Dig. 
591 ;  Dreyfus  v.  Otis,  54  How.  Pr. 
405.  If  the  conclusions  of  the  affi- 
davit are  to  be  drawn  from  com- 
munications, whether  written  or 
verbal,  the  communications  must  be 
set  forth  in  order,  that  the  court  may 
see  that  the  deductions  of  affiant  are 
well  founded.  Any  other  rule  would 
make  the  affiant  the  sole  judge  as  to 
whether   the   evidence    which    ho   had 


Vol.  I 


AFFiD.unrs. 


7(17 


III.  THE  OATH. 

1.  Necessity  Of.  —  An  affidavit  is  not  admissible  as  such  for  any 
purpose  unless  it  appears  that  the  party  making;  the  declaration  did 
so  under  the  sanctity  of  a  le,s;al  oath.'' 

2.  How  Administered.  —  The  oath  necessary  to  the  declaration 
may  be  adiuinistered  according  to  the  religious  belief  of  the  affiant, 
and  no  particular  ceremony  is  required  to  make  a  legal  oath ;  it 
being  sufficient  that  both  the  affiant  and  the  officer  understand  that 
the  declaration  is  in  fact  sworn  to  by  the  party  making  it.'" 


in  his  possession  was  sufficient  to 
entitle  him  to  the  relief  sought.  In 
the  case  at  bar,  affiant  swore  to 
notliing  but  conclusions.  Such  alle- 
gations may  be  good  in  a  complaint, 
but  are  entirely  useless  in  an  affidavit 
whose  office  is  to  place  before  the 
court  the  evidence  from  which  it 
may  draw  its  conclusions.  JMarkey 
V.  Diamond,  46  N.  Y.  St.  283,  19  N. 
Y.   Supp.   181. 

Office  of  the  Affidavit. —  "The 
office  of  an  affidavit  is  to  set  forth 
the  evidence  from  which  the  court 
may  draw  conclusions  of  fact,  differ- 
ing in  this  respect,  radicallj',  from  a 
complaint,  which  should  only  set 
forth  conclusions  of  fact,  and  not  the 
evidence  of  the  correctness  of  these 
conclusions."  ^Mechanics'  Bank  v. 
Loucheim,  55  Hun  396,  8  N.  Y. 
Supp.  520. 

Affidavit  for  Injunction A  mere 

statement  of  a  conclusion  in  an  affi- 
davit is  not  sufficient  to  make  it  ap- 
pear that  plaintiff  will  be  unduly 
prejudiced  if  an  injunction  is  not 
issued  without  notice,  but  the  facts 
from  which  such  conclusion  is  to  be 
drawn  should  be  staled.  Brough  v. 
Schanzenbach,  59  III.  App.  407. 

9.     Illinois.  — Keboe  v.  Rounds,  69 
III.   3SI  ;    .McDermaid   v.    Russell, 
111.  489. 

Indiana.  —  Cantwell    v.     State. 
Ind.  505. 

Mississifpi.  —  Carlisle  z'.  Gunn,  68 
}iliss.  243,  8  So.  743. 

Xezi-  York.  —  People  v.  Suther- 
land, 81  N.  Y.  I  ;  Ladow  v.  Groom, 
I  Demo  429;  Thompson  f.  Fuller,  28 
N.  Y.  St.  4,  8  N.  Y.  Supp.  62. 

South  Carolina.  —  Doty  '■.  Boyd, 
46  S.  C.  39.  24  S.  E.  59- 

r.-.ra.?.  — Hardy  r.  Beaty,  84  Tex. 


41 


27 


562,  19  S.  W.  778,  31  Am.  St.  Rep. 
80. 

Jl'est  Virginia.  —  Hudkins  v.  Has- 
kins,  22  W.  Va.  645 ;  Cosner  v. 
Smith,  36  W.  Va.  788,  15  S.  E.  977- 

Oath     of     Assessor Where     the 

oath  of  the  County  Assessor  to  the 
assessment  roll  was  signed  by  him, 
but  it  did  not  appear  that  the  oath 
was  actually  taken,  the  court  held 
the  assessment  void.  Merriam  v. 
Coffee,    16   Neb.  450,  20   N.   W.   389. 

Where  the  affidavit  for  publication 
of  a  summons  did  not  appear  to  have 
been  sworn  to  before  any  officer,  it 
was  held  to  be  no  affidavit,  and  gave 
no  authority  to  the  court  to  enter  an 
order  of  publication.  McDermaid  v. 
Russell,  41  111.  489. 

Certificate   Insufficient A    mere 

recital  of  the  facts  averred  by  the 
affiant  in  the  form  of  a  certificate  of 
the  officer  which  does  not  state  that 
the  facts  stated  were  sworn  to  is  not 
an  affidavit.  Hudkins  v.  Haskins,  22 
W.  Va.  645. 

Cannot  Be  Sworn  to  by  Separate 
Affidavit.  —  An  affidavit  in  which  the 
affiant  swears  that  the  facts  stated  in 
another  paper,  to  which  he  refused 
to  be  sworn,  are  true,  will  not  give 
that  paper  validitv  as  an  affidavit. 
Thompson  f.  Eullcr,  28  N.  Y.  St.  4, 
8  N.  Y.  Supp.  62. 

10.  Newman  1:  Newman.  7  N.  J. 
Eq.  26 ;  Matthews  v.  Reid,  94  Ga. 
461.  IQ  S.  E.  247;  Dunlap  !■.  Clay.  65 
Miss.  454.  4  So.  118. 

Oath' Believed  to  Be  Taken  by 
Affiant  Only. —  A  justice  of  the 
peace  prepared  the  affidavit,  writ  and 
bond,  and  handing  them  to  affiant 
asked  him  "  if  it  was  all  right,"  and 
the  party  replied  that  it  was.  The 
affidavit  was  not  signed  by  the  affiant, 
nor  was  the  jurat  signed  by  the  jus- 

Vol.  I 


708 


AFFIDAVITS. 


3.  How  Shown.  —  A.  By  Jurat.  —  The  certificate  or  jurat  of  tlie 
officer  l)y  whom  the  affidavit  was  taken  containing  a  statement  that 
the  affiant  was  sworn  is  prima  facie  evidence  that  the  affiant  made 
the  declaration  under  oath.'' 

Necessity  of  Showing  by  Jurat. — The  jurat  has  been  held  to  be 
essential,  and  proof  aliunde  of  the  administration  of  the  oath  inad- 
missible;^^ but  the  weight  of  authoritv  is  to  the  contrary.'" 


lice.  The  affiant  testifieil  that  he 
considered  that  what  has  been  de- 
tailed was  swearing  to  the  affidavit. 
The  magistrate  testified  that  he  was 
positive  that  no  oath  was  athninis- 
tered,  and  no  attempt  to  make  an 
oath  was  made.  Held,  that  the  in- 
strument was  no  affidavit.  Carlisle 
V.   Gunn,  68   Miss.   243,  8   So.   743. 

To  the  Same  Effect,  see  Matthews 
V.  Reid,  94  Ga.  461,  19  S.  E.  247, 
where  an  attorney  laid  a  paper  on 
the  desk  of  the  clerk  of  the  superior 
court,  at  the  same  time  remarking  to 
the  clerk,  "  Here  is  an  affidavit.  I 
want  to  swear  to  it.  I  have  already 
signed  it.  The  facts  stated  in  it  are 
true,"  and  there  was  no  evidence  that 
the  clerk  heard  what  was  said,  and 
the  paper  was  not  certified  by  the 
clerk  till  long  afterwards,  it  was  held 
that  the  affidavit  was  not  duly  made. 

Holding  Up  the  Hand It  is  not 

necessary  that  one  should  "  hold  up 
his  hand  and  swear  "  to  make  his  act 
an  oath  to  the  truth  of  the  matters 
set  out  for  grounds  of  attachment, 
where  the  affiant  and  the  officers  both 
understand  that  what  is  done  is  all 
that  is  necessary  to  complete  the 
oath.  Dunlap  v.  Clay,  65  Miss.  454, 
4  So.  118. 

II-  Hitsman  v.  Garrard,  16  N.  J. 
Law  124;  Crosier  v.  Cornell  Steam- 
boat  Co.,  27  Hun    (N.  Y.)   215. 

Office  of  Jurat.  —  The  jurat  or  cer- 
tificate is  no  part  of  the  oath  or  affi- 
davit, but  is  simply  evidence  that  the 
oath  was  made  or  the  affidavit  was 
sworn  to.  It  is  like  the  acknowledg- 
ment of  a  deed,  which  is  no  part  of 
the  deed  itself,  but  authorizes  the 
deed  to  be  recorded  and  read  in  evi- 
dence without  proving  the  signatures 
to  the  deed.  And  so  here  the  jurat 
or  certificate  attached  to  an  affidavit, 
if  the  officer  making  such  jurat  or 
certificate  had  authority  to  adminis- 
ter oaths,  enables  sucli  affidavit  to  be 

Vol.  I 


read  in  evidence  as  the  oath  of  the 
party,  whom  the  officer  certifies  made 
such  oath.'  Bantley  'e.  Finney,  43 
Neb.  794,  62  N.  W.  213. 

12.  Metcalf  v.  Prescott,  10  Mont. 
283,  25  Pac.  1037;  Gordon  v.  State, 
29  Te.x.  App.  410,  16  S.  W.  337 :  Cas- 
ner's  Adm'r.  v.  Smith,  36  W.  Va. 
788,  15  S.  E.  977;  Blake  Crusher  Co. 
V.  Ward,  3  Fed.   Cas.   No.   1505. 

13.  Alabama.  —  McCartney  v.  The 
Branch  Bank,  3   .Ala.  709. 

Arkansas.  —  Fnrtenheim  v.  Clafiin. 
47  Ark.  49,  14  S.  W.  462. 

Georgia.  —  Smith  v.  Walker,  93 
Ga.  252,  18  S.  E.  830;  Veal  v.  Perk- 
erson,  47  Ga.  92;  Matthews  v.  Reid, 
94  Ga.  461,  19  S.   E.  247. 

Illinois.  —  Kruse  v.  \\'ilson.  79  111. 
233- 

Indiana.  —  Williams  v.  Stevenson, 
103  Ind.  243,  2  N.  E.  728. 

Iowa.  —  Stout  V.  Folger,  34  Iowa 
71,  II  Am.  Rep.  138;  Cook  f.  Jen- 
kins, 30  Iowa  452. 

Nebraska.  —  Bantle}'  v.  Finney.  43 
Neb.  794,  62  N.  W.  213. 

Ne'i.i'  Jersey.  —  Hitsman  v.  Gar- 
rard, 10  N.  J.  Law  124. 

NeiK'  York.  —  T^adow  v.  Groom,  i 
Denio  429. 

Pennsylvania.  —  Borough  of  Potts- 
ville  V.   Curry,  32  Pa.   St.  443. 

IVashington.  —  Taconia  Grocery 
Co.  7'.  Draham,  8  Wash.  263,  36  Pac. 
31.  40  Am.  St.  Rep.  Q07. 

Absence  of  Jurat;  Parol  Evidence. 
Where  the  affidavit  was  in  the  usual 
form  of  an  affidavit  against  a  non- 
resident debtor,  and  was  unexcep- 
tionable in  all  its  statements,  but  the 
jurat  was  not  signed  by  the  officer 
taking  it,  and  the  writ  of  attach- 
ment issued  the  same  day  recited  the 
fact  that  the  affiant  named  in  the 
affidavit  complained  on  oath  to  the 
clerk  issuing  the  writ,  and  the  affi- 
ant testified  that  he  signed  the  affi- 
davit, and  swore  to  it  at  the  time  in 


AFFIDAVITS. 


709 


B.  No  Particular  Words  Necessary  to  Show.  — No  particular 
wording  is  necessary  to  show  that  the  declaration  was  sworn  to.  It 
is  a  valid  affidavit  if  it  can  be  reasonably  inferred  from  the  language 
used  that  the  oath  was  duly  administered  by  the  officer  before  whom 
tlie  affidavit  purports  to  have  been  taken.'* 


tlie  clerk's  office,  liefore  tlie  deputy 
clerk,  it  was  held  that  the  aflidavit  was 
sufficient  and  could  not  be  assailed  in 
a  collateral  proceeding.  Kruse  v. 
\\'ilsoii.   79  III.  233. 

Amendment.  —  Where  no  jurat 
was  attached  to  an  affidavit  as  to  the 
posting  of  notices,  it  was  held  that 
parol  evidence  was  admissible  to 
prove  that  such  affidavit  was  in  fact 
sworn  to  at  the  proper  time  before 
the  clerk,  and  that  the  affidavit  might 
be  amended  to  conform  to  such  evi- 
dence by  attaching  the  proper  jurat. 
That  the  jurat  of  the  officer  is  not 
the  affidavit  nor  any  part  of  it,  but  is 
simply  evidence  of  the  fact  that  the 
affidavit  was  properly  sworn  to  by 
the  affiant,  Williams  v.  Stevenson. 
103  Ind.  243,  2  N.  E.  728. 

Omission  of  Jurat  no  Ground  for 
Plea  in  Abatement.  —  In  Hytle  v. 
.'\dams,  80  -Ala.  iii.  it  was  held  that 
if  an  affidavit  for  an  attachment  is  in 
fact  made  before  the  officer  who  is- 
sues the  writ,  it  is  not  necessary  that 
it  shall  be  signed  or  certified  by  him; 
and  a  plea  in  abatement  "  because  it 
wa';  not  signed  by  the  clerk  "  pre- 
sents an  immaterial   issue. 

Court  May  Order  Jurat  Affixed. 
Where  an  affidavit  contained  no  jurat 
it  was  held  in  Williams  v.  Stevenson, 
103  Ind.  243,  2  N.  E.  728,  that  it  is 
proper  for  the  court  to  hear  evidence 
upon  the  question  whether  the  affi- 
davit was  sworn  to,  and  if  the  fact  is 
thus  established,  to  order  the  officer 
to  affi.x  his  jurat  to  the  affidavit. 

Affiant  May  Give  Evidence. 
Where  an  objection  was  made  at  the 
trial  that  the  affidavit  in  question  was 
void  for  the  reason  that  the  jurat  of 
the  officer  was  not  signed  by  him, 
the  affiant  was  sworn  and  testified 
that  he  signed  the  affidavit  and  swore 
to  it  at  the  time  in  the  clerk's  office 
before  the  deputy  clerk.  Kruse  "'. 
Wilson,  79  111.  233. 

By  Other  Facts  and  Circumstances. 
Where  the  jurat  was  not  signed  by 
Mie  officer,  but  the  affidavit  was  filed 


in  the  clerk's  office  and  a  writ  of  at- 
tachment issued  which  recited  that 
the  plaintiff  had  complained  on  oath 
to  the  clerk,  it  was  held  that  the 
facts  and  circumstances  justified  the 
presumption  that  the  affidavit  had 
been  sworn  to,  and  that  the  clerk 
could  not  be  presumed  to  have  made 
a  false  statement  in  tlie  writ,  or  that 
he  would  have  issued  the  writ  with- 
out the  oath.  Kruse  v.  Wilson,  79 
111.  233. 

By  the  Record.  —  In  Borough  of 
Pottsville  T.  Curry.  32  Pa.  St.  443, 
where  the  jurat  to  the  affidavit  was 
not  signed  by  the  officer,  but  the  rec- 
ord on  appeal  recited  that  an  affidavit 
had  been  "  filed  with  the  award,"  the 
court  said  :  "  The  attestation  is  con- 
venient. It  affords  evidence  that  the 
oath  was  taken,  but  it  is  not  the  only 
possible  evidence.  When,  therefore, 
the  paper  filed,  being  in  form  an  affi- 
davit, was  found  without  attestation, 
it  was  competent  for  the  appellant 
to  show  by  other  evidence  that  the 
oath  was  made.  This  was  shown  by 
the  record,  as  we  have  seen,  at  least 
sufficiently  to  warrant  an  allowance 
to  the  prothonotary  to  attest  by  his 
signature,  nunc  pro  tunc  the  admin- 
istration of  the  oath." 

14.  Barhydt  v.  Alexander,  59 
Mo.  App.  188;  Sargent  v.  Townsend, 
2  Disney  (Ohio)  472;  Kleber  v. 
Block,   17  Ind.  294. 

Form  of  Jurat Where  the  peti- 
tion, signed  by  the  appellant,  had 
appended  to  it  the  following  words. 
"  Sworn  to  before  me  this  3rd  day  of 
April,  i860.  H.  C.  Wibble.  Cl'k,"  it 
was  held  sufficient.  Allen  v.  C.illum, 
16   Ind.  234. 

To  an  affidavit  made  before  a  jus- 
tice of  the  peace,  the  justice  appended 
his  jurat  in  this  form:  "Subscribed 
and  sworn  to,"  giving  the  date,  and 
officially  signing  his  name.  The 
jurat  was  held  sufficient.  Hosea  v. 
State,  47  Ind.   180. 

In  Trice  v.  Jones,  52  Miss.  138,  the 
court   say:     "An   inspection    of    the 

Vol.  I 


710 


AFFIDAVITS. 


4.  Where  Affidavit  Is  Used  As  Foundation  of  Proceedings.  —  It 
has  been  held  that  the  faikire  of  the  officer  to  state  in  his  certificate 
tliat  the  oath  was  administered  or  the  affidavit  sworn  to,  will  not 
render  the  affidavit  invalid  or  vitiate  proceedings  in  which  the  affi- 
davit is  an  essential  prerequisite." 

5.  Where  Administered.  —  A.  In  General.  —  As  the  jurisdiction 
of  the  officer  competent  under  the  law  to  administer  the  oath  is 
generally  confined  to  certain  territorial  limits,  it  must  be  admin- 
istered at  some  place  within  the  limits  of  his  jurisdiction,  and  where 
it  appears  from  the  affidavit  itself  that  it  was  taken  outside  of  his 
jurisdiction  it  is  a  nullity,  and  can  not  be  read.^° 

B.  Necessity  oE  Showing.  —  In  some  jurisdictions  it  is  insisted 
that  an  affidavit  is  a  nullity  unless  the  venue  or  place  where  the 
affidavit  was  sworn  to  is  mentioned  in  the  affijdavit.^' 


affidavit  made  by  Trice  for  his  ap- 
peal, shows  nothing  unusual  in  it  ex- 
cept that  instead  of  the  stereotyped 
formula,  '  sworn  to  and  subscrilicd 
before  me,'  the  justice  certified  the 
making  of  the  affidavit  by  these 
words,  viz.,  '  Given  under  my  hand 
and  seal,'  etc.  To  sustain  such  an 
objection  would  justly  bring  judicial 
proceedings  into  contempt,  and  we 
cannot  suppose  that  it  was  on  this 
ground  that  the  motion  to  dismiss 
the  appeal  was  sustained.  The  affi- 
davit conforms  to  the  statute,  and  we 
fail  to  discover  why  it  was  held  in- 
sufficient, and,  if  insufficient,  why  it 
was  not  permitted  to  be  amended." 
See  also  Clement  v.  Bullens,  159 
Mass.  193,  34  N.  E.  173,  wherein  it 
was  held  that  the  words,  "  then  per- 
sonally appeared,"  meant  personal^' 
appeared  before  the  signer. 

15.  Hyde  ?■.  Adams,  80  Ala.  in; 
McCartney  v.  Branch  Bank,  3  Ala. 
709. 

16.  Byrd  z:  Cochran,  39  Neb.  lOg, 
58  N.  W.  127.  ^ 

17.  Missouri.  —  Barhydt  v.  Alex- 
ander, 59  Mo.  App.  188. 

Nebraska.  —  Blair  v.  West  Point 
Mfg.  Co.,  7  Neb.   146. 

New  York.  —  Brooks  T.  Hunt,  3 
Caines  128;  Cook  v.  Staats,  l8  Barb. 
407 :  Vincent  v.  People,  5  Park.  Crini. 
88;  Saril  v.  Payne,  24  N.  Y.  St.  486, 
4  N.  Y.  Supp.  897 ;  Thompson  v. 
Burhans,  61  N.  Y.  52;  Thurman  t. 
Cameron,  24  Wend.  87 ;  Lane  r. 
Morse,  6  How.  Pr.  394. 

Utah.  —  Smith  v.  Richardson,  i 
I'tah  194. 


Wisconsin.  —  Burns  v.  Doyle,  28 
Wis.  460. 

Where  it  appeared  that  the  county 
was  stated  in  the  affidavit,  but  the 
letters  "  ss. "(scilicet)  omitted,  it  was 
held  that  the  affidavit  was  sufficient. 
ATcrcantile  Co.  v.  Glenn,  6  Utah  139. 
21  Pac.  500. 

Venue  Should  Appear  on  Face  of 

Affidavit An  affidavit  verifying  the 

plaintiff's  complaint  purported  to 
have  been  made  before  a  commis- 
sioner of  deeds.  There  was  no  venue 
to  the  affidavit,  and  nothing  upon  its 
face  to  show  where  it  was  taken,  nor 
of  what  place  or  county  the  commis- 
sioner was  appointed.  Held,  that  the 
venue  is  an  essential  part  of  every 
affidavit,  and  is  prima  facie  evidence 
of  the  place  wh^re  it  was  taken,  .^n 
affidavit  should  show  upon  its  face 
that  it  was  made  before  some  officer 
competent  to  take  affidavits,  and 
within  some  place  where  he  was  au- 
thorized by  law  to  administer  an 
oath.  For  aught  that  appears,  the 
affidavit  was  made  in  Canada,  or  in 
some  other  State,  where  the  oath  ad- 
ministered was  extrajudicial  and 
void.  No  presumption  arises  that  an 
affidavit  ha<  been  made  at  any  par- 
ticular place  within  the  state;  nor,  in- 
deed, that  it  was  made  within  the 
limits  of  the  state,  where  no  place  is 
mentioned.  The  affidavit  did  not, 
therefore,  contain  enough  to  show 
that  the  plaintiff,  in  verifying  his 
complaint,  had  been  legallv  sworn. 
Lane  v.  Morse,  6  How.  Pr.  (N.  Y.) 
394.  See  also  State  v.  Green,  15  N. 
J.  Law  88,  wherein  it  is  held  that  an 


Vol.  I 


.IFFIDAVITS. 


711 


C.  How  Shown.  —  It  is  the  usual  practice  to  set  forth  in  the 
form  of  a  caption  to  the  afifidavit  the  place  where  it  was  taken  ;  but 
this  is  not  material  as  it  is  sufficient  if  the  venue  appears  anywhere 
on  the  face  of  the  instrument. ^^ 

D.  PRESLTMrTiON  As  TO  Ji'RiSDiCTioN.  —  It  has  been  held  in  most 
jurisdictions  that  if  an  affidavit  appears  to  have  been  taken  before 
an  officer  authorized  to  administer  oaths,  the  omission  of  the  venue 
will  not  invalidate  it.  It  will  be  presumed  to  have  been  made 
within  his  jurisdiction,'''  provided  the  contrary  does  not  appear.-* 

E.  Venue,  Matter  in  Pais.  —  But  the  venue  stated  in  an  affi- 
davit is  by  no  means  conclusive  evidence  that  the  oath  was  taken 
at  the  place  mentioned."^ 


affidavit  when  offered  to  be  read  in 
evidence,  must  appear  on  the  face  of 
it  to  be,  what  an  affidavit  ought  to  be, 
to  entitle  it  to  be  read.  It  must  ap- 
pear to  have  been  taken  before  the 
proper  officer,  and  in  compliance 
with  all  legal  requirements.  The 
court  cannot  stop  to  inquire  into  the 
competency  of  the  officer  or  the  place 
where  it  was  taken. 

18.  Venue  Stated  in  Caption  Sufl- 
cient.  —  Where  the  caption  of  the 
affidavit  was  "  State  of  Illinois,  Car- 
roll County,"  and  it  was  contended 
that  there  was  no  evidence  tending 
to  prove  the  oath  was  administered 
in  the  county  of  Carroll,  it  was  held 
that  in  all  affidavits  and  other  papers 
requiring  a  venue,  it  is  for  the  very 
purpose  of  indicating  the  place  where 
the  act  was  done.  Finding  such  a 
venue  in  the  caption  of  the  affidavit, 
the  proof,  until  overcome  by  other 
evidence,  was  ample  of  the  fact  that 
the  oath  was  administered  in  Car- 
roll county.  Van  Dusen  v.  People, 
78  111.  645. 

19-  Canada.  —  McLean  v.  Cum- 
niings,  Tayl.  184. 

United  States.  —  Ornisby  v.  Ott- 
man,  85  Fed.  492,  29  C.  C.  A.  295. 

California.  —  Reavis  v.  Cowell,  56 
Cal.  588. 

Illinois.  —  Stone  v.  Williamson,  17 
111.   App.   175- 

Iowa.  —  Stoddard  v.  Sloan,  65 
Iowa  680,  22  N.  W.  924 ;  Stone  v. 
Miller,  60  Iowa  24,^,  14  N.  W.  781 ; 
Snell  V.  Eckerson,  8  Iowa  284. 

Kansas.  —  Baker  t'.  Agriculture 
Land  Co.,  62  Kan.  79,  61  Pac.  412. 

Minnesota.  —  Young  v.  Young,  18 
Minn.  90. 


Nebraska.  —  Merriam  v.  Coffee,  16 
Neb.  450,  20  N.  W.  389;  Miller  v. 
Hurford,  13  Neb.  13,  12  N.  W.  832; 
Crowell  V.  Johnson,  2  Neb.  146. 

Oregon.  —  Dennison  v.  Story,  i 
Or.  272. 

South  Dakota.  —  State  v.  Henning, 
3   S.   D.  492,   =14   N.   W.  536. 

Where  Notary  is  State  Oflcer. 
A  notary  public  being  a  state  officer 
under  the  laws  of  ^lichigan,  and  his 
official  acts  not  being  limited  to  the 
county  in  which  he  resides,  it  is  held 
that  a  logger's  lien  is  not  invalid  be- 
cause the  affidavit  of  claim  does  not 
show  the  county  where  the  oath  was 
administered.  Sullivan  v.  Hall,  86 
Mich.  7,  48  N.  W.  646,  13  L.  R.  A. 
556.  See  also  Perkins  v.  Collins.  3 
N.  J.  Eq.  482,  and  State  v.  Henning, 
3  S.  D.  492,  54  N.  W.  536. 

20.  Parker  z\  Baker,  8  Paige  Ch. 
(N.  Y.)  428;  Mosher  v.  Stowell,  9 
Abb.  N.  C.  (N.  Y.)  456;  Crosier  v. 
Cornell  Steamboat  Co.,  27  Hun  (N. 
Y.)  215. 

21.  Smith  V.  Richardson,  i  Utah 
194 ;  Barhydt  v.  Alexander,  59  Mo. 
App.  188;' Cook  V.  Staats,  18  Barb. 
(N.  Y.)  407;  Van  Dusen  v.  People, 
78  111.  64s ;  Lane  v.  Morse.  6  How. 
Pr.  (N.  Y.)  394;  Babcock  z: 
Kuntzsch,  85  Hun  33,  32  N.  Y.  Supp. 

587. 

Venue  as  Matter  in  Pais —  It  is 

no  doubt  very  proper  for  officers, 
especially,  if  they  have  only  limited 
territorial  jurisdiction,  to  certify  in 
affidavits  taken  before  them,  the  place 
or  county ;  first  that  it  may  appear 
on  the  face  of  the  document,  that  it 
was  taken  within  his  jurisdiction; 
and    secondly,    that    perjury    may   be 

Vol.  I 


ri2 


AFFIDAVITS. 


F.  May  Be  Established  by  Parol.  —  Where  the  omission  of 
the  venue  is  not  regarded  as  a  fatal  defect,  the  place  where  the  oath 
was  administered  may  be  established  by  parol. -- 

G.  \'arl\nce  Between  Venue  and  Jurat.  —  Where  the  formal 
venue  of  an  affidavit  is  laid  in  one  county,  but  it  appears  from  the 
jurat  to  have  been  sworn  to  before  an  officer  in  another  county,  it  is 
presumed  that  the  officer  taking  the  affidavit  administered  the  oath 
within  the  limits  of  his  jurisdiction.-"  But  there  are  cases  contrary' 
to  this  doctrine."* 


properly  assigned,  should  it  become 
necessary.  But  the  place  where  an 
affidavit  was  actually  made  is  a  mat- 
ter in  pais.  If  the  officer  certifies  it 
to  have  been  made  in  A,  it  may  be 
shown  to  have  been  actually  sworn  to 
in  B.  Otherwise  perjury  might  be 
committed  with  impunity,  if  the  offi- 
cer by  design  or  accident,  inserted  a 
wrong  place.  Peltier  r.  Banking  Co., 
14  N.  J.  Law  257.  See  also  Van 
Dusen  v.   People,  78  111.  645. 

22.  Alosher  z'.  Heydrick.  45  Barb. 
(N.  Y.)  549;  Miller  v.  Hurford,  13 
Neb.  13,  12  N.  W.  832;  Babcock  7: 
Kuntzsch,  85  Hun  33,  32  N.  Y.  Supp. 
587;  Reedy  Elevator  r.  American 
Grocery  Co.,  48  N.  Y.  Supp.  619 ; 
People  z:  Stowell,  9  Abb.  N.  C.  (N. 
Y.)  456;  People  z:  Cady,  105  N.  Y. 
299,  308,   II    X.   E.  810. 

Waiver  of  Venue,  Parol  Evidence. 
In  People  v.  County  Canvassers,  20 
N.  Y.  Supp.  329,  where  an  affidavit 
for  an  order  to  show  cause  was  ques- 
tioned on  appeal  for  the  reason  that 
it  contained  no  venue,  the  court  said  : 
''  An  affidavit  must  show  upon  its 
face  that  it  vi'as  taken  within  the 
jurisdiction  of  the  officer  before 
whom  it  was  verified  and.  if  taken  in 
any  other  part  of  the  county  of 
Poughkeepsie,  the  affidavits  would 
have  been  nullities.  Had  the  objec- 
tion been  taken  upon  the  return  of 
the  order  to  show  cause,  the  proceed- 
ings should  have  been  dismissed,  but 
the  objection  was  not  raised,  and  the 
respondent  answered  to  tlie  merits ; 
evidence  being  taken.  I  think  this 
waived  the  irregularity.  The  only 
present  effect  of  this  defect,  if  not 
cured,  would  be  that  such  affidavits 
could  not  be  considered  in  disposing 
of  the  questions  of  fact  involved  in 
the  application.  But  it  has  been 
proved  that  the  affidavits  were  taken 

Vol.  I 


williin  the  jurisdiction  of  the  com- 
missioner and  the  irregularity  is 
cured." 

Amendment  After  Proof.  —  In 
Babcock  z\  Kuntzscli,  85  Hun  33.  32 
N.  Y.  Supp.  587,  the  court  say :  "  The 
weight  of  authority  in  this  state 
seems  to  be  to  the  effect  that  the 
venue  of  an  affidavit  is  prima  facie 
evidence  of  the  place  where  it  was 
sworn  to,  and  in  the  absence  of  a 
venue  or  statement  in  the  jurat  as  to 
where  it  was  taken,  it  would  contain 
no  evidence  that  it  was  sworn  to 
within  the  jurisdiction  of  the  officer 
administering  the  oath,  and,  without 
evidence,  that  it  was  taken  by  a 
proper  officer  within  his  jurisdiction, 
would  be  regarded  as  a  nullity,  unless 
the  presumption  would  be  that  it  was 
taken  within  his  jurisdiction.  But 
the  omission  does  not  invalidate  the 
oath,  or  render  the  affidavit  a  nullity, 
when  it  is  shown,  as  in  this  case, 
that  it  was  duly  administered  by  a 
proper  officer  within  his  jurisdiction, 
and  the  omission  of  the  venue  may 
be  supplied  bv  amendment."  Citing, 
Smith  z:  Collier,  3  N.  Y.  St.  172; 
People  z:  Stowell,  9  Abb.  N.  C.  (N. 
Y.)  456;  People  z:  Cady,  105  N.  Y. 
299,  -508,  II  N.  E.  810;  Saril  v. 
Payne,  24  N.  Y.  St.  486,  4  N.  Y. 
Supp.  897 ;  People  z:.  County  Can- 
vassers,   20    N.    Y.    Supp.    329. 

23.  Goodnow  z:  Litchfield,  67 
Iowa  691,  25  N.  W.  882:  Goodnow 
z:  Oakley,  68  Iowa  25,  25  N.  W.  912. 

24.  Variance  Fatal Where  the 

venue  in  the  affidavit  stated  it  to  be 
"  Albany  Co.  ss,"  and  the  affidavit 
was  sworn  to  before  "  Abrani  B. 
Ollin,  Recorder  of  the  city  of 
Troy"  (Rensselaer  County,)  it  was 
held  that  the  affidavit  could  not  be 
read  on  motion,  as  the  officer  had 
no   iurisdiction  to  take  it.     Davis  v. 


AFFIDAVITS. 


713 


H.  Appearance  of  Affiant  Before  Officer.  — It  has  been  held 
in  some  cases  that  the  appearance  of  the  affiant  before  the  officer 
taking  the  affidavit  mnst  be  sliown  by  the  certificate  or  jurat  of  the 
officer;-^  but  the  omission  of  words  in  the  jurat  showing  such 
appearance  is  not  generally  held  to  be  fatal  to  the  affidavit,""  espe- 
cially where  the  appearance  is  sufficiently  shown  in  the  body  of  the 
affidavit.-' 

IV.  AUTHORITY  OF  OFFICER. 

1.  Officer  Must  Have  Authority.  —  In  order  that  an  affidavit  may 
be  admissible  for  an}-  purpose,  it  is  essential  that  it  be  sworn  to 
before  an  officer  authorized  by  law  to  take  it,-*  and  where  it  appears 
upon  the  face  of  the  affidavit  that  it  was  not  taken  before  such  an 
officer  it  cannot  be  received.-" 


Rich,  2  How.  Pr.  (N.  Y.)  86;  Cook 
f.  Staats,  i8  Barb.  (N.  Y.)  407; 
Sandland  v.  Adams,  2  How.  Pr.  (N. 
Y.)  127;  Snyder  v.  Olmsted,  2  How. 
Pr.   (N.  Y.)    181. 

25.  Affidavits  Before  Commis- 
sioner.—In  Reg.  V.  Blo.xam,  6  Ad. 
&  E.  (N.  S.)  528,  it  is  held  that  the 
jurat  to  an  affidavit  to  obtain  a  cer- 
tiorari, sworn  to  before  a  commis- 
sioner, should  contain  the  words 
'■  before  me." 

Before  Judges  of  Courts  of  Record. 
In  Enipey  v.  King,  ij  M.  &  W.  518, 
it  is  said  that  the  jurat  to  an  affi- 
davit taken  before  a  judge  of  a 
court  of  record  need  not  contain  the 
words  "  Before  me." 

In  Iowa,  under  §  2913  of  the  re- 
vision of  i860,  it  was  held  that  it 
was  necessary  for  the  officer  to  cer- 
tify that  the  affidavit  was  sworn  to 
before  him,  and  that  an  affidavit  to 
which  was  attached  a  jurat  in  the 
following  words :  "  subscribed  in  my 
presence  and  sworn  to  by  Freedom 
Way,  this  3rd  day  of  December,  A. 
D.  1862,  at  my  office  in  Toledo, 
Tama  County,  Iowa,"  was  insuffi- 
cient.    Way  V.  Lamb,   15  Iowa  79. 

26.  Clement  v.  Bullens,  159  Mass. 
193,  34  N.  E.   173- 

Omission  of  Stereotyped  Formula. 
In  Trice  v.  Jones,  52  }iliss.  138,  it  is 
said  that  the  use  of  the  words, 
"  Given  under  my  hand  and  seal," 
etc.  instead  of  the  usual  stereotyped 
formula :  "  Subscribed  and  sworn  to 
before   me,"   is    sufficient. 

27.  Showing  in  Body  of  Affidavit. 


Where  the  complaint  shows  in  the 
body  thereof  that  it  has  been  taken 
before  the  proper  justice,  it  is  not 
necessary  that  the  words  "  before 
me "  should  be  contained  in  the 
jurat.  Cross  v.  People,  10  Mich.  24. 
See  also  In  the  IMatter  of  Edwin 
P.  Teachout,  15  !Mich.  346,  wherein 
it  was  held  that  where  an  affidavit 
was  used  before  the  officer  who  ad- 
ministered the  oath,  the  omission  in 
the  jurat  of  the  words.  "  Before  me  " 
does  not  vitiate  it. 

28.  United  States.  — BsiXghK  v. 
Morris  Aqueduct,  4  Wash.  C.  C. 
601,    n    Fed.    Cas.    No.   5902, 

Arkansas.  —  Edmondson  v.  Car- 
nall.   17  Ark.  284. 

Micliigan.  —  Greenvault  ;'.  Farm- 
ers and  Mechanics'  Bank,  2  Doug. 
498. 

Nexc  York.  —  Stanton  z:  Ellis,  16 
Barb.  319;  Berrien  ?'.  Westervelt,  12 
Wend.   194. 

Te)incssee.  —  Baker  Z'.  Grigsby,  7 
Heisk.  627. 

29.  United  States.  —  Atkinson  v. 
Glenn.  4  Cranch  C.  C.  134,  2  Fed. 
Cas.  No.  610. 

Arkansas.  —  Hammond  7'.  Free- 
man, 9  Ark.  62. 

Colorado.  —  Anderson  z'.  Sloan,  i 
Colo.  33 ;  Martin  z\  Skehan,  2  Colo. 
614;  Frybarger  z\  McMillen,  15 
Colo.   349,   25    Pac.   713. 

Kansas.  —  Schoen  v.  Sunderland, 
39  Kan.  758,  18  Pac.  913 ;  Warner  v. 
Warner.  11  Kan.  121;  Tootle  v. 
Smith,  34  Kan.  27,  7  Pac.  577. 

Nebraska.  —  Collins  j'.  Stewart, 
16  Neb.  52,  20  N.  W.  11;  Horkey  v. 

Vol.  I 


714 


AFFIDAVITS. 


2.  Necessity  of  Showing.  —  It  is  necessary  to  the  validit)-  of  an 
affidavit  that  it  contain  somewhere  on  its  face  a  statement  of  the 
official  character  of  the  officer  before  whom  it  was  taken."" 

3.  How  Shown.  —  A.  By  Jurat  or  Certific.vte  of  Offickk. 
The  authority  of  the  officer  taking  an  affidavit,  may,  and  usually 
does,  appear  by  his  official  designation  affixed  to  the  signature  sub- 
scribed to  the  jurat. ^^ 

B.  Anywhere  on  Face  of  Instrument.  —  But  if  it  appears 
anywhere  on  the  face  of  the  paper  that  the  person  before  whom  it 
was  sworn  was  an  officer  authorized  to  take  affidavits,  it  is  suffi- 
cient.''- 

C.  By  Extrinsic  Enidence.  —  But  in  the  absence  of  any  show- 
ing of  the  officer's  authority  on  the  face  of  the  affidavit  itself,  it  is 
held  permissible  to  establish  the   fact  of  his  authority  by  parol  ;'''■ 


Kendall,  53  Neb.  522,  73  N.  \V.  g^i, 
68  Am.  St.  Rep.  623. 

Nezv  Jersey.  —  Den  v.  Geiger.  9 
N.  J.  Law  225;  Pnllen  v.  Pullen,  17 
Atl.  310. 

Nezii  York.  —  Taylor  v.  Hatch,  12 
Johns.  340;  Bliss  v.  Molter,  58  How. 
Pr.  112;  Davis  v.  Rich,  2  How.  Pr. 
86. 

30.  Hart  v.  Grigsby,  14  Bush 
(Ky. )  542;  Blanchard  v.  Bennett,  I 
Or.  329;  Edmondson  v.  Carnall.  17 
-■^rk.  284;  Knight  T'.  Elliott.  22  Minn. 

Officer's  Authority  Should  Appear 
on  Face. —  "An  affidavit  when  of- 
fered to  be  read  in  evidence,  ninst 
appear  on  the  face  of  it  to  be  what 
an  affidavit  ought  to  be,  to  entitle  it 
to  be  read.  It  must  appear  to  have 
been  before  the  proper  officer,  and 
in  compliance  with  all  legal  require- 
ments. The  court  cannot  stop  to  in- 
quire into  the  competency  of  the  offi- 
cer or  the  place  where  it  was  taken. 
State  z'.   Green,   15   N.   J.   Law  88. 

31.  Bandy  v.  Chicago  etc.  R.  Co., 
.^.^  Minn.  380,  23  N.  W.  547. 

32.  Bandy  v.  Chicago  etc.  R.  Co., 
33  Minn.  380,  23  N.  W.  547. 

May  Appear  in  Body  of  the  Affi- 
davit. —  When  a  cerliticatc  of 
acknowledgment  of  a  deed  or  cer- 
tificate of  a  notary,  clerk  or  other 
officer  states  in  its  body  the  official 
character  of  the  officer  certifying,  it 
is  unnecessary  and  utterly  useless  to 
again  certify  it  by  full  designation 
or  significant  letters  following  the 
signature.  Heffcrman  v.  Harvey,  41 
W.  Va.  766.  24  S.  E.  592. 

Vol.  I 


33.  By  Parol.  —  English  r.  Wall, 
12  Rob.  (La.)  132;  Maples  z'.  Hicks. 
Brightly  (Pa.)  56;  Hunter  z:  Le 
Conte,  6  Cow.  (N.  Y.)  728:  People 
f.  Rensselaer.  6  Wend.  (N.  Y.)  343: 
JilcKinney  ?■.  Wilson,  133  Mass.  131  : 
Jackman  z\  City  of  Gloucester.  143 
Mass.  380,  9  N.  E.  740. 

Prima  Facie  Evidence  of  Au- 
thority  Where  a   statute   required 

an  affidavit  to  be  made  before  a 
"  Justice  of  the  Peace  or  other  mag- 
istrate in  said  city  and  county,  au- 
thorized to  administer  oaths,"  etc., 
and  it  did  not  appear  by  the  affidavit 
that  the  officer  before  whom  it  was 
taken  was  a  inagistrate  authorized 
to  administer  oaths,  nor  was  the 
fact  proved  or  offered  to  be  proved 
or  disproved  in  the  court  below,  the 
court  said :  "  It  is  fairly  inferable 
that  the  fact  of  his  being  a  justice 
was  conceded,  but  it  was  contended 
that  his  official  character  should  ap- 
pear affirmatively.  We  think  that 
the  fact  of  Mr.  Abcll's  taking  an  affi- 
davit, and  of  the  clerk's  receiving 
and  filing  it,  were  prima  faeie  suffi- 
cient ;  and  threw  on  the  other  side 
the  burden  of  proving  Ihe  want  of 
authority."  Hunter  7'.  Le  Conte,  6 
Cow.  (N.  Y.)  728.  See  also  Mc- 
Kinney  v.  Wilson,  133  Mass.  131, 
wherein  it  was  held  that  the  burden 
of  proving  that  the  officer  was  not 
legally  empowered  to  take  deposi- 
tions   was    on    the   partv   objecting. 

Omission  Does  Not  Render  Void. 
Where  a  justice  of  the  peace  omit- 
ted to  add  to  his  signature  to  the 
jurat  the  title  of  his  office,  the  court 


AFFIDAVITS. 


715 


or  it  may  be  presumed  from  evidence  afforded  by  otber  pajiers  in 
the  cause." 

D.  Judicial   Notice  of  Official  Character.  —  It   is   held   in 
some    jurisdictions   that    courts    should   take    judicial    notice   nf   the 


said :  "  We  think  that  this  omission 
did  not  render  the  filing  of  the  state- 
ment void,  and  that  the  fact  that  the 
person  by  whom  the  oath  was  ad- 
ministered was  authorized  to  admin- 
ister it  may  be  proved  by  evidence. 
There  is  nothing  in  the  statute  that 
in  terms  requires  any  certificate  of 
the  oath,  although  the  statute  con- 
strued with  reference  to  well  known 
usages  undoubtedly  impHes  that  the 
statement  shall  have  a  jurat  attached. 
Affidavits  lawfully  taken  by  a  per- 
son authorized  to  take  them  are  not 
to  be  treated  as  unsworn  statements 
because  the  magistrate  has  not  added 
to  the  certificate  signed  by  hitu  the 
name  of  his  office.  Courts  permit 
the  certificate  to  be  amended,  or, 
without  an  amendment,  admit  evi- 
dence of  the  authority  of  the  person 
by  whoin  they  are  taken,  if  they  do 
not  take  iudicial  notice  of  it.  In 
this  case,  if  the  statement  appeared 
on  its  face  to  have  been  sworn  to.  we 
think  that  it  could  be  filed;  and  if,  in 
fact,  it  was  sworn  to  before  a  person 
authorized  to  administer  an  oath,  we 
think  that  there  was  a  compliance 
with  the  statute."  Jackman  v.  City 
of  Gloucester,  143  Mass.  ,380,  9  N.  E. 
740. 

34.  By  Other  Papers  in  the  Cause. 
Where  the  jurat  to  an  affidavit  for  a 
writ  of  attachment  showed  that  the 
affidavit  was  sworn  to  before 
"  Henry  L.  Webb,"  and  the  writ  of 
attachment  was  tested  and  signed  by 
"  Henry  I^.  Webb,  clerk  of  the  Alex- 
ander Circuit  Court,"  it  was  held 
that  the  court  would  presume  that 
the  aflidavit  was  sworn  to  before  the 
clerk.  Singleton  v.  Wofford,  3 
Scam,  fill.)  576.  To  the  same  efl^ect 
see   Ede  f.  Johnson,   15   Cal.   53. 

By  Affidavit People  v.  Rensse- 
laer, 6   Wend.    (N.   Y.)    543. 

Reference  in  Writ  of  Attachment. 
In  Bank  7'.  Gettinger.  4  W.  Va.  305, 
where  the  jurat  was  not  signed  by 
the  officer,  but  the  writ  of  attach- 
ment based  on  the  affidavit  recited 
the  fact  of  its  having  been  made,  it 


was  held  that  the  accidental  omis- 
sion of  the  clerk  to  sign  it  at  the 
time  could  not  vitiate  when  the  fact 
was  made  to  appear. 

Valid  Unless  it  Appears  that  it 
Was  Not  Taken  by  Proper  Officer. 
Where  an  affidavit  oflfered  in  evi- 
dence was  objected  to  upon  the 
ground  that  it  did  not  appear  to  be 
properly  verified,  no  evidence  that 
the  notary  public  before  whom  it 
was  taken  and  subscribed  was  a  no- 
tary, or  was  authorized  by  the  laws 
of  his  state  to  administer  an  oath 
to  the  affiant,  and  render  the  afii- 
davit  evidence  in  the  case,  and  it  did 
not  appear  he  was  in  fact  a  notary 
except  l)y  his  signature  and  seal,  nor 
when,  where,  for  what  term,  or  by 
what  authority  he  was  appointed, 
for  what  purpose,  nor  that  the  act 
was  in  the  scope  of  his  duties.  Held, 
that  it  did  not  appear  that  it  was 
not  made  before  a  notary  public  in 
the  state,  and  that  there  was  no  er- 
ror in  overruling  the  objections  to 
its  admissibility  in  evidence.  Rich- 
ardson r.  Comer,  112  Ga.  103.  37  S. 
E.  116. 

Affidavit  of  Bona  Fides  to  Chattel 
Mortgage.  —  The  affidavit  of  bona 
fides  in  a  chattel  mortgage  pur- 
ported to  be  sworn  before  "  T.  B.  F." 
without  any  addition.  The  affidavit 
of  execution  was  sworn  before  the 
same  officer,  his  name  being  fol- 
lowed by  the  words :  "  .\  Commis- 
sioner in  B.  R."  Held,  no  objection 
to  the  affidavit  of  bona  fides.  Ham- 
ilton  ?■-    Harrison,  46   Q.   B.    127. 

By  Seal.  —  In  Iowa  it  is  held  that 
an  affidavit  is  not  proved  to  have 
been  made  unless  the  jurat  is  au- 
thenticated by  both  seal  and  signa- 
ture. Tunis  V.  Withrow,  10  Iowa 
305,  77  Am.  Dec.  117.  See  also 
Chase  v.  Street.  10  Iowa  593 :  Steph- 
ens V.  Williams,  46  Iowa  540 :  Stone 
7'.  Miller,  60  Iowa  243,  14  N.  W. 
781 :  Gage  v.  D.  &  P.  R.  R.,  11  Iowa 
310,  77  Am.  Dec.  145;  Goodnow  v. 
Litchfield,  67  Iowa  691,  2^  N.  W. 
882. 

Vol.  I 


rif. 


AFFIDAl'ITS. 


signatures  of  their  officers,"^  and  of  tlie  ol^cial  cliaracler  of  officers 
empowered  to  administer  oaths  within  their  juristhctions.''^' 

E.  Foreign  AFinDAViTS.  —  The  authentication  of  the  official 
cliaracter  of  the  officer  taking  an  affidavit  in  a  foreign  state  must 
conform  to  the  requirements  of  the  statutes  of  the  state  where  it  is 
intended  to  be  used.'" 

V.  THE  AFFIANT. 

1.  Identification  of  Affiant.  —  A.  In  General.  —  An  affidavit,  in 


35.  Sec  ■■  JiDici.\L  Notice." 
Brooster    7'.     State.     15    Incl.    190; 

Mountjoy  v.  State,  78  Ind.  172; 
Hipes  ZK  State.  7;^  Ind.  39;  .\Ilen  v. 
Gilhim.  16  Ind.  2,34 ;  Simon  v.  Stet- 
ter,   25   Kan.    155. 

Presumption   on   Appeal Courts 

take  jndicial  knowledge  of  the  sig- 
natures of  tlieir  officers,  and  where 
the  signature  affixed  to  the  jurat  in 
the  affidavit  on  which  the  informa- 
tion is  based,  was;  "  Rufus  P.  Wells. 
C.  P.  C.  C,"  the  supreme  court  will 
presume  that  the  court  in  which 
such  information  was  filed  knew 
such  signature  to  be  that  of  its  clerk. 
Buell  V.   State,  72  Ind.  523. 

36.  In  Illinois  it  is  held  that  the 
signature  of  the  officer  taking  the 
affidavit  need  not  be  followed  by  a 
description  of  his  authority  wliere 
the  afifidavit  is  taken  in  the  county  in 
which  it  is  used,  as  the  court  takes 
judicial  notice  of  the  official  charac- 
ter of  officers  authorized  to  admin- 
ister oaths  in  the  county  in  which 
the  court  has  jurisdiction:  but 
where  the  affidavit  is  taken  in  some 
other  county  or  state,  the  authority 
of  the  officer  must  be  shown.  Dyer 
V.  Flint,  21  111.  80,  74  .\m.  Dec.  73; 
Thoinpson  v.  Haskell,  21  111.  215,  74 
.\m.  Dec.  98;  Stout  v.  Slattery,  12 
111.  162;  Rowley  v.  Berrian,  12  III. 
198;  Shattuck  V.  People,  5  111.  477. 
To  the  same  efifect  sec  Ede  v.  John- 
son, IS  Cal.  53. 

37.  Georgia.  —  Behn  i\  Young,  21 
Ga.  207 ;  Charles  i\  Foster,  56  Ga. 
612. 

Illinois.  —  Trever  v.  Colgate,  181 
111.  129.  54  N.  F.  909;  Smith  V. 
Lyons,  80  111.  600. 

Nni.'  Jersey.  — Whitehead  v.  Ham- 
ilton Rubber  Co.,  53  N.  J.  Eq.  454, 
32  All.  377;  Magowan  v.  Baird.  53 
N.  J.   E(|.  656.  33  Atl.   1054. 

Vol.  I 


Neic  York.  —  Cream  City  Furni- 
ture Co.  V.  Squier,  51  N.  Y.  St.  118, 
21  N.  Y.  Supp.  972 ;  Phelps  v. 
Phelps,  6  Civ.  Proc.  117,  32  Hun  642. 

North  Carolina.  —  Miazza  v.  Cal- 
loway, 74  N.  C.  31. 

U'cst  I'^irginia.  —  Bohn  v.  Zeigler, 
44  W.  Va.  402,  29  S.  E.  983. 

In  New  York,  where  by  §  844  of 
the  Code  of  Civil  Procedure  it  is 
provided  that  an  affidavit  taken  in 
another  state  may  be  used  here,  pro- 
vided it  was  taken  before  an  officer 
authorized  by  the  laws  of  the  state 
to  take  and  certify  the  acknowledg- 
ment and  proof  of  deeds  to  be  re- 
corded in  the  state,  it  is  held  that  an 
affidavit  can  not  be  received  in  evi- 
dence which  contains  a  certificate 
that  the  notary  public  was  author- 
ized to  administer  oaths,  but  fails  to 
state  that  he  was  authorized  to  take 
acknowledgments  of  deeds.  Stanton 
V.  U.  S.  Pipe  Line  Co.,  90  Hun  35, 
35  N.  Y.  Supp.  629. 

In  New  Jersey,  a  statute  respect- 
ing oaths,  which  directs  that  "any 
oath  required  to  be  taken.  .  .  . 
when  taken  out  of  this  state,  may 
be  taken  before  any  notary  public 
of  the  state  ...  in  which  the 
same    shall   be   taken  .     .     and   a 

recital  that  he  is  such  notary  or  offi- 
cer in  the  jurat  or  certificate  of  such 
oath,  affirmation  or  affidavit,  and  his 
official  designation  annexed  to  his 
signature  and  attested  under  his 
official  seal  shall  be  sufficient  proof 
that  the  person  before  whom  the 
same  is  taken  is  such  notary  or  offi- 
cer," is  held  not  to  make  the  recital 
of  official  character  in  the  jurat  or 
certificate  essential  to  the  validity  of 
the  affidavit,  or  prohibit  other  proof, 
or  deny  to  the  ordinary  jurat  and 
certificate  its  prima  facie  cflfect. 
Magowan  v.  Baird,  53  N.  J.  Eq.  656, 
33  Atl.   1054. 


AFFIDAVITS. 


"i; 


order  to  be  a  valid  instrument  of  evidence,  should  have  that  in  or 
about  it  which  identifies  the  party  making-  it,  and  which  furnishes 
proof  of  his  having  uttered  the  matter  of  it  under  oath.'''* 

B.  By  Signature.  — Where  written.  —  The  omission  of  the  name 
of  the  affiant  from  the  jurat  will  not  make  the  affidavit  invalid  pro- 
vided the  name  and  signature  appear  in  the  body  of  the  instrument.-''' 

Place  of  Signature.  —  While  it  is  proper  and  usual  to  place  the 
signature  of  the  deponent  before  the  officer's  certificate  or  jurat,  the 


38.     AiSant    Must    Be    Identified. 

Where  an  affidavit,  indorsed  on  the 
appeal  bond,  commenced  as  follows ; 
"  J.  Gaddis  and  Pierson,  the  appel- 
lants named  in  the  within  bond,  be- 
ing duly  sworn,  upon  oath,  say " 
etc.,  and  there  was  nothing  further 
in  the  affidavit  showing  wliich  of  the 
parties  actually  made  and  signed  the 
affidavit,  the  affidavit  being  signed, 
"J.  Gaddis  and  Pierson,"  the  court 
said:  "If  but  one  of  the  appellants 
made  the  affidavit,  it  ought  to  ap- 
pear which  of  them  it  was,  so  that 
perjury,  if  it  has  intervened,  though 
none  is  apprehended  in  this  case, 
might  be  assigned  on  the  affidavit. 
\.e  do  not  decide  that  it  was  neces- 
sary to  the  validity  of  the  affidavit, 
that  it  should  be  signed  by  the  person 
making  it;  but  this  is  signed  in  the 
partnership  name,  and  as  the  part- 
nership could  not  make  an  affidavit, 
the  whole  matter  is  rendered  am- 
higuous  and  uncertain.  The  manda- 
mus is  therefore  refused."  Gaddis 
T'.   Durashy,   J,i   N.  J.   Law  324. 

Affidavit  Sufficient  if  Witness  is 
Identified.  —  In  People  v.  Suther- 
land, 81  N.  Y.  I,  a  well  considered 
case,  the  court  say :  "  'What  more 
is  there  to  legal  evidence,  in  any 
case  where  it  is  taken,  relied  on  and 
acted  upon  by  courts,  than  that  it 
is  rendered  in  such  form  and  under 
such  sanctions  as  that  the  witness 
takes  on  responsibilities  and  incurs 
liability  to  the  criminal  law  if  he 
utters  willful  falsehood?  An  affi- 
davit is  instead  of  the  presence  of 
the  person  who  makes  it,  and  of  his 
testimony  given  orally.  If  the 
written  paper  has  that  in  or  about 
it  which  identifies  him  as  the  witness 
as  well  as  does  his  presence,  and 
which  furnishes  proof  of  his  having 
uttered  the  matter  of  it  under  oath, 
as  well  as  does  his  kissing  the  book 


and  speaking  in  the  witness-box,  it 
is  formally  as  sufficient  for  evidence 
as  his  oral  testimony  to  the  same 
matter." 

39.     Omission      of      Name      From 

Jurat Where    affiant's    name    was 

mentioned  in  the  body  and  was  also 
subscribed  to  the  affidavit,  but  was 
not  contained  in  the  jurat,  the  court 
said:  "The  proof  of  service  is  said 
to  be  deficient  in  that  the  jurat  does 
not  contain  the  name  of  the  affiant ; 
but  the  jurat  shows  that  what  was 
written  for  an  affidavit  was  sub- 
scribed and  sworn  to  by  one,  although 
the  name  is  not  given.  They  pur- 
port, however,  to  have  been  sub- 
scribed by  Frank  Pierce,  and  no 
one  else.  If  Frank  Pierce's  name 
had  been  written  by  some  one  with- 
out authority,  the  words  written  for 
an  affidavit  could  not,  in  any  proper 
sense,  be  said  to  be  subscribed.  We 
think,  then  it  is  expressly  shown 
that  they  were  subscribed  by  Frank 
Pierce,  and  the  fair  inference  is 
that  they  were  sworn  to  by  the  same 
person.  In  the  absence  of  a  statute 
expressly  requiring  the  jurat  to  con- 
tain the  name  of  the  affiant,  we  think 
that  we  must  hold  the  jurat  in  ques- 
tion sufficient."  Kirby  v.  Gates,  71 
Iowa   100,  32  N.  W.   191. 

To  the  same  efifect  see -Stoddard  v. 
Sloan,  65  Iowa  680,  22  N.  W.  924. 

In  Taylor  z:  State,  48  Ala.  180, 
'the  following  jurat  was  held  suffi- 
cient where  the  paper  was  signed 
by   27   persons : 

"  State  of  Ala-  i  I  do  hereby  ccr- 
bama.  Mobile  ^  tify  that  the  per- 
County.  )  sons    whose    names 

are  signed  above  were  duly  sworn 
to  it  before  me,  Hiram  Carver,  No- 
tary Public  in  and  for  Mobile 
County,  this  26th  day  of  March, 
J872.  Hiram  Carver,  N.  P.  and 
ex-officio  J.  P..  M.  C." 

Vol.  I 


718 


AFFIDAVITS. 


affidavit  will  not  be  rendered  invalid  by  placint;-  the  signature  below 
the  certificate  or  jurat.'"' 

C.  By  Jurat.  —  In  the  absence  of  a  rule  of  court  or  statute 
requiring  it,  affiant's  signature  is  not  necessary  to  the  validity  of 
an  affidavit,  provided  the  jurat   sufficiently  identifies  the  affiant.''^ 

2.  When  Must  State  Capacity  of  Affiant.  —  Where  an  affidavit  is 
required  to  be  made  by  a  certain  person,  acting  in  a  certain  capacity, 
both  name  and  capacity  must  be  stated,  and  the  capacity  of  affiant 
must  be  declared  in  the  bodv  of  the  affidavit. ■*- 


40.  Place  of  Signature Launius 

V.  Cole,  51  Mo.  147 ;  Kohn  v. 
Washer,  69  Tex.  67,  6  S.  W.  =;=;i,  5 
Am.   St.   Rep.  28. 

In  Affidavit  or  Certificate  to  An- 
swer  When   the  authentication   of 

the  answer  is  in  the  form  of  an 
affidavit,  the  name  of  the  deponent 
must  be  subscribed  on  the  affidavit ; 
when  in  the  form  of  a  certificate  for 
the  officer  who  administered  the  oath, 
the  name  of  the  deponent  should  be 
subscribed  to  the  answer.  Pincers 
V.   Robertson,   24   N.  J.   Eq.  348. 

41.  Alabama.  —  Watts  v.  Wo- 
mack,  44  Ala.   605. 

California.  —  Ede  v.  Johnson,  15 
Cal.  53. 

Indiana.  —  Turpin  v.  Eagle  Creek 
etc.    Road    Co.,   48   Ind.   45. 

lo'uv.  —  Bates  v.  Robinson,  8 
Iowa  318. 

Michigan.  —  Bloomingdalc  v.  Chit- 
tenden, 75  Mich.  305,  42  N.  W.  836. 

Minnesota.  —  No.rton  z'.  Hauge,  47 
Minn.  405,  50  N.  W.  368. 

.Mississipj)i.  —  Redus  v.  Wofford, 
12  Miss.  579 ;  Brooks  7:  Snead,  50 
Miss.   416. 

New  Jersey. — Hitsman  v.  Garrard. 
16  N.  J.  Law   124. 

New  York.  —  Haff  r.  Spicer,  3 
Caines  190;  Jackson  7'.  Virgil,  3 
Johns.  540;  MilUus  v.  Shafer,  3 
Denio  60. 

North  Carolina.  —  Alford  v.  Mc- 
Cormac.  90  N.   C.   151. 

.^outh  Carolina. — Armstrong  v. 
Austin,  45  S.  C.  69,  22  S.  E.  763, 
29  I,.  R.  A.  772 ;  Fuller  v.  Missroon, 
35  S.  C.  314,  14  S.  E.  714. 

Texas.  —  .Alford  v.  Cochrane,  7 
Tex.    485;    Crist   v.    Parks,    19    Tex. 

234- 

Contra.  —  Crenshaw  f.  Taylor,  70 
Iowa   386,   30   N.   W.   647 ;    T^ynn   v. 

Vol.  I 


Morse,  76  Iowa  665,  39  N.  W.  203; 
Hargadine    v.    Van     Horn,    72    Mo. 

370. 

Neither     Signature     Nor     Jurat. 

Where  the  affidavit  to  the  notice  of 
location  of  a  mineral  claim,  required 
by  the  statute,  is  not  signed  by  tlie 
locators  and  there  is  no  jurat  show- 
ing it  to  have  been  subscribed  and 
verified,  the  affidavit  and  notice  are 
insufficient  and  no  evidence  of  loca- 
tion. Metcalf  V.  Prescott,  to  Mont. 
283,   25    Pac.    1037. 

42.  'People  v.  Sutherland,  81  N. 
Y.  I  ;  Whipple  f.  Hill,  36  Neb.  720, 
55  N.  W.  227.  38  Am.  St.  Rep.  742. 
20  L.  R.  A.  313- 

Affidavit  of  Publication  by  Printer, 
Foreman,  or  Principal  Clerk. 
Whore  an  affidavit  of  publication  of 
summons  commenced  in  this  way : 
"  H.  B.  principal  clerk,  etc.,  being 
duly  sworn,  deposes "  it  was  lield 
insufficient  to  give  the  court  jurisdic- 
tion of  the  person  of  defendant,  the 
court  saying :  "  The  fact  that  an 
order  of  publication  has  been  com- 
plied with,  is  to  be  proved  by  '  the 
affidavit  of  the  printer,  or  his  fore- 
man, or  principal  clerk.' 
that  the  atliant  is  one  of  the  three, 
is  itself  a  substantive  fact,  and  must 
he  proved  as  such  before  the  court 
in  which  the  action  is  pending  can 
proceed  to  render  judgment  against 
the  parties  to  whom  notice  is  in- 
tended to  be  given.  In  the  affidavit 
now  in  question,  the  affiant  swears 
to  nothing  except  to  the  matters 
set  forth  after  the  word  '  deposes.' 
He  names  himself  as  principal  clerk, 
but  he  does  not  swear  that  that  was 
his  position  in  fact.  .  .  .  The 
result  is,  that  as  the  record  in  Stcin- 
bacli  7\  Leese  is  made  up.  judgment 
was  rendered  against  Jones  without 
any  pruof  that  the  order  of  publica- 


AFFIDAVITS. 


719 


3.  Name  May  Be  Omitted  From  the  Body.  —  The  omission  of  tlie 
name  of  the  affiant  from  the  bod_v  of  the  affidavit  does  not  make 
the  same  invahd  or  inadmissible,  provided  it  is  signed  by  the  party 
making  the  declaration.*^  But  it  has  been  held  that  when  an  affi- 
davit to  be  elTectual  must  be  made  by  one  having-  a  certain  character 
or  personal  capacity  wherein  he  acted  or  is  to  act  in  doing  the  mat- 
ters averred  therein,  the  paper  ought  to  state  that  the  deponent  has 
that  character  or  capacity,  and  this  statement  should  be  sworn  to.'*'' 

4.  Agents  and  Attorneys.  —  It  is  now  generally  held  that  an 
attorney  may  make  an  affidavit  for  his  client  where  the  facts  are 
within  his  knowledge  :*^  and  an  agent  may  make  the  affidavit  for  his 
principal    under   like   circumstances.**^     But   this    relationship   must 


tion  had  been  complied  with."  Stein- 
bach  z:  Leese,  27  Cal.  295. 

In  Supplementary  Proceedings. 
An  aflSdavit  in  supplementary  pro- 
ceedings is  insufficient,  where  it  fails 
to  show  that  it  is  made  by  the  judg- 
ment creditor  or  his  attorney,  or 
some  one  authorized  to  make  it  in 
his  behalf.  Brown  v.  Walker,  28 
N.  Y.  St.  36,  8  N.  Y.  Supp.  59. 

By  Officer  or  Agent  of  Corporation. 
Where  a  statute  required  an  affi- 
davit to  be  made  by  the  "  president, 
secretary.  general  superintendent, 
managing  agent  of  the  corporation, 
or  some  managing  agent  thereof 
within  the  county ;"  it  was  held  that 
an  affidavit  beginning  "  John  Corn- 
ing of  the  Central  Pacific  Railroad 
Company,  being  duly  sworn,  says." 
etc..  and  containing  no  further  des- 
cription of  the  affiant's  authority,  or 
agency,  or  connection  with  said  rail- 
road company,  was  insufficient  in 
that  it  did  not  show  that  the  party 
making  the  affidavit  was  one  of  the 
persons  made  competent  to  make  the 
affidavit  under  the  statute.  State  v. 
Washoe  County,  5  Nev.  317. 

43.  People  v.  Sutherland,  81  N. 
Y.  I  ;  Cunningham  i'.  Doyle.  5  j\Iisc. 
2ig.  25   N.  Y.   Supp.  476. 

Variance   Between  Signature  and 

Name  in  Body \^'here  the  affidavit 

for  the  publication  of  the  order  for 
the  appearance  of  defendants  was 
signed  by  Charles  H.  Lee,  but  it 
began  by  the  recital  that  "  Fred  B. 
Lee,  of  said  county  being  duly 
sworn."  etc.  it  was  held  that  the 
recital  of  the  name  of  Fred  B.  Lee 
in  the  beginning  of  the  affidavit  was 


apparently  a  clerical  error,  and  to  be 
overlooked  as  such,  and  that  the 
affidavit  was  in  legal  effect  the  same 
that  it  would  have  been  if  in  the 
body  of  it  there  had  been  no  recital 
of  any  name  as  that  of  an  affiant. 
Torrans    v.    Hicks.    32    Mich.    307. 

44.  Bx  parte  Bank  of  Monroe,  7 
Hill  (N.Y.)  177;  E.x-  parte  Shumw^y, 
4  Denio  (N.  Y.)  258;  Cunningham 
V.  Goelet,  4  Denio  (N.  Y.)  71; 
Cunningham  z:  Doyle,  5  Misc.  219, 
25  N.  Y.  Supp.  476;  People  v.  Suth- 
erland. 81  N.  Y.  I  ;  Steinbach  v. 
Leese.  27  Cal.  295 ;  Payne  r.  Young,  8 
N.  Y.  158. 

45.  United  States.  — The  Harriet, 
II    Fed.   Cas.   No.  6096. 

California.  —  Byrne  r.  Alas.  68 
Cal.  479.  9  Pac.  8=;o;  Will  v.  Lytle 
Creek  Water  Co..  100  Cal.  344.  34 
Pac.    830. 

/iirfmHU.— Abbott  r.  Leigler,  9  Ind. 
511. 

Louisiana.  —  Hardie  r.  Colvin,  43 
La.  .'Vnn.  851,  9  So.  745;  Fulton  v. 
Brown,  10  La.  Ann.  350;  Dwight  v. 
Weir,  6  La.  Ann.  706 ;  Williams  r. 
Brashear,  16  La.  77. 

A'eu-  York.  — Tim  v.  Smith,  93  N. 
Y.  87;  Pittsburg  Bank  i:  Murphy, 
64  Hun  632,   18  N.  Y.   Supp.  575- 

Te.vas.  —  McAlpin  v.  Finch,  18 
Tex.  831  ;  Doll  v.  Muldine,  84  Tex. 
315.    19   S.   W.   394- 

46.  Murray  v.  Cone.  8  Port. 
(Ala.)  252;  Wetherwax  Z'.  Paine,  2 
Mich.  555;  McAlpin  v.  Finch,  18 
Tex.  831 ;  Nicholls  v.  Lawrence,  30 
Mich.  395 ;  Allen  v.  Champlin,  32 
La.  Ann.  511;  Deering  z'.  Warren, 
I  S.  D.  35,  44  N.  W.  1068;  School 
Directors  v.  Hentz,  57  111.  App.  648; 

Vol.  I 


720 


aFFIDAJ'ITS. 


exist  at  the  time  the  affidavit  is  made/'  It  has  also  been  held  that 
such  affidavits  are  receivable  only  when  circumstances  exist  which 
would  excuse  the  party  himself  from  making-  it,  such  as  sickness 
or  absence  from  the  county  ;^'*  in  which  case  such  disability  should 
be  alleged.''" 

5.  Presumption  of  Authority  to  Make.  —  Where  an  affidavit  is 
made  on  behalf  of  a  party  by  his  attorney  or  agent,  a  recital  of 
such  relationship  is  usually  held  sufficient,'''"  it  being  presumed  in 
such   case  that  the  affidavit  is  made  on  behalf  of  the  principal. ^"^ 


Stringer  v.  Dean,  6i  ^[icli.  196,  27 
N.   W.   886. 

47.  Relation  of  Attorney  or 
Agent  Must  Exist.  —  A  statute 
providing  that  an  affidavit  may 
be  made  by  the  attorney  or  agent  of 
the  party  when  the  parly  is  ab.sent 
from  the  county  is  confined  to  cases 
where  the  relation  of  attorney  and 
chent  or  agent  and  principal  exists 
at  the  time  the  affidavit  is  made  and 
a  subsequent  ratification  by  the  party 
of  an  unauthorized  affidavit  is  not 
sufficient.  Johnson  1'.  Johnson.  31 
Fed.   700. 

48.  People  v.  Spalding,  2  Paige 
(N.  Y.)  326;  Cross  T'.  Nat.  R  Tns. 
Co.,  53  Hun  632,  6  N.  Y.  Supp.  84; 
Johnson  i'.  Johnson,  31   Fed.  700. 

49.  People  z'.  Spaldins;'.  2  Paige 
(N.  Y.)  326:  Talbert  v.  Storum,  66 
Hun  63s,  21  N.  Y.  Supp.  719;  Van 
Ingen  7<.  Herold,  64  JJun  637,  19 
N.   Y.   Supp.  456. 

Reason    for    the    Rule "  It   has 

never  been  held  that  no  one  but 
the  defendant  can  make  the  affidavit 
of  defense.  Cases  may  arise  where 
it  would  be  physically  impossible 
for  the  defendant  to  make  such  an 
affidavit.  Under  such  and  similar 
circumstances  we  have  no  doubt  that 
an  affidavit  of  defense  may  be  made 
on  behalf  of  defendant  by  an  attor- 
ney at  law  or  other  person  duly 
authorized,  but  the  reason  why  it  is 
not  made  by  the  defendant  should 
be  set  forth  in  the  affidavit.  The 
court  can  then  judge  of  the  suffi- 
ciency of  such  reason.  It  would 
never  do  to  allow  a  stranger  to  the 
record  to  intermeddle  in  this  man- 
ner. The  correct  rule  would  seem 
to  be  that,  when  a  defendant  puts  in 
a  stranger's  affidavit,  it  must  show 
upon  its  face  sufficient  reason  why 
it    was    not   made   bv    the    defendant 


himself;  that  a  real  disability  existed, 
which  prevented  him  from  making 
it,  and  the  circumstances  giving  rise 
to  the  disabilitv."  Griel  v.  Buckius, 
114   Pa.    St.    187,  6  Atl.    153. 

50,  Alabama.  —  Murray  t'.  Cone, 
8   Port.   250. 

Arkansas.  —  Mandel  :■.  Pcct,  18 
Ark.   236. 

Massacliusctts.  —  Wright  f.  Coles, 
52  Mass.  (11  Mete.)  293. 

Michigan.  —  Nicholls  :'.  Lawrence, 
30  Mich.  395 ;  Forbes  Lithograph 
'Mfg.  Co.  '•.  Winter,  107  Mich.  116, 
64  N.  W.  1053;  Stringer  v.  Dean, 
61  Mich.  196,  27  N.  W.  886 ;  Wether- 
wax  V.  Paine,  2  Mich.  555. 

Minnesota.  —  Smith  v.  Victorin.  54 
Minn.   338,   56  N.   W.  47. 

Missoui-i.  —  White  Sewing  Mach- 
ine Co.  1'.  Betting,  53  Mo.  App.  260; 
Ring  V.  Chas.  Vogcl  &  Glass  Co.,  46 
Mo.  App.  374;  Remington  Sewing 
Machine  Co.  <■.  Cushen,  8  Mo.  App. 
528. 

Texas.  —  Evans  z'.  Lawson,  64 
Tex.    199. 

51.  Stringer  z\  Dean,  61  Mich. 
196,  27  N.  W.  886:  XiehoUs  v. 
Lawrence,  30  Mich.  395;  Wright 
V.  Coles,  52  Mass.  (11  Mete.)  293; 
Smith  V.  Victorin.  ^4  Minn.  338,  56 
N.  W.  47. 

Affidavit  Presumed  to  Be  Uade  on 
Behalf  of  Plaintiff.  —  Where  an 
affidavit  for  attachment  was  objected 
to  upon  the  ground  that  it  contained 
no  allegation  that  it  was  made  on 
behalf  of  plaintiff  the  court  said: 
;■  It  is  a  mailer  of  formal  con- 
sequence whether  the  affidavit  does 
or  does  not  show  wdiether  tlie  person 
who  made  it,  made  it  for  the  plain- 
tiffs. Whether  it  is  or  is  not  so  stated, 
it  will  be  so  intended,  for  it  is  not 
presumed  that  one  in  no  wise  inter- 
ested   in    I  he    suit    would    make    such 


Vol.  I 


.IFF  I  DAVITS. 


J2\ 


6.  Where  Statute  Designates  Affiant.  —  The  parlicular  persuii 
competent  to  make  a  certain  affidavit ^uch  as  is  required  in  proof  of 
service  of  summons,''-  change  of  venue,'*"  and  the  like,^*  is  some- 
times pointed  out  by  statute,  and  in  such  cases  the  affidavit  of  a 
person  other  than  the  one  designated  as  competent  can  not  be 
received  as  evidence  in  ]5roof  of  the  facts  required  by  the  statute. 

VI.  IDENTIFICATION  OF  CAUSE. 

1.  Cause  or  Proceeding  Must  Be  Identified.  —  it  is  lield  in  some 
jurisdictions  that  an  affidavit  made  to  be  used  in  a  pending  cause 


an  affidavit  without  it  was  done 
by  him  as  the  agent  of  the  party  in 
interest,  or  done  for  him,  for  ac- 
commodation." Mandel  t'.  Peet.  i8 
Ark.   236. 

But  see  Wiley  v.  .\ultni:in,  53  Wis. 
560,  II  N.  W.  32.  wherein  it  is  lield 
that  an  affidavit  for  an  attachment 
is  insufficient  which  fails  to  allege 
the  relationship  of  affiant  to  plain- 
tiff and  that  it  is  made  on  behalf 
of  the  plaintiff. 

See  ahso  Miller  z:  Chicago  etc. 
Ry.  Co.,  58  Wis.  310,  17  N.  W. 
130,   to   the   same   effect. 

52.  Publication  of  Summons. 
In  Steinbach  !■.  Lecse,  27  Cal.  295,  it 
was  held  that  under  the  statute  pro- 
viding that  proof  of  the  publication 
of  a  summons  may  be  made  by  the 
affidavit  of  the  "  printer,  foreman  or 
principal  clerk  "  an  affidavit  begin- 
ning, "  H.  W.  F.  Hoffman,  principal 
clerk  in  the  office  of  the  California 
Chronicle,  a  daily  newspaper  pub- 
lished in  said  city  and  county,  being 
duly  sworn,  deposes  and  says  "  etc.j 
is  insufficient  to  give  the  court  juris- 
diction. That  the  affiant  is  one  of 
the  three  persons  pointed  out  by  the 
statute  as  competent  to  make  the 
affidavit  is  itself  a  substantive  fact 
and  must  be  proved  as  such.  That 
affiant  swears  to  nothing  except  to 
the  matters  set  forth  after  the  word 
deposes,  and  that  the  affidavit  not 
appearing  to  have  been  made  by  one 
of  the  persons  pointed  out  by  the 
statute  was  no.t  sufficient. 

Affidavit  for  Order  of  Publication 
of  Summons.  —  Under  Code  of  Colo- 
rado 1887  §41  requiring  an  affidavit 
for  the  publication  of  a  summons 
to  be  made  by  a  party  to  the  action 
it  was  held  that  such  statutes  must  he 

46 


strictly  construed  and  that  such  af- 
fidavit made  by  the  attorney  of  the 
party  could  not  be  received.  Davis 
V.  John  !Mouat  Lumber  Co.,  2  Colo. 
-App.    381,   31    Pac.    187. 

53.  In  Western  Bank  v.  Tallman, 
15  Wis.  92,  it  is  held  that  an  ap- 
plication under  §  8,  ch.  123,  R.  S. 
11858,  for  a  change  of  venue  in  a 
civil  action  on  account  of  the 
prejudice  of  the  judge  before  whom 
the  action  is  pending,  must  be  veri- 
fied by  the  oath  or  affirmation  of  a 
''  party "  to  the  action,  and  cannot 
be  verified  by  his  attorney  even  in 
the  absence  of  the  agents  or  offi 
cers  qualified  to  make  an  affidavit 
for  the  corporation  under  the  gen- 
eral   provisions    of    law. 

But  see  Shattnck  7'.  Myers,  13  Ind. 
46,  74  .A.m.  Dec.  236,  wherein  it  is 
held  that  while  it  should  be  the 
usual  practice  to  require  the  affidavit 
for  a  change  of  venue  to  be  made 
by  the  party  himself,  the  affidavits  of 
others  might  be  received  in  the 
exercise  of  a   sound  legal  discretion. 

54.  Suits  and  Affidavits  in  Forma 
Pauperis.  —  I  hidden  i'.  Larned,  83 
Ga.  630,  10  S.  H.  2yf:;  Railroad  Co. 
v.  Tyson,  48  Ga.  351  ;  Elder  7'.  White- 
head, 25  Ga.  262 ;  Lester  -■,  Haynes, 
80  Ga.   120,  5  S.  E.  250. 

In  Redemption  Proceedings. 
Upon  an  application  liy  an  assignee 
of  a  junior  judgment  to  redeem  land 
sold  under  execution  under  a  statute 
requiring  the  affidavit  of  assignment 
to  be  made  by  the  assignee  or  some 
witness  to  the  assignment,  it  was 
held  that  an  affidavit  made  by  another 
person  describing  himself  as  the 
agent  of  the  assignee  was  insuffi- 
cient. Ex  parte  Aldrich,  I  Denio 
(N.   Y.)   662. 

Vol.  I 


•22 


AFFIDAVITS. 


must  be  identified  by  containing  the  title  of  the  cause  in  whicli  it  is 
intended  to  be  used  or  it  cannot  be  received. ■'"'•'* 

2.  Where  Cause  Clearly  Appears.  —  The  want  of  the  formaUty  of 
a  title  is  of  no  consequence,  provided  the  affidavit  has  been  other- 
wise fullv  identified  as  bavins^  lieen  made  to  be  used  in  that  cause. ^'' 


55.  United  States.  —  Goldstein  v. 
Whelan,  62  Fed.   124. 

Illinois.  —  Watson  v.  Reisig,  24  111. 
281.   76  Am.   Dec.   746. 
Michigan.  —  Whipple   v.    Williams, 

1  Mich.  115. 

Mississippi.  —  Saunders    v.    Erwin, 

2  How.  732. 

New  York.  —  Higham  v.  Hayes,  2 
How.  Pr.  27;  Burgess  v.  Stitt,  12 
How.  Pr.  401  ;  Irrov  v.  Nathan,  4 
E.  D.   Smith  68. 

West  Virginia.  —  ^'inson  v.  Nor- 
folk, 37  W.  Va.  598,  16  S.  E.  802. 

Effect     of     Omitting     Title In 

Buerck  v.  Imhaeuser,  4  Fed.  Cas. 
No.  2107a,  it  was  held  that  an  affi- 
davit not  entitled  in  the  cause  was 
merely  an  extrajudicial  oath,  and 
not   admissible   in   evidence. 

Where  Title  Must  Appear. 
Every  affidavit  must  bear  upon  its 
face,  either  at  the  commencement  of 
it  or  in  its  body  the  title  of  the  suit 
in  which  it  is  taken  and  the  pro- 
ceedings to  which  it  is  intended  to 
apply.  Saunders  v.  Erwin,  3  Miss. 
(2   How.)    •;:i2. 

On    Motion    for    Injunction In 

Goldstein  v.  Whelan,  62  Fed.  124,  it 
is  held  that  affidavits  not  entitled  in 
the  cause  cannot  be  considered  in 
opposition  to  a  motion  for  an  in- 
junction. 

56.  Dunham  v.  Rappleyea,  16  N. 
J.  Law  75 ;  Hays  v.  Loomis,  84  111. 
18;  Harris  v.  Lester,  80  111.  307; 
Beebe  v.  Morrell,  76  Mich.  114,  42 
N.  W.  1 1 19,  15  Am.  St.  Rep.  288; 
Kearney  v.  Andrews,  5  Wis.  23 ; 
Yard  v.  Bodinc,  18  N.  J.  Law  490; 
King  V.  Harrington.   14  Mich.  532. 

Where  Affidavits  Are  Forwarded 
to  Counsel — In  Shook  v.  Rankin, 
21  Fed.  Cas.  No.  12,804,  where  af- 
fidavits to  support  an  application 
for  a  writ  of  injunction  were  with- 
out title,  but  were  forwarded  to 
counsel  in  the  case,  the  court  say: 
"  It  affirmatively  appears,  I  think, 
that  these  affidavits  were  made  for 
the      purpose      of      being      used      in 

Vol.  I 


this  case ;  and  conceding  that  they 
did  not  at  the  time  contain 
the  proper  title  of  the  cause, 
still  they  were  made  and  forwarded 
to  counsel,  who  may  be  presumed 
to  be  authorized  by  the  parties  to 
give  the  proper  character  to  them 
by  stating  the  name  of  the  cause  in 
which  they  were  to  be  used.  It 
seems  to  me  that  it  would  be  adopt- 
ing a  very  rigid  rulcj  and  one  hardly 
in  accordance  with  the  liberal  prac- 
tice of  the  present  day,  to  3eclare 
that  the  affidavits  should  be  rejected 
because  at  the  tiine  when  the  affi- 
davits were  made  and  signed  by  the 
parties,  the  name  of  the  cause  was 
not  stated,  provided  they  knew  that 
they  were  to  be  used  in  the  cause, 
although  they  did  not  know  the  tech- 
nical description  of  the  title  to  the 
same." 

Identity  on  its  Face Where  an 

affidavit  shows  on  its  face  that  it  is 
intended  to  be  used  in  the  suit  it 
is  not  necessary  that  it  should  be 
entitled.  Dunham  v.  Rappleyea,  16 
N.    J.    Law   75. 

Rut  see  Saunders  v.  Erwin,  2 
How.  (Miss.)  732,  wherein  it  was 
held  that  every  affidavit  must  bear 
upon  its  face,  either  at  the  com- 
mencement of  it  or  in  its  body,  the 
title  of  the  suit  in  which  it  is  taken 
and  of  the  proceedings  to  which  it  is 
intended  to  apply. 

In  Kearney  v.  Andrews,  5  Wis. 
23,  it  was  held  that  it  is  not  necessary 
that  an  affidavit  for  appeal  from 
a  judgment  of  a  justice  of  the  peace 
should  be  entitled  of  the  cause  and 
court.  If  it  substantially  conform 
to  the  statute,  and  properly  describe 
the  parties  to  the  suit,  it  is  good 
by  relation  to  the  other  papers  which 
arc  properly  entitled,  and  is  .sufficient. 

In  Case  of  Appeal,  if  the  justice 
certifies  on  his  docket  that  an  affi- 
davit has  been  filed  with  him,  sends 
up  his  transcript  and  appeal  bond> 
and  affidavit  made  by  the  appellant, 
before     him    or    any    other    justice, 


AFFIDAJ'ITS. 


723 


So  where  the  affidavit  contains  a  reference  to  or  is  attached  to  other 
papers  in  the  cause  which  are  properly  identified :'''  or  where  it 
follows  or  is  indorsed  upon  other  papers  correctly  identified  in  the 
cause. '^  even  where  it  is  wrongly  entitled.^" 

3.  Identified  With  Wrong  Cause.  —  But  a  wrongl}-  entitled  affi- 
tlavit  which  has  the  effect  of  identifying  the  affidavit  with  a  cause 
other  than  the  one  in  which  it  is  intended  to  be  used,  cannot  be 
read."" 


stating  in  substance,  what  the  stat- 
ute requires,  it  is  sufficient  evidence 
to  the  court  that  the  affidavit,  thus 
sent  up,  was  inade  in  that  cause; 
and  it  is  not  necessary  that  the  affi- 
davit should  be  entitled  in  the  cause, 
or  even  show  upon  its  face  who  are 
the  appellees,  or  .  the  style  of  the 
action ;  unless  it  appears  by  its  cap- 
tion or  on  the  face  of  it,  to  have  been 
made  in  a  different  cause,  or  is  other- 
wise shown  to  have  been  so  made, 
it  ougfit  to  be  received  and  acted 
on.  Yard  v.  Bodine,  i8  N.  J.  I^aw 
400. 

Affidavit  of  Due  Examination  of 
Witness.  _  In  McLi'<><I  t'.  Torrance. 
3  Q.  B.  146,  it  is  held  that  the  affi- 
davit of  the  due  examination  of  wit- 
nesses by  a  commissioner  need  not 
be  entitled  in  the  cause. 

57.  Arkansas.  —  Powers  v.  Swi- 
gart,   8   Ark.    363. 

California.  —  Watt  v.  Bradley,  95 
Cal.   415,   30   Pac.    557. 

Illinois.  —  Harris  ?'.  Lester.  80  III. 
307;   Hays  r.  Loomis,  84  111.   18. 

/oTt'a.  —  Levy  v.  Wilson,  43  Iowa 
605. 

Michigan.  —  King  r.  Harrington, 
14   Mich.   S32. 

New  York.  —  Anonymous.  4  Hill 
597 ;   ex  parte   Metzler,  5   Cow.   287. 

IViscousin.  —  Kearney  v.  Andrews, 
5    Wis.   23. 

Affidavit  Attached  to  Writ "The 

formal  requisites  of  an  affidavit  are 
the  title,  venue,  signature,  jurat  and 
authentication.  This  affidavit  con- 
tains all  the  formal  parts,  except  the 
title,  or  entitling  in  the  cause.  The 
general  rule  is  that  the  affidavit  must 
be  entitled  in  the  suit  in  which  it  is 
to  be  used.  If  there  be  no  suit  pend- 
ing at  the  time,  of  course,  the  affi- 
davit inust  not  be  entitled.  If  a 
~uit  be  pending,  and  the  affidavit  is 
entitled    in    a    suit    not   pending,   the 


affidavit  is  a  nullity."     Beebe  v.  Mor- 
rell.    76   Mich.    114,   42   N.    W.    11 19, 
13    Am.    St.    Rep.    288. 
Where     Affidavit     of     Publication 

Refers    to    the    Order Where    the 

affidavit  of  the  publication  of  an 
order  to  appear  was  not  entitled 
in  the  suit,  but  the  order  referred 
to  in  the  affidavit  was  properly  en- 
titled, it  was  held  that  the  affidavit 
referring  to  a  paper  properly  en- 
titled, to  which  it  is  appended,  must 
1)c  assumed  to  have  adopted  the  title 
by  the  reference,  the  object  of  en- 
titling affidavits  being  to  connect 
them  with  a  suit  so  that  perjury  will 
lie  upon  them.  King  v.  Harrington, 
[4  JNIich.  532. 

58.  Where  it  Follows  or  is  In- 
dorsed   on    Other    Papers Where 

the  affidavit  immediately  follows  the 
papers  for  the  motion,  or  where  it  is 
indorsed  upon  them,  they  being  prop- 
erly entitled,  it  is  sufficient  though 
not  itself  entitled.  Anonymous,  4 
Hill    (X.    Y.)    597. 

59.  Wrongly  Entitled  Affidavit. 
Where  the  affidavit  and  notice  of 
motion  were  entitled  in  the  wrong 
court  but  they  intelligibly  referred 
to  the  action  and  proceedings  in 
reference  to  which  the  affidavit  is 
made  and  the  notice  given,  it  was 
held  that  the  objection  that  the  affi- 
davit and  notice  of  motion  were 
wrongly  entitled,  could  not  be  main- 
tained. Blake  f.  Locv,  6  How.  Pr. 
(N.    Y.)    108. 

60.  Dickenson  z\  Gilliland,  i  Cow. 
(N.  Y.)  481;  Beebe  v.  Morrell,  76 
Midi.  114,  42  N.  W.  1119.  15  Am.  St. 
Rep.  288;  Whipple  r.  Williams,  I 
^lich.  115;  Hutnphrey  v.  Cande,  2 
Cow.  (N.  Y.)  509;  Hawley  v.  Don- 
nelly, 8  Paige   (N.  Y.)   415. 

Cause  of  Action  Misstated Wliere 

in  an  action  of  trespass  on  the  case, 
an    affidavit    on    appeal    was    entitled 

Vol.  I 


724 


AFl'ID.WirS. 


4.  When  No  Cause  Is  Pending.  —  Affidavits  entitled  as  in  a  cause 
pendinfT  when  no  such  suit  was  in  existence  at  the  time,  are  not 
entitled  to  be  read  or  used  for  any  purpose  whatever."' 

5.  Rule  Not  Universal. —  lint  there  are  cases  to  the  contrary. ''-■ 


in  an  action  of  debt,  il  was  held 
that  the  affidavit  was  fatally  defec- 
tive. Dnnham  v.  Rapplcyca.  i6  N.  J. 
I^aw  75. 

Where  Parties  Allowed  to  Sever. 
Where  it  appeared  that  a  writ  of 
error  was  sued  out  in  the  names  of 
W  and  R,  but  on  motion  W  was 
allowed  to  sever  in  the  prosecution 
of  the  suit,  affidavits  subsequently 
drawn  up  and  entitled  in  the  name 
of  W  and  R  were  held  to  be  erron- 
eously entitled.  Whipple  v.  Wil- 
liams,   I    Mich.    115. 

Wrong  Christian  Name.  —  An 
affidavit  entitled  ''  Charles  Reissig  v. 
Alanson  Watson,  ct  al."  cannot  be 
considered  where  the  proper  title  of 
the  cause  is  "  Charles  Reissig  v. 
Alonzo  Watson,  et  al."  Watson  f. 
Reissig.    24    III    281,    76    .\ni.    Dec. 

746. 
Wrong  Title  Cannot  Be   Rejected 

as  Surplusage.  —  Where  the  affiilavit 
was  wrongly  entitled  and  it  was  eon- 
tended  in  support  of  the  affidavit 
that  the  title  might  he  rejected  as 
surplusage  the  court  said :  ''  The  ob- 
jection is  fatal.  There  is  no  such 
cause  in  existence  as  the  one  men- 
tioned in  the  title  and  such  an  affi- 
davit is  never  received.  The  party 
cannot  be  convicted  of  perjury, 
though  he  swears  falsely.  We 
refuse  to  hear  motions  for  writs  of 
iiiandainus  upon  affidavits  which  are 
entitled,  and  the  same  rule  prevails 
in  the  K.  B.  as  to  affidavits  to  hold 
to  bail."  Humphrey  ■:■.  Cande,  2 
Cow.    (N.   Y.)    509. 

61.  England.  —  Re.x  f.  Harrison, 
6  T.  R.  60;  Green  v.  Redshaw,  1  B. 
&  P.  227:  Reg.  V.  Jones,  i  Str.  704; 
King  V.  Cole,  6  T.  R.  640;  Re.x.  v. 
Pierson,    Andrews   313. 

United  States.  —  Baldwin  !■.  Ber- 
nard, 9  Blatchf.  509,  2  Fed.  Cas.  No. 
797 ;  Blake  Crusher  Co.  r.  Ward,  3 
Fed.  Cas.  No.  1505;  Sterrick  r.  Pugs- 
ley,  I  Flip.  350,  22  Fed.  Cas.  No. 
13,379- 

Florida.  — "WqsI  v.  Walfolk,  21 
Fla.   T8g. 


Indiana. —  Hawkins  i'.  State.  136 
Ind.  630,  36  N.   E.  419. 

Miehigan.  —  Beehe  f.  .Morrell,  76 
Mich.  114,  42  N.  W.  1 1 10.  15  Am. 
St.    Rep.    288. 

Neu'  York.  —  Whitney  7\  Warner. 
2  Cow.  499;  Haight  ■:•.  Turner,  2 
Johns.  371 ;  Nichols  t'.  Cowles,  3 
Cow.  345 ;  Milliken  j'.  Solye,  3  Denio 
54;  People  V.  Tioga  Com.  PI.,  i 
Wend.  291  ;  People  f.  Dikeman.  7 
How.  Pr.  124;  Stacy  v.  Farnhani,  2 
How.  Pr.  26;  in  re  Bronson.  12 
Johns.  460;  Hawley  z:  Donnelly,  8 
Paige  415. 

Wiseonsiik  —  Quarles  ;•.  Robin- 
son. 2   Pinn.  97.   note. 

Title  Cannot  Be  Rejected  as  Sur- 
plusage  In     re    Bronson,     two    of 

the  judges  thought  the  entitling 
might  be  rejected  as  surplusage  but 
the  majority  of  the  court  decided 
otherwise,  and  the  affidavits  were 
rejected.  In  re  Bronson,  12  Johns. 
(N.   Y.)   460. 

See  also  Blake  Crusher  Co.  i'. 
Ward.   3   Fed.    Cas.    No.    1505. 

62.  Effect  of  Statute  in  New 
York.  —  ■•  The  only  remaining  point 
urged  by  defendant's  coimsel  in  sup- 
port of  his  motion,  which  it  is  ne- 
cessary to  notice,  is.  that  the  affi- 
davit is  entitled  in  a  cause  which 
as  yet  had  no  existence.  Under  the 
former  practice,  this  objection  might 
have  been  fatal  tn  the  proceedings, 
It  seems  to  have  been  settled  by 
authority,  though  I  have  never  been 
able  to  perceive  the  soundness  of 
the  reason  upon  which  the  rule  was 
founded,  that  affidavits  to  hold  to 
bail  must  not  be  entitled.  The  only- 
reason  that  has  ever  been  assigned 
for  the  rule  is,  that  as  the  affidavit 
purports  to  be  made  in  a  suit  wdien 
in  fact  no  suit  is  pending,  an  indict- 
ment for  perjury  could  not  be  sus- 
tained, if  the  affidavit  should  prove 
to  be  false.  I  can  see  no  difficulty, 
however,  in  sustaining  an  indict- 
ment, containing  proper  allegations 
in  such  a  case.  But  wliatever 
should     have     been     the     nde     under 


Vol.  I 


AFP  ID  A]' ITS. 


725 


6.  Waiver  of  IiTegularity. —  Hut  it  has  been  hekl  that  the  objec- 
tion to  an  affidavit  upon  the  ground  that  it  is  entitled  in  a  cause  not 
\ct  commenced,  must  be  made  in  the  first  instance,  and  is  waived 
iiy  the  opposite  party's  predicatinc;-  a  motion  upon  it."^ 

7.  When  Used  As  Foundation  for  Writs.  —  Tliere  are  instances, 
liowever,  where  false  swearing  will  be  perjury,  although  no  suit  was 
pending  at  the  time.  It  is  so  wherever  the  oath  was  lawful ;  and 
the  oath  is  lawful  whenever  it  is  a  preparatory  step  in  legal  proceed- 
ings. Affidavits  made  to  be  thus  used  need  not  necessarily  be  enti- 
tled :"■*  and  if  made  before  the  cause  in  which  they  are  intended  to 
I)e  used  is  actually  commenced,  ma\'  be  vitiated  if  entitled  in  the 
cause. ''^ 


the  former  practice,  it  is  enough  to 
say  now,  that  the  error  or  defect, 
if  it  be  one.  '  does  not  aflfect  the 
substantial  rights  of  the  adverse 
party,'  and  I  am,  therefore,  required 
by  the  176th  section  of  the  Code,  to 
disregard  it."  Pindar  v.  Black,  4 
How.  Pr.  (N.  Y.)  95;  City  Bank 
r.    Lumley.    28    How.    Pr.     (N.    Y.) 

397- 
Rule     in     Minnesota "  .\nothcr 

objection  to  the  affidavit  is  that  it 
was  void  because  entitled  in  a  cause 
not  yet  commenced.  There  are  un- 
doubtedly decisions  which  go  to  this 
length,  but  they  are,  in  our  judg- 
ment, devoid  of  reason,  and  based 
upon  a  frivolous  technicality.  We 
do  not  suppose  that  there  was  ever 
an  affidavit  made  in  this  state  for 
a  replevin,  garnishment,  attachment, 
or  publication  of  a  summons  that 
was  not  thus  entitled,  although, 
strictly  speaking,  the  action  was  not 
yet  commenced  when  the  affidavit 
was  sworn  to.  Even  at  common 
law  it  was,  at  most,  a  mere  irregu- 
larity which,  in  the  language  of  the 
court  in  Clarke  v.  Cawthorne.  7, 
Term  R.  321,  '  does  not  interfere 
with  the  justice  of  the  case.'  A 
prosecution  for  perjury  based  upon 
such  an  affidavit  would  lie."  Crom- 
bie  V.  Little,  47  Minn.  i8l,  50  N.  W. 
823. 

63.  City  Bank  r.  Lundey,  28  How. 
Pr.  397. 

64.  Kinney  v.  Heald,  17  Ark.  397; 
1)1  re  Bronson.  12  Johns.  (N.  Y.) 
460. 

For     Mandamus "  An     affidavit 

for  mandamus  may  be  treated  as  a 
complaint,    and    still,    to    all    intents 


and  purposes,  have  the  effect  of 
such  an  affidavit.  The  fact  that  such 
affidavit  lacks  the  title  of  the  action 
or  proceeding  in  which  it  was  used 
will  not  invalidate  it  as  such.  Mc- 
Crary  v.  Beaudry,  67  Cal.  120,  7  Pac. 
264. 

But  see  Milliken  v.  Selye.  3  Denio 
54.  wherein  it  was  held  that  where 
an  affidavit  required  to  be  delivered 
to  the  sheriff  with  a  writ  of  replevin 
was  entitled  in  the  cause  before 
any  cause  was  pending  it  was  void. 
That  the  affidavit  should  not  have 
been  entitled,  because  when  it  was 
made  there  was  no  suit  pending  in 
court.  As  the  affidavit  purported  to 
be  made  in  a  suit  when  there  was 
none,  the  party  could  not  be  con- 
victed of  perjury  for  false  swear- 
ing. As  there  was  no  suit  pending 
the  affidavit  as  thus  entitled  was 
not  a  lawful  but  an  extrajudicial 
oath,    and    a    nullity. 

65.  People  v.  Tioga  Com.  PI.,  I 
Wend.  (N.  Y.)  291;  Haight  v. 
Turner,   2   Johns.    (N.    Y. )    371. 

AfBdavit  for  Injunction.  —  In 
Baldwin  v.  Bernard,  2  Fed.  Cas.  No. 
797.  the  court  said :  "  It  is  undoubt- 
edly irregular  to  swear  a  person  in  a 
suit  before  the  bill  has  been  filed. 
The  irregularity  consists  in  having 
the  affidavit  sworn  to  under  the  title 
of  a  suit,  in  which  no  suit  has  been 
filed.  If  the  title  had  been  omitted 
there  would  have  been  no  irregular- 
ity. This  is  continually  done  in  ap- 
plications for  habeas  corpus  and  ^ 
\nandamus,  and  to  swear  falsely  in 
such  affidavits  is  indictable  as  per- 
jury. The  suit  is  commenced  when 
the    suit    is    filed.      Eicke's    affidavit 


Vol.  I 


726 


AFFIDAVITS. 


VII.  AS  AN  INSTRUMENT  OF  EVIDENCE. 

The  principal  service  of  an  affidavit  as  evidence,  is  to  l)rin^-  U-- 
the  knowledge  of  the  court  facts  not  appearing  by  the  record  when 
such  facts  are  necessary  to  be  shown  as  a  basis  for  some  prelimhiary 
or  interlocutory  action,""  or  in  proof  of  matters  which  are  auxiliary 
to  the  trial  of  the  cause."' 


should  not  have  been  entitled  in  the 
suit.  On  this  ground  the  affidavit 
of   Eicke   should  be   excluded." 

For    Certiorari In    Whitney    v. 

Warner,  2  Cow.  (N.  Y.)  499,  it  is 
held  that  an  affidavit  for  a  writ  of 
certiorari  to  a  justice's  court  might 
be  entitled  in  the  court  below  but  not 
in  the  court  to  which  the  application 
was  made. 

In  People  v.  Tioga  Com.  PI.,  i 
Wend.  (N.  Y.)  291,  the  court  say: 
"  It  is  the  settled  practice  of  this 
court  that  on  a  motion  for  a  man- 
damus the  affidavit  must  not  be  en- 
titled. The  reason  is  that  at  the 
time  of  the  making  of  the  affidavit 
there  is  no  cause  pending  in  this 
court,  and  an  indictment  for  perjury 
in  making  such  an  affidavit  must  fail, 
as  it  could  not  be  shown  that  such  a 
cause  existed  in  the  court  in  which 
the   affidavit    was   made." 

66.  Cooper  i'.  Galbraitli,  24  Jn.  J. 
Law  219;  Harwood  v.  Smethurst, 
■50  N.  J.  Law  230;  Faulkner  v. 
Chandler.  11   Ah.  725:  Coffin  v.  .\h- 


liott,  7  Mass.  2^2;  Tennant  i'.  Divine. 
24  W.  Va.   387. 

Rule  to  Show  Cause —  In  Bald- 
win V.  Flagg,  43  N.  J.  Law  495,  it  is 
held  that  c.v  parte  affidavits  may  be 
used  for  the  purpose  of  obtaining  a 
rule  to  show  cause,  but  are  not  com- 
petent to  prove  the  facts  necessary 
to  support  a  inotion  not  of  course, 
or  to  read  on  the  hearing  of  a  rule 
to  show  cause  depending  on  facts 
extrinsic  the  record;  such  facts  can 
only  be  brought  before  the  court  by 
depositions  taken  on  notice.  See 
"  .Attachment,"  ''  Replevin." 

67.     In      Matters      Auxiliary      to 

Cause In  Schloss  v.  His  Creditors. 

31  Cal.  201,  it  is  said;  "Application 
for  a  continuance  on  the  ground 
of  a  party's  inability  to  procure  the 
attendance  of  a  witness,  or  to  obtain 
some  necessary  evidence,  or  to  es- 
tablish the  loss  of  a  written  instru- 
ment, and  the  like,  are  in  practice 
generally  founded  upon  affidavits, 
and  the  service  of  notices  and  sub- 
poenas and  matters  of  the  kind  are 
usually  proved  by  affidavit." 


AFFILIATION.-See  Bastardy. 


AFFINITY.— See  Relationship. 


AFFIRMATION.— See  Oath. 


Vol.  I 


AFFRAY. 


I.  DEFINITION,  J2-J 

II.  PEOOF  NECESSARY  TO  CONVICTION,  728 

1.  Vighting  of  Tivo  or  More,  728 

A.  Proof,  of  Fighting,  728 

a.   Words,  728 

B.  Proof  of  Public  Place,  728 

C.  Proof  of  Terror,  729 

D.  Proof  of  Consent,  729 

2.  Going  About  Armed,  729 

III.  JUSTIFICATION  BY  DEFENDANT,  729 

1.  Burden  to  Slioic,  729 

2.  Self  Defense  As,  729 

3.  Other  Facts,  729 

IV.  WITNESSES,  730 


Assault  and  liattci'}- 

Breach  of  Peace ; 

Duellins" : 

Prize  Fighting" ; 

Riot ; 

Linlawful  Assembly. 


CROSS-REFERENCES. 


I.  DEFINITION. 


An  affray  is  in  general  a  breach  of  the  peace  in  a  public  place  to 
the  terror  of  the  people.'  It  may  consist  either  in  the  fighting  of 
two  or  more  persons,-  with  or  without  mutual  consent,"  or  in  simply 


1.  I    Hawk.    P.    C,    ch.   63,   §1. 

2.  I  Hawk.  P.  C,  ch.  63,  §  i  ;  4 
Blk.  Com.  145;  I  Riiss.  Crimes,  p. 
406;  I  Bish.  Crim.  L.,  §  S3S ;  Black's 
Law  Diet,  s^b  verba ;  McClellan  f. 
State,  53  Ala.  640;  Childs  v.  Stale, 
15  Ark.  204;  Supreme  Council  etc.  <'. 
Garrigus.  104  Ind.  133,  3  N.  E.  818. 
54  Am.  Rep.  298;  Com.  v.  Simmons. 
29  Ky.  614;  Duncan  i'.  Com..  36  Ky. 
295 ;  State  v.  Perry,  5  Jones  Law 
(N.   C.)    9,  69  Am.   Dec.   768;    State 


V.  Woody.  47  N.  C.  335 ;  Stale  v. 
Davis,  65  N.  C.  298 ;  Simpson  v.  State. 
5  Yerg.  (Tenn.)  356;  State  v.  Priddy. 
4  Humph.  (Tenn.)  429;  Pollock  v. 
State,  32  Tex.  Crim.  App.  29.  22 
S.  W.  19. 

3.  At  Common  Law  consent  was 
immaterial,  but  some  statutes  have 
made  it  otherwise.  See  Fritz  v. 
State.  40  Ind.  18;  Kkim  v.  State,  1 
Blackf.  (Ind.)  377;  Supreme  Coun- 
cil  etc.   v.   Garrigus,   104  Ind.    103,  3 

Vol.  I 


738 


,\I-J-l<Ay 


goiii^-  al)i)ut  arniL'd."' 

II.  PROOF  NECESSARY  TO  CONVICTION. 

1.  Fighting  of  Two  or  More.  —  All  the  elements  of  the  ofTense 
nuist  be  iiroved;'  tightinj;",  public  place,  terror  of  the  people,  and 
in  some  cases  consent  or  agreement. 

A,  Proof  of  Fighting.  —  Fighting  must  be  proved,"  though  not 
necessarily  that  defendants  fought  each  other.'  ( )ne  blow  is  suffi- 
cient to  constitute  a  fight,  when  it  renders  the  other  party  unable  to 
return  it."     Proof  of  a  mere  friendly  scuffle  is  insufficient." 

a.  Words.  —  Authorities  are  in  direct  conflict  as  to  whether  proof 
of  mere  words  alone  will  sustain  a  conviction  for  affray.  In  North 
Carolina  it  is  held  that  they  will:'"  in  Alabama  and  Georgia  that 
they  will  not."  In  any  case,  of  course,  they  may  lie  introduced 
as  part  of  the  res  gcstac.'- 

B.  Proof  of  Public  Placi;.  —  The  state  must  show  that  the 
lighting  was  in  a  public  place. ^'^  What  is  a  public  place  is  a  matter 
of  evidence,'""  to  be  iletermined  by  the  jury  under  proper  instruc- 
tions bv  the  court. '^ 


N.  E.  8i8,  54  Am.  Rep.  298 ;  State  j'. 
Herrell,  107  N.  C.  944.  12  S.  E.  M9: 
Champer  t.  State,  14  Ohio  St.  437. 

4.  I  Hawk.  P.  C,  ch.  63,  §4; 
Knight's  Case,  3  Mod.  117;  i  Russ. 
Crimes,  p.  407 ;  State  i'.  Huntly,  25 
N.  C.  418,  40  Am.  Dec.  416;  State 
V.  Lanier,  71  N.  C.  288;  State  v. 
Davis,  65  N.  C.  298;  State  ;'.  Griffin. 
T25  N.  C.  692,  34  S.  E.  S13;  State  v. 
Washington,  19  Tex.  128.  70  Am. 
Dec.  323 ;  Simpson  v.  State,  5  Yerg. 
(Tenn.)  356,  abrogates  the  common 
law  rule,  as  infringing  a  right 
guaranteed  by  the  state  constitution. 

5.  State  V.  Brewer,  33  Ark.  176. 
Examples.  —  See  State  v.  Glenn,  I  ig 
N.  C.  804,  2S  S.  E.  789;  Piper  f. 
State  (Tex.  App.V  51  S.  W.  11 18. 

6.  State  ?'.  Brewer,  3^  Ark.  176. 

7.  Thompson  r.  State,  70  Ala.  26. 

8.  State  V.  Gladden,  73  N.  C.  150. 

9.  State  ?■.  Freeman,  127  N.  C. 
544,   37    S.   E.   206. 

10.  State  7'.  Perry,  5  Jones  Law 
(N.  C.)  9,  69  Am.  Dec.  768;  State 
V.  Robbins,  78  N.  C.  431  ;  State  v. 
Fanning,  94  N.  C.  940,  55  Am.  Rep. 
653. 

11.  O'Neill  r.  Stale,  16  Ala.  65: 
Hawkins  v.  State,  13  Ga.  322,  5S 
Am.  Dec.  517. 

12.  Hawkins  7:  State,  13  Ga.  322. 
58  Am.  Dec.  517. 

Vol.  I 


13.  State  r.  Brewer,  33  Ark.  176; 
Shelton  v.   State,  30  Tex.  431. 

In  State  t.  Billings,  72  Mo.  662, 
it  was  held  that  evidence  that  fight 
began  in  a  private  house  was  admis- 
sible, if  it  continued  into  the  street. 

14.  Shelton  r.  State,  30  Tex.  431. 

15.  Thus,  in  Carwile  z\  State,  35 
-\la.  392,  where  the  jury  found  that 
the  fight  occurred  in  a  private  lot 
ninety  feet  from  the  road,  but  within 
sight  of  persons  passing  thereon,  the 
court  held  it  to  be  a  pul)lic  place  as 
required.  Gamble  v.  State,  113  Ga. 
701,  39  S.  E.  301,  held  that  evidence 
that  fight  occurred  in  a  private  house 
"  near  "  a  public  road  is  not  sufficient 
proof  of  its  publicity  ;  neither  is  the 
fact  that  at  the  time  the  house  was 
being  used  for  a  dance ;  though  under 
some  circumstances  the  unusual  as- 
semblage of  people  in  a  private  place 
may  make  it  public.  Taylor  v.  State, 
22  Ah.  15,  held,  that  the  casual 
presence  of  three  persons  in  a  forty- 
acre  tract  one  mile  from  a  highway 
and  enclosed  by  a  woodland,  does  not 
make  such  tract  a  public  place. 

Highway  Not  Necessarily  a  Pub- 
lic Place.-  Sl:ilc  T-  Weekly.  20  Ind. 
20b. 

"  Public  Highway "  is  a  Public 
Place.— State  r.  Warren.  57  Mo. 
.App,    502. 


AFFRAY. 


729 


C.  Prooi'  111'  Tkkkiir.  —  Wlit-rc  the  fight  is  pulilic,  terror  will  be 
conclusively  presumed."' 

D.  Proof  of  Consent.  —  Consent,  when  material,'"  may  he 
shown  by  the  acts  and  declarations  of  the  parties.'*  Such  acts  and 
declarations  must  be  part  of  the  immediate  transaction.'"  The  mere 
fact  of  fijjfhting  will  not  raise  a  presumption  that  it  was  b\'  agree- 
ment.-" 

2.  Going-  About  Aimed.-' —  Whether  a  public  offense  of  this  kind 
is  an  affray  or  not,  is  a  question  for  the  jury.--  In  this  class  of 
cases,  "terror"  will  not  be  ]iresumed  InU  must  he  shown.--' 

III.  JUSTIFICATION  BY  DEFENDANT. 

1.  Burden  to  Sho'w.  —  When  the  fact  of  fighting  in  a  public  place, 
to  the  terror  of  the  ])eople,  has  been  ])roved  or  admitted,  the  burden 
cif  proof  shifts  to  the  accused  to  show  a  justification  therefor.-^ 

2.  Self-Defense  As.  —  Evidence  that  lie  fought  in  self-defense  is 
admissible.-"' 

3.  Other  Facts. —  Xo  authority  can  be  found  for  allowing  any 
])roof  in  justification  other  than  that  of  self-defense.'-'"' 


16.  State  I'.  Sumner,  s  Strob. 
(S.   C.)    53. 

17.  Held  material.  State  v. 
Weathers,  98  N.  C.  685,  4  S.  E.  512- 

By  statute.  Fritz  v.  State,  40  bid. 
18;  Supreme  Council  etc.  v.  Garrigus. 
104  Ind.  i,^,^,  3  N.  E.  818,  54  .\m. 
Rep.  298. 

Held  immaterial.  Cash  %'.  State,  2 
Over.    (Tcnn.)    198. 

18.  Stale  V.  Herrell,  107  N.  C.  944. 
7  2  S.  E.  439.  Evidence  that  after 
fight  was  ended,  defendants  shouted 
out  to  retreating  opponents  to  "  stop 
and  shoot  it  out  like  men  "  held  ad- 
missi1)Ie  to  prove  consent. 

19.  Skains  v.  State,  21  Ala.  218; 
State  V.  Gotr,  117  N.  C.  755,  23  S.  E. 

355- 

20.  Klum  V.  State.  1  Blackf. 
(Ind.)   377. 

21.  See  note  4.  ante. 

22.  State  v.  Lanier  71   N.  C.  288. 

23.  State  v.  Huntly,  25  N.  C.  418, 
40  Am.  Dec.  416.  Declarations  of 
defendant  that  he  intended  to  kill 
Ratcliff  held  admissible  to  prove  evil 
purpose,  and  consequent  terror  of  the 
people.  Cited  in  State  v.  Norton. 
82  N.  C.  628:  Sate  V.  Lanier.  71  N.  C. 
288. 

24.  Stale  r.  Wealliers,  98  N.  C 
68:;,  4  S.  E.   ^12. 


Stale  V.  Barringcr,  uj  N.  C.  840, 
19  S.  E.  275.  Held,  that  where  de- 
fendant admits  fighting  with  a  deadly 
weapon,  the  burden  is  on  him  to 
prove  facts  justifying  his  conduct, 
not  merely  by  preponderance  of  evi- 
dence, but  to  the  satisfaction  of  the 
jury. 

But,  in  State  v.  Freeman.  127  N. 
C.  544,  37  S.  E.  206,  admission  by 
defendants  that  they  were  engaged 
in  a  friendly  scufifle  is  held  not  suffi- 
cient to  cast  upon  them  the  burden 
of   proving   justification. 

25.  Hawkins  v.  State.  13  Ga.  322. 
58  .'\m.  Dec.  517:  State  v.  Barringer, 
"114  N.  C.  840  19  S.  E.  275:  State  v. 
Downing,  74  N.  C   184. 

Contra.  —  Stale  v.  Herrell.  107  N. 
C.  944,  12  S.  E.  4,39.  held  that  evi- 
<lence  that  parlies  came  up  to  the 
accused  brandishing  weapons  and 
uttering  threats  was  inadmissible  to 
prove  that  they  acted  in  self  defense. 

26.  Thus,  it  is  inadmissible  to 
prove  that  defendant  did  not  expect 
his  abusive  language  to  be  taken  up 
and  resented.  Stale  v.  King,  86  N. 
C.  603. 

Stale  V.  Weathers,  98  N.  C.  685. 
4  S.  E.  512,  held  that  evidence  that 
one  of  the  defendants,  whose  sister 
was  the  wife  of  the  other  defendant. 


Vol.  I 


IM)  AFFRAY. 

IV.  WITNESSES. 

Co-defendants,  testifying  each  in  his  own  behalf,  stand  in  relation 
to  each  other  as  prosecuting  witnesses,  and  are  subject  to  thorough 
cross-examination  and  im])eachment  by  both  sides.-" 

tried   to   persuade   her  to   leave   him.  27.     State  z'.   Gol¥.   117   N.   C.  755. 

was    inadmi.'^sible   in   defense.  2,^  S.  E.  355- 

Vol.  I 


AGE. 


I.  JUDICIAL  NOTICE,  732 
II.  PRESUMPTIONS,  732 

III.  DOCUMENTARY  EVIDENCE,  732 

1.  What  Dociniiciits  Admissible,  y^t- 

A.  In  General,  732 

B.  Inscription  on  Tombstone.  j^2 

C.  Charge  in  Attending  Pliysician's  Accounts.  732 

D.  Hymn  Book,  733 

E.  Public  Records,  733 

2.  JVhaf  Documents  Not  Admissible.  733 

A.  Marriage  Certificate,  733 

B.  Baptismal  Certificate,  733 

IV.  HEARSAY  EVIDENCE,  734 

1.  Age  As  a  Fact  of  Pedigree,  734 

A.  General  Rule,  734 

B.  Painily  Bible  or  Record.  734 

C.  Testimony  of  the  Person  Himself,  735 

2.  Age  As  a  Fact  Not  of  Pedigree,  735 

V.  INSPECTION  BY  JURY,  736 

VI.  COMPETENCY  OF  WITNESSES,  71,7 

1.  Witness  Having  Knoicledge.  j^j 

2.  The  Attending  Physician,  j},/ 

3.  Witness  Testifying  From  Appearance  of  Person,  /t,/ 

4.  Experts  and  Non-E.vperts,  738 

5.  Testing  Capacity  of  ]l'itness.  738 

VII.  OUESTION  OF  FACT,  738 
VIII.  AGE  OF  HORSE,  738 


CROSS-REFERENCES. 

Ancient  Documents ; 
Birth  :  Books  as  Evidence ; 
Handwriting- :  Hearsay : 
Pedigree. 

Vol.  I 


732  AGE. 

I.  JUDICIAL  NOTICE. 

Judicial  notice  will  be  taken  by  the  courts  that  an  attorney  at 
law.  as  an  officer  of  the  court,  is  at  least  twenty-one  years  of  age.^ 

II.  PRESUMPTIONS. 

In  the  absence  of  anything  appearing  to  the  contrary,  it  will  be 
presumed  that  a  person  who  has  entered  into  an  agreement  is  of 
competent  age  to  contract.' 

It  will  be  presumed  that  declarations  made  by  an  applicant  for 
insurance,  as  to  his  age,  on  which  a  policy  has  been  issued  and 
premiums  paid  for  a  long  time,  are  correct,  until  the  contrary  is 
made  to  appear.^ 

III.  DOCUMENTARY  EVIDENCE. 

1.  What  Documents  Admissible.  —  A.  In  Gener.\l. — The  fact 
of  age  has  been  proved  by  private  records  kept  b\-  a  third  person.* 
It  may  be  ]:)roved  by  evidence  of  the  figures  on  a  birthday  cake.' 

B.  Inscription  on  Tombstone.  —  Evidence  of  an  inscription  on 
a  tombstone  has  been  held  admissible  on  the  question  of  age." 

C.  Charge  in  Attending  Physician's  Accounts.  —  Where  the 
attending  physician  can  not  remember  the  date  of  the  birth  of  a 
person,  a  charge  made  liy  him  in  his  accounts,  or  any  other  original 
contemporaneous  mcnioranduni  of  the  f;ici.  may  be  received  for  the 


1.  Booth  f.  Kingsland  Ave.  B. 
Ass'n,  i8  .^pp.  Div.  407.  46  N.  V. 
Supp.  457. 

2.  Rogers  i'.  Dc  BardelaVjen  Coal 
&  I.  Co..  97  Ala.  154.  12  So.  81  :  Foltz 
V.  Wert.  103  Ind.  404,  2  N.  E.  950; 
Rowe  r.  Arnold,  39  Ind.  24.  Sec 
also  Garber  z:  State.  94  Ind.  219; 
Palmer  v.   Wright,   58   Ind.  486. 

3.  Supreme  Council,  G.  S.  F.  t. 
Conklin.  60  N.  J.  Law  565,  38  Atl. 
659,  41  L.  R.  A.  449.  See  also  Mc- 
Carthy T'.  Catholic  Knights  &  I,, 
of  A..  102  Tenn.  345.  52  S.  W.  142, 
wherein  it  is  held  that,  as  forfi-iture 
of  the  rights  of  membership  in  a 
mutual  benefit  association  sought  on 
the  ground  that  the  applicant  had 
misrepresented  his  age  in  his  ap- 
plication is  not  favored  by  the  law. 
the  fact  upon  which  it  is  sought 
must  be  proved  by  the  most  satisfac- 
tory evidence;  citing  Bates  v.  Detroit 
Mut.  Ass'n,  51  Mich.  587.  17  N.  W. 
67;  Jackson  v.  N.  W.  Mut.  Relief 
Ass'n,  78  Wis.   463,  47   N.   W.   733; 

.So.  Life  Ins.  Co.  7:  Booker.  9  Ileisk. 
fTcnn.)   606.  24   .'\m.  Rep.  344;   Mo- 

Vol.  I 


bile  Life  Ins.  Co.  z:  Morris,  3  Lea 
(Tenn.)  loi,  31  Am.  Rep.  631.  .\nd 
j-(\-  the  title  "  Forfeiture." 

4.  Coan  f.  Enell,  2  Cranch  C.  C. 
208.  5  Fed.  Cas.  No.  2790;  Falls  v. 
Gamble,  66  N.  C.  455 ;  Fletcher  -■. 
Cavalier,  4  La.  267. 

5.  Thus,  in  Parkhurst  v.  Krellin- 
ger,  69  Vt.  375,  38  Atl.  67,  evidence 
that  the  person  whose  age  was  in 
(jucstion  had  had  a  birthday  party, 
nn  which  occasion  she  had  a  birth- 
day cake  with  figures  thereon  indi- 
cating her  age.  was  held  admissible. 
"  The  party  was  before  the  contro- 
versy arose,"  said  the  court,  "  and  at 
a  time  when  the  defendant  could 
have  no  motive  in  representing  the 
age  of  his  daughter  to  be  diflferent 
form  what  it  was  in  fact ;  and  we 
think  the  evidence  must  be  regarded 
.IS  in  the  nature  of  an  act  of  the 
defendant  that  rendered  his  claim 
more  probable,  and  was  admissible." 

6.  Smitli  V.  Patterson,  95  Mo. 
525,    8    S.    W.    567. 

Compare  Gehr  v.  Fisher,  143  Pa. 
St.   311.  22  Atl.  859. 


AGE.  733 

purpose  of  proving  tlie  age  of  the  person  in  question,  if  the  entry 
is  supported  by  his  testimony  that  it  was  correctly  made.' 

D.  Hymn  Book.  —  Entries  in  a  hymn  Ijook,  made  by  a  parent 
ante  litem  inotain,  are  admissible  on  the  question  of  age,  where  the 
father  and  mother  and  near  relatives  are  dead  or  beyond  the  seas.' 

E.  Public  Records.  —  Again,  public  records  have  been  received 
as  proper  evidence  to  prove  the  fact  of  age." 

2.  What  Documents  Not  Admissible.  —  A.  MAKurAGE  Certifi- 
cate.—  A  recital  of  the  age  nf  the  parties  in  a  marriage  certificate 
is  not  evidence  of  that  fact.'" 

B.  Baptismal  Certificat:-:.  —  It  has  been  held  that  the  age  of  a 
person  can  not  be  shown  by  a  baptismal  certificate  stating  the  date 
of  his  birth." 


7.  Highani  <■.  Ridgeway.  lO  East 
109 ;  Blackburn  ?'.  Crawfords,  ,3 
Wall.  275;  Arms  v.  Middleton,  23 
Barb.  (N,  Y.)  571;  Heath  v.  West, 
26  N.  H.  191  ;  /)(  re  Paige,  62  Barb. 
(N.    Y.)    476. 

8.  Collins  T.  Grantham,  12  Ind. 
440. 

9.  Markowitz  z:  Drv  Dock,  E.  B. 
&  B.  R.  Co.,  12  Misc.  412,  33  N.  Y. 
Siipp.  702. 

Census  Book.  —  In  Battles  v.  Tall- 
man,  96  Ala.  403,  II  So.  247,  it  was 
held  that  entries  in  a  census  book 
made  by  a  census  enumerator  of 
a  mother's  statement  as  to  her 
daughter's  age  were  not  admissible 
unless  the  enumerator  cannot,  after 
examining  it.  testify  to  a  present 
recollection  of  the  fact  therein  noted. 

10.  That  a  Person  'Was  of  Full 
Age  at  a  Certain  Time  can  not  be 
proved  by  evidence  that  at  that  time 
he  was  assessed  and  taxed  for  prop- 
erty. See  Clark  v.  Trinity  Church, 
5  W'atts  &  S.  (Pa.)  206;  Passmore's 
Appeal,  60  Mich.  463,  27  N.  W.  601. 

11.  Berry  r.  Hall,  6  N.  M.  643, 
30  Pac.  936 ;  State  v.  Snover,  63 
N.  J.  Law  382.  43  Atl.  1059 ;  Herman 
t:  Mason,  37  Wis.  273. 

A  Church  Register  of  Baptisms, 
even  when  kept  under  circumstances 
which  render  it  admissible  as  evi- 
dence, is  proof  only  of  the  fact  of 
baptism,  and  not  of  the  age  of  the 
person,  unless  the  age  is  at  the  same 
time  duly  recorded  in  the  register. 
Supreme  Assembly,  R.  S.  of  G.  F. 
r.  McDonald,  59  N.  J.  Law  248,  35 
."Xtl,  1061.     See  also  McQuirk  v.  Mut. 


B.  Life  Co..  48  N.  Y.  St.  Rep.  799. 
20  N.   Y.   Supp.  908. 

Certificates  of  Baptism  and  Mar- 
riage, which  merely  purport  to  show 
tliat  certain  entries  were  in  a  register 
of  baptisms,  but  are  not  copies  of  iUl- 
entries  themselves,  are  not  competent 
to  show  the  age  of  one  of  the  parties 
concerned.  Tessman  v..  Supreme 
Commandery  U.  F.,  103  Mich.  i8^, 
61    N.   W.  261. 

A  certificate  of  baptism  is  not  ad- 
missible to  prove  the  age  of  the  per- 
son stated  to  have  beun  baptized  under 
a  statute  (Wis.  Rev.  Stat.  §41721 
which  makes  official  certificates  of 
marriages,  births  or  deaths,  issued 
in  foreign  countries  in  which  such 
marriage,  Ijirth  or  death  has  oc- 
curred, purporting  to  be  founded  on 
books  of  record,  when  authenticated 
as  therein  prescribed,  presumptive 
evidence  of  the  facts  stated.  Laviu 
7'.  Mut.  Aid  Soc,  74  Wis.  349.  43 
N.  W.  143. 

Extract  From  Parish  Record In 

Hunt  V.  Order  of  Chosen  Friends,  64 
.Mich.  671,  31  N.  W.  576,  8  Am.  St. 
Rep.  855,  it  was  held  that  a  sworn 
and  examined  extract  from  the 
parish  record  of  a  Catholic  church, 
showing  the  baptism  of  the  party, 
reciting  the  names  of  his  parents 
and  their  description,  and  stating  the 
age  of  the  person  baptized,  sup- 
ported by  evidence  of  the  priest  that 
such  a  record  was  required  by  the 
rules  of  the  church,  which  record  was 
thirty  years  of  age,  was  admissible 
as  evidence  of  age. 

Compare  Morrissey  r.  Wiggins 
Ferry  Co.,  47  Mo.  521. 

Vol,  I 


734 


AGE. 


IV.  HEARSAY  EVIDENCE. 

1.  Age  As  a  Fact  of  Pedigree.  —  A.  Genhrai.  Rulk.  —  It  is  a 
general  rule  that  when  age  is  a  fact  of  pedigree  to  be  established, 
hearsay  evidence  may  be  received  in  proof  thereof. '- 

B.  Family  Bible  or  Record.  —  It  has  been  held  that  a  family 
Bible  containing  a  record  of  the  family  births  is  admissible  to  prove 
the  age  of  one  whose  name  is  entered  therein,  without  proof  of  the 
handwriting  or  authorship  of  the  entries."  But  where  both  of  the 
parents  are  present  in  court,  the  family  record  is  not  competent  to 
prove  the  age  of  one  of  their  children.'^ 


12.  Moiikton  Z'.  Alloriiey  General, 
2  Russ.  &  M.  147;  Watson  v. 
Brevv.slcr,  i    Pa.  St.  381. 

13.  Jones  v.  Jones,  45  Md.  144; 
People  V.  Rat?,  115  Cal.  132,  46  Pac. 
913;  Carskadden  r.  Poorman,  10 
Watts  (Pa.)  82,  36  Am.  Dec.  145. 
See  also  Weaver  t'.  Leiman,  52  Mo. 
708;  People  V.  Slater,  up  Cal.  620. 
51  Pac.  P57 ;  People  v.  Mayne,  118 
Cal.  516,  50  Pac.  654,  62  Am.  St. 
Rep.   256. 

Comf^arc  Wiseman  v.  Cornish.  8 
Jones  Law   (N.  C.)   218. 

Supreme  Council,  G.  S.  F.  v.  Conk- 
lin.  60  \.  J.  Law  565,  38  Atl.  659. 
41  L.  R.  A.  449,  wherein  it  was  held 
that  an  entry  in  a  Bible  of  the  date 
of  the  birth  of  a  person,  witliout  proof 
of  when  and  by  whom  entered,  or 
that  the  persons  whose  names  arc 
entered  had  ever  acknowledged  it  to 
be  an  authentic  family  record,  and 
the  entries  are  not  shown  to  have 
been  contemporaneous  with  the  facts 
recorded,  is  not  competent  evidence 
to  prove  the  age  of  the  person  whose 
name  is  recorded  therein.  Turner 
V.  King.  qS  Ky.  253,  32  S.  W.  941. 

To  Require  Evidence  of  the  Hand- 
writing or  Authorship  of  tlje  entries 
is  to  mistake  the  distinctive  char- 
acter of  the  evidence,  for  it  derives 
its  weight,  not  from  the  fact  that 
the  entries  are  made  by  any  par- 
ticular person,  but  that,  being  in  that 
place,  they  are  to  be  taken  as  as- 
sented to  by  those  in  whose  custody 
the  book  has  been.  Hubbard  v.  Lees, 
T,.    R.    L    Ex.    Cas,    255. 

Statement  of  Rule.  —  In  Canipljcll 
V.  Wilson,  23  Tex.  252,  76  Am.  Dec. 
67,  wherein  it  was  held  that  the  ex- 
clusion of  entries  in  a  family  P.ibic 
offered  to  prove  the  age  of  the  per- 

Vol.  I 


son  concerning  whom  the  entry  was 
made,  upon  the  ground  that  there 
was  better  evidence  accessible,  was 
not  error,  the  court  said :  "  It  has 
been  considered  that  these  entries 
stand  on  the  ground  of  family  ac- 
knowledgments, and  that  they  are 
admissible  on  account  of  their  pub- 
licity, without  proof  that  the  entries 
were  made  by  a  member  of  the  fam- 
ily. I  Phill.  Ev.  231,  216,  note  2; 
Monkton  i>.  Attorney  General,  2 
Russ.  &  M.  147.  But  when  better 
evidence  is  shown  to  be  accessible, 
they  are  excluded  by  the  rule  that 
excludes  the  secondary  when  primary 
evidence  can  be  obtained.  When  ad- 
mitted, it  is  in  general,  as  the  dec- 
laration of  the  persons  by  whom 
they  are  made.  But  they  cannot  be 
received,  where  the  father,  mother,  or 
other  declarant  is  present  in  court, 
or  within  the  reach  of  process. 
Taylor  v.  Hawkins,  i   McCord  165." 

In  Woodard  v.  Spiller,  i  Dana 
(Ky.)  180,  25  Am.  Dec.  139,  it  was 
held  that  the  court  properly  per- 
mitted to  be  given  in  evidence,  to 
prove  the  age  of  the  plaintiff,  a 
register  of  the  births  of  his  father's 
children,  made  out  in  the  handwriting 
of  the  father,  who  had  been  dead 
thirty  years. 

14.  Smith  V.  Geer,  10  Tex.  Civ. 
.'\pp.  252,  30  S.  W.  1 108.  See  also 
Leggett  V.  Boyd,  3  Wend.  (N.  Y.) 
376;  Taylor  v.  Hawkins,  i  McCord 
(S.  C.)  165;  People  V.  Mayne,  118 
Cal.  516,  50  Pac.  516,  62  Am.  St.  Rep. 
256. 

Kobbe  V.  Price.  14  II un  (N.  Y.) 
55,  so  holding  of  a  family  record 
shown  to  be  in  the  father's  hand- 
writing, who  was  living  abroad  at  the 
time,    containing    the    births    of    his 


AGE.  735 

C.  Testimony  of  tiii;  Pkrson  Himsblf.  —  Age  may  be  proved 
by  the  testimony  of  the  person  whose  age  is  in  question ;"  and  the 
fact  that  his  knowledge  is  derived  from  statements  of  his  parents, 
or  from  family  reputation,  does  not  render  his  testimony  inadmissi- 
ble." 

2.  Age  As  a  Fact,  Not  of  Pedigree.  —  But  when  the  fact  of  age  is 
not  one  of  pedigree  to  be  established,  but  it  is  necessary  to  be 
established  for  cither  jiurposes,  hearsa\'  evidence  can  not  be  received 
in  proof  thereof.'^ 


children,  upon  the  gronnd  that  it  was 
not  a  public  record  and  the  father's 
testimony  could  have  been  procured. 

15.  California.  —  ?iIorrill  v.  Mor- 
gan, 65  Cal.  575,  4  Pac.  580. 

Georgia.  —  Cent.  R.  Co.  ■?'.  Coggin. 
73  Ga.  689. 

Kansas.  —  Stale  z\  McCIain.  49 
Kan.   730.   31    Pac.   790. 

Massachusetts.  —  Com.  •:'.  Steven- 
son, 142  Mass.  466.  8  N.  E.  341 ;  Com. 
V.  HoUis,  170  Mass.  433,  49  N.  E. 
632 ;  Com.  V.  Phillips,  162  Mass.  504, 
39   N.   E.    109. 

Michigan.  —  Cheever  z\  Congdon. 
34  Mich.  296 ;  Morrison  z:  Einslev. 
53  Mich.  564,  19  N.  W.  187. 

Minnesota.  —  Houlton  v.  Manteuf- 
t'el,  51   Minn.   185,  53  N.  W.  541. 

Montana.  —  State  v.  Bowser,  21 
Mont.    133.   53   Pac.    179. 

Xew  York.  — DeWht  r.  Barly,  17 
X.  Y.  •?40 ;  Stevenson  z:  Kaiser,  59 
N.  Y.  St.  Rep.  515.  29  N.  Y.  Supp. 
1 122. 

Texas.  —  Reed  7'.  State  (Tex. 
Crim.  App.),  29  S.  W.  1074. 

JViseonsin.  —  Dodge  z'.  State,  100 
Wis.  294,  75  N.  W.  954. 

Contra. — Doe  z\  Ford.  1,  V.  C. 
Q.   B.    (Can.)    353- 

"  It  Would  Shook  the  Common 
Sense  of  the  Community  to  Hold 
Otherwise."  said  the  court  in  Pcarce 
v.  Kj'zer,  16  Lea  (Tenn.)  521,  57 
Am.  Rep.  240,  "  and  there  is  no  rea- 
son why  it  should  be  held  otherwise 
after  he  has  been  rendered  com- 
petent by  statute  to  testify  on  his 
own  behalf,  and  when  his  knowledge 
is  obtained  in  precisely  the  same  way 
as  the  public  obtains  it  so  as  'to 
constitute  general  repute.  His  tes- 
timony is  not  hearsay  in  the  legal 
sense,  but  the  original  evidence.  And 
nn  part  of  his  evidence  should  have 


been  excluded  upon  the  grounil  that 
better  evidence  might  be  produced." 
In  Gunter  z:  State.  11 1  Ala.  2^, 
20  So.  632,  56  Am.  St.  Rep.  17,  a 
prosecution  for  assault  with  intent 
to  murder,  the  prosecutor  was  per- 
mitted to  state  that  he  was  about 
eighteen  years  of  age  at  the  time 
of  the  assault,  in  order  to  show  the 
relative   condition   of   the   parties. 

16.  People  V.  Ratz,  115  Cal.  132. 
46  Pac.  915;  Bain  v.  State,  61  Ala. 
75;  State  V.  Best,  108  N.  C.  747,  12 
S.  E.  907 ;  Hill  V.  Eldridge,  126  Mass. 
75.  See  also  Cheney  v.  Ward,  68 
Ala.  29,  so  holding  although  the 
witness  testified  that  his  reason  for 
his  knowledge  of  his  age  was  "  that 
his  mother  told  him  so,  and  that  it 
was  written  down  in  a  book  which  his 
father  had  in  his  pocket,  in  the  court 
house." 

17.  Peterson  c'.  State.  83  Md.  194, 
34  All.  934- 

Family  Reputation Thus,  tes- 
timony of  the  brother  and  brother-in- 
law  of  a  person  suing  for  personal 
injuries,  that  each  knows  the  family 
reputation  as  to  his  age,  and  that 
he  was  under  twenty-one  at  the  time 
of  an  alleged  settlement  with  the 
defendant,  is  inadmissible  as  hearsay. 
Rogers  v.  De  Bardelaben  Coal  &  I. 
Co.,  97  Ala.   154.   12   So.  81. 

Statement  by  Mother  of  Party. 
A  witness  cannot  testify  that  he 
heard  the  mother  of  a  grantor  in  a 
deed  say  that  he  was  an  infant  at 
the  lime  of  its  execution,  unless  it 
is  first  affirmatively  show'U  that  the 
declaration  was  made  ante  litem 
niotani.  and  that  the  declarant  is 
dead.  Hodges  v.  Hodges,  106  N.  C. 
374,    II    S.    E.   364. 

Compare  David  v.  Settig,  i  Mart. 
(La.")    T47.  T4  .\m.  Dec.  179.  holding 


Vol.  I 


.-iGH. 


Infancy  As  a  Defense. — Thus,  hearsay  evidence  can  not  be  received 
in  proof  of  age,  where  the  purpose  of  the  evidence  is  to  establish 
infancy  as  a  defense.^* 

V.  INSPECTION  BY  JURY. 

It  is  competent  for  the  jury  to  consider  the  ai^pearance  of  the 
person  whose  age  is  in  question,  in  determining  his  age.'" 


declarations  of  a  parent  concerning 
the  age  of  his  child,  made  before  the 
controversy  arose,  are  competent. 
See  also  State  v.  Marshall,  137  Mo. 
463,  39  S.  W.  63. 

Information  From  Sister  Living  at 
Time  of  Trial. —  A  witness  cannot 
testify  to  the  age  of  another,  on 
information  from  the  latter's  sister, 
where  it  does  not  appear  4hat  the 
sister  is  dead.  State  ?■.  Parker,  106 
N.  C.  711,  II   S.  E.  517. 

Age  as  an  Element  of  Crime. 
In  People  i'.  Sheppard,  44  Hun  (N. 
Y.)  565,  it  was  held  that  age  conld 
not  be  established  by  hearsay,  where 
the  purpose  of  the  evidence  was  to 
prove  infancy  as  an  element  of  the 
crime  of  abduction.  Compare  Laws 
1888,  p.  201,  ch.  14s,  amending  Pen. 
Code,  §  19.  People  7'.  Mayne,  118 
Cal.  S16,  50  Pac,  516,  62  Am.  St. 
Rep.  256,  holding  entry  in  Bible  not 
admissible  to  prove  age  of  prosecu- 
trix in  case  of  rape;  the  entry  had 
been  made  bv  one  present  at  the 
trial 

Age  as  Element    of  Damages In 

Greenleaf  v.  Dubuque  &  S.  C.  R.  Co., 
,?o  Iowa  301,  an  action  to  recover 
damages  for  negligence  in  causing 
the  death  of  a  person,  the  plaintiff, 
lor  the  purpose  of  establishing  the 
age  of  the  decedent  as  an  eknnont  m 
determiping  the  amount  of  dam.igcs, 
was  allowed  to  show  the  date  of  his 
birth  from  an  entry  in  the  family 
Bible.  This  was  held  to  be  error  on 
the  ground  that  it  was  not  shown 
that  the  person  who  made  the  entry 
was  dead. 

Age  as  Fact  Sustaining  Plea  of 
Statute  of  Limitations In  Robin- 
son Z'.  Blakely,  4  Rich,  L.  (S.  C.) 
586,  55  Am.  Dec.  703,  the  family 
register  of  births  and  deaths  was 
held  inadmissible  to  show  the  age  of 
the    plaintiff    for   the    purpose    of    de- 

Vol.  I 


termining  whether  the  action  was 
barred  by  the  statute  of  limitations, 
upon  the  ground  that  the  father,  who 
made  the  entry,  was  still  alive. 

18.  Haines  r.  Guthrie.  L.  R.  13 
Q.  B.  Div.  818:  Plant  v.  Taylor. 
7  H.  &  N.  227;  Connecticut  Mut.  L. 
Ins.  Co.  7'.  Schwenck,  94  U.  S.  593. 
See  also  Leggett  v.  Boyd,  3  Wend. 
IN.  Y.)  376;  Campbell  v.  Wilson, 
23  Tex.  252,  76  Am.  Dec.  67. 

Passport   as   Hearsay In    Kobbe 

v.  Price.  14  Hun  (X.  Y. )  55,  it  was 
held  that  a  passport  alleged  to  have 
been  given  when  the  defendant  left 
Germany,  and  containing  a  statement 
of  his  age  at  that  time,  and  offered 
by  him  to  prove  his  infancy,  was 
properly  excluded  as  mere  hearsay. 
"  Although  an  official  document." 
said  the  court.  "  it  was  made  up  from 
the  statements  of  the  defendant  him- 
self, or  some  person  in  his  behalf, 
and  is  not  by  any  statute  made  evi- 
dence of  the  correctness  of  its  con- 
tents." 

19.  Com.  V.  Hollis,  170  Mass.  433. 
49  N.  E.  632;  Herman  v.  State,  7i 
Wis.  248,  41  N.  W.  171,  9  Am.  St. 
Rep.  89;  People  e.v  ret  Zeigler  i'. 
Special  Session  Court  Justices,  10 
Hun  (N.  Y.)  224.  See  also  State 
r.  Arnold,  13  Ired.  Law  ( N.  C.)  184. 
and  Com.  r.  Enmions,  98  Mass.  6,  so 
holding,  wherein  the  court  said  that 
"  there  arc  cases  where  such  an  in- 
spection would  be  satisfactory  evi- 
dence of  the  fact." 

Compare  Bird  ?■.  Stone,  104  Ind. 
384,  3  N.  E.  827,  holding  otherwise 
on  the  authority  of  Ihinger  v.  State. 
53  Ind.  251  ;  the  court  stating,  how- 
ever, that  if  the  question  could  have 
been  properly  considered  as  an  open 
one  in  that  state,  some  of  the  mem- 
bers of  the  court  would  have  been 
inclined  to  hold  as  slated  in  the 
text. 


AGE. 


VI.  COMPETENCY  OF  WITNESSES. 

1.  Witness  Having'  Knowledge.  —  Again,  age  mav  be  proved  by 
the  testiinoiiy  of  any  jierson  baving  proper  sources  of  knowledge 
of  tbe  fact.=" 

2.  The  Attending  Physician.  —  The  attending  pbysician  ij  a  com- 
petent witness  to  testify  to  the  fact  and  date  of  l)irlb,  for  the  pur- 
pose of  i>roving  tbe  age  of  a  person."' 

3.  Witness  Testifying  From  Appearance  of  a  Person.  —  An  ordi- 
nary witness,  baving  fully  testified  to  the  appearance  of  a  person, 
may  give  bis  opinion  as  to  tbe  age  of  that  person.""     But  it  is  not 


20.  Testimony  of  the  Person's 
Mother  is  competL-nt  undt-r  this  rule. 
Herman  ;■.  State,  73  Wis.  248,  41 
N.  \V.  1 7 1,  9  Am.  St.  Rep.  789.  See 
also  Smith  v.  Geer,  10  Te.x.  Civ. 
App.  252,  30  S.  W.  1 108;  State  v. 
Woods.  49  Kan.  237,  30  Pac.  520; 
so  holding  of  the  testimony  of  the 
person's  parents. 

A  Witness  Who  Has  Known  a 
Person  for  Over  Twenty  Years 
may  testify  to  the  age  of  such  person, 
to  the  hcst  of  his  knowledge.  Winter 
7'.   State,   123  Ala.   i,  26  So.  949. 

In  Uogen  v.  Mut.  Aid  &  A.  Ass'n, 
75  Hun  271,  26  N.  Y.  Siipp.  1081,  a 
witness  was  allowed  to  state  the  age 
of  his  hrotli«r  who  was  a  few  years 
younger,  hecause  he  remembered  him 
from  infancy,  l<new  his  own  age, 
and  had  grown  up  with  the  brother, 
although,  independently  of  the  state- 
ment of  his  father  and  general  talk 
in  the  family,  he  was  unable  to  rec- 
ollect the  circumstances  of  his  birth 
or  the  year. 

21.  Edington  V.  Alut.  L.  Ins.  Co., 
67  N.  Y.  185;  Blackburn  v.  Craw- 
fords.  3  Wall.  192 ;  Guy  v.  Mead,  22 
X.    V.    4'>2. 

22.  .(/„/h/»,<,.  —  Weed  7'.  State,  55 
Ala.  13;  .Mayshall  v.  State,  49  .A.la. 
21. 

Connecticut.  —  Morse  v.  State,  6 
Conn.  9. 

Indiana.  —  Benson  t.  McFadden, 
50  Tnd.  431. 

linva.  —  State  v.  Bernstein.  99  Iowa 
6.  68  i\.  W.  442. 


Kansas.  —  State 
67S.  41  Pac.  951 
aiuhnrities ). 

MassacIiHsctts.  — 
134  Mass.  198. 


!■.  Grulib.  55  Kan. 
(citing    numerous 

Com.   V.   O'Brien, 


Missouri.  —  State  t.  Douglass,  48 
Mo.    App.    39. 

South  Carolina.  —  Robinson  v. 
Blakeley,  4  Rich.  Law  586,  55  Am. 
Dec.  703. 

Te.vas.  —  Jones  v.  State,  i2  Tex. 
Crim.  App.   108,  22   S.  W.   149. 

Contra.  —  'Valley  Life  Ins.  Ass'n 
<',    Terwalt.   79   Va.   421. 

Effect  of  Testimony  of  Parent, 
The  fact  that  the  parents  of  the 
person  whose  age  is  in  question  have 
testified  thereto  does  not  preclude 
others  from  giving  their  opinion  as  to 
her  age.  State  v.  Grugg.  55  Kan. 
678.  41    Pac.  951. 

Physician  Acquainted  with  Physi- 
cal  Appearance In   Bice   f.    State, 

:^7  Tex.  Crim.  App.  38,  38  S.  W.  803, 
it  was  held  that  a  physician  might 
testify  that  he  rwas  well  acquainted 
with  the  prosecutrix  on  a  prosecution 
for  rape  of  a  girl  under  fifteen  years 
of  age,  at  or  about  the  time  of  the 
alleged  outrage;  that  he  knew  her 
physical  appearance  with  reference  to 
her  size  and  development,  and  that 
judging  therefrom  he  would  say  she 
was  seventeen  or  eighteen  years  old. 

Comparison  with  Child  of  Known 
Age.  —  A  witness  may  testify  that 
from  the  appearance  of  his  brother's 
wife's  child,  whose  age  he  knew  to 
l)e  four  or  five  months,  and  the  ap- 
pearance of  the  child  in  question,  he 
knew  the  latter  to  be  four  or  five 
months  old.  Bice  v.  State.  37  Te.x. 
Crim,  App.  38,  38  S.  W.  803. 

Impression  Produced  by  Appear- 
ance  A  witness  may  testify  to  the 

efifect  produced  on  his  own  mind  by 
the  physical  appearance  of  the  person 
whose  age  is  in  question.  Garner 
1:  State,  28  Tex.  App.  561,  13  S.  W. 

Vol.  I 


738  .IGE. 

error  to  exclude  such  testiuiony  where  the  persou  wliose  age  is  in 
questiein  is  |)rosent  iu  court.-" 

4.  Experts  and  Non-Experts. —  It  lias  l^een  lield  that  a  non-expert 
witness  is  not  competent  to  give  his  opinion  as  to  the  age  of 
another.-''  It  is  sometimes  expressly  provided  by  statute,  however, 
that  an  fexpert,  who  has  examined  the  person,  may  give  his  opinion 
as  to  the  age  of  that  person,  based  on  such  examination.-^ 

5.  Testing  Capacity  of  Witness.  —  For  the  purpose  of  testing  the 
capacity  of  a  witness  who  has  stated  his  opinion  as  to  the  age  of 
another,  he  may,  on  cross-e-Kamination,  be  requested  to  give  his 
opinion  as  to  the  age  of  a  bystander,  and  the  bystander  may  then 
be  called  to  testify  to  his  age.-" 

VII.  ftUESTIONS  OF  FACT. 

^^'hen  the  age  of  an  insured  as  stated  in  his  application  is  contro- 
verted, and  the  evidence  in  relation  thereto  is  conflicting,  the  ques- 
tion is  one  of  fact  for  the  jm-y  to  determine.-' 

VIII.  AGE  OF  HORSE. 

The  age  of  a  horse  may  be  established  by  an  impression  or  cast 
of  the  mouth  of  the  horse,  proved  by  the  person  who  took  the 
impression.-* 

1064.     But  not  as  to  how  others  were       7:  Falvey,   104  liul.  409,  3  N.  E.  389, 

impressed  by  such  appearance.     Kob-       4  N.  E.  908. 

lenschleg  v.  State,  23  Te.x.  App.  264,  27.     Corbetl     i'.     Metropolitan     L. 

4  S.  W.  888.  Ins.  Co.,  38  App.  Div.  623,  55  N.  Y. 

Supp.  775. 

28.  Earl  v.  Lener,  4O  Hun  (X. 
Y.)  9.  Such  an  impression  in 
plaster,  wax  or  other  suitable  sub- 
stance, may  be  classed  as  a  species 
of  evidence  with  diagrams,  draw- 
ings and  photographs. 

Vol.  I 


23. 

State  I 

'.   Robinson, 

,32  Or 

.  4.^. 

48   P; 

ic.    3.V- 

24. 

Martin 

1', 

State, 

90 

Ala. 

702. 

8   So. 

858. 

25. 

Thus 

in 

New 

Y. 

Drk. 

See 

Pen. 

Code.  § 

19- 

26. 

Louisvi 

illc, 

N.  A. 

& 

C.  R. 

Co. 

AGENCY.— See  Principal  and  Agent. 


AGGRAVATED     ASSAULT.— See    Assault   and 

Battery. 


AGGRAVATION.— See  Damages. 


AGNOSTIC.-See    Atheist. 


AGREED  CASE.— See  Admissions. 


AGREEMENT.— See  Contracts. 


AIDERS  AND  ABETTORS.— See  Accessories. 


ALCOHOLIC  LIQUORS.— See  Intoxicating  Liquors. 

Vol.  I 


ALIBI. 

r,Y   A.    B.   YoDNti. 

I.   DEFINITION,   741 
II.  NATURE  OF  THE  DEFENSE,  741 

1.  May  Be  Shown  in  Rebuttal.  741 

2.  Not  An  Affirmative  Defense.  741 

3.  Is  Not  a  Plea,  743 

4.  No  Pleading  Necessary,  743 

5.  Is  a  Traverse,  743 

6.  Not  An  Extrinsic  Defense,  743 

7.  Notliiu;:^  Admitted  by  Defendant,  743 

III.  BURDEN  OF  PROOF,  743 

1.  General  Rule  Applies  to  Alibi,  743 

2.  Alibi  Relie'-c'cs  State  of  Nothing.  744 

3.  What  Burden  on  Defendant,  745  _^ 

4.  Qualified  Burden.   745 

IV.  EVIDENCE  ADMISSIBLE,  747 

I.  On  Be/ialf  of  the  Accused.  747 
A.  Presumptions,  747 
r>.  Facts  and  Circumstances,  747 

V.  WEIGHT  AND  SUFFICIENCY,  747 

1.  Not  Covering  Exact  Time,  748 

2.  Insufficient  to  Establish,  748 

3.  Sufficiency  for  the  Jury,  749 

4.  JJ'hoIe  E^'idcnee  Must  Be  Considered.  750 

VI.  EVIDENCE  IN  REBUTTAL  BY  STATE,  751 

r.  State  May  Rebut  Evidence  of  Alibi,  751 

2.  State  May  Rebut  by  Proving  Another  Crime,  751- 

VIL  ALIBI  A  LEGITIMATE  DEFENSE,  752 

1.  Attempt  to  Prove  Does  Not  luslifx  Suspicion  of  Gnilt, 

A.  Court    Max    Not    Cic'c    Disparaging   Instructions, 

,     753         "     . 

2.  Omissions  on  Part  oj  Defendant.  754 

A.  Failure  to  Make  Defense  at  Preliminary  Exami- 
nation, 754 

3.  False  Testiinouy  in  Support  of  Alibi,  754 

A.  False  Alibi.  Effect  Of.  734 

4.  Hozc  Truth  of  Defense  Tested,  755 

A.  The  Evidence  of  the  State  Not  to  Be  Used  As  a 
Standard,  755 

Vol.  I 


AIJBl. 


741 


I.  DEFINITION. 

The  word  "  alibi  "  signifies  elsewhere,  and  one  on  trial  is  said  to 
set  up  an  alibi  when  he  asserts  that  at  the  time  when  such  offense 
was  committed  he  was  "  elsewhere  "  than  at  the  place  where  it  was 
committed/ 

II.  NATURE  OF  THE  DEFENSE. 

1.  May  Be  Shown  in  Rebuttal.  —  In  rebuttal  of  the  testimony 
tending  to  show  defendant's  presence  at  the  time  and  place  material 
to  the  accusation  ( excluding  those  cases  where  he  is  charged  as 
an  absent  principal  or  accessory)  he  may  show  that  he  was  then  at 
some  other  place. - 

2.  Not  an  Affirmative  Defense.  —  The  rule  sustained  by  the 
weight  of  authority  is,  in  effect,  that  alibi  is  not  an  independent, 
affirmative  defense.'' 


1.  Bouvier's  Law  Diet.;  Ander- 
son's  Diet,   of   Law. 

2.  Payton  f.  State,  54  Neb.  188, 
74  N.  W.  597;  State  v.  Taylor.  118 
JNIo.   15,^,  24  S.  W.  449. 

Rebuttal     by     the     State One 

accused  of  burglary  testified  that  on 
the  night  the  crime  was  committed, 
he  was  at  another  cily.  On  cross- 
examination  he  stated  that  he  saw  a 
procession  there,  without  being  able 
to  describe  it  very  fully.  It  was 
held  competent  for  the  state  to  show, 
in  rebuttal,  the  extent  of  the  pro- 
cession, as  these  witnesses  saw  it, 
as  bearing  more  or  less  upon  the 
question  of  the  truth  of  the  state- 
ment of  the  accused  that  he  was 
there  and  saw  it.  People  v.  Gibson, 
58  Mich.  368.  25  N.  W.  316;  State  v. 
Lewis,   69   Mo.   92. 

3.  California.  —  People  v.  Roberts, 
122  Cal.  377,  55  Pac.  137,  138;  People 
V.  Winters,  125  Cal.  325,  57  Pac.  1067. 

Colorado.  —  McNamara  v.  People, 
24  Colo.  61,  48  Pac.  541. 

Montana.  —  State  v.  McClellan,  23 
Mont.  532,  59  Pac.  924,  75  Am.  St. 
Rep.    558. 

New  Icrscy.  —  Sherlock  v.  Slate, 
60   N.   J.    Law   31,   37   Atl.   435. 

O/iio.  — Toler  V.  State,  16  Ohio 
St.  583. 

Oregon.  —  State  7'.  Chee  Gong,  16 
Or.  534,  19  Pac.  607. 

Te.vas.  —  Ayres  ■:■.  State,  2i  Tex. 
App.  399,  17  S.  W.  253. 

Not  an  Independent  AiRrmative 
Defense —  Alibi  is  not  an  affirmative 
and    independent    defense    with    the 


burden  of  proof  resting  upon  the 
accused  to  establish,  but  is  in  the 
nature  of  a  traverse  of  a  fact  that  it 
is  incumbent  on  the  prosecution  to 
establish,  namely,  the  presence  of 
the  accused  at  the  lime  and  place  of 
the  crime.  McNamara  v.  People,  24 
Colo.   61,   48   Pac.   541. 

Not   a   Plea It   is   by   no   means 

true  in  law,  that  the  defense  of  alibi 
admits  the  body  of  the  crime  or 
offense  charged.  It  is  an  admission 
of  nothing  that  is  charged  in  the  in- 
dictment and  denied  by  the  plea  of 
not  guilty.  By  this  defense  the  pris- 
oner does  not  allege  that  he  was 
elsewhere  when  the  crime  was  com- 
mitted, but  that  he  was  elsewhere 
when  it  is  charged  to  have  been 
committed.  Foler  v.  Slate,  16  Ohio 
St.  583. 

Not  an  Independent  Exculpatory 
Fact.  —  Ayres  v.  Slate,  21  Tex.  App. 
399,   17   S.   W.   253. 

Not  a  Defense  in  the  Legal  Sense. 
"  We  find  many  courts  and  law 
writers  referring  to  an  alibi  as  matter 
of  defense,  and  also  stating  that  it 
must  be  proved  by  defendant.  We 
doubt  the  strict  legal  propriety  of 
using  either  one  of  these  expressions 
in  those  jurisdictions  where  it  is 
held  that  an  alibi  is  sufficiently  es- 
tablished when  a  reasonable  doubt 
is  raised  in  the  minds  of  the  iurors 
as  to  the  presence  of  the  defendant 
at  the  scene  of  the  crime.  Yet  these 
terms  are  used  and  held  unobjec- 
tionable in  all  those  instructions 
where  the  jury  are  clearly  and  fully 

Vol.  I 


742 


ALIBI. 


But  merely  a  species  of  evklence  tending  to  rebut  the  case  made 
bv  the  state.* 


told  that  a  reasonable  doubt  in  their 
minds  as  to  the  presence  of  the  de- 
fendant at  the  scene  of  the  homicide 
entitles  him  to  an  acquittal.  In  all 
those  cases  the  word  '  proved '  is 
held  to  mean  the  production  of  suffi- 
cient evidence  to  raise  a  reasonable 
doubt."  People  v.  Winters,  125  Cal. 
325,  57  Pac.  1067. 

Evidence  of,  Not  a  Defense. 
"  It  is,  as  said  by  Mr.  Bishop,  mere 
ordinary  evidence  in  rebuttal ;  and 
any  charge  to  the  jury  that  it  is  not — 
as,  that  the  law  looks  with  disfavor 
upon  it.  or  that  it  should  be  tested 
differently  from  other  evidence — is 
erroneous.  Section  1062,  i  Bish. 
Crim.  Pr.  (3d  Ed.)"  State  v.  Chee 
Gong,    16  Or.   534.    19   Pac.   607. 

Not   a    Special   Defense •■  There 

is  no  prima  facie  case  without  show- 
ing the  presence  of  the  defendant ; 
therefore  defendant  may  rebut  the 
evidence  of  the  fact  of  his  presence 
by  evidence  of  the  fact  that  he  was 
not  present.  Alibi  is  not  a  special 
defense  changing  the  presumption  of 
innocence,  or  relieving  the  state  of 
its  burden  of  proving  the  guilt  of 
the  defendant  beyond  a  reasonable 
doubt."  Schultz  V.  Territory  (Ariz.), 
52  Pac.  352;  State  v.  McClellan,  23 
i\Iont.  532,  59  Pac.  924.  75  Am.  St. 
Rep.  558.  Citing  State  v.  Spotted 
Hawk,  22  Mont.  2^,,  55  Pac.  1026. 

4.  England.  —  Foster's  Crown 
Law,   368. 

Alabama.  —  RatlifT  v.  State,  122 
Ala.  104,  26  So.  123. 

Iowa.  —  State  v.  Reed,  62  Iowa  40, 
17   N.   W.    150. 

Mississippi.  —  Pollard  v.  State,  53 
Miss.  410,  24  Am.  Rep.  703. 

Missouri.  —  State  v.  Taylor,  118 
Mo.    153,  24   S.   W.  449. 

Montana.  —  State  v.  McClellan,  23 
Mont.  532,  59  Pac.  924,  75  Am.  St. 
Rep.  558.    ^ 

North  Carolina.  —  State  v.  Free- 
man,  160  N.   C.  429,  5   S.   E.  921. 

Texas.  —  Walker  v.  State,  42  Tex. 
360 ;  Johnson  v.  State,  21  Tex.  App. 
368,  17  S.  W.  252;  Padron  v.  State 
(Tex.  Crim.  App.),  55'  S.  W.  827. 

IVesl  Virginia.  —  State  ''.  Lowry, 
42  W.  Va.  20s,  24   S.   E.  561. 

Vol.  I 


Is   Testimony  Against  Testimony. 

"  The  defense  known  as  an  alibi  is 
operative  as  disproving  the  charge, 
and  impairing,  if  not  destroying,  the 
credit  of  the  witnesses  who  testify 
to  the  identity  of  the  party  accused — 
an  essential  element  of  the  case," 
State  V.  Freeman,  too  N.  C.  429,  5 
S.   E.   921. 

Evidence  in  Rebuttal.  —  "  The 
somewhat  confused  question  of  how 
the  defense  of  an  alibi  relates  to  the 
whole  case  in  criminal  law  simplifies 
itself  when  we  discard  the  illogical 
doctrine  that  it  is  an  affirmative  de- 
fense, to  be  proved  by  the  defend- 
ant, and  substitute  therefore  the  doc- 
trine, which  easily  flows  from  the 
premises  already  stated,  that  it  is 
but  one  of  the  many  defenses  offered 
in  rebuttal  of  the  state's  evidence, 
carrying  with  it  to  the  defendant 
no  burden  of  proof  other  than  the 
obligation  to  introduce  evidence 
sufhcienl  to  raise  a  reasonable  doubt. 
This  he  may  do  by  evidence  sufficient 
to  raise  a  reasonable  doubt  of  his 
presence  at  the  place  where  the  act 
was  done,  and  this  doubt  may  arise 
without  its  springing  from  an  affirma- 
tively proved  fact  that  he  was  some- 
where else  at  the  time,  and  could 
not  have  committed  it."  State  v. 
McClellan,  23  Mont.  532,  59  Pac. 
924,   75   Am.    St.   Rep.   558. 

Direct  Evidence  Not  Necessary  to 
Raise  Issue —  "  Appellant  requested 
the  court  to  charge  on  alibi.  The 
judge,  in  approving  the  bill  present- 
ing the  matter,  insists  that  the  issue 
of  alibi  is  not  raised  by  the  evidence. 
Appellant  testified  to  a  state  of  facts 
showing  clearly,  if  true,  that  he  was 
not  at  the  place  where  the  homicide 
is  alleged  to  have  been  committed. 
This  being  the  case,  we  think  the 
issue  of  alibi  is  raised.  We  held  in 
Wilson  V.  State,  51  S.  W.  916,  that 
the  charge  on  alibi  should  be  given 
where  defendant  swears  that  he  was 
at  another  place  at  the  time  of  the 
alleged  crime.  We  do  not  under- 
stand it  is  necessary  for  the  defend- 
ant, or  any  witness  testifying  for  ap- 
pellant, to  swear  in  so  many  words 
that   he  was  at  another  and  diff'ercnt 


ALIBI. 


T4i 


3.  Is  Not  a  Plea.  —  Alibi  is  not  a  plea  in  the  legal  sense,  but  a 
defense  nnder  the  plea  of  not  gnilty.'' 

4.  No  Pleading  Necessary.  —  And  no  formal  affirmative  pleading 
is  necessary  to  render  it  available." 

5.  Is  a  Traverse.  —  Or  as  quite  often  defined  it  is  a  traverse  of 
the  crime  charged.' 

6.  Not  an  Extrinsic  Defense.  —  And  is  not  an  extrinsic  defense.^ 

7.  Nothing  Admitted  by  Defendant.  —  There  is  no  dissent  from 
the  doctrine  that  the  accused  admits  nothing  whatsoever  by  under- 
taking to  establish  an  alibi." 

III.  BURDEN  OF  PROOF. 

1.  General   Rule   Applies   to  Alibi.  —  The   rule   tliat    in   criminal 


phice  than  that  of  the  homicide,  in 
order  lo  raise  the  issue  of  alibi. 
But,  if  the  evidence  shows  that  he 
was  at  another  or  different  nlace 
from  the  scene  of  the  homicide,  then 
the  issue  of  ahbi  is  raised,  regardless 
of  how  this  statement  is  made.  It  is 
the  province  of  the  jury  to  pass  upon 
tlie  sufficiency  and  truthfulness  of  the 
defenses  urged  by  appellant.  It  is 
the  province  of  the  court  to  charge, 
under  the  statute,  all  the  law  ap- 
plicable to  the  facts.  We  do  not 
think  this  was  done  in  this  instance. 
Smith  V.  State  (Te.x.  Cr.  App.),  49 
S.  W.  583;  Smith  r.  State  (Te.x. 
Cr.  App.),  50  S.  W.  362."  Padron  v. 
State  (Tex.  Crim.  App.),  55  S.  W. 
827. 

5.  Toler  V.  State,  16  Ohio  St.  583; 
State  Z'.  Ardoin,  49  La.  Ann.  1145, 
22  So.  620,  62  .\m.   St.   Rep.  678. 

Traverse  of  Crime  Charged. 
Proof  of  an  alibi  is,  therefore  as 
nuich  a  traverse  of  the  crime  charged 
as  any  other  defense.  People  v. 
Fong  Ah  Sing,  64  Cal.  253,  28  Pac. 

253- 

6.  State  i:  Ward,  61  Vt.  153,  17 
Atl.  483;  Westbrook  v.  State,  91 
Ga.  II,  16  S.  E.  100;  State  v.  Mc- 
Clellan,  23  Mont.  532,  59  Pac.  924,  75 
.\ni.  St.  Rep.  558;  I  Archibalds' 
Ciini.  Pro.  p.  400. 

Evidence  Competent  Under  Plea  of 

Not  Guilty "  Evidence  of  an  alibi 

is  competent  under  the  defendant's 
plea  of  not  guilty.  No  special  aver- 
ment need  be  made  to  warrant  the 
introduction  of  testimony  in  support 

Vol.  I 


of  it."  State  v.  McClellan,  23  jMont. 
i32,  59  Pac.  924,  7t  Am.  St.  Rep. 
558. 

7.  Albritton  v.  State,  94  Ala.  76, 
10  So.  426 ;  People  v.  Fong  Ah  Sing, 
64  Cal.  253,  28  Pac.  2-t;  AIcNamara 
T'.  People,  24  Colo.  61,  48  Pac.  541; 
Watson  V.   Com.,  95   Pa.   St.  418. 

Traverses  Charge.  —  '  An  alibi  is 
not.  in  the  strict  and  accurate  sense, 
a  special  defense,  but  a  traverse  of 
the  material  averment  in  the  indict- 
ment that  the  defendant  did,  or  par- 
ticipated in,  the  particular  act 
charged,  and  is  comprehended  in  the 
general  plea,  '  Not  guilty.'  "  Albrit- 
ton V.   State,  94  Ala.  76,   10  So.  426. 

8.  Not  an  Extrinsic  Defense. 
'■  Alibi  is  not  an  extrinsic  defense. 
It  is  a  traverse  of  the  material  aver- 
ments of  the  indictment  that  the  de- 
fendant did  then  and  there  the  par- 
ticular act  charged."  i  Bishop  Crim. 
Pro.  (2  ed.)  1062;  Whart.  Crim.  Ev. 
333;  State  v.  Taylor,  118  Mo.  153, 
24  S.  W.  449. 

9.  State  V.  Collins,  20  Iowa  85; 
Toler  V.  State,  16  Ohio  St.  583; 
Briceland  v.  Com.,  74  Pa.  St.  463. 

Not  Confession  and  Avoidance. 
'■  An  alibi  is  not  a  defense  of  con- 
fession and  avoidance,  but  if  estab- 
lished merely  negatives  the  guilt  of 
the  defendant."  Albritton  v.  State, 
94  Ala.  76,  10  So.  426. 

Admits  Nothing — "  It  is  by  no 
means  true  in  law,  that  the  defense 
of  alibi  admits  the  body  of  the  crime 
or  offense  charged."  Toler  v.  State, 
lO  Ohio  St.  583. 


744 


ALIBI. 


cases  the  burden  never  shifts  from  the  state  is  applicalile  to  the  proof 
of  ahbi.'" 

2.  Alibi  Relieves  State  of  Nothing.  —  And  the  assertion  of  an  alibi 
in  no  wise  changes  the  presnmptions  of  innocence,  or  relieves  the 
state  of  its  burden  of  proving  the  guilt  of  the  defendant  beyond  a 
reasonable  d(_iul)t." 


10.  .lri:oim.  —  Scliultz  v.  Terri- 
tory  (Ariz.),  52   Pac.  352. 

California. — People  v.  Roberts,  122 
Cal.  .S77,  55  Pac.  137. 

Colorado.  —  McNaiiiara  ?■.  People, 
2.1   Colo.  61,  48  Pac.  541. 

Idaho.  —  State  v.  Webb  (Idaho), 
55  Pac.  892. 

Illinois.  —  Hopps  j'.  People,  31  III. 
385,  83   Am.   Dec.  231. 

Indiana. — Parker  v.  State,  136  Ind. 
284,  35  N.  E.  1105. 

Kansas. — State  v.  Comvay,  56  Kan. 
682.  44  Pac.  627. 

Montana.  —  State  7'.  McClclIaii,  23 
Mont.  532,  59  Pac.  924,  75  Am.  St. 
Rep.  558. 

Nebraska.  —  Gravely  r.  State,  38 
Neb.  871,  57  N.  W.  751. 

North  Carolina.  —  State  .z'.  Free- 
man, 100  N.  C.  429,  5  S.  h.  921, 

Oregon.  —  State  z\  Cbee  Gong,  16 
Or.  534,  19  Pac.  607. 

Pennsylvania.  —  Turner  v.  Com., 
86  Pa.  St.  54,  27  Am.  Rep,  683 ;  Wat- 
son V.  Com.,  95  Pa.  St.  418;  Brice- 
land  V.  Com.,  74  Pa.  St.  463 ;  Rudy 
V.  Com.,  128  Pa.  St.  500,  18  Atl.  344. 

Te.vas.  —  Walker  z'.  State,  42  Tex. 
360. 

11.  Burden  Not  on  Defendant. 
An  instruction  placing  the  burden  of 
proof  on  the  defendant  to  establish 
the  fact  to  the  satisfaction  of  the 
jury  that  he  was  at  some  other  place 
when  the  crime  was  committed  was 
held  to  imply  that  in  such  cases  the 
burden  was  shifted ;  a  doctrine  to 
which  the  court  declined  assent. 
State  V.  Freeman,  100  N.  C.  429,  5 
S.  E.  921. 

Evidence    Raising    Reasonable 

Doubt "If    the    evidence    is    sutifi- 

cient  to  raise  a  reasonable  doubt  in 
the  minds  of  the  jury  as  to  whether 
he  was  or  was  not  present  at  the 
commission  of  the  crime  he  is  en- 
titled to  an  acquittal."  McNamara 
I'.  People,  24  Colo.  61,  48  Pac.  541. 

Pennsylvania. —  "Where  the  com- 
monwealth   rests    upon    positive    and 


undouliled  proof  nf  the  prisoner's 
guilt,  it  should  not  l)e  overcome  by 
less  than  full,  clear  and  satisfactory 
evidence  of  the  alleged  alibi.  But 
the  evidence  tending  to  establish  an 
alibi,  though  not  of  itself  sufficient 
to  work  an  acquittal,  shall  not  be 
e.Kckided  from  the  case,  for  the 
burden  of  proof  never  shifts,  but 
rests  upon  the  commonwealth 
throughout,  upon  all  the  evidence 
given  in  the  cause  taken  together, 
to  convince  the  jury,  bej'ond  a  rea- 
sonable doubt,  of  the  prisoner's 
guilt.  Turner  v.  Com.,  5  Norris  54." 
Watson  V.  Com.,  95  Pa.  St.  418,  422. 

"  The  burden  of  proving  it  was 
clearly  on  the  prisoner.  If  he  failed 
to  do  so  to  the  satisfaction  of  the 
jury,  the  alleged  alibi,  as  a  substan- 
tive defense,  was  valueless ;  but  that 
did  not  deprive  him  of  the  benefit 
of  his  evidence  on  that  subject,  so 
far  as  it,  in  connection  with  other 
testimony  in  the  case,  may  have  had 
a  tendency  to  create  a  reasonable 
doubt  as  to  his  guilt."  Rudy  v.  Com., 
128  Pa.  St.  500,  18  All.  344,  346. 

Aricona.  —  Schultz  v.  TTerritory 
(Ariz.),    52    Pac.    352. 

Colorado.  —  McNamara  v.  State, 
24  Colo.  61,  48  Pac.  541. 

Kansas.- — State  v.  Child,  40  Kan. 
482,  20  Pac.  275. 

Mississippi.  —  Pollard  v.  State,  53 
Miss.  410,  24  Am.  Rep.  703. 

Missouri.  —  State  v.  Ilale  (Mo.), 
56  S.  W.  881. 

Montana.  —  Slate  i'.  McClellan,  23 
Mont,  s'32,  59  Pac.  924,  75  Am.  St. 
Rep.  SS8. 

South  Carolina.  —  State  t'.  Jack- 
son, 36  S.  C.  487,  15  S.  E.  559,  31 
Am.    St.    Rep.    890. 

Texas.  —  Gallaher  t'.  State,  28  Tex. 
App.  247,  12  S.  W.   1087. 

Virginia.  —  Thompson  f.  Com.,  88 
Va.  45,  13  S.  E.  304. 

The  later  authorities  hold  it  to  be 
an  essential  averment  of  the  indict- 
ment   that   the   accused    was    present 

Vol.  I 


ALIBI. 


745 


3.  What  Burden  on  Defendant.  —  Yet  there  are  cases  holding  the 

burden  to  l)e  r>n  the  defendant  to  estabhsh  the  alibi. ^- 

4.  Qualified    Burden. —  lUit,    where    this    is    held,    it    is    usually 


and  coininittcil  or  participated  in  the 
commission  of  the  offense.  Hence 
this  averment  niu.st  be  established  by 
the  prosecution  lieyond  a  reasonable 
doubt,  ^[c\amara  v.  State,  24  Colo. 
6r.   48   Pac.   541. 

"  For  the  defendant  to  say  lie  was 
not  there  is  not  an  affirmative  proposi- 
tion;  it  is  a  denial  of  the  existence 
of  a  material  fact  in  the  case.  He 
meets  the  evidence  of  the  prosecution 
by  denying  it.  If  a  consideration 
of  all  the  evidence  in  the  case  leaves 
a  reasonalile  doubt  of  his  presence, 
he  must  be  acquitted."  Schultz  v. 
Territory    (Ariz."),    52    Pac.    .^52. 

Burden  on  State.  —  Tlie  defense  of 
alibi  is  peculiar  in  that  tlic  stale  is 
bound  to  prove  in  making  its  case, 
that  the  defendant  was  present  at  the 
commission  of  the  crime,  and  this 
material  fact  it  must  prove  beyond 
any  reasonable  doubt.  State  i'.  Child, 
40  Kan.  482,  20  Pac.  27;. 

12.  State  V.  Thornton,  to  S.  D. 
349,  73  X.  W.  196,  41  I-  R-  A.  530; 
Thompson  r.  Com.,  88  \'a.  45,  13 
S.  E.  304;  Towns  7'.  Slate  11 1  Ala. 
I,  20  So.  528;  Holley  f.  Stale^  105 
Ala.  100,  17  So.  102;  Miles  7'.  State, 
93  Ga.  117,  19  S.  E.  805,  44  .\m.  St. 
Rep.  140;  Carlton  i'.  People,  150  111. 
181,  37  N.  E.  244,  41  Am.  St.  Rep. 
346. 

Burden  on  Accused.  —  The  burden 
of  making  out  the  defense  of  alibi 
was  upon  the  accused.  In  order  to 
maintain  it  he  was  bound  to  estab- 
lish in  its  support  such  facts  and  cir- 
cumstances as  were  sufficient  when 
considered  in  connection  with  all  the 
other  evidence  in  the  case,  to  create 
in  the  minds  of  the  jury  a  reasonable 
doubt  of  the  truth  of  the  charge 
against  him.  Carlton  v.  People,  130 
III.  181,  37  N.  E.  2JJ.  41  Am.  St. 
Rep.   346, 

The  court  holding  it  error  to  in- 
struct that,  tlie  burden  was  on  the 
defendant  to  satisfy  the  jury  beyond 
a  reasonable  doubt  that  the  alibi  was 
true,  said  :  "  To  make  an  alilii  avail- 
able as  a  defense,  it  must  be  proved 
of   course;   but   if  the   proof   offered 


for  this  purpose  is  sufficieiu  to  satisfy 
the  jury  with  reasonable  certainty 
that  the  accused  was  not  present 
when  the  crime  was  committed,  no 
more  should  be  required.''  Miles  v. 
State,  93  Ga.  117,  19  S.  1"..  805.  44 
Am.    St.    Rep.   346." 

The  doctrine  seems  fixed  in  Ala- 
bama, that  an  alibi  (as  a  sul)stantive 
defense)  must  I)c  establislied  to  the 
reasonable  satisfaction  of  the  jury 
Holley  V.  State,  105  Ala.  too,  17  So. 
102. 

All  the  autliorities  agree  upon  the 
proposition,  that  proof  of  the  facts 
and  circumstances  tending  to  estab- 
hsh the  ali1)i  must  be  made  by  the 
defendant.  "  If  this  be  so.  is  it  not  a 
mere  distinction  without  a  dift'erence 
to  contend  tliat  a  court  may  say  that 
the  proof  of  such  a  defense  must 
come  from  the  defendant.  Iiut  that 
it  would  be  error  for  the  court  to 
say  the  burden  of  proving  these  facts 
is  upon  the  defendant?"  State  v. 
Thornton,  10  S.  D.  349,  73  X.  W. 
196,  41  I-.  R.  A.  530.  In  the  same 
case  it  is  said:  "It  is  manifest  that 
the  term  '  burden  of  proof  '  as  used 
in  these  decisions,  by  the  text 
writers,  and  in  the  instructions  of 
the  court  in  the  case  at  bar,  does 
not  imply  that  the  defendant  nuist 
prove  his  defense  by  a  preponderance 
of  the  evidence,  or  by  such  evidence 
as  will  satisfy  the  jury  that  his  de- 
fense is  true,  but  only  that  after  the 
state  has  made  out  its  case,  it 
devolves  on  the  accused  to  introduce 
evidence,  if  he  has  any,  to  prove  his 
alibi,  if  he  relies  upon  such  a  de- 
fense." 

The  following  instruction  was  held 
proper : 

"The  burden  rests  upon  the  coin- 
monwealth  to  make  out  its  case 
against  the  accused  to  the  exclusion 
of  a  reasonable  doubt,  but,  where 
tlie  accused  relies  upon  or  attempts 
to  prove  an  alibi  in  his  defense,  the 
burden  of  proving  the  alibi  rests 
upon  him  ;  but  upon  other  questions 
in  the  case  the  burden  still  rests 
upon  the  commonwealth,"  Thomp- 
son r.  Com.,  88  Va.  45,  13  S.  E.  304. 
Vol.  I 


746 


ALIBI. 


declared  to  be  a  qualified  burden.  That  is  to  sa}',  it  is  only  necessary 
to  make  such  proof  as  will  raise  a  reasonable  doubt  of  guilt.'" 

Thus,  in  Iowa  the  rule  would  now  seem  to  be,  that  whilst  the 
jury  cannot  acquit  on  the  defense  of  alibi  unless  it  be  supported  by 
a  preponderance  of  the  evidence,  if  the  evidence  upon  that  defense 
considered  alone,  or  in  connection  with  all  the  other  evidence  leaves 
a  reasonable  doubt  in  the  minds  of  the  jury  as  to  tlic  ,c;uilt  of  the 
defendant,  they  cannot  convict." 

In  Illinois  tire  rule  has  been  supposed  to  require  that  proof  in 
support  of  an  alibi  must  preponderate  in  order  to  yield  practical 


13.  Alabiiiiia.  —  Towns  i'.  State, 
III  .\la.  1,  20  So.  528;  Prince  f. 
State,  100  Ala.  144.  14  So.  409,  46 
Am.  St.  Rep.  28;  Pate  v.  State,  94 
Ala.  14,  10  So.  665. 

Ari::ona.  —  Schnltz  j'.  Territory 
(.■\riz.),  52   Pac.   352. 

California.  —  People  v.  Winters, 
125  Cal.  325,  =;7  Pac.  1067;  People  r. 
O'Niel,   59  Cal.  259. 

Florida.  —  Adams  v.  State.  28  Fla. 
SI  I,   10  So.   106. 

Georgia.  —  Miles  z'.  State.  93  Ga. 
117,  19  S.  E.  80s,  44  .\m.  St.  Rep. 
140. 

Idaho.  — State    v.    Webb    (Idaho), 

55  Pac.  892. 

Illitiuis.  —  Ackerson  v.  People,  124 
111.  563,  16  N.  E.  847. 

Kansas.  —  State  v.  Child,  40  Kan. 
482,  20   Pac.   27s ;    State  v.   Conway, 

56  Kan.  682,  44  Pac.  627. 
Michigan. —  People  v.  Pichette,  in 

Mich.  461,  69  N.  W.  739;  People  v. 
Resh,  107  Mich.  251,  65  N.  W.  99. 

.Mississippi.  —  Dawson  v.  State,  62 
Miss.  241 ;  Pollard  v.  State,  53  Miss. 
410. 

Missouri.  —  State  v.  Miller  (Mo.), 
56  S.  W.  907;  State  V.  Hale  (Mo.), 
S6  S.  W.  881. 

Montana.  —  State  v.  Spotted  Hawk, 
22  Mont.  33,  55  Pac.  1026. 

Nevada.  —  State  v.  Waterman,  i 
Nev.  543. 

New  Jersey.  —  Sherlock  v.  State, 
60  N.  J.  Law  31,  37  Atl.  435. 

Pennsylvania.  —  Myers  v.  Com.,  83 
Pa.   St.   144. 

South  Carolina.  —  State  v.  Jackson, 
36  S.  C.  487,  15  S.  E.  559,  31  Am.  St, 
Rep.  890. 

Te.vas.  —  Gallaher  v.  State,  28  Tex. 
App.  247,  12  S.  W.  1087. 


Il'est  Virginia.  —  State  v.  Lowry, 
42  W.  Va.  205,  24  S.  E.  561. 

IVisconsin.  —  Emery  v.  State,  lOl 
Wis.  627,  78  N.  W.  145'. 

"  The  burden  of  making  good  the 
defense  of  alibi  is  upon  the  accused, 
and  to  make  it  availing  he  must  es- 
tablish such  facts  and  circumstances, 
clearly  sustaining  that  defense,  as 
will  be  sufficient,  when  considered 
in  connection  with  the  other  evidence 
in  the  case,  to  create  in  the  minds  of 
the  jury  a  reasonable  doubt  of  the 
truth  of  the  charge  against  him." 
.\ckerson  '■.  People,  124  111.  563,  16 
N.  E.  847. 

Whenever  the  evidence  introduced 
supports  the  defense  of  alibi,  and  its 
effect  is  to  create  a  reasonable  doubt 
in  the  minds  of  the  jury  as  to  the 
defendant's  guilt,  he  is  as  much  en- 
titled to  an  acquittal  as  if  the  rea- 
sonable doubt  had  arisen  upon  any 
other  legitimate  evidence.  Prince  v. 
State,  100  Ala.  144,  14  So.  409,  46 
Am.  St.  Rep.  28. 

"While  it  is  true  that,  in  order 
to  convict  the  defendants,  it  devolved 
upon  the  state  to  prove  their  pres- 
ence at  the  time  and  place  of  the 
commission  of  the  offense,  in  order 
to  overcome  the  case  made  out  by  the 
state  against  them  they  assumed  the 
burden  of  showing  such  a  state  of 
facts  as  would  raise  in  the  minds 
of  the  jury  a  reasonable  doubt  as  to 
their  presence  at  the  time  and  place 
of  the  commission  of  the  offense,  and 
to  this  e.xtent  an  alibi  was  a  defense." 
State  V.  Hale  (.Mo.),  56  S.  W.  881, 
883. 

14.  State  V.  Mahcr,  74  Iowa  77, 
37  N.  W.  2;  State  v.  McGarry 
(Iowa),  83   N.   W.   718. 


Vol.  I 


JLIBI.  747 

benefit,  but  in  a  comparatively  recent  case  that  doctrine,  if  it  ever 
obtained,  was  materially  modified.'^ 

IV.  EVIDENCE  ADMISSIBLE. 

1.  On  Behalf  of  the  Accused.  —  A.  Prksumptioxs.  —  The  legal 
presumption  of  the  innocence  of  the  accused  is  in  no  wise  affected 
by  the  introduction  of  evidence  in  support  of  an  alibi."' 

B.  Facts  and  Circumstances.  —  The  accused  may,  in  support 
of  an  alibi,  invoke  all  facts  and  circumstances  tending  in  anywise 
to  show  his  absence  from  the  time  and  place  of  the  corpus  delicti.^' 


15.  Hoge  I'.  People,  117  III.  44, 
6  N.  E.  796;  Hoops  I'.  People,  31 
111.  392;  Ackerson  7'.  People,  124  III. 
563,  16  N.  E.  847. 

State  V.  Jennings.  81  Mo.  185, 
Overruled. —  ••  Tn  the  Ilowell  case, 
100  ^lo.  628,  14  S.  W.  4,  the  Jennings 
case  was  overruled  in  terms,  and  we 
think  correctly.  The  rule  in  Jen- 
nings' case  requires  a  defendant  to 
prove  his  innocence  and  cannot  be 
sustained  on  principle."  State  v. 
Ta)dor,  T18  Mo.  153,  24  S.  W. 
449.  In  this  case  it  was  fur- 
ther said:  "Indeed  we  have 
found  but  two  states  and  one  terri- 
tory committed  to  the  doctrine  that 
an  alibi  must  be  established  by  the 
dtfi-ndant  by  a  preponderance  of  the 
evidence,  and  they  are  Iowa,  Illinois 
o.nd  New   Mexico." 

16.  California.  —  People  v.  Fong 
Ah  Sing,  64  Cal.  253,  28  Pac.  253. 

Kansas.  —  State  v.  Child,  40  Kan. 
482,  20  Pac.  275 ;  State  v.  Conway,  56 
Kan.  682,  44  Pac.  627. 

Mississiflyi.  —  Cunningham  v. 
State,  56  Miss.  269,  31  Am.  Rep.  360. 

Missouri.  —  State  r.  Taylor,  118 
Mo.   153,  24  S.  W.  449. 

Nevada.  —  Slate  t.  Waterman,  i 
Nev.  543. 

Xcw  York.  —  People  v.  Videto,  I 
Parker  Crim.  603. 

Pennsylvania.  —  Turner  v.  Com., 
86  Pa.  St.  54. 

IVisconsin.  —  Emery  z'.  State,  lOi 
Wis.  627,  78  N.  W.  145. 

17.  ^/obojHO.  —  Ratliff  v.  State, 
122  Ala.  104,  26  So.  123. 

Arkansas.  —  Kinnemer  ?■.  State,  66 
Ark.  206,  49  S.  W.  815. 

California.  —  People    z\     Kalkman, 


72   Cal.  212,    13   Pac.   500;    People  v. 
Mitchell,  94  Cal.  550,  29  Pac.  1106. 
Illinois.  —  Otmer  j'.   People,  76  111. 

149- 

Maine.  —  State  ?■.  Fenlason,  78  Me. 
495.  7  Atl.  385. 

Teres.  —  Blake  r.  State.  38  Te.x. 
Crim.  App.  377,  43  S.  W.  107. 

Where  it  is  shown  that  deceased 
was  assassinated  at  about  1 1  o'clock 
at  night,  evidence  that  the  accused 
was  at  his  own  house,  seven  miles 
away,  late  that  night,  is  admissible 
on  the  question  of  alibi.  Kinnemer 
r.  State,  66  Ark.  206,  49  S.  W.  815. 

The  defendant  in  a  criminal  prose- 
cution for  the  purpose  01  proving  an 
alibi  may  testify  as  to  various  acts 
which  he  claims  to  have  done  at  and 
about  the  time  of  the  alleged  offense, 
but  cannot  give  the  particulars  of 
conversation  had  between  himself 
and  others.  People  z:  Kalkman,  72 
Cal.  212,   13   Pac.  500. 

There  being  nothing  positive,  but 
only  facts  and  circumstances  tending 
to  prove  guilt,  and  an  apparently  re- 
liable witness  having  testified  that 
the  accused  was  at  her  house,  600  or 
700  yards  from  the  scene  of  the 
crime,  at  the  time  of  its  cominission, 
and  had  been  there  for  some  time 
before — this  testimony,  it  was  held, 
was  such  as  to  raise  a  reasonable 
doubt  of  defendant's  guilt.  Otmer  v. 
People,  76  111.  149. 

TestiiTiony  of  witnesses  to  prove 
an  alibi  that  they  saw  defendant  on 
the  Friday  before  he  was  arrested 
cannot  be  excluded  because  they 
cannot  fix  the  date,  when  the  date 
of  the  arrest  is  fixed  by  other  compe- 
tent testimony.  Blake  z'.  State,  38 
Tex.   Crim.  App.  377,  43   S.  W.   107. 

Vol.  I 


748 


ALIBI. 


V.  WEIGHT  AND  SUFFICIENCY. 

1.  Not  Covering  Exact  Time.  —  And  the  evidence  of  his  absence 
is  competent  and  material,  although  it  may  not  cover  the  exact  time 
or  the  whole  time  of  the  alleged  commission  of  the  crime. '* 

2.  Insufficient  to  Establish,  How  Considered.  —  But  if  the  evidence 
adduced  in  sup[}c>rt  i.if  an  alibi  be  insufficient  to  establish  it  as  an 
indenendent  defense,  such  evidence  is  not  to  bp  excluded  from  the 
case,  but  should  be  considered  with  the  other  evidence.'" 


18.  Waters  c'.  People.  172  111.  367, 
50  N.  E.  148;  Parker  v.  State,  136 
Ind.  284,  35  N.  E.  1 105 ;  Peyton  v. 
State,  54  Neb.  188,  74  N.  W.  597; 
State  V.  Ardoin,  49  La.  .\nn.  ir-i-. 
22  So.  620,  62  Am.  St.  Rep.  678; 
Thompson  v.  State,  (Tex.  Crim. 
App.,)   57  S.  W.  805.  . 

A  charge  that  the  jury  would  be 
warranted  in  paying  no  attention  to 
alibi  evidence  unless  it  covered  the 
whole  time  necessary,  was  held  er- 
ror, for,  if  such  evidence  was  suffi- 
cient to  create  a  reasonable  doubt  of 
guilt,  it  should  have  been  considered. 
Kaufman  ■;•.   State,  49  Ind.  248. 

Failure     to     Account     for     Whole 

Time It     was     declared     error    to 

have  told  the  jury  that  defendants' 
failure  to  account  for  their  where- 
abouts during  the  entire  lime  in- 
volved was  to  be  considered  by  the 
jury  along  with  the  other  evidence 
tending  to  show  guilt.  Parker  v. 
State,  136  Ind,  284,  35  N.  E.   1 105. 

Impossibility Proof  of  alibi  not 

required  to  show  that  the  place  de- 
fendant alleged  himself  to  have  been 
was  so  far  from  place  of  crime  as  to 
preclude  the  possibility  of  his  guilt. 
Pcvton  V.   State,  54  Neb.   188.  74  N. 

\V.'  .:;97. 
Need   Not  Cover  Place  of  Taking 

and  Recapture.  —  Held,  error  to 
have  charged  the  jury  that  it  was 
necessary  to  show  the  absence  of  the 
accused  from  the  place  of  the  theft 
of  property  as  well  as  from  the  pos- 
session of  it  en  route,  and  at  the 
place  of  recapture.  The  alibi  did 
not  depend  upon  concurrence  of  the 
facts  of  absence  from  both  places. 
Thompson  z:  State,  (Tex.  Crim. 
App.,)    57  S.  W.  805. 

The  court  gave  the  fcill.ivving  m- 
^truction :  "  The  defendant  having 
introduced  evidence  for  tlio  purpose 
(if  establishing  an   alibi,  or   in   other 


words,  to  show  tliat  he  was  not 
guilty,  for  the  reason  that  he  was  at 
a  different  place,  if  he  failed  to  cover 
the  whole  time  necessary  when  the 
crime  may  have  been  committed, 
then  you  would  l)c  warranted  in  pay- 
ing no  attention  to  such  testimony." 

And  the  appellate  court  said:  "'As 
a  rule  of  law,  this  instruction  is  er- 
roneous. An  alibi  is  a  legitimate  de- 
fense, and  if  the  evidence  touching 
it  was  sufficient  to  raise  a  reasonable 
doubt  of  the  appellant's  guilt  in  the 
minds  of  the  jury,  it  sliould  have 
been  considered,  although  the  alibi 
did  not  cover  the  whole  time  during 
which  the  crime  was  committed.  The 
case  of  French  r.  The  State,  12  Ind. 
670,  is  in  point.  The  same  principle 
is  supported  in  the  cases  of  .\dams  v. 
The  State,  42  Ind.  373.  and  P.inns  v. 
The  State,  46  Ind.  311."  Kaufman 
V.  State,  49  Ind.  248,  251. 

"  The  instruction  that  proof  of  an 
alibi  '  must  cover  the  time  that  the 
offense  is  shown  to  have  been  com- 
mitted, so  as  to  preclude  the  l>ossi- 
bility  of  the  irisoiier's  presence  at 
the  place  of  the  burglnry.'  . 
and  that  'the  value  of  the  defense 
consists  in  his  showing  that  he  was 
absent  from  the  place  where  the  deed 
was  done,  and  at  the  very  time  that 
the  evidence  of  the  People  tends  to 
fi.x  its  commission  upon  him.  If, 
however,  it  be  possible  that  he  could 
have  been  at  both  places,  the  proof  of 
alibi  is  valueless,'  was  casting  a  bur- 
den upon  the  accused  much  heavier 
than  the  law  would  justify  or  than  it 
required.  No  such  strict  proof  is  re- 
quired, and  to  so  hold  would  render 
the  defense,  no  matter  how  honestly 
made,  in  most  cases  valueless." 
Stuart  V.  People,  42  Mich.  255,  260,  3 
N.  W.  863. 

19.     Chappcl     V.     State,     7     Cold. 
(Tenn.)    92;    Dawson    v.     State,    62 


Vol.  I 


ALIBI. 


749 


3.  Sufficiency  for  the  Jury.  —  Whether  it  is  sufficient  to  raise  a 
reasonable  doubt  is  for  the  jury  to  determine  from  all  rhe  evidence." 


Miss.  241 ;  People  v.  Resh,  107  Mich. 
251,  65  N.  W.  99. 

But  if  the  evidence  offered  in  sup- 
port of  an  alibi  be  insufficient  to  es- 
tablish it  as  a  distinct  issue,  never- 
theless such  evidence  is  for  the  con- 
sideration of  the  jury ;  and  if  upon 
the  whole  case,  including  that  per- 
taining to  the  aHbi,  thej'  have  a  rea- 
sonable doubt  of  defendant's  guilt,  he 
should  be  acquitted.  State  v. 
j\IcGarry  (Iowa),  83  N.  W.  718. 

Any  evidence  whatever  of  alibi  is 
to  be  considered  in  the  general  case 
with  the  rest  of  the  testimony,  and, 
if  a  reasonable  doulit  of  guilt  be 
raised  bj'  the  evidence  as  a  whole, 
the  doubt  must  be  given  in  favor  of 
innocence.  Harrison  v.  State,  83 
Ga.  129,  9  S.  E.  S42. 

Proof  insufficient  to  show  impos- 
sibility of  presence  of  accused  may 
generate  a  reasonable  doubt  of  such 
presence.  Wisdom  v.  People,  11 
Colo.  170,  17  Pac.  519. 

Reasonable   Doubt The   accused 

is  entitled  to  the  benefit  of  any  rea- 
sonable doubt  that  the  jury  might 
have  of  his  guilt,  arisin"  from  the 
proof  touching  alibi  in  connection 
with  the  other  proof  in  the  cause. 
Chappel  V.  State,  7  Cold.  (Tenn.)  92. 

The  jury  should  consider  all  the 
evidence  bearing  upon  alibi,  and  if  in 
view  of  the  evidence,  the  jury  had 
any  reasonable  doubt  as  to  whether 
the  defendant  was  at  some  other 
place  at  the  time  the  crime  was  com- 
mitted, they  should  give  him  the 
benefit  of  any  doubt  and  find  him 
not  guilty.  People  v.  Resh,  107  Mich. 
251,  65  X.  W.  09. 

"  The  defendant  is  not  required, 
in  any  phase,  of  any  criminal  case, 
to  prove  his  defense  to  the  satisfac- 
tio)i  of  the  jury,  but  it  is  sufficiently 
established  if,  upon  consideration  of 
the  whole  evidence,  there  is  a  rea- 
sonalile  doubt  of  his  guilt.  Pollard 
'•.  The  State,  53  Miss.  410;  Cun- 
ningham V.  The  State,  56  Miss.  269; 
Hawthorne  i'.  The  Stale,  58  Miss. 
778:  Smith  V.  The  State,  'lb.  867; 
Ingram  v.  The  State,  ante.  142." 
Dawson  v.   State,  62   Miss.  241,  244. 

20.     Alabama.  —  .Xlbritton  j'.  State, 


04  .^la.  76,  10  So.  426;  Pate  ?'.  State, 
94  Ala.  14,  10  So.  665. 

Colorado.  —  Wisdom  v.  People,  11 
Colo.  17b,  17  Pac.  519. 

Atississippi.  —  Pollard  r.  State,  53 
Miss.  410,  24  Am,  Rep.  703. 

Nebraska.  —  Henry  v.  State,  51 
N'eb.  149,  70  N.  W.  924,  66  Am.  St. 
Rep.  450;  Nightingale  f.  State, 
(  Neb.,)  87  N.  W.  158. 

Xcz'ada.  —  State  ?•.  Waterman.  I 
Nev.  543. 

Oklahoma.  —  Wright   -'.   Territory, 

5  Okla.  78,  47  Pac.  1069;  Shoemaker 
V.  Territory,  4  Okla.  118,  43  Pac. 
1059. 

'rcnnessec.  —  Ford  f.  Stale,  101 
Tinn.  454,  47  S.  \\'.  703- 

Reasonable  Doubt Proof  insuffi- 
cient to  show  impossibility  of  the 
defendant's  presence  at  the  commis- 
sion of  the  offense  might  still  create 
a  doubt  in  the  minds  of  the  jury  as 
to  such  presence,  and  therefore  en- 
gender a  reasonable  doubt  as  to  guilt, 
of  the  benefit  of  which  the  defendant 
should  not  be  deprived.  Wisdom  v. 
People,   II   Colo.   170,   17   Pac.  519. 

Though  alibi  evidence  do  not 
cover  entire  time  nor  show  impossi- 
bility of  defendant's  guilt,  it  is  suffi- 
cient if  it  reasonably  satisfies  the 
jury  or  in  connection  with  other  evi- 
dence generates  a  reasonable  doubt 
of  guilt.  Albrilton  v.  State,  94  Ala. 
70,  10  So.  426. 

When  Defendant  Entitled  to  an 
Acquittal.  —  It  is  only  necessary 
that  the  defendant  show  from  facts 
or  circumstances  to  the  reasonable 
satisfaction  of  the  jury,  that  he  was 
elsewhere  than  at  the  place  of  the 
crime  when  it  was  committed.  Pate 
I'.    State.  94   .\la.    14,    10   So.   663. 

No  Presumption  that  Prisoner 
Was  Not  at  Some  Other  Place. 
"  There  is  no  presumption  as  to  the 
locality  of  the  party  indicted  unless 
you  can  say  that  the  legal  presump- 
tion of  the  prisoner's  innocence  in- 
volves the  presumption  that  he  was 
not  at  the  place  where  the  offense 
was  committed.  Certainly,  there  is 
no  presumption  thai  he  was  not  at 
some  other  place."  Slate  T.  Water- 
man. I   Nev.  543. 

Vol.  I 


750 


ALIBI. 


4.  Whole  Evidence  Must  Be  Considered.  —  And  it  ii[  on  the  whole 
evidence  including  that  in  relation  to  alibi,  there  be  in  the  minds  of 
the  jury,  a  reasonable  doubt  of  the  guilt  of  the  acr'.ised,  he  should 
be  acquitted.^' 


Whole   Time   Not   Essential "It 

follows  logically  if  not  necessarily, 
from  the  decisions  of  this  court,  that 
the  proof  of  an  alibi  is  not  required 
to  cover  the  entire  period  witliin 
which  the  oflfense  might  possibly 
have  been  committed,  but  that  the 
accused  is  entitled  to  an  acquittal 
whenever  the  evidence  is  sufficient  to 
create  in  the  minds  of  the  jurors  a 
reasonable  doubt  of  his  presence  at 
the  commission  of  the  offense  with 
which  he  stands  charged."  Henry  v. 
State,  51  Neb.  149,  70  N.  W.  924,  66 
Am.  St.  Rep.  450;  Nightingale  v. 
State,   (Neb.,)  87  N.  W.  158. 

Proof  need  not  exclude  the  abso- 
lute possibility  of  presence  al  the 
time  and  place  of  the  offense  to  be 
of  some  value.  It  can  be  admitted 
and  considered  for  what  it  is  worth, 
if  it  renders  it  very  improbable  that 
defendant   could   have   been    present. 

Ford  V.   State,   loi   Tenn.  454,  47   S. 
W.  703. 
21.    Alabama.  —  Prince    i'.     Slate, 

100  Ala.  144,  14  So.  409,  46  Am.  St. 

Rep.   28;   Pate  v.    State,  94  Ala.    14, 

10  So.  665;  Towns  V.  State,  in  Ala. 

I,  20  So.  528;  Albritton  v.  State,  94 

Ala.  76,  10  So.  426. 

Al  kaiisas.  —  Blankenship    z'.    State, 

55'  Ark.  244,   18  S.   \V.   51;   Ware  v. 

State,  59  Ark.  379,  27  S.  W.  485. 
California.  —  People    v.    Fong    .\h 

Sing,  64  Cal.  253,  28  Pac.  253. 
Illinois.  —  Ackcrson  7'.  People,   124 

111.  563,  16  N.  E.  847;  Carlton  z:  Peo- 
ple, 150  111.  181,  i7  N.  E.  244,  41  .\m. 

St.    Rep.   346;    Hoge   t'.    People,    117 

III,  35,  6  N.  E.  796;  Miller  r.  People, 

39   111.   457;    MuUins   t'.    People,    no 

111.  42. 
Indiana.  —  Fleming    ?■.     State,     136 

Ind.    149,   36    N.    E.    15J1;    French   v. 

State,  12  Ind.  670,  74  Am.  Dec.  229; 

Line  V.  State,  51   Ind.  172. 

lo'a'a.  —  State    i'.    Maher.   74    Iowa 

77,  37  N.  W.  2. 

Louisiana.  —  State    r.    .-Krdoin,    4<) 

La.  .-Vun.  1 145,  22  So.  620,  62  Am.  St. 

Kep.  678. 
.]firhii;an.  —  People  v.   GarlnUt,    17 

Vol.  I 


Mich.  9,  97  Am.  Dec.   162;  People  v. 
Pearsell,  50  Midi.  233.  15  N.  W.  98. 

Mississil'pi.  —  Pollard  t'.  State,  53 
Miss.  410,  24  .\m.  Rep.  703. 

Montana.  —  State  zf.  McClellan.  23 
Mont.  532,  59  Pac.  924,  75  .\m.  St. 
Rep.  558. 

Nebraska.  —  Nightingale  z\  State, 
(Neb.,)  87  N.  W.  158;  Henry  z: 
State,  51  Neb.  149,  70  N.  \V.  924,  66 
."Vni.  St.  Rep.  450. 

Nevada.  —  State  ;■.  Waterman,  i 
Ncv.  543. 

Nezt'  Me.vico.  —  Willburn  z\  Terri- 
tory, (N.  M.,)  62  Pac.  968. 

Nczv  York.  —  People  z'.  Stone.  n7 
N.  Y.  480,  23  N.  E.  13- 

South  Carolina.  — State  Z'.  Jackson, 
36  S.  C.  487,  IS  S.  E.  559,  31  Am.  St. 
Rep.  890. 

South  Dakota.  —  State  v.  Thorn- 
ton, 10  S.  D.  349.  73  N.  W.  196,  41  L. 
R.  A.  530. 

■I'crmont.  —  Slate  ;■.  Ward.  61  Vt. 
153,  17  Atl.  483. 

West  I'irginia.  —  Stale  v.  Lowry, 
42  W.  Va.  205,  24  S.  E.  561. 

Wisconsin.  —  Emerv  v.  Stale.  loi 
Wis.  627,  78  N.  W.  145- 

"  An  alibi  was  alleged,  and  the 
jury  were  told  that  the  evidence  to 
prove  it  must  outweigh  the  evidence 
to  show  the  respondent  al  the  place 
elf  the  crime,  and,  if  so  established, 
they  should  acquit  him.  After  this 
instruction,  it  was  the  duty  of  the 
court  to  go  further,  and  to  tell  the 
jury  that,  if  the  alibi  was  not  so  es- 
tablished, evidence  of  it  was  not  to 
he  excluded  from  the  case,  but  that 
it  should  be  considered  with  the 
other  evidence,  and  if  unim  the 
whole,  including  that  in  relation  to 
the  alibi,  there  was  a  reasonable 
doubt  of  the  respondent's  guilt,  he 
was  entitled  to  an  acquittal."  State 
V.  Ward,  61  Vt.  153,  17  Atl.  483.  490. 
When  the  people  have  made  a 
prima  facie  case,  the  l)urden  is  on 
defendant  to  prove  an  alibi,  not  be- 
yond a  reasonable  doubt,  nor  by  a 
preponderance    of    the    evidence,    but 


ALIBI. 


751 


VI.  EVIDENCE  IN  REBUTTAL  BY  STATE. 

1.  State  May  Rebut  Evidence  of  Alibi.  —  The  5t;Uc  nia\  introduce 
evidence  in  reljuttal  of  that  offered  h\  tlie  defendant  in  sui^port  of  an 
;.lilM.^^ 

2.  State  May  Rebut  by  Proving;  Another  Crime.  —  Even  to  the 
extent  of  proving  the  commission  of  another  and  differeiit  crime. ''^ 


by  such  evidence  and  to  sucli  degree 
of  certainty  as  will,  when  the  whole 
evidence  is  considered,  create  and 
leave  in  the  minds  of  the  jury  a  rea- 
sonahle  doubt  of  his  guilt.  Hoge  v. 
People,  117  111-  44.  6  N.  E.  796; 
Hopps  V.  People,  31  111.  392;  Acker- 
son  V.  People,  124  111.  ^63,  16  N.  E. 
847. 

"After  the  state  has  made  out  its 
case,  it  devolves  upon  the  accused  to 
introduce  evidence,  if  he  has  any,  to 
prove  his  alibi,  if  he  relies  upon  such 
a  defense.  In  that  sense  the  burden 
is  upon  the  accused,  and,  in  order  to 
maintain  it,  he  is  bound  to  establish 
in  its  support  sucli  facts  and  circum- 
stances as  are  sulficient,  when  con- 
sidered in  connection  with  all  the 
other  evidence  in  the  case,  to  create 
in  the  minds  of  the  jury  a  reasona- 
ble doubt  of  his  guilt."  State  v. 
Thornton,  10  S.  D.  349,  ji  N.  \V.  196, 
41  L.  R.  .\.  530. 

22.  "  Tlie  defense  in  its  attempt  to 
make  out  the  alibi  introduced  testi- 
mony tending  to  show  that  the  de- 
fendant at  a  given  time  was  many 
miles  from  the  place  of  the  murder, 
and  that  by  the  public  road  he  could 
not  have  had  time  to  reach  this  point, 
and  have  been  present  at  tlie  killing. 
In  order  to  prove  that  he  could  not 
have  reached  there  by  any  other  more 
direct  routes  than  the  public  road, 
one  of  his  witnesses  had  testified 
that  the  country  was  covered  with 
wire  fences.  It  was  competent  to 
show  in  rebuttal  of  this  statement 
that  the  accused  was  in  possession  of 
a  wire-cutter,  by  which  the  jury 
could  deduce  that  it  was  possible  for 
him  to  travel  across  the  country  by 
cutting  the  fences.  Of  course  the 
weight  to  be  attached  to  the  proof 
was  a  matter  for  the  jury,  but  it  was 
clearly  rebuttal  testimony,  and  its  ad- 
missibility as  such  is  covered  by  the 
ruling  in  Moore  v.  United  Stales,  150 
U.  S.  iiT-  998.)"    Goldsby  v.  United 


States,  160  U.  S.  70.  74.  1(1  Sup.  Ct. 
216. 

"  It  is  plain  that  the  state  may  in 
rebuttal  support  the  proof  before 
given  of  defendant's  presence  at  the 
time  and  place  of  the  crime,  and  con- 
tradict testimony  tending  to  prove 
an  alibi."  State  i'.  Maher,  74  Iowa 
77.  i7  N.  W.  2. 

''  Under  the  rule  adopted  liy  this 
court,  the  burden  was  upon  defend- 
ant to  establish  the  alibi,  and  the 
state  had  the  right  to  rebut  any  show- 
ing the  defendant  made  as  to  his 
whereabouts  at  or  near  the  time  the 
crime  was  committed."  State  v. 
Watson,  102  Iowa  651,  72  N.  W.  283. 

An  offense  was  committed  on  the 
night  of  September  15th.  The  ac- 
cused offered  evidence  of  an  alibi. 
The  court,  touching  the  right  of  the 
state  to  rebut  such  proof,  said  :  ''  If 
the  defendants  had  contented  them- 
selves with  a  simple  denial  that  they 
were  at  Olivet,  or  in  that  vicinity,  on 
the  evening  of  the  15th  of  September, 
the  state  would  clearly  not  have  lieen 
entitled  to  examine  witnesses  in  re- 
buttal of  their  statement  who  had 
not  been  examined  before  the  grand 
jury,  or  of  whose  introduction  the 
notice  prescribed  by  §  4421  of  the 
Code  had  not  been  given,  for  the  tes- 
timony of  such  witnesses  would 
have  tended  to  prove  a  fact  which 
had  a  tendency  to  support  the  in- 
dictment." It  was  held  further,  that 
the  testimony  was  admissible,  not  in 
support  of  the  indictment,  but  to 
contradict  defendant's  statements. 
State  V.  Rivers,  68  Iowa  611.  27  N. 
W.  781- 

23.  Rebutting  Alibi  by  Proving 
Another  Offense —  On  a  charge  of 
highway  roliliery,  the  prosecution  was 
allowed  to  rebut  an  alibi,  by  proving 
that  shortly  before  the  attack  and 
near  the  same  spot,  the  prisoner  had 
robbed  another  person.  R.  v.  P.riggs, 
2   M.   &   Rob.    199. 

Vol.  I 


7s2 


ALIBI. 


VII.  ALIBI  A  LEGITIMATE  DEFENSE. 

1.  Attempt  to  Prove  Does  Not  Justify  Suspicion  of  Guilt.  —  The 

attempt  to  prove  an  alibi  furnishes  no  cause  for  suspicion  of  guilt. '^^ 


24.  State  v.  Collins,  20  Iowa  85 ; 
State  V.  Josey,  64  N.  C.  56 ;  Turner  v. 
Com.,  86  Pa.  St.  54,  27  Am.  Rep.  683 ; 
Ford  V.  Slate,  loi  Tenn.  454.  47  S. 
W.  703;  Adams  v.  State,  28  Fla.  511, 
10  So.  106;  Line  V.  State,  51  Ind.  172. 

"  An  unsuccessful  attempt  to  es- 
tablish an  alibi  is  always  a  circum- 
stance of  great  weight  against  a 
prisoner,"  etc.  (Quoted  from  Wills 
on  Circumstantial  Evidence)  ;  but, 
say  the  court,  "  this  is  stated  as  a 
fact  which  we  all  know  to  be  true, 
and  not  as  a  rule  of  law  to  be 
charged  by  the  court."  Stale  v. 
Josey,  64   N.   C.   56. 

Attempt    to    Prove    an    Alibi    Not 

Evidence     of     Guilt "Failing     to 

prove  an  alibi  sliould  have  no  greater 
weight  to  convince  a  jury  of  the 
guilt  of  the  prisoner  attempting  it 
than  tlie  failure  to  prove  any  other 
important  item  of  defense.  A  pris- 
oner is  entitled  to  rely  on  the  facts 
in  his  favor  he  may  suppose  he  is 
able  to  prove,  and  if  he  is  so  unfor- 
tunate as  to  fail  in  his  proof,  it 
should  not,  generally  speaking,  oper- 
ate to  his  prejudice."  Miller  v. 
People,   39  111.  457. 

In  a  comparatively  early  Iowa 
case,  the  court,  speaking  through 
Dillon,  J.,  said:  "The  instruction 
under  consideration  was  founded 
upon  a  passage  in  Wills  (Cir.  Ev., 
83  quoted  without  comment,  Burrill, 
Id.,  519,)  where  he  observes  that  'an 
unsuccessful  attempt  to  establish  an 
alibi  is  always  a  circumstance  of 
great  weight  against  a  prisoner,  be- 
cause the  resort  to  that  kind  of  evi- 
dence implies  an  admission  of  the 
truth  and  relevancy  of  the  facts 
alleged,  and  the  correctness  of  the 
inference  drawn  from  them,  if  they 
remain  uncontradicted." 

"  If  this  is  the  law  in  any  case,  it 
must  be  limited  to  cases  where  the 
alibi  has  been  forged  or  concerted, 
and  is  resorted  to  fraudulently.  In 
such  cases,  if  exposed,  it  would  be, 
as  above  observed,  a  damaging  cir- 
cumstance to  the  defendant.  But  the 
rcusnn    given    l>y     Mr.    Wills    is    im- 

Vol.  I 


proper  to  be  stated  to  the  jury,  espe- 
cially in  a  case  like  the  one  before 
us,  where  there  was  no  certain  evi- 
dence connecting  the  accused  with 
the  commission  of  the  crime.  We 
think  it  wrong  to  state  to  the  jury 
that  the  effect  of  a  failure  to  estab- 
lish an  alibi  is  to  admit  that  the 
facts  deposed  to  by  the  State's  wit- 
nesses are  true  as  well  as  relevant. 
Whether  true  or  not  is  for  the  jury 
to  determine  upon  other  considera- 
tions, and  not  upon  any  such  sup- 
posed admission.  State  v.  Collins,  20 
Iowa   85. 

"  The  court  instructed  the  jury 
that  if  the  defendant  proved  an  alibi, 
it  constituted  a  perfect  defense,  but 
if  not  proved,  and  they  did  not  think 
it  had  been  proved,  the  attempt  to 
manufacture  evidence  was  a  circum- 
stance which  always  bore  against 
the  person  making  it ;  that  no  imio- 
cent  person  is  driven  to  manufacture 
evidence.  Held,  (reversing  the  court 
below,)  that  this  instruction  is  mani- 
festly wrong,  inasmuch  as  the  jury 
are  told  that  the  defendant  having 
undertaken  to  defend  himself  on  the 
ground  of  alibi,  must  produce  evi- 
dence sufficient  to  work  his  acquittal, 
or  if  not  his  failure  is  evidence  of 
guilt.  Held,  further,  that  were  the 
defendant  detected  in  an  attempt  to 
corrupt  witnesses  or  to  manufacture 
evidence,  it  would  certainly  weigh 
heavily  against  him,  but  his  mere 
failure  to  prove  a  given  part  of  his 
defense  is  no  evidence  of  such  at- 
tempt and  ought  not  to  have  been 
submitted  as  such  to  the  jury."  Tur- 
ner V.  Com.,  86  Pa.  St.  S4,  27  .\m. 
Rep.  683. 

When  an  accused  unsuccessfully 
attempts  to  establish  an  alibi,  it  is 
only  a  circumstance  against  him, 
when  it  appears  to  have  been  made 
in  bad  faith,  and  "a  perfectly  inno- 
cent man  might  make  such  an  at- 
tempt in  good  faith,  and  fan  for  lack 
of  evidence  to  establish  it.  It  could 
only  be  a  circumstance  against  him 
if  it  appeared  to  have  been  made 
in     bad     faith,     manufactured,     fabri- 


ALIBI. 


75:^ 


A.  Court  May   Not  Gixe  Disparaging  Instructions.  —  And 

the  court  cannot  properly  disparage  the  defense  in  its  instructions 
to  tlie  jury.-^ 


catcd  or  false."  Ford  j'.  State,  lOi 
Tcnn.  454,  47  S.  W.  70.V 

25.  California.  —  People  z'.  Le- 
viiie,  85  Cal.  39,  22  Pac.  969;  People 
V.  JVIalaspina,  57  Cal.  628;  People  -•. 
Lattimore,  86  Cal.  403,  24  Pac.  1091. 

Georgia.  — MWes  v.  State,  93  Ga. 
117,  19  S.  E.  805,  44  Am.  St.  Rep. 
140;  Kimbrougli  i'.  State,  lOi  Ga. 
583.  29  S.  E.  39. 

Mississifl'i.  —  Xelms  v.  State,  58 
Miss.  362 ;  Dawson  v.  State,  62  Miss. 
241. 

Missouri.  —  State  f.  Crowell,  149 
j\Io.  391,  50  S.  W.  893,  73  Am.  St. 
Rep.  402. 

Nebraska.  —  Casey  v.  Stale,  49 
\eb.  403,  68  N.  W.  643. 

Pennsylvania.  —  Com.  t'.  Orr,  138 
Pa.  St.  276,  20  Atl.  866. 

Tennessee.  —  Chappel  v.  State,  7 
Cold.    (Temi.)   92. 

■'  We  again  repeat  that  the  defense 
of  alibi  is  '  not  one  requiring  that  the 
evidence  given  in  snpport  of  it 
should  be  scrutinized  otherwise  or 
differently  from  that  given  in  sup- 
port of  any  other  issue  in  the  cause;' 
and  we  may  add  that  if  the  trial 
courts  will  cease  to  give  this  particu- 
lar form  of  instruction,  the  ends  of 
justice  will  be  equally  as  well  sub- 
served, and  the  administration  of  the 
laws  less  embarrassed."  People  v. 
Lattimore,  86  Cal.  403,  24  Pac.  109 1. 

The  court  below-  had  instructed  the 
jury,  substantially,  that  alibi  testi- 
mony should  be  weighed  with  great 
caution  because  it  is  a  defense 
easily  fabricated  and  often  attempted 
by  contrivance  or  perjury:  the  court 
held  such  instruction  wrong,  and  for 
the  error  in  giving  it  reversed  the 
case :  reviewing  earlier  cases  sup- 
posed to  conflict  with  such  ruling. 
Dawson  v.  State,  62  Miss.  241. 

The  trial  court  in  the  introductory 
sentence  of  the  instruction  in  ques- 
tion said  to  the  jury:  "The  evidence 
produced  to  establish  an  alibi  should 
be  cautiously  received,  though  when 
proved  it  is  as  strong  as  any  other 
defense."  This,  it  was  held,  was  er- 
ror, as   discrediting  a   legitimate   de- 

48 


fense.  Casey  v.  State,  49  Neli.  403, 
68  N.  W.  643. 

"  The  court  ought  not  to  have  said 
that  the  accused  had  attempted  to  set 
up  an  alibi.  The  use  of  the  word 
'  attempted,'  at  least  bad  a  tendency 
to  convey  to  the  minds  of  the  jury 
an  intimation  that  the  effort  of  the 
accused  to  prove  an  alibi  amounted 
to  nothing  more  than  an  attempt." 
Miles  V.  State,  93  Ga.  117.  19  S.  E. 
805,  44  Am.  St.  Rep.  140. 

Condemning  an  instruction  using 
the  word  "  attempted,"  the  court  held, 
that  the  language  in  question  neces- 
sarily discredited  the  defense;  and 
that  such  error  was  not  remedied  by 
another  instruction,  that  if  the  jury 
lielicved  the  "  plea  of  alibi  "  they 
were  not  authorized  to  convict. 
Kimbrough  r.   State,   lOi   Ga.  583.  29 

S-  E-  39. 
Court    Not    to    Disparage.  — "  The 

defense  was  an  alibi.  An  alilii  is  a 
proper  and  legal  defense.  That  it  is 
a  defense  is  proof  of  its  propriety 
and  legality.  If  it  is  a  defense  at 
all,  it  is  a  good  defense,  and  the  law 
can  attach  no  odium  to  it.  It  is  an 
error  to  say  that  any  good  legal  de- 
fense is  odious  and  suspicious ;  a 
fortiori,  to  say  that  by  the  use  of  a 
legal  defense  a  suspicion  is  cast  upon 
the  truth  of  the  defense.  The  de- 
fense of  an  alibi  is  as  good  a  defense, 
when  proven,  as  any  other  defense, 
and  no  court  has  the  right  to  tell  the 
jury  that  it  is  'often  fabricated  by 
perjury.'     . 

"  The  true  rule  is  stated  in  Wil- 
hams  V.  The  State,  49  Ala.  664 :  '  An 
alibi  is  a  fact,  and  its  existence  is 
established  just  as  any  other  fact 
may  be ;  and  the  testimony  to  support 
it  needs  the  same  weight  of  evidence 
— no  more,  no  less.' "  Nelms  v. 
State,  58   Miss.  362,  364. 

Concerning  an  instruction  com- 
plained of,  the  court  said :  "  That 
instruction  reads;  'The  court  in- 
structs the  jury  that,  though  an  alibi 
may  be  a  well-worn  defense,  yet  it  is 
a  legal  one,  to  the  benefit  of  which 
the  defendant  is  entitled,'  etc.  There 
was  error  in  giving  this  instruction. 

Vol.  I 


r54 


ALIBI. 


2.  Omissions  on  Part  of  Defendant.  —  A.  Faii.uki-;  to  ]\I.\kr 
Di;fi;.\sk  at  l'ki;i,i-Mi.\'AKv  Examinatkix,  Effect  Of.  —  Omission 
to  introduce  alibi  evidence  at  the  preliminary  examination  before  the 
mafjistrate  does  not  operate  to  the  prejudice  of  the  accused.-" 

But  the  omission  on  the  part  of  the  accused  to  produce  evidence 
may  be  a  matter  for  the  jury  to  consider  hi  connection  with  the 
whole  case.-^ 

3.  False  Testimony  in  Support  of  Alibi.  —  A.  I^.vlse  Ai.nii, 
Ekfkot  Of.  —  P'alse  alibi  testimony  does  not  operate  to  strengthen 
the  proofs  adduced  by  the  state.-** 


as  tlie  court  is  not  permitted  to  dis- 
parage the  defense  of  an  alilii,  or  to 
refer  to  it  in  a  slighting  manner. 
Evidence  in  regard  to  an  ah'Iii  is  to 
be  tested  and  treated  just  like  evi- 
dence offered  in  support  of  any  other 
defense:  insanity,  self-defense,  etc. 
I  Bish.  Cr.  Proc.  §  1062;  Sater 
r.  State,  56  Ind.  378;  Walker  v. 
State,  37  Tex.  366;  Albin  i:  State, 
63  Ind.  598;  State  z:  Chee  Gong.  16 
Or.  534,  19  Pac.  607;  II  Enc.  PI  & 
Prac.  360  ct  seg.  and  cases  cited." 
State  V.  Crowell,  149  Mo.  391,  50  S. 
W.  893,   73  .Am.   St.   Rep.  402. 

26.  Omission  to  Produce  Evi- 
dence—  ■•  It  is  easy  to  see  that  there 
may  have  been  good  reasons  why  the 
defendant,  however  innocent,  should, 
as  matter  of  prudence,  have  neglected 
to  go  into  the  evidence  of  the  alibi 
before  the  magistrate."  Sullivan  z'. 
People,  31   Mich.   i. 

27.  Omission  to  Produce  Evi- 
dence—  On  the  trial  of  an  indict- 
ment for  murder,  the  defendant  re- 
quested the  judge  to  instruct  the  jury 
that  he  was  not  bound  to  show  by 
evidence  where  he  was  from  si.x 
o'clock  in  the  afternoon  of  the  al- 
leged day  of  the  murder,  to  two 
o'clock  the  next  morning,  and  that 
the  jury  should  draw  no  inference 
from  any  failure  so  to  do.  The 
judge  declined  to  give  this  instruc- 
tion, but  ruled  that  the  question  was 
entirely  for  the  jury;  that  if  a  pris- 
oner was  shown  to  be  in  any  con- 
nection with  the  transaction  which 
seemed  to  them  to  put  into  his  pos- 
session facts  which,  if  innocent,  he 
would  use,  which  he  could  use  with- 
out going  upon  the  stand  himself,  the 
withholding  of  those  means  to  ex- 
plain the  circimistanccs  might  be 
considered  by  the  jury,  in  connection 

Vol.  I 


with  the  other  testimony,  in  deler- 
mining  how  far  he  was  responsible 
for  the  occurrence.  Meld,  that  the 
defendant  had  no  ground  of  excep- 
tion.    Com.  V.   Costley,   118  Mass.   I. 

"  It  is  easy  to  imagine  a  case  where 
it  would  be  impossible  for  a  prisoner 
upon  his  trial  to  show  his  where- 
abouts on  a  given  day,  and  a  case 
also  where  he  is  guiltless  of  the 
crime  charged,  and  where  prudence 
and  safety  in  regard  10  other  transac- 
tions might  induce  silence  and  sup- 
pression of  the  evidence  of  his 
presence  or  absence,  as  the  case 
might  be.  But  the  rule  which  treats 
the  omission  to  produce  such  evi- 
dence as  strongly  corroborative,  as 
strongly  suspicious  and  inferential 
only,  is  reasonable  as  well  as  hu- 
mane, and  a  safer  and  surer  guide 
to  a  just  result."  Gordon  v.  People, 
.y  N.  Y.  501. 

28.  False  Alibi  Testimony.  —  The 
court  charged  the  jury  substantially, 
that,  if  alibi  proof,  which  if  true 
would  work  a  refutation  of  the 
charges  against  defendant,  sliould 
actually  prove  false,  the  legal  pre- 
sumption w'as  that  the  evidence  of 
the  state  upon  which  conviction  was 
urged,  whether  weak  or  strong,  was 
true. 

Touching  this  instruction  and  al- 
luding to  the  testimony  of  the  state, 
the  court  said:  "It  docs  not  follow 
that,  because  the  defense  has  offered 
to  sustain  itself  by  falsehood,  the 
I)rosecution  has  not.  While  the  law' 
presumes  every  man  to  speak  truth, 
yet  if  that  presumption  be  removed, 
it  does  not  deprive  the  party  of  show- 
ing from  itself  or  otherwise,  that  the 
proof  of  his  adversary  is  insufficient 
or  untrue.  The  jury  may  look  to 
the  attemi>t    ,ind   failure   to  prove  an 


ALIBI. 


755 


4.  How  Truth  of  Defense  Tested.  —  A.  Tiiic  Evidence  of  the 
Static  Not  to  ]!k  L'skd  As  a  Stanuard.  —  The  evidence  of  the 
state  is  not  to  be  used  as  a  standard  b\-  which  to  test  the  truth  of 
that  given  on  the  suljject  of  ahbi  by  the  defense.-'' 


alibi  as  a  fact  against  tlic  defendant, 
weak  or  strong,  as  jnstified  by  the 
surroundings,  Init  not  as  rejecting  a 
legal  presumption  of  the  truth  of 
other  proof  against  him."  Sawyers 
i:  State,   15   Lea   (Tcnn.)   6g4.  (196. 

29.  Evidence  of  State  Not  a 
Standard  by  which  to  test  the  truth 
of  that  given  on  subject  of  alibi  by 


defense.       People     v.      Pearsell,     50 
Mich.  2  J  J,   15-  N.   W.  98. 

All  facts  in  evidence  constituting 
part  of  the  res  gestae,  including  the 
defense  of  alibi,  are  to  be  considered 
by  the  jury  without  discrimination 
as  to  rules  of  evidence.  McNamara 
V.  People,  24  Colo.  61,  48  Pac.  541. 


ALIENS.— See  Citizens  and  Aliens. 


Vol.  I 


ALIENATING  AFFECTIONS. 


I.  PROOF  OF  MARRIAGE,  756 
II.  PROOF  OF  ALIENATION,  756 

1.  Fact  of  Alienation,  756 

A.  Presumption  of  Affection.  756 

B.  Evidence    of    Relations    Beticccn     Husband    and 

Wife,  y<S7 

C.  Partial  Alienation,  739 

D.  Abandonment  of  Home,  759 

E.  Adultery,  yGo 

2.  Defendant's  Agency  in  Alienating,  yfyo 

III.  PROOF  OF  DEFENDANT'S  MOTIVES,  761 

1.  Ez'il  Motive  Must  Exist,  761 

2.  Presumption  From  Fact  of  Alienation.  762 

3.  In  Actions  Against  Parents,  763 

IV.  DAMAGES,  764 

1.  Loss  of  Consortium,  764 

2.  Mitigation  of  Damages,  765 

3.  Exemplary  Damages,  766 

CROSS-REFERENCES. 

Criminal  Conversation  ; 
Damao'es ; 
Husliand  and  Wife. 

I.  PROOF  OF  MARRIAGE. 

In  an  action  for  alienatinf^  the  aiifections  direct  proof  of  a  formal 
marriage  is  not  necessary,  the  general  rule  being  that  evidence  of 
cohabitation,  reputation,  and  acknowledgment  by  the  parties,  a 
holding  themselves  out  to  the  world  as  husband  and  wife  is  a  sufifi- 
cient  proof  of  the  fact  of  marriage,'  and  the  admission  of  the  defend- 
ant that  the  plaintiff  and  his  alleged  wife  were  married  is  sufificient." 

II.  PROOF  OF  ALIENATION. 
1.  Fact  of  Alienation. — .\.  rRiisuMPTio.v  of  Affkctiox. — Plain- 

1.     -Abbot's    Trial    Ev.   681;    Perry       Randall,    in     Mich.    268.   69   N.   W. 

V.  I.ovejoy,  49  Mich.  529,  14  N.  W.       506. 

485;    Scherpf   v.    Szodeczky,    i    A1)b.  2.     Perry  i'.  Lovcjnv,  40  .Mich.  529, 

Pr.    (N.  Y.)   366.     See  also  Mead  v.       14  N.  W.  485. 

Vol.  I 


ALIEN  A  TLYG  AFFECTIONS. 


IS/ 


tiff  need  not  prove  that  he  had  affection  for  his  wife,  the  law 
presumes  that,  and  it  is  for  the  defendant  to  prove  the  contrarv  if 
he  questions  the  fact.^ 

B.  Evidkxce:  of  Relations  Between  HusBAxn  and  Wife. — It 
is  relevant  to  inquire  into  the  terms  on  which  the  husband  and  wife 
lived  together  before  the  appearance  of  the  defendant,  and  evidence 
of  what  they  have  said  or  written  to  or  of  each  other  is  admissible 
for  the  purpose  of  showing  their  mental  demeanor  and  conduct,  and 
whether  they  were  living  on  good  or  bad  terms/ 

Showing  Preliminary  to  Introducing  Declarations.  —  It  is,  however, 
always  required  that  proof  should  be  given  that  the  declarations  or 
letters  of  the  wife  (when  the  husband  is  plaintiff)  purporting  to 
express  her  feelings,  were  made  or  written  prior  to  the  existence 
of  any  facts  calculated  to  excite  suspicion  of  misconduct  on  her 
part,  and  that  there  be  no  grounds  to  suspect  collusion. ° 


3.  Lewis  I'.  Hoft'iiian.  54  .\pp.  Div. 
620,  66  N.  Y.  Siipp.  428 ;  Bailey  z>. 
Bailey,  94  Iowa  598,  63  N.  W.  341. 

Affection    Presumed "  The    law 

presumes  tliat  a  husband  who  lives 
with  and  cohabits  with  his  wife,  she 
bearing  children,  the  issue  of  such 
cohabitation,  has  an  affection  for  her, 
and  this  presumption  continues  until 
it  is  overthrown  l)y  a  fair  preponder- 
ance of  the  testimony  to  the  con- 
trary." Beach  v.  Brown.  20  Wash. 
266,  ss  Pac.  46.  43  L.  R.  A.  114,  72 
Am.   St.   Rep.  98. 

4,  United  States. — Asli  r'.  Prunier, 
105  Fed.  722. 

Alabama.  —  Long  v.  Booe,  106 
Ala.  570,  17  So.  716. 

Iowa.  —  Puth  V.  Ziinbleman,  99 
Iowa  641,  68  N.  W.  895. 

Massachusetts.  —  Pahner  v.  Crook, 
7  Gray  418. 

Michigan.  —  Edgell  v.  Francis,  06 
Mich.  303,  33  N.  W.  SOI. 

Ohio. — Preston  v.  Bowers,  13  Ohio 
St.  I ;  Holtz  V.  Dick,  42  Ohio  St. 
23,  51    Am.   Rep.  791. 

I'ermont.  —  Fratini  v.  Caslini,  66 
Vt.  273,  29  Atl.  252,  44  Am.  St.  Rep. 
843 ;  Rudd  V.  Rounds,  64  Vt.  432,  25 
Atl.  438. 

Wisconsin.  —  Horner  t.  Yance,  93 
Wis.  352,  67  N.  W.  720. 

In  Williams  v.  Williams,  20  Colo. 
SI,  37  Pac.  614,  plaintiff  and  her 
husband  were  secretly  married  in 
New  York,  and  their  marriage  was 
not  known  to  the  defendant  for  one 
year  thereafter.  The  defendant  was 
much  displeased  with  her  son's  mar- 


riage, and  immediately  sought  to 
bring  about  their  separation.  Plain- 
tiff was  of  good  moral  character,  she 
and  her  husband  living  happily  to- 
gether until  the  appearance  of  the 
defendant.  In  conversation  with  her 
husband  just  prior  to  his  leaving 
her,  he  said,  "  Well,  Kate,  you  know 
Ma  has  got  all  the  money  and  will 
not  give  it  to  me  until  we  are 
separated,  but  don't  you  worry,  and 
keep  quiet,  and  when  I  get  it  back 
from  her  I  will  come  and  live  with 
you  again."  Held,  it  was  proper 
therefore,  that  the  husband's  dec- 
larations concerning  such  conduct  on 
his  mother's  part,  and  having  refer- 
ence to  his  separation,  or  contem- 
plated separation  from  his  wife, 
should  be  submitted  to  the  jury  for 
the  purpose  of  enabling  them,  in 
connection  with  other  evidence,  to 
determine  the  cause  or  motive  which 
prompted  his  separation  from  his 
wife.  See  Baker  v.  Baker,  16  Abb. 
N.  C.  293 ;  Buchanan  v.  Foster,  23 
App.  Div.  S-p.  48  N.  Y.  Supp.  732. 

5.  Plaintiff's  wife  wrote  to  her 
parents  in  August,  1879,  prior  to 
leaving  her  husband  ihe  following 
June,  that  he  was  unkind  to  her,  and 
to  such  a  degree  that  she  had  become 
sick  of  her  home.  Held,  that  de- 
fendant could  introduce  this  letter 
as  a  part  of  the  res  gestae,  for  the 
purpose  of  showing  the  state  of  the 
wife's  mind  and  affection  towards 
plaintiff,  and  also  for  the  further 
purpose  of  showing  that  her  leaving 
him  was  due  to  his  illegal  behavior. 

Vol.  I 


r58 


ALinX.l TING  AFFECTIONS. 


Caution  in  Admitting  Declarations. — The  declarations  of  the  wife, 
imputing  to  the  husband  cruel  treatment  of  her  and  showing  want 
of  conjugal  affection  are  to  be  received  under  the  closest  scrutiny, 
and  are  in  no  case  to  be  admitted  unless  it  affirmatively  appears  that 
they  were  made  before  the  wife  was  the  subject  of  intrigue  with, 
or  under  the  influence  of  the  paramour,  in  whose  favor  they  are 
sought  to  be  introduced.'"' 

Declarations  Part  of  Res  Gestae. — Hut  the  declarations  of  the  wife 
made  immediately  before,  and  at  the  time  she  left  her  husband,  of 
his  ill-treatment,  are  competent  evidence  for  the  defendant." 

Declarations  Favorable  to  Plaintiff.  — And  it  is  held  that  the  plain- 
tiff also  has  the  right  to  give  in  evidence  the  declarations  of  his  wife 
made  recently,  prior  to  the  seduction,  in  order  to  show  the  state  of 
her  feelings  toward  him  at  the  time.** 

Letters  Showing  Husbands  Affection  Admissible.  — Letters  written  by 
the  husband  to  the  wife  during  coverture  ^re  admissible  for  the 
purpose  of  showing  the  aft'ection  of  the  husband  towards  the  wife." 


Perry  i\  Lovejoy,  49  Mich.  529; 
White  V.  Ross,  47  Mich.  172,  10  N. 
W.   188,  distinguished. 

6.  Gilchrist  V.  Bale,  8  Watts  (Pa.) 
355 ;  Dickemiaii  "•.  Graves,  6  Cush. 
(Mass.)  308,  53  Am.  Dec.  41  ;  Higham 
V.  Vanosdol,  loi  Ind.  160;  Palmer 
V.  Crook,  7  Gray  (Mass.)  418; 
Fratini  v.  Caslini,  66  Vt.  273,  29  Atl. 
252,  44  Am.  St.  Rep.  843.  But  sec 
Huot  V.  Wise,  27  Minn.  68,  6  N.  W. 
425- 

7.  In  Gilchrist  v.  Bale,  S  Watts 
(Pa.)  355,  defendant  offered  to  prove 
that  she  went  to  her  physician,  and 
complained  that  her  hushand  treated 
her  badly,  and  showed  marks  on  her 
arms,  which  she  said  she  had  re- 
ceived from  his  beating  her,  and 
asked  him  what  she  should  do;  that 
he  advised  her  to  go  to  her  father 
and  leave  her  husband.  The  court 
said  :  "  The  evidence  was  very  per- 
tinent;  for  if  Mrs.  Bale  left  her  hus- 
band in  consequence  of  ill  treatment, 
it  was  an  answer  to  the  plaintiff's 
action.  The  material  part  of  the 
testimony  was  the  advice  of  the  wit- 
ness that  she  should  leave  her  hus- 
band. The  residue  of  the  offer  ex- 
plains the  reasons  which  induced  him 
to  give  this  advice,  and  were  evi- 
dence in  explanation.  The  witness 
saw  the  marks  on  her  arm,  and  was 
informed  by  her,  at  the  time,  that 
they  arose  from  the  ill  treatment  of 
her  husband.  If  I  am  correct,  the 
latter   part   of   tlie   offer   was    uncon- 

Vol.  I 


nected  with  information  derived 
from  Mrs.  Bale,  and  in  that  view 
was  undoubtedly  evidence,  as  it 
tended  to  show  the  motives  which 
governed  the  wife  in  leaving  the 
protection  of  her  husband."  Cattison 
V.  Cattison.  22  Pa.  St.  275;  Palmer 
V.  Crook,  7  Gray  (Mass.)  418;  Glass 
V.  Bennett  (5  Pickle),  89  Tenn.  478; 
Rudd  V.  Rounds,  64  Vt.  432,  25  Atl. 
438.  But  see  Kidder  v.  Lovell,  14 
Pa.  St.  214. 

8.  I  Greenl.  §102;  Preston  v. 
Bowers,  13  Ohio  i  ;  Palmer  7'.  Crook, 
7  Gray   (Mass.)   418. 

9.  Beach  v.  Brown,  20  Wash.  266, 
tS  Pac.  46.  43  L.  R.  A.  114,  72  .\m. 
St.  Rep.  98:  Hohz  ;■.  Dick,  42  Ohio 
St.   2J,  51    ,\m.    Rep.   7gi. 

Letters  Showing  Wife's  Affection. 
In  March.  1880,  plaintiff  went  to 
look  up  a  location  for  his  family, 
leaving  his  wife  and  children  in  the 
house  tliey  had  been  occupying  on 
defendant's  farm.  While  in  Kansas 
he  received  letters  from  his  w^fe,  two 
of  which  were  produced  on  the  trial, 
one  of  which  indicated  affection  for 
him,  whilst  the  other  did  not,  which 
caused  him  to  return  at  once.  He 
then  lived  with  his  wife  for  about 
one  week,  when,  without  his  knowl- 
edge or  consent,  she  left  his  home 
and  went  to  her  father's.  The  letter 
indicating  the  wife's  affection  was 
properly  admitted  as  showing  the 
wife's  affection  at  the  time,  and 
immediately      after      his      departure. 


ALIEN  A  TIXG  AFPECTIOXS. 


Js<) 


liut  the  letters  of  one  consort  to  the  other,  showing-  the  state  of  his 
or  her  affections  toward  the  other  are  inadmissible  in  a  suit  against 
the  parents,  imtil  it  is  first  shown  that  there  was  misconduct  on  the 
part  of  the  parents.'" 

Husband's  Statement  When  Wife  Plaintiff,  Inadmissible.  —  E.xcept  as 
hereinbefore  stated,  the  declarations  of  the  husband,  made  in  the 
absence  of  the  defendant,  as  to  the  cause  of  his  abandoning  or  put- 
ting away  his  wife,  are  not  admissible,"  nor  the  declarations  of  the 
wife  in  an  action  for  enticing  awa}"  the  wife.'- 

C.  r.\RTi.\i.  Alien.vtion. — If  plaintiiT  shows  even  a  partial  alien- 
ation of  the  wife's  affections,  the  defenilant  is  liable.  Xor  is  he 
required  to  show  that  at  the  time  in  question  his  wife  had  affection 
for  him  and  defendant  completely  alienated  it   from   him.'-' 

D.  Ar.AXDONMENT  OF  HoME. — It  is  not  necessary  to  prove  de- 
baucherv.  or  that  the  wife  was  enticed  away  from  the  home  of  the 


Perry   i',    Lovejov.  49   !Mich.   529.    14 
N.   \V.  485- 

In  Rubenstein  v.  Rubenslein,  App. 
Div.,  69  N.  Y.  Supp.  1067.  a  letter 
written  to  plaintiff  by  ber  bnsband 
two  years  after  commencement  of 
the  action  is  not  admissible  to  sbow 
existence  of  affectionate  relations  be- 
tween them. 

10.  White  ■■.  Ross.  47  Mich.  172, 
10  N.  W.  188;  Edgell  f.  Francis,  66 
Mich.  303,  33  N.  W.  501.  Bnt  see 
Perry  v.  Lovejoy,  49  Mich.  529.  14 
N.  W.  485- 

Where  the  letters  written  by  the 
wife  and  her  statements  are  intro- 
duced in  evidence  on  behalf  of  plain- 
tiff, as  showing  the  state  of  her  mii-id 
and  affection  towards  her  bnsband, 
it  is  error  not  to  allow  the  wife  to 
testify  for  defendants  (ber  parents) 
if  the  version  of  the  wife  would  have 
been  in  their  favor.  McKenzie  1'. 
Lantenschalanger.  113  Mich.  171,  71 
X.  W.  489. 

11.  Winsniorc  ''.  Greenbank, 
Wiles  577;  Westlake  z:  Westlakc. 
34  Ohio  St.  621.  32  Am.  Rep.  397. 
But  see  Williams  7'.  Willian-is,  20 
Colo.  SI,  37  Pac.  614;  Baker  z\  Baker. 
16  Abb.  N.  C.  (N.  Y.)  293;  Buchanan 

Foster.  23  App.  Div.  542,  48  N.  Y. 
upp.   732. 

12.  Iligham  ;•.  X'anosdol.  lOi  Ind 
160. 

The  wife  will  not  be  permitted  to 
give  conversations  had  with  her 
husband  as  to  opposition  of  his 
parents  to  their  marriage.  Huling 
'■.    Huling.   32    111.   App.    519. 


S 


Confessions  of  the  wife  in  the 
absence  of  the  paramour  are  not  ad- 
missible against  him.  Sanborn  r. 
Gale,  162  i\Iass.  412,  38  N.  E.  710, 
26  L.  R.  A.  864.  But  see  Underwood 
V.  Linton,  44  Ind.  72;  Lewis  z'.  Hoff- 
man, 54  App.  Div.  620,  66  N.  Y.  Supp. 
428. 

In  Edgell  v.  Francis.  66  Mich.  303, 
33  N.  W.  501.  the  husband  sued  his 
father-in-law  for  taking  his  wife  and 
child,  and  persuading  her  to  remain 
at  his  home  and  away  from  plaintiff. 
The  stateinents  of  the  wife  were  in- 
troduced as  to  why  she  stayed  with 
her  parents  and  her  feelings  and 
wishes,  also  to  having  warned  plain- 
tiff to  stay  away  from  defendants. 
The  court  said:  "This  is  undoubt- 
edly hearsay,  but  it  is  claimed  to  be 
one  of  the  exceptions  to  the  rule  of 
e-xclusion  relating  to  what  are 
usually  called  res  gestae  or  accon-i- 
panying  acts  and  circumstances 
which  cannot  be  well  understood 
without  such  testimony." 

The  evidence  being  regarded  as 
explanatory  of  her  residence  with 
her  parents  was  the  only  means,  ex- 
cept calling  her  as  a  witness,  of  as- 
certaining these  facts,  and  was  prop- 
erly admitted. 

13.  Fratini  ■;■.  Caslini.  66  Vt.  273, 
29  Atl.  252,  44  Am.  St.  Rep.  843; 
Dallas  z'.  Sellers.  17  Ind.  479,  79  .■\m. 
Dec.  489;  Nichols  t.  Nichols.  147 
Mo.  387.  48  S.  W.  947.  See  E.v  parte 
Warfield.  40  Te.x.  Crim.  App.  413, 
50  S.  W.  933.  76  .\m.  St.  Rep.  ~2y. 


Vol.  I 


760 


AUIIXA TING  AFFECTIONS. 


husband  in  order  to  recover  for  alienating  her  atiections." 

E.  Adultkkv.  — It  is  not  necessary  to  prove  ackiltery  between  the 
wife  of  plaintiff  and  defendant  to  sustain  the  action.''' 

2.  Defendant's  Agency  in  Alienating.  —  To  maintain  the  action 
plaintiff  must  show  a  wrongful  and  willful  attem])t  on  the  part  of 
defendant  to  alienate  the  affections  of  the  consort,  and  to  deprive 
plaintiff  of  the  consort's  society,  that  such  attempt  was  successful, 
and  that  plaintiff  was  not  a  consenting  party.'" 

To  entitle  the  plaintiff'  to  recover,  in  an  action  for  alienating  the 
affections,  it  is  necessary  to  prove  that  the  defendant  maliciously 
caused  the  husband  or  wife  to  leave  the  other. '^ 

Wrongful  Act  of  Defendant.  — There  must  be  a  direct  interference 
on  defendant's  part,  a  wrongful  act  or  acts  shown,  whereby  it  is 
made  to  appear  that  defendant  has  wrongfully  alienated  the  affec- 
tions of  the  consort,  and  this  must  be  shown  by  a  preponderance  of 
the  evidence.'* 


14-  Hermance  v.  James,  47  Barb. 
120;  Hoard  v.  Peck,  56  Barb.  202; 
Adams  v.  Main,  3  Ind.  App.  232,  29 
N.  E.  792,  so  Am.  St.  Rep.  266;  Van 
Olinda  v.  Hall,  68  N.  Y.  St.  711.  34 
N.  Y.  Supp.  777. 

In  Foot  V.  Card,  58  Conn,  i,  18  Atl. 
1027,  18  Am.  St.  Rep.  258,  6  L.  R.  A. 
829,  it  is  held  the  fact  that  the 
man  and  wife  continued  to  live  to- 
gether will  not  defeat  the  wife's  ac- 
tion against  another  woman  for  alien- 
ating the   affections   of  her  husband. 

The  alienation  of  the  wife's  affec- 
tions for  which  the  law  gives  redress 
may  be  accomplished  notwithstand- 
ing her  continued  residence  under  her 
husband's  roof.  Reinhart  v.  Bills, 
82  Mo.  534,  52  Am.  Rep.  385. 

15.  Adams  v.  Main.  3  Ind.  App. 
232,  29  N.  E.  792;  Higham  v. 
Vanosdol,   loi    Ind.   160. 

16.  Van  Olinda  v.  Hall,  68  N.  Y. 
St.  711,  34  N.  Y.  Supp.  Tjy;  Read- 
ing z'.  Gazzam,  200  Pa.  St.  70,  49 
Atl.  889;  Ash  V.  Prunicr,  105  Fed. 
722;  Warner  v.  Miller,  17  Abb.  N.  C. 
(N.  Y.)  221;  Churchill  v.  Lewis,  17 
Abb.  N.  C.  (N.  Y.)  226;  Whitman 
V.  Egbert.  2y  App.  Div.  374,  50  N.  Y. 
Supp.  3;  Childs  V.  Muckler,  105 
Iowa  279,  75  N.  W.   100. 

17.  Westlake  v.  West  lake,  34 
Ohio  St.  621.  32  Am.  Rep.  397;  Wald- 
ron  V.  Waldron,  45  Fed.  315;  Buch- 
anan T'.  Foster,  23  App.  Uiv.  542,  48 
N.  Y.   Supp.  732. 

It  must  appear  that  the  defendant 
lias    acted     from    improper    motives. 

Vol.  I 


Schuneman  v.  Palmer,  4  Barb.  (N. 
Y.)    225. 

As    Showing    Motive Tucker    v. 

Tucker,  74  Miss.  93,  19  So.  9tS.  i2 
L.   R.   A.  623. 

18.  "  The  defendant  should  not  be 
held  to  answer  in  damages  because 
the  plaintiff's  husband  left  her,  al- 
though without  good  cause,  and  af- 
terwards fell  in  love  with,  and  finally 
married  defendant.  If  the  husband 
alienated  his  own  affections  from 
his  wife,  or  if  alienated  by  the  plain- 
tiff's own  conduct,  or  both,  without 
the  interference  of  defendant,  or  if 
they  were  alienated  by  any  other 
cause  known  or  unknown,  over  which 
defendant  had  no  control  or  ex- 
ercised no  intentional  direction  or 
influence,  then  the  plaintiff  howsoever 
unfortunate  or  wronged,  cannot  re- 
cover damages  from  the  defendant." 
Waldron  v.  Waldron,  45  Fed.  315. 

Statements  Made  in  Absence  of 
Plaintiff;  When  Admissible.  —  In 
Bailey  v.  Bailey.  94  Iowa  598.  O3 
N.  W.  341,  defendants  proposed  to 
prove  that  they  offered  their  son, 
plaintiff's  husband,  eighty  acres  of 
land,  a  team,  farming  implements, 
and  one  year's  supplies,  if  he  would 
go  there  and  live  with  her.  This 
evidence  was  refused  on  the  ground 
that  it  called  for  self-serving  declar- 
ations, made  at  a  time  when  plain- 
tiff was  not  present.  Held,  this  was 
error.  The  fact  that  the  statements 
were  not  made  in  the  presence  of 
plaintiff   was   wholly   immaterial,    for 


ALIEN  A  riXG  AFFECTIONS. 


761 


Defendant's  Conduct  Controlling  Cause. — It  is  nut  necessarv  for  the 
plaintiff  to  prove  the  clefendant's  coiKkict  was  the  sole  cause  of  his 
wife's  leaving-  him  :  it  is  sufficient  to  show  that  defendant's  conduct 
was  the  controlling-  cause  without  which  she  would  not  have  left 
him.'" 

Financial  Standing  of  Defendants. — Evidence  ma\-  he  intniduced  as 
to  financial  standing-  of  the  parents,  to  show  the  weight  and  prohahle 
effect  of  the  property  inducements  held  out  by  them  to  their  cj-iild  to 
abandon  either  husband  nr  wife.-" 

Declarations  of  Co-Conspirator. — If  the  plaintiti  has  established  the 
fact  that  a  conspiracy  has  been  entered  into  by  two  or  more  jiarties 
to  entice  away  his  wife,  the  declarations  of  one  of  the  conspirators 
would  become  evidence  against  the  other  defendants,  provided  those 
declarations  'a'cre  made  in  fnrtlterance  of  tlie  coinnioii  design,  tend- 
ing to  eft'ectuate  the  object  of  the  conspiracy,  and  sp  becoming,  not 
mere  words,  but  verbal  acts.-' 

III.  PROOF  OF  DEFENDANT'S  MOTIVE. 

1.  Evil  Motive  Must  Exist. — If  the  husband's  conduct  has  been 
such  as  to  justif}-  the  wife  in  leaving  him,  he  cannot  maintain  an 
action   against    one    who    assists    her,   or    receives    or   harbors    her, 


they  were  not  offered  as  bearing 
upon  her  knowledge  of  defendant's 
treatment  of  his  son.  "  It  was  sub- 
stantive testimony  of  verlial  acts, 
tending  to  show  that  defendant  was 
trying  to  induce  his  son  to  live  with 
plaintiff,  and  that  the  son's  refusal 
to  do  so,  was  not  brought  about  by 
his  conduct." 

19.  Prettyman  v.  Williajnson.  i 
Penn.  ( Del. )  224.  ,^g  At!.  731  ;  Rice 
V.  Rice,  104  Mich.  371,  62  N.  W.  833; 
Waldron  f.  Waldron,  45  Fed.  315. 

In  Bathkc  '•.  Krassin,  78  Minn.  272, 
80  N.  W.  950.  there  was  no  evidence 
that  either  defendants  ever  advised 
their  sister  to  leave  her  husband,  the 
plaintiff.  One  of  defendants,  in  the 
presence  of  his  sister,  disparaged, 
criticized  and  belittled  the  husliand, 
his  house,  his  farm,  his  work  and  his 
financial   condition. 

Three  days  after  the  marriage  the 
wife  wrote  plaintiff,  reproaching  him 
because  he  had  not  prepared  a  better 
house  for  her,  threatening  to  leave 
him.  Held,  that  while  the  conduct 
of  defendants  may  have  been  one 
of  the  inducing  causes  of  the  wife's 
separation,  it  was  a  fair  inference 
that  the  wife  was  disappointed  in  the 
financial    condition    of    her    husband, 


and  tliat  this  was  one  of  the  causes, 
if  not  tlic  causi',  of  her  leaving  him, 
and  the  award  of  damages,  when 
compared  with  the  evidence,  was  so 
excessive  as  to  justify  the  conclusion 
that  the  verdict  was  the  result  of 
passion  or  prejudice. 

20.  Price  v.  Price,  91  Iowa  693, 
60  N.  W.  202,  51  Am.  St.  Rep.  360, 
29  L.  R.  A.  150;  Nichols  V.  Nichols, 
147  Mo.  387,  48  S.  W.  947;  Johnston 
r.  Allen,  100  N.  C.  131,  5  S.  E.  666. 

In  Knapp  r.  Wii-ig,  72  \'t.  334,  47 
.\tl.  1075.  it  was  held  not  error  to 
admit  evidence  tending  to  show  that 
defendant  attempted  to  use  the  in- 
fluence of  her  property  to  alienate 
the  husband  from  the  wife,  and  in 
that  connection  to  show  the  amount 
of   property   defendant   possessed. 

Contra.  —  But  see  Bailey  :>.  Bailey, 
94  Iowa  598,  63  N.  W.  341,  which 
holds  that  it  is  improper  to  admit 
evidence  as  to  the  wealth,  rank,  social 
position  or  condition  of  defendants, 
and  Derham  v.  Derham,  123  Mich. 
451,  83   N.   \V.   1005. 

21.  Preston  i\  Bowers.  13  Ohio 
St.     i;     Beeler    v.    Webb,     113    111. 

436.  But  see  Buchanan  z\  Foster, 
23  App.  Div.  542.  48  N.  Y.  Supp. 
732. 

Vol.  I 


762 


.mux. I TJ.XC  Al'l'ECriONS. 


provided  it  be  shown  that  his  assistance  is  rendered  from  motives 
of  humanity,  and  not  from  an  evil  motive  or  purpose,  or  in  bad 
faitli  towards  the  husband. "'- 

A  Question  for  the  Jury.  — The  material  point  of  inquirx'  is  the 
intent  with  which  the  defendant  has  acted.  It  is  therefore  a  question 
for  the  jury  to  determine  whether  the  defendant  has  acted  from 
improper  motives.-'' 

2.  Presumption  From  Fact  of  Alienation. — If  defendant  did  intend 
to  induce  a  separatinn  he  has  a  right  to  show  that  his  advice  was 
given  honestly,  with  a  view  to  the  welfare  of  both  parties.'-* 

The  burden  is  upon  the  defendant  to  give  some  proper  and 
reasonable  explanation  for  his  conduct  in  inducing  the  plaintiff's 
wife  to  leave  him.'-" 

Wife's  Statements  No  Excuse. — And  the  mere  statement  of  the  wife 
that  she  w^as  abused  by  her  husbantl,  without  any  proof  of  such 
abuse,  in  fact,  will  not  justify  the  defendant  in  advising  her  to  leave 
her  husband.-" 


22.  I  Bish.  Mar.  &  Div.,  §  1362; 
Pretlyman  v.  Williamson,  i  Penn. 
(Del.)  224,  39  All.  731;  Van  Oliiida 
V.  Hall,  68  N.  Y.  St.  611,  34  N.  Y. 
Supp.  777. 

23.  Colorado.  —  Williams  v.  Wrl- 
liams,  20  Colo.   51,  37   Pac.  614. 

Indiana.  —  Higham  v.  'Vanosdol, 
lOi    Ind.    160. 

Missouri.  —  Modi.sett  v.  McPike, 
74  Mo.  636;  Hartpence  v.  Rogers, 
143  Mo.  623,  43  S.  W.  650. 

Nciv  York.  —  'Wilson  v.  Coulter,  29 
App.  Div.  85,  51  N.  Y.  Supp.  804; 
Warner  ?'.  Afiller,  17  Abb.  N.  C.  221  ; 
Smith  J'.  Lyke,  13  Hun  204;  Scluuie- 
man  i'.  Palmer,  4  Barb.  225 :  Barnes 
V.  Allen,   I   Keyes  390. 

North  Carolina. — Brown  7'.  Brown, 
124  N.  C.  19,  32  S.  E.  320,  70  Am. 
St.  Rep.  574. 

0/iiV>.  —  Westlakc  r.  Wcstlakc,  34 
Ohio   St.   621,  32   .\m.   Rep.   397. 

Malice  Implied  From  Conduct. 
In  the  case  of  Westlake  r.  West- 
lake,  24  Ohio  St.  621,  32  Am.  Rep. 
397,  it  was  said ;  "  The  term  malice, 
as  applied  to  torts,  does  not  neces- 
sarily mean  tliat  wliich  must  proceed 
from  a  spiteful,  malignant,  or  re- 
vc-ngefid  disposition,  but  a  conduct 
injurious  to  another,  though  proceed- 
ing from  an  ill-regulated  inind,  not 
sufficiently  cautious  before  it  occa- 
sions an  injury  to  another.  If  the 
conduct  of  the  defendant  was  unjus- 
tifiable and  actually  caused  the  in- 
jury   complained    of   by    the   )ilainliff. 

Vol.  I 


which  was  a  question  for  the  jury, 
malice  in  law  would  be  implied  from 
such  conduct,  and  the  court  sliould 
have  so  charged." 

24.  Tasker  z:  Stanlev,  15?  Mass. 
148,  26  N.  E.  417,  10  L.  R.  A.  468. 

25.  Highain  v.  'Vanosdol,  loi  Ind. 
160;  Johnston  ?■.  Allen,  100  N.  C, 
131,  5  S.  E.  666. 

"  That  a  state  of  circumstances 
might  e.xist  where  a  stranger  would 
be  justified  in  carrying  a  wife  beyond 
the  reach  of  her  husband  with  her 
consent,  and  without  his,  can  not  be 
denied ;  but  such  an  adventure  on 
the  part  of  a  stranger  is  always  at- 
tended with  the  peril  of  his  being 
able  to  show  to  the  satisfaction  of  a 
court  that  the  .safety  of  the  wife,  ap- 
parently, at  least,  demanded  his  inter- 
vention, and  that  what  he  did  was 
meant  in  good  faith  for  her  protec- 
tion." Higham  v.  Vanosdol.  loi  Ind. 
I  ho. 

26.  Barnes  z:  Allen.  30  Barb.  663. 
In  Rndd  z:  Rounds,  64  Vt.  432.  25 

.\tl.  4,^8,  it  appeared  that  plaintiff's 
wife  left  her  home  and  went  to  a 
neighbor's,  where  the  defendant  was 
hoarding;  that  she  then  bore  marks 
of  violence  about  licr  face  and  arms. 
The  defendant  offered  to  show  that 
on  that  day  she  expressed  fears  of 
liodily  injury  from  her  husband,  and 
declined  to  follow  defendant's  ad- 
vice to  return  to  her  husband  and 
live  with  him,  such  statements  were 
admissible. 


JUnX.  i ri.XG  --^FI'ECTIOXS. 


763 


3.  In  Actions  Against  Parents. — In  actions  against  the  parents  of 
either  husband  or  wife,  much  stronger  evidence  of  malicious  and 
imjiroper  motives  must  be  shown  than  where  the  action  is  against 
a  stranger.     Bad  or  unworthy  motives  cannot  be  presumed.-^ 

Parent's  Motive  Important.  —  In  every  suit  of  this  character  the 
(|uestion  always  must  be,  from  what  motive  did  the  parent  act? 
Was  it  malicious,  or  was  it  inspired  by  a  proper  parental  regard  for 
the  welfare  and  happiness  of  the  child!'-*' 


27.  Arkansas.  —  BurncU  r.  Burk- 
head.  2i    .A^rk.  77,   76   Am.    Dec.   358. 

Indiana.  —  Reed  v.  Reed.  6  Ind. 
■  Vpp.   .?!/.   3i   N.   E.  638. 

Massachusetts.  —  Tasker  "'.  Tasker, 
m^  Mass.  148.  2b  X.  E.  417,  10  L.  R. 
.\.  468. 

Michigan.  —  White  v.  Ross,  47 
Mich.  172.  10  N.  W.  188. 

Mississippi.  —  Tucker  v.  Tucker,  74 
Miss.  93.  19  So.  955,  i2  L.  R.  A.  623. 

.Vrtf  York.  —  Hutchesou  v.  Peck, 
5  Johns.  196:  Bennett  v.  Smith,  21 
Barb.  439 ;  Smith  ;■.  Lyke,  13  Hun 
204,  20  N.  Y.  Supp.  204. 

Ohio.  —  Friend  f.  Thompson, 
W  right  636. 

1  cnncsscc.  —  Pavue  '■.  WiUiams.  4 
Ba.xt.  583. 

The  Conduct  of  the  Parent  Must 
Be  Proved  To  Be  Malicious. 
Brown  v.  Brown,  124  \.  C.  19.  ^2 
S.  E.  320.  70  .\m.   St.   Rep.  574. 

28.  Illinois.  —  Huling  v.  Huling. 
.?2  111.  App.  519. 

Kansas. — Eagon  v.  Eagon,  60  Kan. 
697.  57  Pac.  942. 

Maine.  —  Oaknian  i-.  Belden,  94 
Me.  280,  47  .\tl.  553.  So  .\ni.  St.  Rep. 
396. 

Massachusetts.  —  Tasker  v.  Tasker. 
153  Mass.   148.   10  L.  R.  A.  468. 

Michigan.  —  Rice  v.  Rice.  104 
Mich.  371,  62  N.  W.  833;  White  v. 
Ross,  47  Mich.  172,  10  N.  W.  188. 

Mississippi.  —  Tucker  !•.  Tucker,  74 
Miss.  93,  19  So.  955,  iz  L.  R.  A.  623. 

Missouri.  —  Modisett  i:  McPike,  74 
.Mo.  6.36. 

Xortli  Carolina. — Brown  v.  Brown. 
124  N.  C.  19,  32  S.  E.  320,  70  Am. 
St.  Rep.  574- 

Pennsyk'ania.  —  Gernerd  v.  Ger- 
nerd,  185  Pa.  St.  233.  39  ."Vtl.  884.  40 
L.  R.  A.  549,  64  .•\m.  St.  Rep.  646. 

Washington.  —  Beach  i'.  Brown,  20 
Wash.  266,  55  Pac.  46.  43  L.  R.  A. 
114. 

Quo   Animo   Important   Considera- 


tion. —  When  a  father  or  mother  is 
cliarged  with  the  alienation  of  the 
luisband's  or  wife's  affections,  the 
t/uo  aninw  is  an  important  con- 
sideration. The  right  of  the  parents 
to  advise  their  children  tjiust  be  care- 
fully protected  as  well  as  the  rights 
of  husband  or  wife.  Rice  v.  Rice, 
104   Mich.  371,  62  N.  W.  833. 

Plaintiff  and  her  husband  were 
married  in  May,  1892,  and  went  to 
live  at  the  home  of  his  parents,  and 
continued  to  so  reside  until  March, 
1893;  during  this  time  plaintiff  and 
defendants  had  frequent  quarrels, 
which  finally  resulted  in  defendants' 
compelling  plaintiff  to  leave  their 
house.  Defendants  at  that  time 
made  no  attempt  to  keep  their  son, 
plaintiff's  husband,  from  living  with 
her.  It  was  show-n  by  the  testimony 
of  one  witness  that  after  plaintiff 
had  gone  to  reside  with  her  parents, 
.Mrs.  Young,  one  of  defendants,  re- 
quested the  witness  to  use  her  in- 
fluence to  prevent  plaintiff's  husband 
from  again  living  with  her.  giving 
as  a  reason  that  if  he  did  so  his 
father  would  disinherit  him,  but  wit- 
ness never  mentioned  the  matter  to 
the  husband.  Held,  that  plaintiff  had 
failed  to  show  that  her  husband's 
refusal  to  live  with  her  was  due  to 
improper  influence  exercised  over 
him  by  his  parents.  Young  z'.  Young, 
8  Wash.  81.  35  Pac.  592. 

In  Rice  ?'.  Rice,  104  Mich.  371,  62 
N.  W.  833,  where  the  husband  had 
made  up  his  mind  to  leave  his  wife 
if  she  rejoined  the  Catholic  church, 
and  finding  that  she  had  done  so 
commenced  to  move  the  furniture 
out  of  the  house.  Upon  his  wife's 
return  from  church  he  then  informed 
her.  in  the  presence  of  his  father, 
the  defendant,  that  as  she  had  gone 
back  to  the  church  he  would  no 
longer  live  with  her. 

It  appeared  that  defendant  did  not 

Vol,  I 


764 


ALIEN  A  rise,  Afl'ECriOXS. 


IV.  DAMAGES. 

1.  Loss  of  Consortium.  —  The  gist  of  the  matter  is  the  loss  of  the 
comfort  and  society  of  the  consort,  and  it  is  not  necessar\-  to  prove 
any  pecuniary  loss.-" 

It  is  not  necessary  to  show  actual  loss  of  support  caused  hy 
alienation  of  the  spouse's  affections ;  it  is  sufficient  to  show  the 
injured  feelings,  mortification  and  mental  anguish  caused  hy  such 
alienation.-'" 

Proof  of  Social  Position  Admissible. — It  is  competent  for  eithrr  (jartv 
to  show   plaintiff's  occupation,  and   ])erhaps   the   social   position   of 


advise  plaintiff's  hushaiul  to  leave 
her  until  after  she  had  gone  back  to 
her  church.  Held,  defendant  was 
not  liable ;  that  it  was  not  shown 
that  plaintiff's  husband  left  her  be- 
cause defendant  alienated  his  affec- 
tions; that  he  had  a  right  to  object 
to  his  son's  marrying  a  Catholic; 
that  he  had  a  right  to  advise  his 
son  that  it  would  be  unwise  for  liini 
to  live  with  her  if  she  again  joined 
the  church,  and  any  advise  given 
after  the  separation  wotdd  not  render 
him   liable. 

Gernerd  r.  Gernerd,  185  Pa.  _'.?,?, 
39  Atl.  884,  40  L.  R.  A.  549,  64  .\m. 
St.  Rep.  646. 

The  case  of  Brown  t.  Brown,  124 
N.  C.  19,  32  S.  E.  320,  was  a  suit 
against  the  father  of  plaintiff's  hus- 
band. The  court  said :  "  Before  a 
parent  can  be  held  liable  in  damages 
for  advising  his  married  child  to 
abandon  his  wife  or  her  husband, 
the  conduct  of  the  parent  should  be 
alleged  and  proved  to  be  malicious ; 
that  the  willful  advice  and  action 
of  the  parent  in  such  a  case  may  not 
be  necessarily  malicious,  for  the 
parent  may  be  determined  and  per- 
sistent and  oljstinate  in  liis  purpose 
to  cause  the  separation,  and  yet  be 
entirely  free  from  malice — in  fact, 
have  in  view  the  highest  good  of  his 
child.  Our  opinion,  however,  is  that 
the  malice  necessary  to  be  alleged 
and  proved  is  not  alone  such  malice 
as  inust  proceed  from  a  malignant 
and  revengeful  disposition,  but  that 
it  would  be  sufficient  to  prove,  to 
the  satisfaction  of  the  jury,  that  the 
parent's  action  was  taken  without 
proper  investigation  of  the  facts,  or 
where  the  advice  was  given  from 
recklessness  or  dishonesty  of  purpose; 

Vol.  I 


the  law  presuming  malice  from  such 
conduct  in  actions  of  tliis  nature." 

29.  £)<'/(iic'(i)Y.— Prettyman  f.  Wil- 
liamson,   I    Penn.   224,  39  Atl.   731. 

Illinois.  —  Betser  v.  Betser,  186 
111-  537,  58  N.  E.  349,  78  Am.  St.  Rep. 
303- 

Indiana.  —  Adams  v.  Main.  3  Ind. 
App.  232,  29  N.  E.  792,  50  .\ni.  St. 
Rep.    266. 

Michigan.  —  Perry  7'.  Lovejoy,  49 
Mich.  529,  14  N.  W.  485- 

Minnesota.  —  Lockwood  f.  Lock- 
wood,  67  Minn.  476,  70  N.  W.  784. 

Missouri.  —  Reinhart  v.  Bills,  82 
Mo.  534.  52  Am.  Rep.  .^85. 

New  York.  —  Bennett  v.  Bennett. 
116  N.  Y.  584,  23  N.  E.  17,  6  L.  R.  A. 
553;  Van  Olinda  v.  Hall.  68  N.  Y. 
St.  711,  34  N.  Y.  Supp.  777;  Bennett 
V.  Smith,  21  Barb.  439;  Barnes  v. 
.•\llen,  I  Keyes  390 ;  Hermance  v. 
James,  47  Barb.  120;  Hutcheson  v. 
Peck,  5  Johns.  207 ;  Schuueman  v. 
Palmer,   4   Barb.   227. 

Pennsylvania.  —  Reading  v.  Gaz- 
zam,  200  Pa.  St.  70,  49  Atl.  889. 

Vermont.  —  Fratini  -■  Caslini.  66 
Vt.  273,  29  Atl.  252.  44  .\m.  St.  Rep. 

843- 

Loss     of     the     Consortium.  —  In 

Prettyman  v.  Williamson,  i  Penn. 
(Del.)  224,  39  Atl.  731,  it  was  said: 
"  The  action  is  based  mainly  on  what 
is  termed  'loss  of  the  consortium.' 
that  is,  the  loss  of  the  conjugal 
society,  affection  and  assistance  of 
the  wife,  and  it  is  not  necessary  to 
the  maintenance  of  the  action  that 
tliere  should  be  any  pecuniary  loss 
whatever." 

30.  Rice  f.  Rice,  91  Iowa  693,  62 
N.  W.  833,  51  Am.  St,  Rep.  360: 
Bowerso.x  z'.  Bowersox,  ii^  Mich. 
24,  72  N.  W.  986. 


ALIENATING  AFFECTIONS. 


765 


herself  and  luisl)aiul,  as  licaring  upon  the  value  of  the  huslia'id's 
consortinut:'^ 

Evidence  of  the  Reputed  Wealth  of  defendant  in  actions  of  this 
nature  is  inadmissible. •'- 

Letters  Written  by  Plaintiff's  Wife  to  him  prior  to  an  alleged  aliena- 
tion of  her  alifections,  are  admissible  in  evidence  on  the  question  of 
damages  alleged  to  have  lieen  sustained  by  plaintiff.'-' 

2.  Mitigation  of  Damages. — In  mitigation  of  damages  evidence 
may  be  introduced  which  shows  that  prior  to  the  wife's  relation  with 
defendant  the  relations  between  her  and  her  husband  were  unhappy, 
or  that  they  were  wanting  in  affection  for  each  other,  or  that  he  was 
cruel  or  unkind  in  his  treatment  of  her,  or  any  misconduct  on  his 
part  tending  to  show  their  imhappy  relations  or  lack  of  affection."^ 


31.  Bailey  v.  Bailey,  94  Iowa  598, 
63   N.   W.   341. 

32.  Derham  v.  Derliam.  123  Mich. 
451,  83  N.  W.  1005;  Bailey  v.  Bailey. 
94  Iowa  598.  63  N.  \V.  341. 

Contra.  —  Nichols  v.  Nichols.  147 
Mo.  3^7,  48   S.  W.  947. 

As  Bearing  on  the  Question  of 
Damages,  statement  of  the  wife  that 
she  married  her  hushaiul  because  she 
supposed  he  had  more  money  than  he 
did  have,  and  that  she  was  ashamed 
of  him,  are  admissible.  Derham  T'. 
Derham,  123  JNIich.  451,  83  N.  W. 
1005. 

33.  Horner  1'.  Yancc.  9?  Wis.  3^2. 
67   N.   W.   720. 

In  Derham  t.  Derham,  123  ?\Iich. 
451,  83  N.  W.  1005,  an  action  by  a 
divorced  wife  against  her  father-in- 
law,  she  was  permitted  to  testify  con- 
cerning contents  of  a  lost  letter 
written  bj'  her  husband  to  her  during 
the  marriage  relations.  Held  error. 
This  was  a  communication  to  the 
wife  by  the  husband,  and  it  was  not 
competent  for  her  to  state  it  without 
his  consent. 

The  case  of  McKenzie  v.  Lauten- 
schlager,  113  ;Mich.  171,  71  N.  W. 
489.  distinguished.  In  this  case  the 
letters  were  written  to  a  friend. 

34.  Churchill  v.  Lewis,  17  Abb. 
N.  C.  (N.  Y.)  226;  Schorn  v.  Berry, 
63  Hun  no,  17  N.  Y.  Supp.  572; 
Peek  V.  Traylor  (Ky.),  34  S.  W.  705. 
Prettyman  v.  Williamson,  i  Penn. 
(Del.)    224,   39  Atl.   731. 

In  Van  Vacter  v.  McKillip.  7 
Blackf.  (Ind.)  578.  it  was  said: 
"  There  are  many  facts  and  circum- 
stances which  defendant,  in  actions 
of  this  kind,  may  show  in  mitigation 


of  damages ;  but  we  have  met  with 
no  case  in  which  it  has  been  decided 
that  a  bad  temper,  or  the  occasional 
collisions  that  may  take  place  between 
husband  and  wife,  in  consequence  of 
the  bad  temper  of  one  or  both  of 
them,  affords  the  slightest  exten- 
uation  to   the  guilt  of  the   seducer." 

Voluntary  Abandonment.  —  In 
Bassett  v.  Bassett,  20  111.  App.  543, 
defendant  offered  to  prove  that  at 
the  time  plaintiff  and  her  husband 
(his  son)  were  married  he  was  in 
such  a  state  of  into.xication  as  not 
to  know  what  he  was  about :  that  his 
son  had  never  kept  company  with 
plaintiff,  nor  paid  her  any  such  at- 
tention as  indicated  any  love  for 
her,  and  that  immediately  after  the 
marriage,  when  he  came  to  realize 
his  position,  he  voluntarily  abandoned 
the  plaintiff,  and  was  in  no  wise 
affected  by  any  advice  of  his  father, 
the  defendant.  Held,  this  evidence 
was  admissible,  and  should  have  been 
considered  in  mitigation  of  damages. 

In  Hadley  v.  Heywood.  121  Mass. 
236,  it  was  said,  any  unhappy  relations 
existing  between  the  plaintiff  and  his 
wife  may  affect  the  question  of  dam- 
ages, and  were  properly  submitted 
to  the  jury,  but  they  are  in  no  sense 
a  justification  or  paliation  of  the  de- 
fendant's conduct.  They  are  not  al- 
lowed to  affect  the  damages  because 
the  acts  of  the  defendant  are  less 
reprehensible,  but  because  the  con- 
dition of  the  husband  is  such  that 
the  injury  which  such  acts  occasion 
is  less  than  otherwise  it  might  have 
been. 

In  Mitigation  of  Damages —  In 
Wolf  V.  Frank,  92  Md.   138,  48  Atl. 

Vol.  I 


l(>(, 


ALIEXA TfXG  JFfECTIOXS. 


Unhappy  Relations  of  Husband  and  Wife. — It  llu'  hushaml  and  his 
wife  lived  unhappily  before  the  improper  advances  of  the  defendant, 
circumstances  which  show  that  he  possessed  no  comforts  of  a 
domestic  character  are  ])roper  to  be  sjiven  in  evidence  in  mitigation 
(if  damages.""' 

Records  in  a  Divorce  Proceeding.  —The  complaint  and  evidence  in  a 
divorce,  previoush-  obtained  by  one  of  the  parties,  arc  not  admissible 
in  an  action  for  alienating  the  atifections.-'" 

But  it  has  been  lield  that  the  fact  of  a  divorce  having  been  ob- 
tained during  the  pendency  of  the  action  may  be  considered  in 
mitigation  of  damages. '' 

3.  Exemplary  Damages. — If  it  be  shown  that  the  defendant  will- 
fully and  maliciously  induced  the  husband  or  wife  to  abandon  the 
other,  the  plaintiff  may  recover  exemplary  damages."'' 


132,  52  L.  R.  A.  102,  llie  defendant 
offered  to  prove  that  plaintiff  had 
had  improper  relations  with  one 
Keiffer.  and  that  about  two  months 
thereafter  the  husband  of  plaintiff 
left  her.  While  it  was  not  shown 
that  this  was  the  cause  of  his  leaving, 
it  was  proper  evidence  to  be  con- 
sidered by  the  jury  in  mitigation  of 
damages. 

In  Ash  V.  Prunier,  105  Fed.  722, 
plaintiff  was  permitted  to  introduce 
evidence  showing  manifestations  of 
remorse  by  her  husband  in  some  of 
their  interviews,  after  the  intimacy 
between  him  and  defendant  had  be- 
gun, and  also  of  great  grief  on  part 
of  plaintiff.  Held,  competent  to 
show  mental  suffering  of  plaintiff 
caused  by  the  misconduct  of  de- 
fendant, an  element  of  damages 
properly  considered   in   such   actions. 

35.  Bennett  v.  Smith,  21  Barb. 
(N.  Y.)  439;  Smith  v.  Masten.  15 
Wend.  (N.  Y.)  270;  Coleman  r. 
White.  43  Ind.  429 ;  Prettyman  i'. 
Williamson,  i  Penn.  (Del.)  224,  39 
Atl.  731;  Peek  <•.  Traylor  (Ky.).  34 
S.  W.  705. 

Where  the  plaintiff  had  rea.son  to 
know  of  the  improper  conduct  of  his 
wife  and  did  suspect  it,  but  did  not 
take  any  means  to  prevent  it,  this 
was  a  circumstance  properly  con- 
sidered by  the  jury  in  their  assess- 
ment of  damages.  .Xnd  where  the 
plaintiff  was  in  the  habit  of  having 
improper  relations  with  other  women 
"  his    sense    of   moral    propriety    and 

Vol.  I 


regard  for  chastity,  could  not  be 
much  offended  by  the  loss  of  virtue 
in  his  wife,  the  guilt  of  the  defend- 
ant is  not.  therefore,  diminished,  but 
the  plaintiff  has  sustained  less  dam- 
age." Smith  V.  Maslen.  15  Wend. 
270;  Wolf  T.  Frank,  02  Md.  138,  4R 
.\tl.  132,  52  L.  R.  .X.   102. 

Profane  and  Indecent  Language 
of  the  Wife — Where  the  plaintiff'  is 
shown  to  have  used  profane  and 
indecent  language  in  the  presence  of 
her  husband,  although  not  to  him. 
and  taught  her  little  boy  to  use  vulgar 
language,  held,  such  evidence  was 
properly  admitted  as  tending  to  show 
the  state  of  domestic  happiness  in 
which  they  had  previously  lived,  and 
that  it  may  have  had  considerable 
to  do  in  alienating  her  husband's 
affections.  Bailey  ''■  Bailev,  94  Iowa 
598,  63  N.  W.  .Wi- 
se. Waldron  r.  Waldron.  45  Fed. 
315;   Crose  V.   Rutlcdge.  81    111.   266: 


Mead 
N.  W. 

37. 
Penn. 
ham    I 
N.   W. 
Mich. 

38. 


Ill    Mich.   268,  69 


.59 
1^3 


Randall, 
506. 

Prettyman 

(Del.')   224 

:■.    Derham. 

1005;  Mead 
268,  69  N.  W.  ji 
Lindblom  z'.  Sonslelie;  10  X. 
140,  86  N.  W.  357 ;  Prettyman 
Williamson,  I  Penn.  (Del.)  224. 
.\tl.  731  ;  Williams  f.  Williams. 
Colo.  51,  37  Pac.  614;  Waldron 
Waldron.  45  Fed.  31  s:  Warner 
Miller,  17  Abb.  N.  C.  (N.  Y.)  221 


Williamson,  i 
.Vtl.  731  ;  Der- 
.Mich.  457.  83 
.  Randall,  in 
,06. 

D. 


3Q 
20 


ALIENATION.— See  Deeds. 


ALIMONY.— See  Divorce  ;    Husband  and  Wife. 


ALLEGIANCE.— See  Citizens  and  Aliens. 


ALLOWANCE.— See  Descent  and  Distribution. 


ALLUVION.— See  Boundaries. 


ALMANAC. 

By  Lewis  R.  Works. 

I.   DEFINITION,  768 
II.  USE  ON  TKIAL,  768 

1.  Courts  Take  Judicial  Xoticc  Of.  768 

2.  Is  Not  Evidence,  768 

3.  Is  an  Aid  to  the  Memory  of  thci  Court,  769 

A.  //  Admitted  in  lividence,  769 

R.   When  Xot  Offered  in   Ilvidenee.  769 


Vol.  I 


768 


ALMANAC. 


I.  DEFINITION. 

All  almanac  is  defined  to  he  "  a  book  or  table  containing  a  calen- 
dar of  days,  weeks  and  months,  to  which  astronomical  data  and 
various  statistics  are  often  added,  such  as  the  times  of  the  rising 
and  setting  of  the  sun  and  moon,  changes  of  the  moon,  ctc.^ 

II.  USE  ON  TRIAL. 

1.  Courts  Take  Judicial  Notice  Of.  —  Courts  take  judicial  notice 
of  the  almanac,-  or,  as  it  has  Ijeen  put,  the  almanac  is  a  part  of  the 
law  of  the  land.-' 

2.  Is  Not  Evidence.  —  Hence,  a  publication  containing  the  aliua- 
nac  need  not.  and  properly  speaking,  should  not,  be  offered  or 
received  in  evidence.^ 


1-     Webster's  Die. 

2.  Alabama.  —  Sprowl  ?'.  Law- 
rence, ^3  Ala.  6/4 ;  Allman  v.  Owen, 
31   Ala.   167. 

California.  —  People  j'.  Chee  Kce, 
61  Cal.  404;  People  t'.  Mayes,  113 
Cal.  618,  45  Pac.  860. 

Cciiuiccticjit.  —  State  v.  ISIorris,  47 
Conn.    179. 

loica.  —  Mcintosh  r.  Lee,  57  luwa 
356,   10  N.   W.  895. 

Maine.  —  First  Nat.  Bank  z:  Kings- 
ley,  84  Me.   Ill,  24  Atl.  794. 

Maryland.  —  Kilgonr  v.  Miles,  6 
Gill.  &  J.  268;  Sasscer  v.  Farmers' 
Bank,  4  Md.  409,  56  Am.  Dec.  755 ; 
Pliiladelphia,  W.  &  B.  R.  Co.  v. 
Lehman,  56  Md.  309.  40  Am.  Rep. 
4I5._ 

iVcic  ]'ork.  —  Case  v.  Perew,  46 
Him  57 ;  Lendle  i:  Robinson,  53  App. 
Div.  140,  65  N.  Y.  Snpp.  894. 

Pcnnsyhania.- — Wilson  t'.  Van 
Leer.  127  Pa.  ,St.  371,  17  .\tl.  1097, 
14   Am.    St.    Rep.    854. 

"The  court  must  take  judicial 
notice  not  only  of  the  law-merchant, 
which  is  a  part  of  the  common  law, 
but  also  of  the  almanac,  from  which 
it  appears  that  the  15th  day  of  De- 
ccmlier,  1872,  fell  on  Sunday."  Reed 
7'.  Wilson.  41   N.  J.  Law  29. 

3.  Finney  v.  Callendar,  8  Minn. 
41. 

4.  People  r.  Chee  Kee,  61  Cal. 
404;  Lendle  v.  Robinson,  53  App. 
Div.    14a,   65    N.    Y.    Supp.   894. 

No  Occasion  for  Offering  Almanac. 
"The  cnurt  erred  in   refu-ing  lii  pcr- 

Vol.  I 


mit  the  counsel  for  defendant  below 
to  refer  to  the  almanac  to  show,  in 
support  of  his  argument  against  the 
testimony  of  Margaret  Manahan,  that 
a  certain  date  in  1865  fell  upon  Sun- 
day. .  .  .  All  of  the  authorities 
agree  that  this  is  one  of  the  matters 
that  do  not  require  to  be  proved, 
but  are  taken  judicial  notice  of  with- 
oiU  evidence.  As  all  the  authorities 
agree  that  no  proof  is  necessary  it 
follows  that  it  is  not  required  to  be 
put  in  evidence  at  all.  The  almanac 
in  such  cases  is  used,  like  the  stat- 
utes, not  strictly  as  evidence,  but 
for  the  purpose  of  refreshing  the 
memory  of  the  court  and  jury.  State 
V.  Morris,  47  Conn.  179."  Wilson 
7'.  Van  Leer,  127  Pa.  St.  371,  17  Atl. 
1097,   14  Am.    St.    Rep.   854. 

In  the  case  of  Louisville  &  N.  R. 
Co.  V.  Brinckerhoff,  119  Ala.  606,  24 
So.  892,  the  statement  of  facts  shows 
that:  "Upon  the  plaintiff  ofTering 
an  almanac  in  evidence,  showing 
when  the  sun  set  on  the  day  of  the 
night  the  stock  was  killed,  the  de- 
fendant objected  to  the  introduction 
of  the  almanac  in  evidence,  upon  the 
ground  that  it  was  irrelevant,  in- 
competent and  immaterial.  The 
court  overruled  this  objection,  and 
the    defendant    duly    excepted." 

In  its  opinion  the  court  said: 
"  The  court  had  common  knowdedgc 
of  the  time  the  sun  set  on  the  day 
under  inquiry,  and  so  did  the  jury. 
There  was  no  occasion,  therefore, 
10  introduce  an  almanac  to  show  the 
hour." 


ALMANAC. 


769 


Admission  Not  Error.  —  I'.ut  it  has  been  held  that  the  admission  of 
such  a  pubHcation  is  not  error. '^ 

Sometimes  Held  to  Be  Competent.  —  And  the  ahnanac  has  been  even 
declared  to  be  competent  evidence  to  prove  the  time  of  the  rising 
and  phase  of  the  moon  and  the  like.'' 

3.  Is  an  Aid  to  the  Memory  of  the  Court.  —  A.  If  Admitted  in 
Evidence.  • — ■  It  has  been  held  that  an  almanac  is  received  merely 
to  refresh  the  memory  of  the  court  and  jury  as  to  a  fact  already 
known,  and  not  as  evidence.' 

B.  \\'hex  Not  Cjefered  Court  May  Refer  To.  —  The  court 
may  refer  to  a  published  almanac  not  offered  in  evidence  for  infor- 
mation as  to  the  time  of  the  rising  or  setting  of  the  sun,  and  the 
like,  and  while  the  publication  is  not  itself  evidence,  the  information 
or  knowledge  derived  from  it  is.' 


5.  State  :■.  Morris,  47  Conn.  179; 
People    '•.    Cliee    Kee,    61    Cal.    404. 

As  an  Aid  to  the  Memory  of  the 

Court "  .-Vnother      e.xception      was 

taken  to  the  introduction  of  an  al- 
manac for  the  purpose  of  showing 
the  time  of  sunset  on  the  day  of  the 
accident.  An  almanac  from  an  im- 
official  source,  and  not  properly 
verified,  is  not,  strictly  speaking, 
competent  evidence ;  but  receiving  it 
as  an  aid  to  the  memory  of  the  court 
and  jury  is  not  reversible  error.  It 
was  entirely  proper  for  the  court, 
without  evidence,  to  take  judicial 
notice  of  the  time  of  sunset  on  the 
day  of  the  accident,  and,  for  the 
purpose  of  refreshing  the  mind  of 
the  court,  there  was  no  legal  objec- 
tion to  consulting  an  almanac." 
Lendle  :■.  Robinson,  53  ."^pp.  Div.  140, 
65  N.  Y.   Supp.  894. 

6.  Munshower  r.'.  State,  ^.^  Alfl.  11, 
39  Am.  Rep.  414. 

Competent     Evidence "  It     was 

clearly  competent  to  prove  the  time 
of  the  rising  and  phase  of  the  moon 
on  the  night  in  question  by  the  in- 
troduction of  an  almanac.  Mun- 
shower  z\  State.  55  Md.  11;  Slate 
V.  Morris.  47  Conn.  179;  Sisson  v. 
Railroad  Co.,  14  Mich.  497."  Alobile 
&  B.  R.  Co.  7'.  Ladd,  92  Ala.  287,  9 
So.   169. 

7.  Lendle  i\  Robinson,  53  App. 
Div.  140,  65  N.  Y.  Supp.  894;  Case 
V.   Perew.  46  Hun  57. 

To    Refresh    Memory "  For    the 

purpose    of    showing   that    it    was    in 

49 


the  night  season,  the  state  was  per- 
mitted to  introduce  in  evidence, 
against  the  objection  of  the  defense, 
a  copy  of  Beckwith's  Almanac  for 
1879,  in  which  the  hour  of  sunset 
for  that  day  is  placed  at  four  o'clock 
and  forty-one  minutes.  There  is  no 
error  in  this. 

"  The  time  of  the  rising  or  setting 
of  the  sun  on  any  given  day  belongs 
to  a  class  of  facts,  like  the  succes- 
sion of  the  seasons,  changes  of  the 
mooti,  days  of  the  month  and  week, 
etc.,  of  which  courts  will  take  judi- 
cial notice.  The  almanac  in  such 
cases  is  used,  like  the  statute,  not 
strictly  as  evidence,  but  for  the  pur- 
pose of  refreshing  the  memory  of 
the  court  and  jury."  State  z\  Mor- 
ris. 47  Conn,   179. 

8.  Lendle  ?'.  Robinson.  53  App. 
Div.   140,  65  N.  Y.   Supp.  894. 

Court   May    Consult "  The    fact, 

for  the  proof  of  which  the  almanac 
is  offered,  was  one  of  those  facts  of 
which  a  court  may  take  judicial 
notice ;  formal  proof  of  it  was  there- 
fore unnecessary.  It  would  have 
l)een  sufficient  to  have  called  it  to 
the  knowledge  of  the  judge  at  the 
trial;  and  if  his  memory  was  at  fault, 
or  his  information  not  sufficiently 
full  and  precise  to  induce  him  to 
act  upon  it,  he  had  the  right  to  resort 
to  an  almanac,  or  any  other  book  of 
reference  for  the  purpose  of  satisfy- 
ing himself  about  it  (Sub.  8,  §1875, 
C.  C.  P.)  :  and  such  knowledge 
would  have  been  evidence."  People 
v.    Chee    Kee,   61    Cal.    404. 

Vol.  I 


ALTERATION  OF  INSTRUMENTS. 

By  Clark  Ross  Mahan. 

I.  THE  FACT  OF  THE  ALTEKATION,  773 

1.  Burden  of  Proof.  773 

A.  Genera!  Rule,  772 

2.  Parol  Evidence,  774 

A.  General  Rule,  774 

B.  Surrounding  Circumstances,  775 

3.  Other  Instncnients  and  Memoranda,  775 

A.  Other  Alterations,  775 

B.  Facsimiles,  Copies,  Etc.,  776 

4.  Competency  of  Witnesses,  776 

A.  In  General,  776 

B.  Transactions   IVitli   Deceased  Persons,   776 

5.  Opinion  Ez'idcncc,  y/y 

6.  Inspection  by  lury,  -~j 

7.  J'ariance,  778 

8.  Cogency  of  Proof.  778 

9.  Conversion    of   Altered    Instrument  —  Mitigation    of  Dam- 

ages, 778 

II.  EXPLANATION  OF  ALTERATIONS,  779 

1.  Adniissibilitx  of  the  Instrument,  779 

2.  Immaterial   Alterations  A'ced   Not   Be   Explained,   779 

3.  Material  Alterations,  780 

A.  In  General,  780 

B.  Operation  of   the  Alteration   As   Constituting  Materi- 

ality, 780 

a.  General  Rule,  780 

b.  Basis  of  Doctrine,  782 

c.  Test  of  Materiality,  782 

{  1 . )   /;(  General,  782 

(2.)   Effect  on    fjabilitx   of   Maker   or   Oblii^or, 

783 
(3.)    I  he  lime  of  the  .Uteratwn,  783 

d.  Inte^nt,  783 

C.  Subject  Matter  of  the  .llleration,  784 

a.  In  General,  784 

b.  Inserting  Matter  U'liich  La'w  Jl'ould  Supply,  784 

c.  Orthography,  P/irascology,  Etc.,  785 

(I.)    Generally.  785 

(2.)   Conforming    Writing   to   Intention    of  Par- 
<  ties,  785 

(1.  Retracing  Pencil  It' riling  in  Ink,  785 

e.  Memoranda,  785 

Vol.  I 


ALTERATION  OF  INSTRUMENTS.  771 

(i.)    General  Rule.  785 

(2.)   Collateral  to  li'ritiiig,  787 

(3.)   Marginal  Figures,  787 

(4.)   Figures  Indicating  Scries.  787 

f.  Matters  Pertaining  to  the  Execution  of  the  Writ- 

ing, 788 

(i.)   Place  of  Execution.  7S8 

(2.)   Date,  788 

(A.)  In  General.  788 

(B.)  Date  of  Payment  Fixed,  789 

(C.)    Changing  Date  to  Date  Intended,  789 

(3.)  Attestation,  790 

(4.)  Seals,  790 

g.  Matters    in    Respect    of    Nature    and    Terms    of 

Instrument,  791 
(i.)   /;;  General,  791 

(2.)    ll'aiz'er  of  Demand  and  Notice,  792 
(3.)  Negotiability,   792 
h.  Matters  in  Respect  of  the  Parties,  793 

(i.)  Alterations  Affecting  the  Number  of  Par- 
ties, 793 
(A.)   In  General,  793 
(B.)  Adding  Neiv  Parties,  794 
(C.)  Striking  Out  Parties.  795 
(D.)   Inserting  Name  of  Signer  in  Body  of 
Instrument,  797 
(2.)   Alterations    Affecting    the    Personality    of 
Parties,   797 
(A.)   In  General.  797 

(B.)   Substituting  Payee.  Obligee,  Etc.,  798 
(C.)   Correction  of  Name,  799 
(D.)   Description  of  Person,  799 
(3.)   Alterations  Affecting  the  Relations  of  Par- 
tics,  800 
i.  Matters  in  Respect  of  the  Consideration,  800 
j.  Matters  in  Respect  of  the  Promise,  800 
(i.)   In  General,  800 
(2.)   Description  of  Property,  800 
(3.)   The  Amount,  802 
(4.)   The  Interest,  803 

(A.)   Change  of  Rate,  803 
(B.)   Adding  Interest  Clause  to  Non-Inter- 
est-Bearing Instrument,  804 
(C.)    Time  When  Interest  Begins,  805 
(D.)    Time  of  Payment  of  Interest,  805 
(5.)   Character   of   Promise  —  Joint    or   Several, 

805 
(6.)  Payment  of  Exchange,  806 
k.  Matters  in  Respect  of  the  Performance,  806 

Vol.  I 


772  ALTERATION  OF  INSTRUMENTS. 

(i.)    The  Time,  806 
(2.)   The  Place,  807 
(3.)    The  Manner,  808 
4.  Burden  of  Proof  and  Presumptions,  808 

A.  Rule  As  to  Non-Apparent  Alterations,  808 

B.  Rule  As  to  Apparent  Alterations,  810 

a.  Statement  As  to  Rules,  810 

b.  Presumption    of  Alteration   Before    Delivery,   810 

c.  No  Presumption  Either  JVav,  812 

d.  Presumption  of  Alteration  After  Delivery,  812 

(i.)    General  Rule,  813 

(2.)   Alteration    to   Conform   Paper   With   Itself, 

814 
(3.)    Correction  of  Error,  814 
(4.J   Alteration  Must  Be  Apparent,  815 
(5.)    Official  Documents,  815 

e.  Burden  of  Proof  Depending  on  Suspicions  Char- 

acter of  Alteration,  815 

(i.)  Rule  Stated,  815 

(2.)  Suspicious  Alterations  Defined,  817 

f.  Distinction     Bctii'cen    Deeds    and     Other    Instru- 

ments, 818 

5.  Order  of  Proof,  818 

6.  Parol  Evidence,  819 

A.  In  General,  819 

B.  Alteration  by  Stranger,  819 

C.  Consent  of  Maker  or  Obligor,  820 

D.  Ratification   of   Unauthorised  Alteration,  821 

7.  Sufficiency  of  Attempted  Explanation,  821 

A.  In  General,  821 

B.  Cogency  of  Proof,  822 

III.  QUESTIONS  OF  LAW  AND  FACT,  822 

1.  Materiality  of  /llteration,  822 

2.  The  Fatt  of  Alteration,  822 

3.  Time  of  the  Alteration,  823 

4.  Person  Making  the  Alteration,  824 

5.  Intent,  824 

6.  Consent,  824 

7.  Ratification.  824 

CROSS-REFERENCES. 

Best  and  Secondary  Evidence;  Bills  and  Xotes ; 
Consent ; 

Documentary  Evidence ; 
Expert  Testimony ; 
Handwriting ; 
Opinions  and  Conclusions; 
Ratification ; 
Spoliation. 
Vol.  I 


ALTERATION  OF  INSTRUMENTS. 


r73 


I.  THE  FACT  OF  THE  ALTERATION. 

1.  Burden  of  Proof.  —  A.  Gknekal  Rui,E. — ^  The  general  rule  is 
that  where  the  objection  is  that  an  instrument  in  writing  offered  in 
evidence  has  been  aUered  in  a  material  part  since  its  execution  and 
without  authority,  which  the  party  offering  the  instrument  denies, 
and  the  alteration  is  not  apparent  on  the  face  of  the  instrument,  the 
burden  of  proof  to  establish  the  fact  of  the  alteration  is  upon  the 
party  raising  that  objection.^ 

Under  a  Special  Plea  of  Non  Est  Factum,     alleging   that    the    note    in 


1.  United  States.  —  U.  S.  v.  Linn, 
I  How.  104;  Stirsen  f>.  Baker,  150 
U.   S.  312. 

Alabama.  —  Montgomery  v.  Cros- 
thwait,  90  Ala.  553,  8  So.  498,  12  L. 
R.  A,   140. 

Florida.  —  Harris  v.  Bank  of  Jack- 
sonville. 22  Fla.  501.  I   So.   140. 

Illinois.  ■ —  Lowman  v.  .\uberg,  72 
111.   619. 

Indiana.  —  Johns  v.  Harrison,  20 
Ind.  317;  Maikel  i'.  State  Sav.  Inst., 
36  Ind.  355 ;  Ins.  Co.  of  North  Amer- 
ica V.   Brim,   III   Ind.  281,   12  N.   E. 

315-    * 

lozi'a.  —  Potter  i>.  Kennelly,  81 
Iowa  96,  46  N.  W.  856;  Odell  v. 
Gallup,  62  Iowa  253,  17  N.  W.  502; 
Shroeder  v.  Webster,  88  Iowa  627, 
55  N.  W.  569;  Farmer's  Loan  and  T. 
Co.  V.  Olson,  92  Iowa  770.  61  N.  W. 
199;  Van  Horn  v.  Bell,  11  Iowa  465, 
79   ."Vm.    Dec.    506. 

Kansas.  —  J.  I.  Case  Threshing 
Mach.  Co.  V.  Peterson,  51  Kan.  213, 
33    Pac.    470- 

Kentucky.  —  Thacker  v.  Booth,  9 
Ky.  Law  745,  6  S.  W.  460. 

Maryland.  —  Wickes  v.  Caulk,  5 
Har.  &  J.  36. 

Mississippi.  —  Moye  v.  Herndon,  30 
Miss.  no. 

Nebraska.  —  McClintock  v.  State 
Bank,  52  Neb.  130,  71   N.  W.  978. 

Neiv  York.  —  Conable  v.  Keeney, 
61  Hun  624,  16  N.  Y.  Supp.  719. 

Tennessee.  —  Smith  v.  Parker 
(Tenn.),  49  S.  W.  285. 

Texas.  —  Heath  v.  State,  14  Te.x. 
App.  213;  Wells  V.  Moore,  15  Te.x. 
App.   S2I. 

Wisconsin.  —  Gordon  v.  Robertson, 
48  Wis.  493,  4  N.  W.   579. 

Statement    of    the    Rule "  The 

law    imposes    upon    the    party    who 


claims  under  the  instrument  the  bur- 
den of  explaining  the  alteration. 
This  is  the  rule,  undoubtedly,  where 
the  alteration  appears  on  the  face 
of  the  instrument,  as  an  erasure,  in- 
terlineation, and  the  like.  In  such 
case,  the  party  having  the  posses- 
sion of  the  instrument  and  claiming 
under  it,  ought  to  be  called  upon  to 
explain  it.  It  is  presumed  to  have 
been  done  while  in  his  possession. 
But,  where  no  such  prima  facie  evi- 
dence exists,  there  can  be  no  good 
reason  why  this  should  devolve  upon 
a  party,  simply  because  he  claims 
under  the  instrument.  The  plea 
avers  the  alteration,  and  the  defend- 
ant, therefore,  holds  the  affirmative ; 
and  the  general  rule  is,  that  he  who 
holds  the  affirmative  must  prove  it." 
U.  S.  V.  Linn,  i  How.  (U.  S.)   104. 

Proof  That  a  Portion  of  the  Docu- 
ment Has  Been  Torn  Off  is  not 
enough  of  itself  to  establish  the  fact 
of  an  alteration.  Hall  v.  Forqueran, 
2   Litt.    (Ky.)    329. 

Burden  on  Plaintiff —  In  Farm- 
er's L.  &  T.  Co.  V.  Siefke,  144  N.  Y. 
354.  39  N.  E.  358,  wherein  the  com- 
plaint alleged  that  the  note  sued  on 
was  executed  under  seal,  which  the 
defendant  answered  by  general  denial, 
it  was  held  that  the  plaintiff  had  the 
burden  of  proving  that  the  note  had 
not  been  altered  after  delivery  by 
the  addition  of  the  seal. 

Memorandum     of     Character     of 

Transaction The    presumption     is 

that  a  memorandum  on  a  bank  check 
showing  the  character  of  the  transac- 
tion evidenced  by  the  check  was  in- 
serted before  the  delivery  of  the 
check,  in  the  absence  of  any  evi- 
dence to  the  contrary.  In  re  Barnes' 
Est.,  92  Iowa  379,  60  N.  W.  659. 

Vol.  I 


774 


ALTERATION  OF  INSTRUMENTS. 


suit  was  altered  after  its  execution  and  delivery,  the  burden  of  proof 
is  u|Hin  tile  ilefendant  to  establish  the  fact  of  the  alteration. - 

2.  Parol  Evidence.  —  A.  General  Rule.  —  The  rule  excluding 
parol  evidence  offered  to  explain  or  vary  that  which  is  in  writing 
does  not  apply  to  evidence  to  prove  a  fraudulent  or  unauthorized 
alteration  of  a  written  instrument,  and  hence  such  evidence  may 
always  be  resorted  to  to  impeach  the  validity  of  the  instrument  on 
the  ground  of  such  an  alteration.^  So  also  parol  evidence  is  com- 
petent to  show  that  the  instrument  had  been  executed  in  blank,  and 
that  the  blanks  had  been  filled  contrarv  to  directions.'' 


2.  Douglass  V.  Brandon,  6  Baxt. 
(Tenn.)   58. 

The  Plaintiff  Under  Such  a  Plea 
Has  Nothing  to  Do  but  Read  the 
Note,  and  the  special  matter  in 
avoidance  must  be  proved  by  the 
defendant.  Bumpass  v.  Timms,  3 
Sneed    (Tenn.)    459. 

3.  Alabama.  —  Montgomery  z'. 
Crosthwait,  90  .Ma.  ^S3,  8  So.  498, 
12  L.  R.  A.  140. 

Illinois. — Johnson  zi.  Pollock,  58 
111.  181  ;  Schwarz  v.  Herrenkind,  26 
III.  208. 

/oica.  —  Coit  z:  Churciiill,  61  Iowa 
296,   16  N.  W.   147. 

Louisiana.- — Perry  v.  Burton,  31 
La.  Ann.  262. 

Maine.  —  Goodwin  v.  Norton,  92 
Me.  532,  43  Atl.  Ill ;  Buck  v.  Apple- 
ton,   14  Me.  284. 

Mississippi.  —  Everman  z\  Robb,  52 
Miss.  653,  24  Am.  Kep.  682. 

Missouri.  • —  Sweet  z\  Maupin,  65 
Mo.  65. 

Nebraska.  —  Courcamp  v.  Weber, 
39  Neb.  533,  58  N.  \V.  187. 

Oregon.  —  Wren  v.  Fargo,  2  Or. 
19. 

latitude  of  Evidence In  Win- 
ters V.  Mowrer,  163  Pa.  St.  239,  29 
Atl.  916,  it  was  held  that  upon  an 
issue  of  fraudulent  alteration  of  a 
writing  the  door  is  thrown  open 
to  evidence  bearing  in  any  way  on 
the   nature  of  the  transaction. 

Testimony  of  a  Grantor,  Present 
and  Consenting  to  the  Alteration, 
is  admissible  to  show  the  fact  of 
alteration.  It  does  not  tend  to  vary, 
contradict  or  avoid  the  deed  which 
he  made.  It  tends  rather  to  show 
exactly  what  that  deed  was.  Nor 
do  his  statements  come  within  the 
rule    excluding   declarations.     Good- 

Vol.  I 


win  V.  Norton,  92  Me.  532,  43  Atl. 
III.  * 

In  Jourden  v.  Boyce,  25  Mich.  302, 
it  was  held  that  evidence  that  the 
only  note  of  the  kind  defendant  ever 
signed  was  payaljlc  in  two  years, 
while  the  note  sued  upon  and  pro- 
duced in  court  was  payable  in  four 
months,  was  evidence,  fairly  tending, 
if  believed,  to  prove  an  alteration  of 
the  identical  instrument  originally 
signed ;  and  that  the  defendant  had 
a  right  to  have  the  case  submitted 
to  tlie  jury  on  this  theory. 

Conversations In  an  action' upon 

a  bond,  against  which  the  defendants 
defend  on  the  ground  of  the  insertion 
without  their  knowdedge  or  consent 
after  its  execution  of  a  place  of  pay- 
ment, it  is  not  competent  to  per- 
mit one  of  the  defendants,  after 
testifying  to  the  alteration,  for  the 
purpose  of  showing  how  this  fact  was 
impressed  on  his  memory,  to  testify 
to  conversations  between  himself  and 
his  co-defendants,  in  the  absence  of 
the  plaintiffs  and  after  the  execution 
of  the  bond.  Dickson  i'.  Baml)erger. 
107  Ala.  293,   18  So.  290. 

4.  Richards  v.  Day,  137  N.  Y.  183, 
33  N.  E.  146,  3i  Am.  St.  Rej).  703, 
2i  h.  R.  A.  601. 

Testimony    of    Printer    Who 

Printed   Blank Where   the    maker 

of  a  note  in  an  action  thereon  against 
him  claims  that  the  note  was  altered 
after  he  had  signed  it,  some  of  the 
alterations  claimed  to  have  been 
made  being  printed  words  standing 
in  the  note  as  produced,  the  testimony 
of  the  printer  in  whose  office  the 
blank  was  printed,  that  it  was  origi- 
nally printed  as  it  then  appeared,  is 
competent.  Hunter  v.  Parsons.  22 
Mich.  96. 


ALTERATION  OF  INSTRUMENTS. 


775 


B.  SuKiKirxnixG  Cikcimstaxces.  —  On  an  issue  as  to  whether 
an  instrument  has  been  ahered,  it  is  competent  to  put  in  evidence 
the  circumstances  surrounding-  the  execution  of  tlie  writing.^ 

Increase  of  Liability.  —  The  fact  that  the  obhgjor's  habihty  would 
be  increased  by  tlie  aUeration  is  relevant  as  tending  to  show  that 
he  would  less  readily  have  consented  to  the  change  alleged  by  him 
as  constituting  the  alteration." 

3.  Other  Instruments  and  Memoranda.  —  A.  Other  Alterations. 
On  an  issue  as  to  whether  or  not  a  writing  has  been  altered  since 
its  execution,  evidence  that  other  writings  executed  at  the  same 
time  have  been  altered  is  inadiuissible."  But  where  there  are  strong 
circumstances  to  support  the  inference  that  an  instrument  has  been 
fraudulently  altered,  evidence  that  other  papers  draw-n  and  signed 
by  the  same  parties,  and  a  part  of  the  series  to  which  the  one  in 


Evidence  of  Representations  Made 
by  the  Maker  of  a  Note  to  the  Sure- 
ties as  to  the  time  of  payment,  which 
was  left  blank  when  indorsed,  and 
filled  in  by  the  payee,  is  inadmissible 
for  the  sureties,  where  such  represen- 
tations had  not  been  brought  to  the 
knowledge  of  the  payee.  Johns  v. 
Harri,son,  20  Ind.  317. 

5.  Pearson  7'.  Hardin,  95  Mich. 
360.  54  N.   W.   504. 

Financial   Condition  of  Maker  of 

Note The  rule  admitting  evidence 

of  surrounding  circumstances  does 
not  permit  the  reception  of  evidence 
that  one  maker  of  a  promissory 
note  was  in  embarrassed  circum- 
stances when  the  note  was  made,  in 
a  suit  against  the  other  makers,  for 
the  purpose  of  showing  that  the  note 
was  altered  by  him  so  as  to  increase 
its  amount  before  negotiating  it. 
Agawam  Bank  v.  Sears,  4  Gray 
(Mass.)  95.  The  court  said:  "It 
was  wholly  irrelevant  to  the  question 
of  the  time  of  making  the  alteration 
of  the  note,  and  furnished  no  proper 
aid  in  deciding  that  question.  The 
embarrassed  circumstances  of  a 
debtor  furnish  no  presumption  that 
he  would  make  a  fraudulent  alteration 
of  a  note  in  his  hands.  To  admit 
such  evidence  would  do  great  in- 
justice to  the  honest,  but  unfortunate 
debtor.  The  rule  of  admitting  evi- 
dence of  surrounding  circumstances, 
to  which  the  counsel  of  the  defend- 
ants refers  is  not,  in  our  opinion, 
comprehensive  enough  to  include  the 
fact    that   the   principal    was    embar- 


rassed with  debts,  as  a  circumstance 
having  any  proper  bearing  upon  the 
issue  tried  between  these  two  par- 
ties." 

6.  Matlock  V.  Wheeler,  29  Or.  64, 
.43  Pac.  867. 

7-  England. — Thompson  v.  Mose- 
ley,  5  Car.  &  P.  soi,  24  Eng.  C.  L. 
676. 

Alabama.  —  Winter  v.  Pool,  100 
Ala.  503,  14  So.  411. 

District  of  Columbia.  —  Cotharin 
T'.    Davis,   2    Mackey   230. 

Michigan.  —  Pearson  v.  Hardin,  95 
Mich.  360,  54  N.  W.  504. 

Missouri.  —  Paramore  ;'.  Lindsey, 
63  Mo.  63. 

Neiv  York.  —  Booth  v.  Powers,  56 
N.  Y.  22. 

The  Written  Contract  for  the  Pur- 
chase of  the  Goods  for  Which  the 
Notes  in  Suit  Were  Given,  signed 
by  the  parties,  and  containing  the 
terms  of  the  sale,  is  competent  as 
tending  to  prove  that  the  notes  were 
given  in  conformity  to  the  terms  of 
the  sale.  Stein  v.  Brunswick-Balke- 
Collender   Co.,   69   ^liss.   277,   13   So. 

-3i- 

Refusal  to  Produce  Copy.  —  In 
Curry  z:  May,  4  Harr.  (Del.)  173, 
the  court  refused  to  nonsuit  a  party 
for  an  unexplained  alteration  of  the 
instrument  declared  on,  though  the 
alteration  was  material  and  was  in 
the  plaintiff's  handwriting,  and  the 
instrument  in  his  custody,  because 
it  appeared  the  defendant  had  a 
counterpart  which  he  refused  to  pro- 
duce. 

Vol.  I 


776 


ALTERATION  OF  INSTRUMENTS. 


question  belongs,  had  been  altered,  niay  be  given  in  evidence.' 

Paper  Referring  to  Instrument.  —  On  an  issue  as  to  whether  an 
instrument  has  been  altered,  another  paper  referring  to  the  instru- 
ment in  question  in  its  present  condition  is  admissible." 

B.  Facsimiles,  Copies,  Etc.  —  But  alterations  in  a  writing  may 
be  shown  by  a  duly  certified  facsimile  or  exemplification  thereof, 
when  the  party  has  not  the  power  to  produce,  nor  to  compel  the  pro- 
duction of.  the  original.'"  So  also,  it  is  proper  for  a  copy  of  the 
paper,  as  it  was  proved  by  the  defendant  to  have  been  originally,  to 
go  to  the  jurv  to  determine  whether  the  original  has  been  altered 
or  not.'' 

4.  Competency  of  Witnesses.  —  A.  In  General.  • —  The  fact  of  an 
alteration  may  be  proved  either  by  the  subscribing  witness,  or  by  any 
other  person  who  can  testify  that  he  saw  the  alteration  made.** 

B.  Transactions  With  Deceased  Persons.  —  The  statute  pro- 
hibiting testimony  in  regard  to  personal  transactions  or  communica- 
tions with  deceased  persons  has  been  held  to  extend  to  the  testimony 
of  one  of  the  parties  to  the  fact  of  an  alteration  of  a  written  instru- 
ment the  other  party  to  which  is  dead." 


8.  Rankin  v.  Blacknell,  2  Johns. 
Cas.  (N.  Y.)  198.  See  also  Haynes 
z:  Christian.  30  Mo.  .^pp.   igS. 

9.  Carlisle  v.  People's  Bank,  122 
Ala.  446,  26  So.   115. 

10.  Ansley   v.    Peterson,   30    Wis. 

65.^ 

11.  Conner  v.  Fleshman,  4  W.  Va. 
693.  See  also  Yoiuig  v.  Cohen,  42 
S.   C.  328,  20  S.   E.  62. 

12.  Penny  v.  Corwithe.  18  Johns. 
(N.  Y.)  499.  And  see  Com.  v.  Mc- 
Gnrty,  145  Mass.  257,  14  N.  R.  98. 

Arbitrators  Are  Competent  Wit- 
nesses to  testify  that  the  suhniission 
under  which  they  acted  has  heen 
altered  since  the  award.  Ahel  v. 
Fitch,   20   Conn.   90. 

Declarations.  —  The  affidavit  of  the 
party  producing  the  paper  will  not 
be  received  to  prove  that  an  alteration 
was  made  through  error  or  mistake; 
it  must  be  established  by  legal  evi- 
dence, and  not  by  the  declaration  of 
the  party  seeking  to  recover.  Slo- 
comb  r.  Watkins,   i   Rob.   (La.)   214. 

The  Indorser  of  a  Note,  after 
being  released  from  liability  thereon 
as  such  indorser,  is  a  competent 
witness  to  prove  that  the  note  has 
been  altered  since  his  indorsement. 
Buck  V.  Appleton,  14  Mc.  284.  This 
case  also  held  that  the  objection  that 
a    party    to   a    negotiable    instrument 

Vol.  I 


cannot  be  admitted  as  a  witness  to 
prove  it  void,  extends  only  to  proof 
that  it  was  void  when  originally  made 
and  not  to  proof  of  an  alteration. 

13.  Cole  V.  Marsh.  92  Iowa  379. 
60  N.  W.  659;  Harris  -•.  Bank  of 
Jacksonville.  22  Fla.  501.  I  So.  140; 
Mitchell  V.  Woodward.  2  Marv. 
(Del.)  311,  43  Atl.  165;  Benton  Co. 
Sav.  Bank  v.  Strand,  .106  Iowa  606, 
76  N.  W.  looi ;  Pyle  v.  Onstatt,  92 
111.  20g.  And  see  Gist  v.  Cans,  30 
Ark.  285 ;  Foster  t.  Collner,  107  Pa. 
St.  305." 

Interest    of    Witness The    rule 

forbidding  testimony  as  to  transac- 
tions with  a  deceased  person  is  not  to 
be  held  inapplicable  in  respect  of  the 
fact  of  an  alteration  because  the  tes- 
timony does  not  in  any  way  affect 
the  witness'  liability.  Williams  v. 
Barrett,  52  Iowa  637.  3  X.  W.  690. 
The  court  said  :  "  John  T.  Clark  was 
a  party  to  the  action,  and  for  that 
reason  was  disqualified  as  a  witness 
to  testify  to  personal  transactions 
between  himself  and  the  deceased. 
We  think  the  fact  that  the  other  de- 
fendants were  not  necessarily  jointly 
liable  with  him,  and  that  separate 
actions  miglit  have  been  maintained 
against  the  defendants,  makes  no  dif- 
ference. There  was  but  one  party 
on   trial,    and    the    witness,    being    a 


ALTERATION  OF  INSTRUMENTS. 


777 


5.  Opinion  Evidence.  —  An  expert  witness  duly  qualified  as  such,'* 
may  be  asked  whether  or  not  a  written  instrument  has  in  fact  been 
altered  ;'^  but  not  it  seems  when  the  alterations  are  apparent  on  the 
face  of  the  paper.'"  So,  an  expert  may  be  asked  whether  an  altera- 
tion was  in  his  opinion  made  before  or  after  the  body  of  the  instru- 
ment was  written  ;'^  whether  interlineations  and  the  like  are  the 
same  handwriting  as  the  remainder  of  the  paper  ;'^  whether  the 
whole  of  the  paper  was  written  with  the  same  ink,  and  the  like.'* 

6.  Inspection  by  Jury.  —  It  is  proper  for  the  jury,  in  determining 
the  question  of  an  alteration,  to  inspect  the  instrument.-"     But  not 


proper  party  defendant  tlierein,  was 
by  the  very  terms  of  the  statute 
incompetent  to  testify  to  the  facts 
nnder  consideration." 

Date  of  Instrument It  has  been 

held  that  the  rule  forbidding  testi- 
mony of  transactions  with  deceased 
persons  does  not  forbid  the  exami- 
nation of  the  makers  of  a  note,  as  to 
the  true  date  of  tlie  note,  which  ap- 
pears to  have  lieen  clianged.  Barlow 
V.  Buckingham.  68  Iowa  169.  26  N. 
W.  58,  58  Am.  Rep.  218,  wherein  the 
court  said :  "  It  is  as  to  facts  and  cir- 
cumstances of  the  transaction  be- 
tween them  and  tlie  deceased  that 
they  are  forbidden  by  the  provision 
to  testify.  The  date  on  wliich  it 
occurred  is  a  matter  quite  distinct 
from  them  and  we  think  it  is  not  in- 
cluded  in   the   prohibition." 

Surrounding  Circumstances.  —  It 
has  been  held,  however,  that,  as  to 
a  note  which  the  defendants  allege 
has  been  altered  since  e.xecution.  one 
of  them,  as  a  witness  for  the  defense, 
might  properly  be  asked  when  and 
with  what  intent  he  signed  the  note ; 
whether  he  struck  out  the  words 
in  the  printed  form  which  appear  to 
have  been  struck  out,  and  other  ques- 
tions which  do  not  call  for  any 
transaction  or  communication  by  the 
defendants  with  the  deceased  payee 
personally.  Page  v.  Danaher,  43  Wis. 
221. 

14.  ftualification  of  Expert  Wit- 
ness. —  A  count}'  treasurer,  who  has 
also  been  a  banker,  and  a  banker 
of  several  years'  experience,  are 
qualified  to  testify  as  experts  as  to 
whether  two  capital  letters  claimed 
to  have  been  the  initials  of  the  payee 
of  a  note  have  been  changed.  Hen- 
drix  V.  Gillett,  6  Colo.  App.  127,  39 
Pac.    896. 


15.  Colorado. — Hendrix  -•■.  Gillett, 
6  Colo.  App.   127,  39  Pac.  896. 

f)idiana.  —  Nelson  Z'.  Johnson,  18 
Ind.  329. 

Michigan.  —  Vinton  Z'.  Peck,  14 
Mich.   287. 

Mississit'f'i.  —  ]\Ioye  v.  Herndon,  30 
Miss.   no. 

Nezv  York.  —  Nat.  State  Bank  v. 
Rising,  4  Hun  793 ;  Hadcocke  v. 
O'Rourke,  6  N.  Y.   Supp.  543. 

Compare  Swan  z:  O'Fallon;  7  Mo. 

231- 

16.  StillwcU  z:  Patton.  108  Mo. 
352,  18  S.  W.  1075 ;  Johnson  v.  Van 
Name,  51  Hun  644,  4  N.  Y.  Supp. 
523 ;  Yates  z'.  Waugh,  i  Jones  Law 
(N.  C.)  483. 

17.  Dubois  z:  Baker,  30  N.  Y. 
355 ;  Sackett  z'.  Spencer.  29  Barb. 
(N.  Y.)  180;  Cheney  Z'.  Dunlap,  20 
Neb.  26s,  29  N.  W.  925,  57  .\m.  Rep. 
828,  5  L.  R.  A.  465;  Phoenix  Fire 
Ins.  Co.  V.  Philip.  13  Wend.  (N.  Y.) 
81 ;  Hayden  Mill  Co.  r.  Lewis 
(Ariz.),  32  Pac.  263;  Quinsigamond 
Bank  v.  Hobbs,  11  Gray  (Mass.) 
250. 

Opinion    Founded    on    Appearance 

of  Instrument Tlie  opinion  of  an 

expert  witness  that  certain  words 
were  interpolated  in  a  written  agree- 
ment after  the  signature,  if  founded 
upon  the  situation  and  crowded  ap- 
pearance of  the  words,  is  inadmis- 
sible. Jewett  V.  Draper.  6  Allen 
(Mass.)   434. 

18.  Graham  v.  Spang  (Pa.  St.), 
16  Atl.  91 ;  Hawkins  i'.  Grimes,  13 
B.   Mon.    (Ky.)    257. 

19.  Glover  z'.  Gentry,  104  .\la.  222, 
16  So.  38 ;  Nat.  State  Bank  v.  Rising, 
4  Hun   (N.   Y.)   793. 

20.  Hill  V.  Barnes,  II  N.  H.  39S ; 
Gooch  z:  Bryant.  13  Me.  386;  Smith 
V.  U.   S.,  2  Wall.   (U.  S.)   219. 

Vol.  I 


778 


ALTERATION  OF  INSTRUMENTS. 


when  the  fact  of  the  alteration  in  the  instrument  in  suit  is  not  raised 
by  the  pleadings."^ 

7.  Variance.  —  When  the  party  producing  the  instrument  has  set 
up  the  paper  as  alleged,  and  the  other  jiarty  has  not  put  the  same 
in  issue,  the  paper  as  altered  is  admissible,  and  evidence  of  the  alter- 
ation is  not.-- 

But  otherwise,  where  the  plaintifi"  has  set  out  the  instrument  as 
altered,  without  averring  the  alteration,  and  the  defendant  denies 
the  execution  of  the  instrument  as  set  up,  and  alleges  the  alteration.-' 

But  under  a  verified  denial  of  the  execution  of  the  instrument 
sued  on,  the  defendant  may  give  evidence  of  the  alteration  since  the 
execution  of  the  instrument.-* 

8.  Cogency  of  Proof.  —  The  fact  of  an  alteration  may  be  estab- 
lished by  a  mere  preponderance  of  the  evidence.-^  It  is  not  enough, 
however,  that  the  evidence  may  raise  a  suspicion.-"  There  are 
cases,  however,  in  which  the  courts  have  said  that  the  evidence  must 
be  "  quite  convincing,"-'  "  very  clear  and  forcible,"-**  "  satisfactory," 
and  the  like.-'' 

9.  Conversion  of  Altered  Instrument,  —  Mitigation  of  Damages. 
In  a  suit  for  the  conversion  of  a  promissory  note,  the  defendant 
may  show,  in  reduction  of  damages,  that  the  note  had  been  altered 
by  the  payee  after  its  execution,  in  a  material  part,  and  without 
the  consent,  authoritv  or  ratification  of  the  maker. ^'' 


21.  Sliclton  -■.  Reynolds,  in  N.  C. 
525.    16   S.   E.   272. 

22.  Siindberg  v.  Wliittesey,  3 
Sandf.  Ch.   (N.  Y.)   320. 

In  Hollis  V.  Vandergrift,  5  Houst. 
(Del.)  521.  liowever,  wherein  tfie 
plaintifif  filed  with  his  declaration  a 
dnly  certified  copy  of  the  note  sued 
on,  and  the  defendant  did  not  file 
an  affidavit  at  the  time  of  pleading 
denying  his  signature  to  the  original 
note  of  which  it  purports  to  be  a 
sworn,  correct  and  literal  copy,  it 
was  held  that  the  defendant  was  not 
thereby  precluded  from  proving  that 
the  note  liad  been  altered  since  its 
e.xecution  and  without  his  knowledge 
or  consent. 

23.  Howlelt  V.  Bell,  52  Minn.  257, 
53   N.   W.    1154. 

24.  Coburn  v.  Webb,  56  Ind.  96, 
26  Am.  Rep.  15;  Palmer  v.  Poor,  121 
Ind.  135,  22  N.  E.  984,  6  L.  R.  A. 
469. 

25.  Dodge  v.  Haskell,  69  Me.  429; 
McClintock  v.  State  Bank,  52  Neb. 
130,  71  N.  W.  978;  Farmer's  L.  &  T. 
Co.  V.  Olson,  92  Iowa  770,  61  N,  W. 
199. 

Vol.  I 


No  Greater  Quantum  of  Evidence 
Is  Required  to  establish  the  fact  of  a 
fraudulent  alteration  than  any  other 
fraudulent  act.  Coit  7\  Churchill,  61 
Iowa  296,  16  N.  \Y.   147. 

Proof  Beyond  a  Reasonable  Doubt 
is  not  necessary.  Lewis  v.  Garret- 
son,  56  Iowa  178,  9  N.  W.  214; 
Glover  v.  Gentry,  104  Ala.  222.  16 
So.  38. 

26.  Oakey  v.  Hennen,  i8  La.  435. 

27.  Rosenbug  v.  Jctt,  72  Fed.  90. 

28.  Sweet  v.  Naupin,  65  Mo.  65. 
See  also  North  River  Meadow  Co. 
V.  Christ  Church,  22  N.  J.  Law  424, 
53    Am,    Dec.    258. 

29.  Duggar  v.  Dempsey,  13  Wash. 
396,  43  Pac.  357.  See  also  Boston 
Block  Co.  Z'.  Bulfington,  39  Minn. 
38s,  40  N.  W.  361. 

30.  Booth  V.  Powers,  56  N.  Y.  22. 
Compare  Flint  v.  Craig,  59  Barb.  (N. 
Y.)  319,  a  similar  action,  where  the 
note  had  been  held  by  the  defendant 
as  collateral  security,  which  he 
refused  to  return  to  the  plaintiff^  after 
the  payment  of  the  partial  indebted- 
ness, in  which  it  was  held  that  the 
defendant  could  not  show  either  as  a 


ALTERATION  OF  INSTRUMENTS.     • 


779 


II.  EXPLANATION  OF  ALTEKATIONS. 

1.  Admissibility  of  the  Instrument.  —  Formerly  it  was  the  rule 
that  if  an  instrument  was  altered  in  a  material  part,  the  court 
declared  it  to  be  void,  and  hence  it  was  not  receivable  in  evidence 
for  any  purpose,  even  though  the  alteration  was  capable  of  expla- 
nation.^' But  under  the  present  practice  the  fact  of  such  an  altera- 
tion does  not  justify  the  court  in  excluding  the  instrument  when 
offered  in  evidence,^-  the  question  of  the  alteration  and  the  time 
when  it  was  made  being  for  the  jury  to  determine  from  the  instru- 
ment in  connection  with  the  explanatory  evidence  adduced  by  the 
parties.'"'' 

Objection  Available  Only  to  Non-Consenting  Parties.  —  The  objection 
that  an  instrument  has  been  altered  in  a  material  respect  is  available 
only  to  parties  not  consenting  thereto.""* 

2.  Immaterial  Alterations  Need  Not  Be  Explained.  —  It  is  a  gen- 
eral rule  that  immaterial  alterations  in  a  paper  offered  in  evidence, 
although  apparent  on  its  face,  need  not  be  explained  before  receiving 
the  paper  in  evidence.''" 


party  to  the  action  or  to  mitigate 
damages  that  there  had  been  made 
a  material  alteration  in  the  note  after 
its  execution;  the  whole  matter  on 
the  subject  of  the  alteration  of  the 
note  is  as  between  the  parties  to  such 
an  action  wholly  irrelevant  and  im- 
material for  any  purpose. 

31.  See  Babb  t'.  Clemson,  lo  Serg. 
&  R.  (Pa.)  419.  13  Am.  Dec.  684; 
Soaps  I'.  Eichberg.  42  111.  App.  375, 
for  statements  of  tlie  former  rules 
in   this   respect. 

32.  Comstock  v.  Smith-,  26  Mich. 
306 ;  Hunt  V.  Gray,  35  N.  J.  Law  227, 
10  Am.  Rep.  232 ;  Pringle  z:  Cham- 
bers. I  Abb.  Pr.  (N.  Y.)  58;  Ravisies 
T'.  Alston,  5  Ala.  297 ;  Mitchell  v. 
Woodward,  2  Marv.  (Del.)  311,  43 
Atl.  165,  holding  that  the  fact  of 
^Iteration  of  the  note  sued  on  is 
matter  for  defense,  and  not  ground 
for  objection  to  the  note  as  evi- 
dence. 

As  to  whether  or  not  such  an  in- 
strument may  be  excluded  upon  fail- 
ure of  the  party  producing  it  to 
adduce  the  requisite  explanatory  evi- 
dence see  infra  II,  7-A. 

33.  See  infra,  this  title  III, 
"  Questions  of  Law  and  Fact." 

34.  Hochmark  v.  Richler,  16  Colo. 
263.  26  Pac.  818.  See  also  Andrews 
V.  Burdick,  62  Iowa  714,   16  N.  W. 


275;  Flint  V.  Craig,  59  Barb.  (N.  Y.) 

3IQ- 

An  Erasure  of  the  Names  of  the 
Guarantors  of  a  Note,  when  the  note 
is  in  the  guarantor's  hands,  cannot  be 
objected  to  by  a  prior  or  subsequent 
indorsee.  Logue  v.  Smith,  Wright 
(Ohio)    10. 

Objection  by  Stranger.  —  In 
Ravisies  v.  Alston,  5  Ala.  297,  it 
was  held  that  as  the  parties  to  the 
instrument  made  no  objection  to  it, 
but  admitted  its  validity,  certainly 
a  third  person  could  not  object  to 
the  admission  of  the  instrninent  on 
the  ground  of  an  alteration,  unless 
the  alteration  was  evidence  of  fraud 
between  the  parties  to  the  injury  of 
creditors. 

Erasure   by  Consent Where  the 

holder  of  a  negotiable  instrument, 
under  an  arrangement  with  the  prin- 
cipal debtor  and  one  of  the  sureties, 
allows  the  signature  of  the  surety 
to  be  erased  by  the  principal  debtor,, 
the  latter  cannot  be  allowed  to  set 
up  the  erasure  in  discharge  of  him- 
self. People  V.  Call,  I  Den.  (N.  Y.) 
120. 

35.  Lee  v.  Newland,  164  Pa.  St. 
?6o,  30  Atl.  258 ;  Zimmerman  v. 
Camp,  ItS  Pa.  St.  152,  25  Atl  1086; 
Virginia  &  T.  Coal  &  I.  Co.  v.  Fields, 
94  Va.  102,  26  S.  E.  426. 

Vol.  I 


780 


ALTERATION  OF  INSTRUMENTS. 


3.  Material  Alterations.  —  A.  In  General.  —  The  discussion  in 
this  article  of  the  question  of  the  materiality  of  an  alteration  such 
as  will  necessitate  the  party  producing  the  instrument  to  give  evi- 
dence explaining  the  appearance  of  the  instrument,  and  accordingly 
involve  of  necessity  the  competency  of  the  evidence  offered  by  him- 
for  that  purpose,  has  been  restricted  to  alterations  which  because 
of  their  materiality  so  affect  the  instrument  as  that  notliing  can  be 
proved  by  it,  at  least,  in  the  absence  of  the  requisite  explanatory 
evidence.  And  no  attempt  has  been  made  to  discuss  such  questions 
as  alterations  by  strangers ;  or  with  due  and  proper  authority,  or 
the  effect  of  the  alteration  on  the  original  obligation,  and  other  like 
questions  which  do  not  go  to  the  materiality  of  the  alteration. 

B.  Opek.^tion  op  the  Alteration  As  Constituting  jNIateri- 
ALITY. — a.  General  Rule. — The  general  rule  deduced  from  all  the 
authorities  is  to  the  effect  that  in  order  to  constitute  a  material  alter- 
ation, such  as  will  require  explanation  upon  the  part  of  the  party 
producing  the  instrument  as  evidence  in  his  behalf,  the  alteration 
must  be  one  which  in  some  manner  changes  the  legal  eft'ect  or 
identity  of  the  instrument  in  respect  of  some  right,  duty  or  obliga- 
tion of  some  of  the  parties  thereto,^"  otherwise  the  alteration  will 


Where  the  Execution  and  Delivery 
of  a  Deed  Have  Been  Proved  by 
Other  Evidence,  the  deed  is  not 
inadmissible  because  of  an  alteration 
in  the  acknowledgment.  Arn  v. 
Matthews,  39  Kan.  272,  18  Pac.  65. 

In  Missouri  it  is  held  to  be  a  firmly 
established  rule  that  any  alteration  of 
a  written  instrument  after  delivery, 
however  immaterial  in  its  nature,  or 
however  innocently  made,  must  be 
shown  to  have  been  made  with  the 
consent  of  all  the  parties.  Morrison 
V.  Garth.  78  Mo.  434;  First  Nat. 
Bank  v.  Fricke,  75  Mo.  178,  42  Am. 
Dec.  397.  Compare  Capital  Bank  v. 
Armstrong,  62  Mo.  59. 

36.  England.  —  Doedeni  Lewis  v. 
Bingham,  4  Barn,  &  A.  672,  6  Eng. 
C.   L.  648. 

Canada.  —  Swaisland  v.  Davidson, 
3  Ont.  320. 

United  States.  —  Crawford  v.  Dex- 
ter, s  Sawy,  201,  6  Fed.  Cas.  No. 
3368,  quoting  with  approval  from 
Smith  V.  U.  S.,  2  Wall.  (U.  S.)  219; 
Mersman  i'.  Werges,  112  U.  S.  139. 

Alabama.  — 'White  S.  M.  Co.  v. 
Saxton,  121  Ala.  399,  25'  So.  784; 
Ala.  State  Land  Co.  v.  Thompson, 
104  Ala.  570,  16  So.  440,  53,  Am.  St. 
Rep.   80,   and   cases   cited. 

.Irkausds.  —  Inglish    v.    Breneman, 

Vol.  I 


5  Ark.  377,  41  Am.  Dec.  96;  Little 
Rnck  Trust  Co.  z\  Martin,  57  Ark. 
j-7.  21    S.   W.  468. 

California.  —  Humphreys  v.  Crane, 
5  Cal.  173;  Pelton  ;■.  San  Jacinto 
Lumb.  Co.,  113  Cal.  21.  45  Pac.  12. 

Colorado.  —  King  v.  Rea,  13  Colo. 
69.  21   Pac.  1084. 

Connecticut.  —  Nichols  v.  Johnson, 
10  Conn.  192;  Mahaiwe  Bank  v. 
Douglass,  31  Conn,  170;  Murray  v. 
Klinzing.  64  Conn.   78,  29  .\tl.  244. 

/JWaira/r.  —  Warder  B,  &  G,  Co. 
-'.  Stewart,  2  Maw.  275,  36  Atl.  88. 

Georgia.  —  Low  v.  Argrove,  30  Ga. 
129. 

Idaho.  —  Mulkcy  r.  Long  (Idaho), 
47  Pac.  949. 

Illinois.  —  Ryan  v.  First  Nat.  Bank, 
148  111.  349,  35  N.  E.  1 120;  Magers 
V.  Dunlap.  39  111.  -A.pp.  618;  Mc- 
Kibhen  t.  Newell,  41  III.  461  ;  Hough- 
ion  V.  Francis,  29  111.  244. 

hidiana.  —  Bowser  v.  Rendell,  31 
Ind.  128;  Shuck  v.  State,  136  Ind. 
63,  35  N.  E.  993;  Harris  v.  State,  54 
Ind.  2.  Citing  Cochran  v.  Neb- 
ekcr,  48  Ind.  459;  State  -:  Berg,  50 
Ind.  496. 

Indian  Territory. — Taylor  v.  Acorn, 
I    Ind.   Ter.   436,  45   S.   W.    130. 

Zona.  —  Starr  v.  Blatner,  76  Iowa 
356,   41    N.    W.   41. 


ALTERATION  OF  INSTRUMENTS. 


781 


be  retrarded  as  immaterial.^' 


Kansas.  —  Davis  i>.  Epplcr,  38  Kan. 
629,    16    Pac.    793. 

Kentucky.- — Philips  v.  Breck,  79 
Ky.  465 ;  Phoenix  Ins.  Co.  v.  Mc- 
Kernan,  100  Kj'.  97,  ^7  S.  W.  490. 

.Maine.  —  Jewett  t'.  Hodgdon,  3  Me. 
103;   Lee  r.   Starhird,  55'  Me.  491. 

Maryland.  —  Owen  v.  Hall,  70  Md. 
97,   16  Atl.  376. 

Massachusetts.  —  Rhoades  ''.  Cast- 
ner,  12  Allen  130 ;  Osgood  -'.  Steven- 
son, 143  Mass.  399,  9  N.  E.  825. 

MicJiigan.  —  Prudden  v.  Nester,  103 
Mich.  540.  61  N.  W.  777;  Aldrich 
V.  Smith,  V  Mich.  468,  26  Am.  Rep. 
536. 

Minnesota.  —  Hcrrick  v.  Baldwin, 
17  Minn.  209,  10  Am.  Rep.  161. 

Mississil'pi.  —  Bridges  f.  Winters, 
42  Miss.  135.  2  Am.  Rep.  598;  Hen- 
derson   V.    Wilson,    6   How.    65. 

Missouri.  —  Capital  Bank  v.  Arm- 
strong,  62   Mo.   59. 

Nebraska.  —  Erickson  v.  First  Nat. 
Bank,  44  Neb.  622,  62  N.  W.  1078,  48 
Am.  St.  Rep.  753,  28  L.  R.  A.  577; 
Hurlbnt  V.  Hall,  3Q  Neb.  889,  58  N. 
W.  538. 

New  Hampshire.  —  Cole  v.  Hills,  44 
N.  H.  227;  Humphreys  z:  GuiUow,  13 
N.  II.  385,  38  Am.  Dec.  499;  Morrill 
V.  Otis,   12   N.   H.   466. 

Neiv  York.  —  Martin  -'.  Trades- 
men's Ins.  Co.,  loi  N.  Y.  498,  5  N.  E. 
338;  Flint  V.  Craig,  59  Barb.  319; 
Ludekins  r.  Pscherhofer,  5  N.  Y.  St. 
241,  28  X.  Y.  Supp.  230;  Casoni  v. 
Jerome,  58  N.  Y.  315;  Booth  v. 
Powers.  56  N.  Y.  22. 

North  Carolina.  —  Cheek  v.  Nail, 
112  N.  C.  370,  17  S.  E.  80. 

North  Dakota.  — First  Nat.  Bank 
V.   Laughlin,  4  X.   D.  391,  61   N.  W. 

473- 

Ohio.  —  Davis  r.  Bauer,  41  Ohio 
St.  257;  Xewman  f.  King,  54  Ohio 
St.  273.  43  X.  E.  683,  56  Am.  St. 
Rep-  705.  35  L.  R.  A.  471. 

Okhilwina.  —  Richardson  v.  Fell- 
ner,   9   Okla.   513,  60   Pac.   270. 

Pennsyhania.  —  Robertson  v.  Hay, 
91  Pa.  St.  242 ;  Mclntyre  v.  Velte, 
153  Pa.  St.  350,  25  Atl.  739;  Gettys- 
burg Nat.  Bank  r.  Chisholm,  169 
Pa.  St.  564.  32  Atl.  730,  47  Am.  St. 
Rep.  929. 

Rhode  Ishitid.  —  Keenc  r.  Weeks, 
19  R.  I.  309,  7,3  Atl.  446. 


South  Carolina.  —  Heath  v.  Blake, 
28  S.  C.  406,  5  S.  E.  842;  Burton  v. 
Pressly,   Cheves   Eq.    1. 

Tennessee. — McDaniel  v.  Whitsett, 
96  Tenn.   10,  33   S.  W.  567. 

Texas.  —  Marrow  f.  Richardson 
(Te.x.),  6  S.  W^  763;  Heath  v.  State, 
14  Tex.  App.  213;  Butler  v.  State, 
51  Tex.  Crim.  App.  63,  19  S.  W. 
676;  Wegner  Z'.  State,  28  Tex.  App. 
419,  13  S.  W.  608;  Park  v.  Glover, 
23  Tex.  469. 

Utah.  —  American  Pub.  Co.  v. 
Fisher,  10  Utah  147,  37  Pac.  259. 

i'irginia.  —  Dobyus  -'.  Raivley,  76 
Va.  537- 

West  Virginia.  —  Yeager  7:  Mus- 
grave,  28  W.  Va.  90;  Moreland  v. 
Nat.  Bank,  5  W.  Va.  74.  13  Am. 
Rep.  636. 

Wisconsin.  —  Krouskop  ■;■.  Shontz, 
51  Wis.  204,  81  N.  W.  241 :  Matteson 
j'.  Ellsworth,  33  Wis.  488,  14  .\m. 
Rep.   766. 

Wvowing. — ^ilcLaughlin  v.  Vcnine, 
2    Wvo.    I. 

Altering  Return  Term  of  Court  of 

Bail    Bond Any    alteration    of    an 

instrument  which  causes  it  to  speak 
a  language  different  in  legal  effect 
from  that  which  it  originally  spoke 
is  a  material  alteration.  Under  this 
rule  the  alteration  of  a  bail  bond 
as  to  the  term  of  court  before  which 
the  principal  is  bailed  to  appear,  if 
made  without  the  consent  of  the 
sureties,  is  a  material  alteration,  as  to 
such  non-consenting  sureties.  Heath 
z:    State.    14   Tex.    App.   213. 

37.  Alabama.  — Winter  v.  Pool, 
100  Ala.  503,  14  So.  411. 

///(H()i.f.  — Ryan  v.  First  Nat.  Bank, 
148   111.   349.  35   N.   E.   1120. 

/»rf/a»(7.  —  Cochran  v.  Nebeker,  48 
lud.    459. 

Iowa.  —  Horton  v.  Horton,  71  Iowa 
448,   32   N.   W.   452. 

Louisiana.  —  Jilartin  v.  McMasters, 
14  La.  420. 

.l/(7i»c.  — Gushing  c'.  Field,  70  Me. 
50,  35  .\m.  Rep.  293. 

Massachusetts.  —  Brown  c'.  Pink- 
ham,    18    Pick.    172. 

Michigan.  — White  S.  M.  Co.  v. 
Dakin.  86  Mich.  581,  49  N.  W.  583, 
13  L.  R.  A.  313. 

Minnesota.  —  Herrick  v.  Baldwin, 
17    Minn.   209,    lO  .\ni.   Rep.    161. 

Vol.  I 


782 


ALTERATION  OF  INSTRUMENTS. 


b.  Basis  of  Doctrine.  —  Two  rules  are  usually  assigned  as  the 
basis  for  the  doctrine  just  stated :  First,  that  the  identity  of  the  con- 
tract is  destroyed  by  the  alteration ;  and  second,  that  no  man  shall  be 
permitted  on  grounds  of  public  policy  to  take  the  chance  of  commit- 
ting a  fraud  without  running  any  risk  of  loss  by  the  event  when  it  is 
detected.^' 

c.  Test  of  Materiality. — (l.)  in  General.  —  It  is  immaterial  how 
the  alteration  is  effected,  whether  by  erasure,  interlineation  or  other- 
wise. The  question  is :  has  the  integrity  or  identity  of  tlie  paper 
been  changed  in  respect  of  some  right,  duty  or  obligation  of  the 
party  to  be  affected  by  the  alteration,  whether  of  detriment  or 
benefit.^'' 


Mississiplii.  ■ —  Bridges  v.  Winters, 
42  Miss.   13s,  2  Am.  Rep.  598. 

Nebraska.  —  Fisherdick  z:  Hutton, 
44  Neb.  122,  62  N.  W.  488. 

New  Vorli.  —  Casoni  i'.  Jerome,  58 
N.   Y.   315. 

Ohio.  —  Huntington  t.  Finch,  3 
Ohio   St  445. 

Pennsylvania.  —  E.xpress  Pub.  Co. 
V.  Aldine  Press  Co.,  126  Pa.  St.  347, 
17  Atl.  608. 

Texas.  —  Churchill  v.  Bielstein,  g 
Tex.  Civ.  App.  445,  29  S.  W.  392 ; 
Tutt  V.  Thornton,  57  Tex.  35. 

Wisconsin.  —  Krouskop  i\  Shontz, 
SI   Wis.   204,  8  N.   W.   241. 

Erasing  Unperformed  Condition. 
A  credit  on  a  note  indorsed  pursuant 
to  the  agreement  with  the  maker, 
conditional  upon  his  performing  cer- 
tain acts,  may  be  erased  by  the  holder 
where  the  maker  fails  to  perform  the 
condition  upon  which  the  credit  was 
indorsed.  Chamberlain  v.  White,  79 
111.   549- 

Description  of  Property  Attached. 
An  interlineation  in  a  delivery  bond 
giving  a  description  of  the  attached 
property,  made  in  good  faith  by  the 
officer  to  whom  the  bond  is  presented 
for  acceptance,  at  the  request  of  the 
principal  in  the  bond,  is  not  a  ma- 
terial alteration.  Rowley  zk  Jewett, 
56   Iowa  492,  9  N.   W.  353. 

38.  Massachuselts.  —  Lee  v.  But- 
ler, 167  Mass.  426,  46  N.  W.  52.  57 
Am.  St.  Rep.  466;  Cambridge  Sav. 
Bank  v.  Hyde,  131  Jilass.  77,  41  .\m. 
Rep.  193. 

.Minnesota.  —  Theopold  f.  Deike, 
76   Minn.    121,  78  N.   W.   977- 

New  Jersey.  —  Hunt  7'.  Gray,  35 
N.  J.   Law  227,   ID  Am.  Rep.  232. 

Vol.  I 


Oliio.  —  Huntington  v.  Finch,  3 
Ohio  St.  445. 

Pennsylvania.  —  Gettysburg  Nat. 
Bank  v.  Chisolni,  169  Pa.  St.  564,  32 
Atl.  730,  47  Am.  St.  Rep.  929,  quoting 
with  approval  from  Hartley  f.  Cor- 
boy,   150  Pa.   St.  23,  24  Atl.  295. 

Tennessee.  —  McDaniel  i'.  Whit  sett, 
go  Tenn.   10,  33   S.  W.   567. 

Virginia.  —  Newell  v.  Mayberry,  3 
Leigh  250,  23  Am.  Dec.  261,  and 
cases  cited ;  Dobyus  v.  Rawley,  76 
Va.  537. 

See  also  cases  cited  and  particu- 
larly applied  in  the  succeeding  sec- 
tions. 

39.  Alabama.  — \\\\\ie  S.  M.  Co. 
V.  Saxon,  121  Ala.  ,399.  25  So.  784; 
Lesser  •;■.  Scholze,  93  Ala.  338,  9  So. 

273- 

Indiana. — Johnston  v.  May,  76 
Ind.  293. 

lozva.  —  Dickeman  r'.  Miner,  43 
Iowa  508. 

Kansas.  —  McCormick  Harv.  Mach. 
Co.  V.  Lauber,  7  Kan.  App.  730,  52 
Pac.  577- 

Kentucky.  —  Phoeni.x  Ins.  Co.  v. 
McKernan,  100  Ky.  97,  37  S.  W. 
490. 

Missouri.  —  Moore  ''.  Hutchinson, 
69  Mo.  429. 

Neiv  York.  —  McCaughey  z\  Smith, 
27  N.  Y.  39. 

And  see  cases  cited  and  applied  to 
particular  kinds  of  alterations  in  the 
succeeding  sections. 

The  Test  is  whether  the  alteration 
has  made  the  writing  a  new  writing; 
and  not  whether  the  new  writing 
is  more  or  less  beneficial  to  some 
of  the  parties.  Chism  v.  Toomer, 
27  Ark.   108. 


ALTERATION  OF  I.YSTRU.^IENTS. 


785 


(2.)  Effect  on  Liability  of  Maker  or  Obligor.  —  Within  the  rule  pre- 
viously stated,  it  is  held  that  any  alteration  is  material  which 
operates  to  chansje  the  legal  liability  of  the  maker  or  obligor,  or 
which  may  work  to  his  prejudice;  and  it  is  immaterial  whether  that 
change  is  the  enlargement  or  reduction  of  his  liability.'"' 

(3.)  The  Time  of  the  Alteration.  —  An  alteration  of  a  writing, 
although  apparent  on  its  face,  is  immaterial  if  it  was  made  before 
execution  of  the  writing,  which  includes  its  delivery,  and  hence  does 
not   affect   its   character   or  value   as   an   instrument   of   evidence.*^ 

d.  Intent. — Again  it  has  been  held  not  ti)  be  material  whether 
or  not  the  alteration  was  made  with  fraudulent  intent,^-  or  innocently 


40.     England.  ^Gardner  i:  Walsh, 
5   El.  &  B.  83,  85   Eng.   C.   L.  83. 
United  States.  —  Miller  v.  Stewart, 

9  Wheat.  680 ;   Mersman  z\  Werges, 
112  U.   S.   139. 

Alabama.  —  Green  z:  Sneed,  loi 
Ala.  205,  13  So.  277,  46  Am.  St.  Rep. 
1 19;  Glover  z:  RobbiiLs,  49  Ala.  219, 
20  Am.  Rep.  272. 

Arkansas.  —  Fordyce  z'.  Kosminski, 
49  Ark.  40,  3  S.  W.  892,  4  Am.  St. 
Rep.  18;  Little  Rock  Trust  Co.  v. 
Martin,  57  Ark.  277,  21  S.  W.  468; 
Chism   z:   Toomer,   27  Ark.    108. 

Colorado. — Hoopes  z'.  Collingwood, 

10  Colo.    107,    13    Pac.   909,    10   .\m. 
St.  Rep.  565. 

Connecticut.  —  .\etna  Nat.  Bank  z'. 
Winchester,  43  Conn.  391. 

Georgia.  —  Gwin  z'.  Anderson.  91 
Ga.  827,   18  S.  E.  43. 

Illinois.  — Rudesill  z\  Jefferson  Co., 


85     111.     446;     Yost 


.Minneapolis 


Harv.    Wks.,   41    111.    App.    556. 

Indiana.  —  Wier  Plow  Co.  v. 
Walinsley,    no    Ind.    242,    ir    N.    E. 

232; 

Kentucky.  —  Locknaue  f.  Emerson, 
II   Bnsh.  69. 

Michigan.  —  Osburne  z'.  Van 
Honten,  45   Mich.  444.  8  N.   W.   77. 

Minnesota.  —  Renville  Co.  v.  Gray, 
61  Minn.  242,  63  N.  W.  635 ;  White 
V.   John,  24   Minn.   387. 

Nebraska.  —  State  Sav.  Bank  z\ 
Shaffer,  9  Neb.  i,  I  N.  W.  980.  31 
Am.   Rep.   394. 

Nczu  Hamfishirc.  —  Goodman  z<. 
Eastman,  4  N.  H.  455. 

Neiv  York.  —  Booth  z\  Powers,  56 
N.   Y.   22. 

Ohio.  —  Jones  v.  Bangs,  40  Ohio 
St.    139,   48   Am.    Rep.    664. 


Virginia.  —  Dobyns  v.  Rawley,  76 
Va.  Si-- 

And  see  cases  cited  and  applied  in 
notes    to    succeeding    sections. 

A  Reduction  of  the  Penalty 
Named  in  the  Bond  of  a  Sheriff 
made  by  the  proper  authorities,  but 
after  the  execution  by  the  sheriff 
and  a  portion  of  the  sureties,  and 
without  their  knowledge  or  consent, 
is  a  material  alteration.  People  Z'. 
Brown,  2  Dougl.   (Mich.)   9. 

41.  Hall  z'.  Weaver,  34  Fed.  104, 
quoting  with  approval  from  i  Whart. 
Ev.,  §625,  to  the  effect  that  "the 
period  after  which  alterations,  not 
mutual,  are  false  is  that  of  the  final 
delivery  of  the  document."  To 
similar  effect  see  Hills  z\  Barnes,  II 
N.  H.  395;  Chapman  v.  Sargent,  6 
Colo.  App'  438,  40  Pac.  849 :  Williams 
z'.  Starr,  5  Wis.  534;  Hilton  v. 
Houghton,  35  Me.  143;  Thorpe  v. 
Keeler,  18  N.  J.  Law  232.  Compare 
Briton  v.  Dierker,  46  Mo.  591.  2 
Am.  Rep.  553. 

42.  Vogle  V.  Ripper,  34  111.  100. 
85  Am.  Dec.  298;  Owen  v.  Hall.  70 
Md.  97,  16  Atl.  376;  Phoeni.x  Ins. 
Co.  Z'.  AIcKerran,  100  Ky.  97,  37  S. 
W.  490 ;  Richardson  v.  Fellner.  9 
Okla.  513,  60  Pac.  270:  Craighead  v. 
McLoney,  gtj   Pa.   St.  211. 

An  Immaterial  Alteration  Is  Not 
Made  Material  Simply  by  the  In- 
tent, if  the  intent  to  give  a  different 
effect  to  the  instrument  was  not  and 
could  not  be  effectuated  by  the  act 
done.  Robinson  v.  Phoenix  Ins.  Co., 
25  Iowa  430;  Fuller  Z'.  Green.  64 
Wis.  159,  24  N.  W.  907,  54  Am.  Rep. 
600.  Compare  McDaniel  z\  Whitsell, 
96  Tenn.  10,  33  S.  W.  567. 


Vol.  I 


784 


ALTER  AT  J  ON  OF  INSTRUMENTS. 


or  in  the  belief  that  it  could  lawfully  be  made  without  the  consent 
of  the  other  party  to  the  instrument." 

C.  Subject  Matter.oF  THE  Altekatiox. — a.  /;;  Gcncyal. — The 
alteration,  in  order  to  be  material,  must  be  in  a  material  part  of  the 
instrument/"' 

b.  Inserting  Matter  Which  Lav.'  Would  Supply.  —  An  alteration 
is  regarded  as  immaterial  which  only  expresses  what  the  law 
implies.''^ 


43.  Hartley  z:  Corboy,  150  Pa.  St. 
23,  24  Atl.  295.  See  also  Gettysburg 
Nat.  Bank  v.  Chisolm,  169  Pa.  St. 
564,  32  Atl.  730,  47  Am.  St.  Rep. 
929;  Moore  v.  Hutchinson,  69  Mo. 
429.  Compare  First  Nat.  Bank  z\ 
Wolff;  79  Cal.  69,  21  Pac.  551. 

44.  United  States.  —  Crawford  v. 
Dexter,  =;  Sawy.  201,  16  Fed.  Cas.  No. 
3368. 

Illmois.  —  Bryan  t'.  Dyer,  28  III. 
188. 

KciilKcIiy.  —  Lisle  v.  Rogers,  18  B. 
Men.  528;  Woolfolk  V.  Bank  of 
America,   10  Bush.   504. 

M!c/i!g(j;i.  — White  S.  M.  Co.  v. 
Dakin,  86  i\Iich.  581,  49  N.  W.  583, 
13   L.   R.   A.   313. 

Ncbraslia.  —  State  Sav.  Bank  v. 
Shaffer,  9  Neb.  I,  i  N.  W.  980,  31 
Am.  Rep.  394,  citing  Brown  v.  Straw, 
6  Neb.  536,  29  Am.  Rep.  369. 

Nczv  Yorl:. — People,  ex  ret.  Newel, 
7'.  Muzzy,  I  Denio  239. 

Te.vas.  —  Morris  v.  Cude,  57  Tex. 
337;  Gregg  I'.  State,  18  Tex.  App. 
295. 

And  see  cases  cited  in  succeeding 
sections. 

When  a  Contract  Is  Evidenced  by 
Several  Writings,  all  of  which  are 
material  to  show  the  actual  agree- 
ment between  the  parties,  the  fraudu- 
lent alteration  of  any  of  them  by 
one  of  the  parties  is  a  material 
alteration  of  the  contract.  Myer  ?'. 
Huneke,  55   N.   Y.  412. 

Adding  a  Date  to  an  Indorse- 
ment of  a  Payment  upon  the  back  of 
a  promissory  note  is  not  an  altera- 
tion of  the  note.  Howe  v.  Thomp- 
son, II  Me.  152.  "The  indorse- 
ment," said  the  court,  "  on  the  back 
of  the  note  forms  no  part  of  the 
original  instrument,  and  the  addition 
of  the  date  to  this  indorsement  can 
have  no  effect  upon  the  legal  validity 
of   that    instrunienl.      It    is   no  altera- 

Vol.  I 


tion  of  it,  and  can  neither  destroy  its 
efficacy   or   give   it   force." 

Credits  Wrongfully  Indorsed 
Upon  a  Promissory  Note  by  the 
maker  may  properly  be  obliterated  by 
the  holder  thereof.  Burtch  v.  Dent, 
13   Ind.    542. 

The  Writing  of  a  Guaranty  on  the 
Back  of  a  Note  by  the  Payee 
Thereof  at  the  time  of  the  transfer 
by  him  to  the  present  holder,  is  not 
an  alteration  of  the  original  con- 
tract of  the  makers ;  it  is  the  col- 
lateral undertaking  of  the  payee, 
which  in  no  way  affects  the  liability 
of  the  original  parties.  Hutches  v. 
Case  Thresh.  Mach.  Co.  (Tex.  Civ. 
App.),  35  S.  W.  60. 

Cutting  Margin  of  Paper —  In 
Goodfellow  V.  Inslec,  12  N.  J.  Eq. 
355',  it  was  objected  that  the  obligee 
mutilated  the  bond,  cutting  off  a  part 
of  the  margin,  and  mutilating  the 
receipts  upon  it.  The  answer  was 
held  to  be  that  the  instrument  itself 
was  not  mutilated.  "  The  mere  cut- 
ting the  margin  of  the  paper  upon 
which  a  bond  is  printed  or  written," 
said  the  court,  "  is  not  a  mutilation 
of  the  instrument  itself.  It  is  no 
part  of  the  bond,  as  a  legal  instru- 
ment, where  the  paper  has  been 
mutilated  for  the  purpose  of  destroy- 
ing a  receipt  or  other  indorsement 
upon  the  paper;  the  strongest  pre- 
sumptions may  be  raised  against  his 
touching  the  instrument  mutilated  or 
destroyed,  but  it  is  no  nuitilation  or 
alteration  of  the  bond  itself." 

45.  £»i^/a;id.  —  Waugh  r.  Phil- 
lips, 5  Taunt.  707,  IS  Rev.  Rep.  624. 

Alaba}iia.  —  Anderson  t'.  Bcllenger, 
87  Ala.  334.  6  So.  82,  4  1,.  R.  A.  68, 
13  Am.   St.  Rep.  46. 

////)i()/.s.  —  Swigart  z:  Wearc,  37  111. 
.•\pp.   258. 

Indiana.  —  State  v.  Berg,  50  Ind. 
496. 


ALTERATION  OP  INSTRUMENTS. 


785 


c.  Orthography,  Plirascology,  Etc. —  (1.)  Generally.  —  Nor  is  a 
mere  change  in  the  phraseology  of  the  language,  a  material  altera- 
tion, where  the  sense  or  legal  effect  of  the  instrument  is  not 
affected.-"' 

(2.)   Conforming  Writing  to  Intention  of    Parties.     \i,     p Iteration 

which  not  onl_y  does  not  change  the  meaning  and  construction  of  the 
writings,  but  does  in  fact  conform  the  language  of  the  writing  to  the 
clear  and  obvious  intention  of  the  parties,*'  or  which  only  conforms 
the  writing  to  the  facts,  and  goes  but  to  the  identity  of  its  subject 
matter,  is  not  material.^* 

d.  Retracing  Pencil  Writing  in  Ink.  —  Where  a  note  is  written  in 
pencil,  to  go  over  it  and  retrace  the  writing  in  ink  is  not  a  material 
alteration,  although  done  W'ithout  the  consent  of  the  maker  by  a 
party  claiming  under  it.''" 

e.  Memoranda. — (1.)  General  Rule. —  Any  alteration  of  a  memo- 
randum placed  upon  a  written  instrument,  or  annexed  thereto,  is 
not  material  where  such  memorandum  is  no  part  of  the  writing, 
or  in  no  wav  eft'ects  a  change  therein.'"'"    iiut  where  the  memoran- 


loii'a.  —  James  r.  Delbey,  107  Iowa 
463,  78   N.   W.   51. 
Alassaclutsctts.  —  Hunt    f.    Adams. 

6  Mass.   519. 

Mississiplyi.  —  Bridges  v.  Winters, 
42  Miss.  135,  2  Am.  Rep.  598. 

Missouri.  —  West  Bldg.  &  Loan 
Ass"n  f.  Fitzmaurice,  7  Mo.  App.  283. 

A'rii'  Hampsliirc.  —  Burnliam  ?'. 
Aver,  35  _N.   H.  351. 

Xczi.'  Yorl;.  —  Kinney  v.  Schmitt, 
12  Hun  521. 

Tennessee.  —  Blair  i'.  State  Bank, 
II  Humph.  84. 

H'asliinglon.  —  Kleeb  i'.  Bard,  12 
Wa^h.   140.  40   Pac.  73^. 

The  Addition  to  a  Bond  for  a 
Deed,  of  a  Clause  Granting  Imme- 
diate Possession  to  (he  obligee,  with- 
out the  knowledge  or  consent  of  the 
obhgor,  is  a  material  alteration.  It 
is  not  a  case  of  inserting  what  the 
law  would  supply.  Kelly  v.  Tumble, 
74   111.  428. 

46.  State  '■.  Riebe,  27  JNIinn.  315, 

7  N.   W.  262;   Gushing  v.  Field,  70 
Me.  50.  35  .\m.  Rep.  293. 

Interlining  the  'Word  "  Before  " 
Over  the  Word  "  By,"  in  a  clause 
fi.xing  the  time  within  which  a 
specified  privilege  may  be  exercised, 
is  not  a  material  alteration.  E.x- 
press  Pub.  Co.  v.  Aldine  Press,  126 
Pa.   St.  347,  17  Atl.  608. 

47.  U.  S.  V.  Hatch,  i  Paine  336, 
26  Fed.  Cas.  No.  15,325. 

SO 


Erasing  Signatures  Placed  in  the 
Wrong  Place  and  re-signing  in  the 
proper  place,  is  not  a  material  al- 
teration of  the  instrument.  Fournier 
V.  Cyr,  64  Me.  32;  Ryan  v.  First  Nat. 
Bank,  148  III.  349,  35  N.  E.  1120.  See 
also  Fisher  v.  King,  153  Pa.  St.  3, 
25  Atl.  1029.  Compare  Morrison  v. 
Garth,  78  Mo.  434,  under  the  Missouri 
rule,  that  an  unauthorized  alteration, 
however  immaterial,  vitiates  the 
writing. 

48.  Domestic  Sewing  Mach.  Co. 
V.  Barry,  2  Misc.  264,  21  N.  Y.  Supp. 
970. 

49.  Reed  v.  Roark,  14  Tex.  329. 
See  also  Donnell  Mfg.  Co.  f.  Jones, 
49  111.   App,  327. 

Retracing    Blotted    Writing In 

Dunn  V.  Clement,  7  Jones  I,.  (N.  C.) 
58,  where  the  obligee  in  a  bond 
attempted  to  retrace  part  of  the 
obligor's  name,  which  had  been 
blotted  with  ink  and  obscured,  and 
in  doing  so  mispelled  it,  but  not  so 
as  to  alter  the  sound,  no  fraud  being 
imputable  to  the  act,  it  was  held  that 
the  alteration  was  not  material. 

50.  Alabama.  —  Manning  v.  Ma- 
roney,  87  Ala.  563,  6  So.  343,  13  Am. 
St.  Rep.  67 ;  Maness  Z'.  Henry,  96 
Ala.  454,  II  So.  41b. 

Louisiana.  —  Nugent  Z'.  Delhomme, 
2  Mart.  O.  S.  308. 

Maine.  —  Gushing  'e.  Field,  70  Me. 
so,  35  Am.  Rep.  293. 

Vol.  I 


786 


ALrilRATION  OP  JXSTRUMENTS. 


dum  constitutes  part  of  the  instniment.  an  alteration  thereof  is 
governed  by  the  same  rules  as  obtains  in  the  case  of  an  alteration 
of  the  body  of  the  instrument,  except  in  those  cases  where  the 
memorandum  has  been  inade  in  such  manner  as  to  permit  of  its  being 
altered,  and  still  leave  the  body  of  the  instrument  unafTected,'''  and 
whether  the  memorandum  qualifying  the  effect  of  the  instrument 
is  underwritten  or  indorsed,  is  immaterial,  so  long  as  it  is  in  fact  a 
part  of  the  original  contract. ■'-     A  memorandum  under  a  negotiable 


Missouri.  —  American  Nat.  Bank 
r.   Bangs,  42  Mo.  450,  97  Am.   Dec. 

349- 

Nebraska.  —  Palmer  T'.  Largent,  5 
Neb.  223.  25  Am.  Rep.  479. 

North  Carolina. — Hubbard  v.  Wil- 
liamson, 5   I  red.  397. 

Tcvas.  —  First  Nat.  Bank  v.  Prit- 
cliard,  2  Will.  Tex.  Civ.  Cas.  Ct. 
App.  §  130;  Marrow  ;■.  Richardson 
(Te.x.),  6  S.  W.   763. 

A  Memorandum  of  a  Partial  Pay- 
ment indorsed  liy  the  holder  on  a 
promissory  note,  is  no  part  of  the 
note  or  written  evidence  of  the  con- 
tract of  the  parties ;  and  hence  its 
erasnre  by  the  holder,  although 
fraudulently  made,  is  not  an  altera- 
tion of  the  note.  Theopold  f.  Deike, 
76  Minn.  121,  78  N.  W.  977. 

In  Foote  V.  Bragg,  5  Blackf. 
(Ind.)  363,  the  payee  of  a  note  in- 
dorsed over  his  signature  the  words 
"  Pay  tlie  bearer,"  and  delivered  it 
to  the  present  holder.  It  was  held 
that  the  holder  might  erase  the  words 
"  Pay  the  bearer"  and  insert  in  their 
place  over  the  payee's  signature  a 
formal  assigiunent  of  himself. 

Erasing  Unauthorized  Indorse- 
ment Made  by  Agent Erasing  an 

indorsement  put  on  a  note  pursuant 
to  a  contract  between  the  maker  and 
an  unauthorized  agent  of  the  payee 
is  not  an  alteration  of  the  note. 
Waldrof  t:  Simpson,  15  App.  Div. 
297.  44  N.  Y.  Supp.  921. 

51.  England.  —  Fitch  v.  Jones,  5 
Ellis  &  B.  238.  85'  Eng.  C.  L.  238. 

Canada.  —  Campbell  v.  McKen- 
non,  18  U.  C.  Q.  B.  612:  Swaisland 
V.   Davidson,  3  Ont.   320. 

Illinois.  —  Benjamin  z:  McCon- 
ncl,   9   111.   536,  46   .\m.   Dec.   474- 

Indiana.  —  Cochran  i'.  Nebcker,  48 
Ind.  459. 

Iowa.  —  Scofield   v.   Ford.   56   Iowa 


370,  9  N.  W.  309;  State  V.  Stratton, 
27   Iowa  420,    I    Am.    Rep.   282. 

Kentucky.  —  Warren  v.  Faut,  79 
Ky.    I . 

Maine.  —  Johnson  v.  Ileagan,  23 
Me.   329. 

Massachusetts. — Wheelock  x\  Free- 
man, 13  Pick.  165,  23  Am.  Dec.  674. 

Michigan.  —  Wait  i'.  Pomeroy,  20 
Alich.  423,  4  Am.  Rep.  395. 

Mississippi.  —  Bay  "'.  Schrader,  50 
Miss.   326. 

Missouri.  —  Law  •;■.  Crawford,  67 
Mo.  App.  150. 

Nebraska.  —  Davis  v.  Henry.  13 
Neb.  497,   14  N.  W.  523. 

NciK.'  Hampshire.  —  Gerrish  v. 
Glines,  56  N.  H.  g. 

Nezi'  Jersey.  —  Price  r.  Tallman. 
I  N.  J.  Law  447. 

Neti'  York.  —  Benedict  v.  Cowden, 
49  N.  Y.  396,   10  Am.   Rep.   382. 

Tennessee.  —  Stephens  v.  Davis,  83 
Tenn.  271,  2   S.  W.  382. 

Te.vas.  — Meade  v.  Sandidgc,  9 
Ti'v.  Civ,  Ann.  360.  30  S.  W.  243. 

Test  of  Materiality —  In  Bay  v. 
Schrader,  50  Miss.  326,  it  was  held 
that  words  written  on  the  back  of  a 
note  are  no  part  of  the  body  thereof, 
prima  facie,  but  are  presumed  to 
have  been  put  there  after  the  note 
was  completed.  The  court  said  that 
the  test  of  the  materiality  of  such 
memoranda  or  indorsement  on  the 
back  of  the  instrument  is  the  time 
and  the  extent  and  purpose  of  it. 
If  made  before  or  at  the  time  of 
the  execution  of  the  instrument  it 
may  be  parcel  of  it  and  may  control 
the  obligation  in  some  important 
particular.  But  being  disconnected 
from  the  body  of  the  instrument 
through  which  the  maker's  name  is 
signed  it  forms  no  potent  part  of  it 
until  shown  to  have  been  on  it  when 
executed. 

52.     Swaisland  r.  Davidson.  3  Ont. 


Vol.  I 


ALTERATJOX  OF  IXSTRUMBNTS. 


7s; 


iiistrunient  and  qualifying  it  is  to  be  taken  as  a  ])art  of  the  contract, 
antl  the  fraudulent  removal  of  such  a  niemorandnni  is  a  material 
alteration. ^^ 

(2.)  Collateral  to  Writing-. —  If  a  memorandum,  however,  is  col- 
lateral to  and  independent  of  the  instrument,  it  does  not  become 
part  of  it,  and  placing  it  upon  the  same  paper  as  the  instrument 
itself  is  not  a  material  alteration  of  the  instrument.''' 

Memorandum  Indicating  Verbal  Understanding.  —  A  memorandum 
showing  clearly  that  it  was  designed  by  the  holder  of  the  instru- 
ment as  a  mere  memorandum  for  his  own  guidance,  very  probably 
having  reference  to  some  verbal  understanding  between  himself 
and  the  maker,  will  not  be  deemed  material.''^ 

(3.)  Marginal  Figures.  —  The  marginal  figures  in  the  corner  of  a 
note  are  no  part  of  the  note,  and  an  unauthorized  change  in  them 
is  not  a  material  alteration.''" 

(4.)  Figures  Indicating  Series.  —  The  figures  in  the  margin  of  the 
instrument  denoting  the  number  in  a  particular  series,  to  which  the 
instrument  belongs,  are  no  part  of  the  contract,  and  their  alteration 
is  immaterial.'"'" 


320,  citing  Warrington  ?•.  Early,  2 
Ellis  &  B.  763;  Hartley  z:  Wilkinson, 
4  M.  &  S.  2S;  Campbell  z:  McKen- 
non,  18  U.  C.  Q.  B.  612. 

53.  Orton  z\  Largent,  5  Neb.  223. 
Compare  Zimmerman  z\  Rote,  75  Pa. 
St.   188. 

54.  Alabama.  —  Maness  •;•.  Henry, 
96  Ala.  45'4,  II   So.  410. 

Arkansas.  —  Mente  z'.  Townsend, 
68  Ark.  391,  59  S.  W.  41. 

Indiana.  —  Cnrrent  z:  Fulton,  10 
Ind.  App.  617.  38  N.  E.  419. 

Maine.  —  Littlefield  z\  Comb'^,  71 
^fe.   no. 

Massachusetts.  —  Cambridge  Sav. 
Bank  v.  Hyde,  131  Mass.  77,  41  .\m. 
Rep.    193. 

Minnesota.  —  White  z\  Johns,  24 
Minn.  387. 

Nebras/ca.  —  Oliver  z'.  Hawlcy,  5 
Neb.   439. 

Nezo  Hampshire.  —  Morrill  z\  Otis, 
12  N.  H.  466. 

In  Payne  v.  Long,  121  Ala.  385, 
25  So.  780,  the  alteration  alleged 
was  that  before  the  note'  was  de- 
livered, the  defendant  entered  thereon 
a  memorandum  :  "  Snbiect  to  a  set- 
tlement between  us ;"  that  after  said 
note  was  delivered,  plaintiff,  without 
the  knowledge  or  consent  of  the 
defendant,  detached  the  memoran- 
dum.      The     court     said     that     the 


memorandum  plainly  enough  indi- 
cated that  there  was  something  un- 
settled between  the  parties  not  in- 
cluded in  the  note,  and  which  may 
be  brought  forward  on  its  settle- 
ment, and  such  words  constituted 
a   material   part   of  the  note. 

55.  Carr  v.  Welch,  46  111.  88. 

56.  Smith  v.  Smith,  I  R.  I.  398. 
53  .A.m.  Dec.  652;  Johnston  Har- 
vester Co.  •:'.  McLean,  57  Wis.  258. 
IS  N.  W.  117;  Woolfolk  v.  Bank  of 
.•\merica,  10  Bush  504;  Schryver  z\ 
Hawks,  22  Ohio  St.  308 ;  Yost  v. 
Watertovvu  Steam  Engine  Co.  (Tex. 
Civ.  App.),  24  S.  W.  657;  Chase  z: 
Washington  M.  Ins.  Co.,  12  Barb. 
S95 ;  Kinard  z\  Glenn,  29  S.  C.  S90, 
8  S.   E.  203. 

■Words  Added  Upon  the  Margin 
of  an  Obligation,  and  above  the  sig- 
natures of  the  obligors,  by  an  ar- 
rangement between  the  obligee  and 
principal  obligor,  after  the  delivery 
of  the  writing,  are  to  be  deemed  a 
part  of  the  obligation.  Warren  v. 
Fant,   79  Ky.    I. 

57.  England.  —  SufFell  z:  Bank  of 
Eng.,  51  L.  J.  Q.  B.  401,  9  Q.  B.  D. 
SS5'  (reversing  7  Q.  B.  Div.  270). 

United  States.  — WyVie  v.  Mo.  Pac. 
R.  Co.,  41   Fed.  623. 

Alabama.  —  State  e.v  rcl.  Plock  z\ 
Cobb,  64  Ala.    127. 

Vol.  I 


788 


ALTERATION  OF  INSTRUMENTS. 


f.  Matters  Pcrtaiiiiiig  to  the  Execution  of  tlie  IVritiiig. — •(!.)  Place 
of  Execution.  —  Adding  the  name  of  a  place  to  the  signature  of  the 
maker  of  a  note,  so  as  to  make  the  note  negotiable  according  to  the 
laws  of  that  place,  is  a  material  alteration. ^^  So  also  is  changing 
the  name  of  the  place  where  the  instrument  purports  to  have  been 
executed. '^^ 

(2.)  Date. —  (A.)  In  Gkneral. — The  alteration  of  the  date  of  a 
negotiable  instrument,  without  the  consent  of  the  maker  or  surety, 
is  a  material  alteration ;  and  it  makes  no  difference  whether  the 
eft'ect  of  the  alteration  is  to  accelerate  or  extend  the  time  of  pay- 
ment.*"    An  impossible  date  raises  a  presumption  of  ante  or  post 


Massachusetts.  — Com.  z'.  Emi- 
grant Industrial  Sav.  Bank,  98  Mass. 
12. 

New  Jersey.  —  Elizabeth  v.  Force, 
29  N.  J.  Eq.  587  (reversing  28  N.  J. 
Eq.    587). 

jWic  Korfc.  —  Birdsall  r.  Russell, 
29  N.  Y.  220   (dictum). 

Tennessee.  —  Bank  of  Tennessee 
'c\  Funding  Board,  16  Lea  46,  57 
A.  S.  R.  211. 

58.  Commercial  &  Farmers  Bank 
V.  Patterson,  2  Cr.  C.  C.  346,  6  Fed. 
Cas.    No.    3056. 

Memorandum  Indicating  Object  of 
Instrument.  —  In  Bachellor  z:  Priest. 
12  Pick.  39,  it  was  held  that  a 
memorandum  written  on  a  bill  of 
exchange  under  the  signature  of  the 
drawer  indicating  it  had  been  left 
with  the  indorser  was  in  no  sense 
an  alteration  of  the  original.  "  It 
was  a  memorandum  of  a  collateral 
agreement  between  the  maker  and 
indorser  which  did  no  more  affect  the 
liability  of  the  parties  to  the  note 
than  it  would  have  done  had  it  been 
made  on  a  separate  cover." 

Memorandum  Indicating  Bene- 
ficiary of  Insurance  Policy. — .\  mem- 
orandum written  in  lead  pencil  on 
the  face  of  an  insurance  policy 
amounting  to  no  more  than  a  sug- 
gestion of  the  wishes  of  the  insured 
as  to  the  persons  for  whose  benefit 
the  insurance  is  taken,  is  not  an 
alteration.  Chase  v.  Washington  M. 
In.s.   Co.,    12   Barb.   59s. 

Memorandum  of  Insertions  Before 
Signatures.  —  A  note  or  memo- 
randum preceding  the  signatures  of 
the  makers  of  a  bond  and  stating 
that    certain    words    have    been    in- 

Vol.  I 


serted  in  a  bond  before  signaturei 
affii.xed  is  not  a  part  of  the  bond 
proper.  White  v.  Johns,  24  Minn. 
387. 

59.  Mahaiwe  Bank  v.  Douglass, 
31  Conn.  170;  McQueen  z:  Mc- 
Intyre,  30  U.  C.  C.  P.   (Can.)  426. 

60.  England. — Outhwaite  f.  Lemt- 
ley,  4  Camp.  176,  16  Rev.  Rep.  771 ; 
Master  z:  Miller,  4  T.-  R.  320;  Vance 
V.  Lowther,  L.  R.  I  Exchange  Div. 
176,  13  M.  &  W.  778,  34  L.  T.  N.  S. 
286. 

Canada.  —  Gladstone  z:  Dew,  9 
U.  C.  C.  P.  439;  Meredith  ;■.  Culver, 

5  U.  C.  Q.  B.  218. 

United   Stales.  —  Wood    v.    Steele, 

6  Wall.  80.  Contra. — Union  Bank  v. 
Cook,  2  Cr.  C.  C.  218,  24  Fed.  Cas. 
No.  14,349. 

Alabama.  —  Lesser  zt.  iicholze,  93 
Ala.   338,  9   So.  273. 

Arliansas.  —  Lemay  v.  Williains,  32 
Ark.    166. 

California.- — Galland  ;•.  Jackson, 
27  Cal.  79. 

Dclazvare.  —  Warren  v.  Layton,  3 
Harr.   404. 

Georgia.  —  Armstrong  v.  Penn,  105 
Ga.  229,  31  S.  E.  158;  Wheat  v. 
Arnold,  36  Ga.  479. 

Illinois.  —  Wyman  v.  Yoemans,  84 
111.  403. 

Indiana.  —  Hamilton  v.  Wood,  70 
Ind.  306. 

Kansas.  —  Fraker  v.  Cullum,  21 
Kan.  402;  .McCormick  Harv.  Mach. 
Co.  V.  Laubcr,  7  Kan.  App.  730,  52 
Pac.   577- 

Kentncky.  —  Bank  of  Com.  v.  Mc- 
Chord,  4  Dana  191,  29  Am.  Dec.  398; 
Letcher  v.  Bates,  6  J.  J.  Marsh.  524, 
22  Am.  Dec.  92 ;  Lisle  v.  Rogers,  18 
1!.    .Mon.    ^28. 


ALTERATION  OF  INSTRUMENTS. 


78'> 


dating;  but  not  of  alteration.''" 

(B.)  Date  of  Payment  Fixed. —  When  the  date  of  the  payment  of 
the  obHgation  evidenced  by  the  paper  is  fi.xed  and  is  not  dependent 
upon  the  date  of  the  paper,  changing  the  date  of  the  paper  has  been 
held  to  be  immaterial. "- 

(C.)  Chancing  Date  to  Date  Intended. —  But  the  date  of  an  instru- 
ment may  be  changed  so  as  to  make  it  correspond  with  the  intention 
of  the  parties. ''^ 


Maine.  —  Hcrvey  v.  Hervey,  15 
Me.  357. 

Maryland.  —  Mitchell  v.  Ring- 
gold, 3  Har.  &  J.  159,  5  Am.  Dec. 
433. 

Missouri.  —  Britten  v.  Dierker,  46 
Mo.  591,  2  Am.  Rep.  553;  Aubuchon 
V.  JMcNigln,  I  Mo.  312,  13  Am.  Dec. 
502. 

il/o;i;a»a.  — McMillan  v.  Hefferlin, 
18   Mont.   38s,   45   Pac.   548. 

Nebraska.  —  State  Sav.  Bank  v. 
Shaffer,  9  Neb.  i,  citing  Brown  v. 
Straw,  6  Neb.  536,  31   Am.  Rep.  394. 

Ne'M  Hampshire.  —  Bowers  v. 
Jewell,  2  N.  H.  543. 

Nezu  Jersey.  —  Wright  v.  Wright, 
7  N.  J.  Law  175,  22  Am.  Dec.  483. 

Neiv  Me.rico.  —  Ruby  v.  Talbot,  S 
N.  Mex.  251,  21  Pac.  72,  3  L.  R.  A. 
724. 

New  York.  —  Rogers  v.  Vosburgh, 
87  N.  Y.  228;  Crawford  v.  Westside 
Bank,  100  N.  Y.  50,  2  N.  E.  881,  53 
Am.  Rep.   152. 

Pennsvlvania.  —  Kennedy  v.  Lan- 
caster Bank.  18  Pa.  St.  347 :  Heffner 
V.  Wenrich,  32  Pa.  St.  423 ;  Stephens 
V.  Graham,  7  Serg.  &  R.  505,  10  Am. 
Dec.  485 ;  Hocker  v.  Jamison,  2  W. 
&  S.  438:  Miller  V.  Gilleland,  19  Pa. 
St.  119;  Getty  •:■.  Shearer,  20  Pa.  St. 
12. 

Tennessee.  —  Taylor  v.  Taylor,  12 
Lea  714. 

Wisconsin.  —  Lowe  v.  Merrill,  i 
Prim.   340. 

The  Date  of  an  Assignment  or 
Indorsement  of  a  Note  is  not  an 
essential  part  of  it;  and  an  altera- 
tion thereof  is  not  material.  Griffith 
V.  Cox,   I   Overt.    (Tenn.)   210. 

Transposing  Words  Indicating 
Bate —  Erasing  the  figures  indi- 
cating the  day  of  the  month,  after 
the  month,  and  writing  them  before, 
is  not  a  material  alteration.  Reed 
r.    Kemp,    16    III.    445. 


61.  Davis   V.    Loftin,   6  Te.x.  489. 

62.  Prather    v.     Zulauf,    38    Ind. 

63.  Ryan  v.  First  Nat.  Bank,  148 
III-  349.  35  N.  E.  J 120.  See  also  Ames 
V.  Colburn,  11  Gray  (Mass.)  390, 
71  Am.  Dec.  723;  Dyker  v.  Fraz,  7 
Bush  (Ky.)  273,  3  Am.  Rep.  314; 
Hervey  -'.  Hervey,  15  Me.  357 ;  Mer- 
chant's Bank  v.  Stirling,  13  Nova 
Scotia,  439,  where  the  court  say 
that  a  "  mistake  or  omission  stands 
upon  a  different  footing,  and  a  bill 
may  be  altered  to  correct  a  mistake 
and  in  furtherance  of  the  original 
intentions  of  the  parties;"  citing 
Downes  v.  Richardson,  5  B.  &  Aid. 
674. 

Consent  of  All  Parties  Necessary. 
But  the  holder  of  a  bill  has  no  right 
to  make  an  alteration  in  it  to  cor- 
rect a  mistake  in  the  date,  unless  to 
make  the  instrument  conform  to 
what  all  the  parties  to  it  agreed  or 
intended  it  sliould  have  been.  Her- 
vey  V.    Hervey,    15   Me.   357. 

Effect  of  Statute  of  Limitations. 
In  Horner  v.  Wallis,  11  Mass.  309, 
the  payee  of  a  note,  procured  one, 
not  present  at  its  execution,  to  attest 
it  as  a  witness,  and  the  court  held 
it  to  be  a  material  alteration.  The 
opinion  of  tlie  court  seems  to  have 
been  materially  influenced  by  a  stat- 
ute of  limitations  of  Massachusetts, 
making  a  difference  between  attested 
and  unattested  notes.  Yet  the  same 
court,  in  Smith  v.  Dunham,  8  Pick. 
249,  where  the  payee  procured  one 
present  at  the  execution  of  the  note, 
afterwards,  and  without  the  knowl- 
edge of  the  maker  to  attest  it,  but 
without  any  fraudulent  intent,  held 
the   alteration   to   be   immaterial. 

And  in  Ford  v.  Ford,  17  Pick. 
418,  the  note  was  signed,  and  was 
attested  by  a  single  witness,  which 
gave  it  the  character  of  a  witnessed 

Vol.  I 


'H) 


ALTERATION  OF  INSTRUMENTS. 


(3.)  Attestation.  —  The  attestation  of  a  note  by  one  who  was  not 
present  and  did  not  see  the  maker  sign,  has  been  held  to  he  a  mate- 
rial alteration  f*  but  it  has  been  held  not  to  be  a  material  alteration 
for  an  attesting-  witness  who  saw  the  paper  executed  to  afterwards 
sign,  although  without  the  knowledge  or  consent  of  the  sureties,'"'^ 
at  least  if  he  docs  so,  or  the  procurement  of  his  doing  so.  is  without 
wrongful  or  improper  intent.'" 

(4.)  Seals.  —  Putting  a  seal  upon  an  instrument  after  its  execu- 
ticin,  without  the  knowdedge  or  consent  of  the  maker  or  obligor,  is  a 
material     alteration. '■'       So    also    is     tearing    or    cutting    off     the 


note.  The  addition  of  the  attesta- 
tion of  another  witness  in  tlie  absence 
of  the  maker  furnished  to  the  plain- 
tiff additional  evidence,  but  it  was 
lield  not  to  be  a  material  alteration 
uf  the  note,  because  it  made  no  al- 
teration  in  its  character. 

64.  Alontgomerv  R.  Co.  v.  Hurst. 
g  Ala.  513;  White  T.  M.  Co.  v. 
Saxon,  121  Ala.  39,  25  So.  784;  Eddy 
V.  Bond,  19  JNIe.  461  ;  Foust  !■. 
Remio,  8  Pa.  St.  378;  Henning  f. 
W'crkheiser,  8  Pa.  St.  578.  Compare 
Talbot  T'.  Hodson,  7  Taunt.  251,  2 
Eng.  C.  L.  248;  Fuller  z\  Green, 
64  Wis.  159,  24  N.  W.  907;  State  i'. 
Cherkin,  7   Ired.    ( N.   C.)   206. 

Alteration  Before  Delivery. 
When  a  person  executes  a  bond  as 
surety,  and  leaves  it  with  his  prin- 
cipal for  delivery  to  the  obligee,  and 
before  doing  so  the  principal  procures 
a  third  person  to  attest  the  sureties' 
signature,  who  is  not  authorized  to 
do  so,  such  alteration  is  not  an  al- 
teration of  the  bond,  that  impairs  or 
affects  its  value  as  an  instrument  of 
evidence  in  the  hands  of  the  obligee, 
because  it  was  made  before  delivery. 
Hall  V.  Weaver,  34  Fed.   104. 

Signer  Acknowledging  Signature. 
In  Blackwell  i'.  Lane,  4  E)ev.  &  B. 
L.  (N.  C.)  113,  32  Am.  Dec.  675',  the 
attesting  witness,  after  the  signature 
by  the  maker,  asked  the  latter  if  he 
acknowledged  the  signature  to  be  his, 
which  he  did;  and  it  was  held  that 
>uch  an  alteration  did  not  affect  the 
paper. 

Attestation  at  Instance  of  Obligor. 
The  addition  of  a  subscribing  wit- 
ness to  a  bond  after  its  execution, 
made  at  the  instance  of  one  of  the 
obligors,  and  whether  the  other 
obligor   was   present   or   not   did   not 


distinctly  appear,  but  not  made  at  the 
request  of  the  obligors  or  with  their 
knowledge,  is  not  a  material  alter- 
ation. Fritz  I'.  Commissioner  of 
Montgomery   Co..   17   Pa.   St.   i,?o. 

Attestation  Prima  Facie  Evidence 

of    Fraudulent    Intent In    Adams 

J'.  Frye.  3  Met.  103.  it  was  held  that 
the  procurement  of  such  an  attes- 
tation would  be  prima  facie  evidence 
of  fraudulent  intent :  but  that  it 
might  be  rebutted  by  proof.  To  the 
same  effect,  see  Willard  c'.  Clarke, 
7   Met.  435. 

Striking  Out  Attestation.  —  In 
Church  I'.  Fowle,  142  Mass.  12.  6 
N.  E.  764,  it  is  held  that  such  an 
attestation  is  a  material  alteration, 
but  that  it  does  not  make  the  note 
void,  and  that  the  alteration,  being 
unauthorized  and  no  part  of  the 
contract  as  understood  or  intended 
by  either  party,  may  lie  stricken 
out. 

65.  Govenor  z:  Tagow.  43  111.  134. 

66.  Milberry  v.  Stover,  75  Me.  69. 

67.  England.  —  Davidson  ?'.  Coop- 
er, II  M.  &  W.  78.1;  affirmed  13  M. 
&   W.   353- 

United  States.  ^V.  S.  r.  Lmn,  i 
IIow.   104. 

Delazeare.  —  State 
Houst.    143. 

Maryland.  —  Morrison  i'. 
Md.   169. 

.Massaelnisetts.  —  Warring 
Hams,  8   Pick.   326. 

Michigan.  —  Rauson  '■.  Davidson, 
49  Mich.  607. 

Missouri.  —  Fred  Heim  Brew.  Co. 
f.  Hazen,  55  Mo.  App.  277. 

Nezc  York.  —  Farmers'  Loan  &  T. 
Co.  J'.  Sufke,  144  N.  Y.  354.  39  N.  E. 
3,^8. 


Smith,     9 
Welty,  18 
Wil- 


Vol.  I 


AL'niRATlOX  Of  IXSTRUMBXTS. 


r'ji 


seal."' 

g.  Matters  in  Respect  of  Nature  and  Terms  of  Instrument. 
(1.)  In  General.  —  Any  alteration  which  in  some  manner  changes 
some  material  terms  or  conditions  as  expressed  in  the  instrument, 
is  a  material  alteration. ''•' 


Ohio.  —  Fullerlon  ■;■.  Sliirgcs.  4 
Oliio    St.    530. 

Pomsylvania.  —  Bierg  v.  Haines, 
5   Whart.   56,3. 

Soutli  Carolina.  —  \'auglian  v. 
Fowler,   14  S.  C.  355. 

Texas.  —  Muckelro}-  v.  Bethany.  23 
Tex.   163. 

I'crmont.  —  Barnett  v.  AlAott.  53 
\'t.   \20. 

68.  ISiiglaiid.  —  Matliewson  i'. 
Lydiate,  5   Coke  44. 

North  Carolina.  —  Evans  v.  Wil- 
liamson, 79  N.  C.  86. 

Pennsylvania.  —  Rittenhouse  t'. 
Levening.  6  Watts.  &  S.  190. 

Soiitli  Carolina.  —  Porter  z\  Doley, 
2  Rich.  Eq.  49. 

Tennessee.  —  Organ  T'.  .\lHson,  9 
Ra.Nt.    459. 

I'ennont.  —  Dcwev  ;■.  Bradberg,  i 
Tyler   186. 

II' est  I'irginia.  —  Picrcy  •;•.  Picrcy, 
5  W.  Va.  199. 

Compare   Keen  i\   Monroe,  75  \'a. 

4-'4.  "    . 

Several  Obligation.  —  In  Collins  ;■. 

Presser.  i  Barn.  &  C.  682,  8  Eng. 
C.  L.  183,  debt  on  a  bond,  whereby 
Sir  N.  C.  G.  S.  W.,  and  J.  W. 
acknowledged  themselves  held  and 
bonnd  to  the  plaintiffs  in  "  £1000  each 
for  which  they  bonnd  themselves,  and 
each  of  them  for  himself  for  the 
whole  and  entire  sum  of  iiooo 
each,"  subject  to  a  condition  that 
G.  B.  Al.  should  render  a  true  ac- 
count of  all  moneys  received  by  him 
as  treasurer  for  the  county  of  Middle- 
,se.x.  Held,  that  this  was  a  several 
bond  only,  and  that  the  removal,  by 
the  obligees,  of  the  seal  of  one  ob- 
ligor, did  not  constitute  a  material 
alteration. 

69.  lingland.  —  Powell  z\  Divett, 
15  East  29;  Mollett  z'.  Wackenbarth, 
5  M.  G.  &  S.  181,  V  Eng.  C.  I,. 
181. 

Alabama.  —  Payne  ?'.  Long,  121 
Ala.  385,  25  So.  780. 

///moi.s.  — Kelly  z'.  Trumble,  74  111. 
428. 


Indiana.  —  Wier  Plow  Co.  z'. 
Walmsley,  no  Ind.  242,  11  N.  E. 
232. 

Massachnsetts.  —  Osgood  <■.  Stev- 
enson.  143  Mass.  399,  9  N.  E.  825. 

Miehigan.  —  Osborne  Z'.  Van  Hou- 
ton,   45    Mich.   444.  8   N.   W.   77. 

Minnesota.  —  Flanigan  Z'.  Phelps, 
42  Minn.   186.  43   N.  W.   1113. 

Pennsylvania. — Bengevin  z'.  Bishop, 
Qi  Pa.  St.  336;  Mclntyre  v.  Velte,  153 
Pa.  St.  350,  25  Atl.  739. 

Tennessee. — McDaniel  z\  Whitsett, 
96  Tenn.   lO,  33  S.  W.  567. 

Utah.  —  American  Pub.  Co.  v. 
Fisher,  10  Utah  147,  37  Pac.  259. 

W'iseonsin.  —  Schwalm  v.  Mcln- 
tyre,   17    Wis.   2^2. 

Striking  Out  the  Words  "  the 
Collection  of "  in  the  Phrase  "  I 
Guarantee  the  Collection  of  the 
Within  Note,"  is  a  material  alter- 
ation ;  the  result  of  such  act  is  to 
make  the  guarantee  an  absolute  one. 
Newlan  v.  Harrington,  24  111.  206. 

Striking  Out  the  Clause  "  I  Do 
Not.  However.  Guarantee  Its  pay- 
ment "  in  an  Assignment  of  a  Debt, 
is  not  a  material  alteration  where 
there  is  not  in  the  assignment  itself 
any  guaranty  of  the  payment  of  the 
debt.  Prudden  v.  Nestor,  103  Mich. 
540,   61    N.   W.   777. 

The   Addition   by   the   Payee   of  a 

Promissory      Note     of     the      Words 

"  Without     Defalcation     or     Setoff," 

without  the  knowledge  or  consent  of 

the  maker,  is  a  material  alteration  of 

the   note.      Davis  v.   Carlisle,   6   Ala. 

707. 
Writing  a  Waiver  of  Exemptions 

over  the  name  of  the  indorser  of  a 
note,  is  a  material  alteration,  as 
against  the  indorser.  Jordon  v. 
Long,  109  Ala.  414,  19  So.  843. 

Waiver  of  Benefit  of  Statute. 
The  alteration  of  a  mortgage  by 
adding  a  clause  waiving  the  benefit 
of  a  specific  statute  which,  in  fact, 
had  been  repealed  prior  to  the  ex- 
ecution of  the  mortgage,  and  hence 
had    no   validity    whereby    the   mort- 

Vol.  I 


792 


ALTERATIOX  OP  INSTRUMENTS. 


Attorneys'  Fees.  — An  alteration  of  a  note  by  the  holder,  after  its 
execiiticjn,  witliout  the  knowledge  or  consent  of  the  maker,  whereby 
the  provision  for  attorneys"  fees  in  case  suit  is  brought  on  the  note 
is  made  an  absolute  agreement  by  striking  out  the  clause  as  to  suit 
being  brought,  is  material."" 

Compliance  With  Condition.  — An  indorsement  on  a  note  after  its 
delivery,  by  the  maker  thereof,  but  without  the  consent  of  a  surety, 
the  payment  of  which  is  conditioned  on  the  performance  by  the 
payee  of  a  written  agreement  of  even  date  therewith,  that  the  payee 
has  complied  with  the  condition,  is  not  a  material  alteration. '"^ 

(2.)  Waiver  of  Demand  and  Notice.  —  It  is  a  material  alteration  of  a 
note  to  change  the  liability  of  an  indorsee  from  a  conditional  to  an 
absolute  engagement." 

(3.)  Negotiability.  —  An  alteration  of  a  written  instrument, 
whereby  the  instrument  is  changed  from  a  non-negotiable  to  a  nego- 


gage  could  be  afifected,  is  .in  imma- 
terial alteration,  wliicli,  in  no  man- 
ner, prejudices  the  mortgagor.  Rob- 
ertson I'.  Hay,  gi  Pa.  St.  242. 

Clause  Charging  Married  Woman's 
Estate.  —  In  Taddiken  v.  Cantrell,  69 
N.  Y.  597,  it  was  held  that  where 
a  married  woman  e.xecutes  a  prom- 
issory note  in  tlie  ordinary  form, 
and  perfect  in  its  terms,  the  fact, 
that  in  order  to  make  it  bind- 
ing upon  her,  the  addition  of 
other  terms  not  suggested  by  the 
paper  itself  is  required,  i.  e.,  an  ex- 
pression of  an  intent  to  charge  her 
separate  estate,  does  not  justify  the 
payee  in  making  such  an  addition 
after  delivery  of  the  note,  and  with- 
out her  knowledge  and  consent ;  and 
if  so  trade  it  is  a  material  alter- 
ation. Reeves  zk  Pierson,  23  Hun 
185. 

But  since  the  enactment  of  laws 
N.  Y.  1884,  c.  381,  making  the  sep- 
arate estate  of  a  married  woman 
liable  for  her  contracts,  and  pro- 
viding that  in  no  case  shall  a  charge 
on  her  separate  estate  be  necessary, 
it  is  not  a  material  alteration  to 
write  above  a  married  woman's  in- 
dorsement on  a  note  that  she  charged 
her  estate  with  its  payment.  Clapp 
V.  Collins,  (City  Court  of  N.  Y.),  7 
N.  Y.  Supp.  98,  wherein  the  court 
said :  "  At  the  time  Taddiken  v.  Can- 
trell, 69  N.  Y.  597,  was  decided,  the 
alteration  charged  would  have  been 
regarded  as  innnatcrial.  It  did  not 
enlarge    the    indnrser's    liability,    nor 

Vol.  I 


change  her  relation  to  the  paper.  It 
proved  nothing  against  her  that  the 
very  nature  of  the  obligation  did 
not  imply  without  the  addition.  It 
was  surplusage ;  nothing  more." 

70.  Tate  V.  Fletcher,  77  Ind.   102. 

71.  Jackson  1'.  Bowles,  64  Iowa 
428,  20  N.  W.  746.  "  We  are  of 
opinion,"  said  the  court,  "  that  the 
district  court  correctly  held  that  the 
indorsement  in  question  did  not  have 
the  effect  to  in  any  manner  change 
the  terms  or  conditions  of  the  note. 
The  note,  by  its  terms,  became  due 
on  the  performance  of  a  specified 
agreement  by  the  payee.  The  in- 
dorsement does  not  undertake  to 
change  the  condition,  or  to  release 
the  payee  from  its  performance.  It 
is  simply  a  written  admission  that 
they  have  performed  it.  The  fact 
that  it  is  indorsed  on  the  paper  on 
which  the  note  is  written  is  not  ma- 
terial, for  it  is  apparent  from  its 
terms  that  there  was  no  intention  to 
change  any  condition  of  the  note, 
and  it  has  no  dififerent  effect  from 
what  it  would  have  had  if  it  had 
been  embodied  in  a  letter  or  other 
writing  signed  by  Bowles.  It  is 
sitTiply  prima  facie  evidence  that  the 
condition  precedent  to  the  maturing 
of  the   note  has   happened." 

72.  As  by  writing  over  tlie  sig- 
nature of  the  indorsee  a  waiver  of 
demand  and  notice.  Buck  v.  Apple- 
ton,  14  Me.  284;  Andrews  v.  Simms, 
T,T,  Ark.  771 ;  Davis  v.  Hppler,  38 
Kan.   629,    16   Pac.   793. 


ALTERATIOX  OP  INSTRUMENTS. 


793 


tiable  instrument  is  a  material  alteration.'-'  And  inserting;  the  words 
"  or  order  "  after  the  name  of  the  iia\ee,  without  the  knowled,Q;e 
or  consent  of  the  maker,  is  a  material  alteration.'*  So  also  is  an 
alteration  of  a  note  payable  to  order,  whereby  it  is  made  payable 
to  bearer.'^  And  it  has  been  held  that  inserting-  the  words  "  or 
bearer  "  after  the  name  of  the  payee,  after  the  execution  and  delivery 
of  the  instrument,  is  a  material  alteration.'" 

h.  Matters  in  Respect  of  the  Parties.  —  (1.)  Alterations  Affecting 
the  Number  of  Parties.  —  (A.)  In  General.  — An  alteration  of  an  exe- 
cuted written  instrument  subsequent  to  its  execution,  and  done  with- 
out authority,  the  effect  of  which  is  to  change  the  number  of  the 


73.  Canada.  —  Campbell  v.  Mc- 
Kinnon,  i8  U.  C.  Q.  B.  612;  Swais- 
land    f.    Davidson,   3    Ont.    320. 

Dclau'arc.  —  Hollis  v.  Vandergrift, 
5    Houst.   521. 

Indiana.  —  Cochran  v.  Nebeker,  48 
Ind.    459. 

/oica.  —  State  ''.  Shatton,  27  Iowa 
420. 

.Missouri.  —  Mechanics'  Bank  v. 
Valley  Pack.  Co.,  70  Mo.  643;  affirm- 
ing 4  Mo.  App.  200. 

Nebraska.  —  Walton  Plow  Co.  v. 
Campbell,  35  Neb.  173,  52  N.  W.  883. 

Ncv  York.  —  Bruce  v.  Westcott, 
3  Barb.  374- 

Nezv  Hampshire.  —  Gerrish  v. 
Ghr,es,  56  N.  H.  9. 

North  Do/cofa.  — First  Nat.  Bank 
V.  Laughlin,  4  N.  D.  391,  61  N.  W. 

473- 

West  Virginia.  —  Morehead  v. 
Parkersburg  Nat.  Bank,  5  W.  Va. 
74.  13  Am.  Rep.  636. 

So  also  is  an  alteration  which 
changes  paper  not  commercial  to 
commercial  paper.  Toomen  v.  Rut- 
land, 57  Ala.  379 ;  Muter  v.  Pool,  100 
Ala.  503,  14  So.  411;  Gillespie  v. 
Kelly,  41  Ind.  158;  McCoy  v.  Lock- 
wood,  71  Ind.  319.  And  see  infra 
this  title,  "  Matters  in  Respect  of 
THE  Performance;  the  Place;" 
III-3-C-k. 

74.  Taylor  v.  Moore  (Tex.),  20 
S.  W.  53 ;  Bruce  v.  Westcott,  3  Barb. 
374 ;  Johnson  v.  Bank  U.  S.,  41  Ky- 
(2  B.  Mon.)  310;  Pepoon  v.  Stagg, 
I  Nott  &  McC.  103;  McDaniel  v. 
Whitsell  (Tenn.),  33  S.  W.  567; 
Hollis  V.  Vandergrift,  5'  Houst.  521 ; 
Haines  v.  Dennett,  11   N.  H.   180. 


75.  Booth  V.  Powers,  56  N.  Y. 
22 ;  Needles  v.  Shaffer,  60  Iowa  65, 
14  N.  W.  129;  Union  Nat.  Bank  v.  ' 
Roberts,  45  Wis.  373;  Belknap  v. 
Nat.  Bank  of  N.  A.,  100  Mass.  276; 
Sheenan  v.  Rollberg,  II  Cal.  38; 
McDaniel  v.  Whitesell,  96  Tenn.  10, 
33  S.  W.  567.  See  also  re  Commer- 
cial Bank,  10  Manitoba  171,  so  hold- 
ing of  such  an  alteration  of  a  bank 
check. 

Compare  Flint  i'.  Craig,  59  Barb. 
319,  where  the  note,  payable  "to  the 
order  of  "  a  cerlaiu  person  was,  after 
delivery,  and  without  the  knowledge 
or  consent  of  the  makers,  altered 
by  erasing  the  words  "  to  the  order 
of "  and  inserting  the  words  "  or 
bearer,"  which  the  court  held  not  to 
be  a  material  alteration. 

76.  Crosswell  r.  Labrec,  81  Me. 
44,  16  Atl.  331 ;  Simmons  i'.  Atkin- 
son &  Lampton  Co.,  69  Miss.  862, 
23  L.  R.  A.  599;  Walton  Plow  Co. 
r.  Campbell,  35  Neb.  173,  16  L.  R.  A. 
468;  McConley  z:  Gonlon,  64  Ga. 
221.  Compare  Weaver  z\  Bromley, 
65  Mich.  212.  31  N.  W.  839;  Mc- 
Laughlin V.  Vennie,  2  Wyo.    i. 

Instrument  Not  Negotiable  in 
First  Instance —  The  alteration  by 
interpolating  the  words  "  or  bearer  " 
in  an  instrument  in  form  of  a  prom- 
issory note,  but  made  expressly  sub- 
ject to  the  conditions  of  a  mortgage 
not  payable  absolutely,  but  only  on 
certai.i  contingencies,  in  no  way  in- 
validates or  changes  the  legal  effect 
of  the  instrument;  such  an  in- 
strument is  not  negotiabl  ,  and  the 
use  of  the  words  in  qu-stiuu  would 
not  make  it  so.  Goodenow  v.  Curtis, 
33   Mich.   505- 

Vol.  I 


794 


ALTHRATIOX  OP  INSTRUMEXTS. 


parties  to  the  writing-,  is  usually  regarded  as  material."' 

(B.)  Adding  New  Parties. —  Additional  Maker  or  Obligor.  —  Thus 
an  alteration  which  consists  of  the  addition  of  a  new  person  as  a 
principal  maker  or  obligor,  rendering  all  of  the  promisors  appar- 
ently jointly  and  equally  liable,  not  only  to  the  holder,  but  also  as 
between  themselves,  and  so  far  tending  to  lessen  the  ultimate  liability 
of  the  original  maker,  or  makers,  has  been  held  to  be  a  material 
alteration  as  to  such  previous  non-consenting  signers.'**     But  it  has 


77.  Donkle  v.  Milem,  ist-'  Wis.  33, 
59  N.  W.  586. 

Substitution    of    Arbitrators It 

IS  a  material  alteration  of  an  arbi- 
tration agrceiiieiu  vvlicn  the  effect 
of  the  alteration  is  to  permit  the 
substitution  of  arbitrators  for  those 
who  fail  to  attend.  Mackay  v. 
Dodge.  5'  Ala.  388. 

Several  Deed  of  Husband Where 

a  mortgage  on  a  homestead  was  e.x- 
ccuted  and  delivered  as  a  complete 
instrument  by  the  husband  alone, 
with  the  understanding  that  his  wife 
was  not  to  join  in  the  execution 
thereof,  but  her  signature  and  ac- 
knowledgment were  afterward  fraud- 
ulently obtained  by  the  mortgagee, 
who  thereupon  altered  the  inortgage 
and  acknowledgment  so  as  to  make 
it  appear  a  mortgage  by  them  jointly, 
thus  giving  it  the  force  of  a  lien 
upon  the  homestead,  as  well  as  upon 
other  lands  covered  by  the  mort- 
gage, it  was  held  that  the  alteration 
was  material.  Cutler  !■.  Rose,  35 
Iowa    456. 

Release     of     Wife's     Dower hi 

Kendall  f.  Kendall  12  .\llen  92,  it 
was  held  that  the  fraudulent  ad- 
dition by  the  grantee  of  the  mort- 
gage of  the  name  of  the  grantor's 
wife  releasing  her  dower  and  home- 
stead, was  not  a  material  alteration. 

Attaching'  Duplicate  Stock  Sub- 
scriptions. —  In  Davis  v.  Campbell, 
93  Iowa  524,  61  N.  W.  1053,  it  ap- 
peared that  after  the  defendant  had 
signed  the  instrument  sued  on,  which 
was  a  subscription  to  a  fund  raised 
for  the  purpose  of  erecting  a  cream- 
ery, the  names  of  the  signers  of  a 
duplicate  subscription  had  been  de- 
tached from  the  duplicate  and  at- 
taclycd  to  the  instrument  sued  on; 
and  it  was  held,  that  this  was  not 
an    alteration    of    the    contract    sued 

Vol.  I 


on,  inasmuch  as  it,  in  no  way, 
changed  its  language  or  meaning. 

78.  England.  —  Gardner  v.  Walsh, 
5   Ellis  &   B.   83.  85   Eng.   C.   L.   83. 

Canada.  —  Carrigue  v.  Beaty,  24 
Ont.  App.  302. 

United  States. — Bingham  z:  Reddy, 
5  Ben.  266,  3  Fed.   Cas.   No.   1414. 

Alabama.  —  Brown  v.  Johnson 
(Ala.),  28  So.  579. 

Colorado.  —  Hochmark  7'.  Richler, 
16  Colo.  263,  26  Pac.  818.  • 

Illinois.  —  Soaps  v.  Eichberg,  42  111. 
App.   375- 

Indiana.  —  Bowers  i\  Biggs,  20 
Ind.  139;  Henry  v.  Coats,  17  Ind. 
161 ;  Harper  7'.  State,  e.v  rel.  Knox 
Co.,  7  Blackf.  61. 

/otca.  —  Browning  ■;■.  Gosnell,  91 
Iowa  448,  S9  N.  W.  340;  Sullivan 
T'.  Rudesill,  63  Iowa  158,  18  N.  W. 
856,  citing  Hamilton  v.  Hooper,  46 
Iowa  515;  Dikeman  v.  Miller,  43 
Iowa  508;  Hall  ■:■.  McHenry,  19  Iowa 

521. 

Kentucky.  —  PuUiam  v.  Withers,  8 
Dana  98;  Bank  of  Limestone  -■. 
Penick,  5  T.  B.  Mon,  32;  Singleton 
7'.  McQuerey,  85  Ky.  41,  2  S.  W. 
652;   Shipp  V.   Sugge'tt,  9  B.   Mon.  5. 

Missouri.  —  Lunt  r.  Silver,  5  Mo. 
App.   186. 

A^ctt'  York.  —  McVeaii  r.  Scott,  46 
Barb.   379. 

0/1/0. —  Wallace  -'.  Jewell,  21  Ohio 
St.  163. 

Texas.  — Ford  z:  First  Nat.  Bank 
(Tex.  Civ.  App.),  34  S.  W,  684; 
Harper  r.    Stroud,   41   Tex.   367. 

The  Reason  For  This  Rule  is  said 
to  be  because  it  changes  the  number 
of  parties  and  their  relative  rights; 
it  changes  the  rate  of  contribution, 
and  it  changes  the  character  and 
description  of  the  instrument.  Ford 
r.  First  Nat.  Bank  (Tex.  Civ.  App.). 
34  S.  W.  684. 


ALTERATION  Of  INSTRUMEXTS. 


795 


l)L'cn  hold  otherwise  (if  the  aiUlition  of  another  ]iersoii  as  maker  to  a 
se\-eral  note.''' 

Sureties.  —  It  has  heen  held  that  the  sit^ninj;-  of  an  instrument  hy 
one  as  surety,  after  its  execution  h\'  the  original  maker,  without 
his  knowledge  and  consent,  is  not  a  material  alteration  as  to  such 
non-consenting  maker,*"  although  there  are  cases  to  the  contrary .*- 
But  it  has  been  held  that  the  signing  by  one  as  additional  suret\', 
after  the  execution  of  the  original  instrument,  and  without  the 
knowledge  or  consent  of  previous  sureties,  is  a  material  alteration 
as  to  the  previous  signing  sureties  f-'  although  the  apparent  weight 
of  authoritv  is  otherwise.*^ 


Slight  Evidence  of  Assent Two 

persons  having  given  a  note,  in  the 
body  of  which  they  were  named  as 
promisors,  the  addition  afterward 
of  a  third  signatnre,  with  a  cor- 
responding change  in  tlie  Ijody,  with- 
out the  consent  of  the  original  sign- 
ers, was  held  to  vitiate  the  note  as 
to  them.  But  where  without  any 
change  in  the  form  of  the  note,  an 
additional  promisor  signed  it,  a  jury 
may  find  it  to  be  still  the  act  and 
deed  of  the  first  signer,  upon  very 
slight  evidence  of  even  a  subsequent 
assent  on  his  part,  and  the  verdict 
will  be  sustained.  Pulliam  v.  With- 
ers 8   Dana    (  Kv. )    98. 

The  Signature  of  the  Wife  of  the 
Principal  Maker  of  a  note  after  its 
execution  and  without  the  knowledge 
or  consent  of  the  surety,  is  not  a 
material  alteration  of  the  note.  Wil- 
liams V.  Jensen,  75  Mo.  681.  "  Such 
a  signature,"  said  the  court,  "  im- 
posed upon  her  no  legal  liability 
whatever,  being  in  contemplation  of 
law  a  nullity,  and  the  responsibility 
of  the  parties  to  the  note  was  in  no 
way  increased  or  diminished  or  other- 
wise changed  by  the  addition  of  her 
name  thereto." 

19-  Brownell  v.  Winnie.  29  N.  Y. 
40a. 

80.  United  States.  —  Mersnian  v. 
Werges,    112   U.    S.    139. 

Alabama.  —  Montgomery  R.  Co.  ■;'. 
Hurst,  9  Ala.   513. 

Illinois.  —  Ives  v.  McHard,  2  III. 
A  pp.  176. 

Massachusetts.  —  Stone  t'.  White, 
8   Gray    (Mass.)    589. 

Michigan.  —  Miller  v.  Finley,  26 
Mich.  249,  12  A.  R.  306;  Union  liank- 
ing    Co.    zi.    Martin,    113    Mich.    52I, 


71  N.  W.  807;  Gano  v.  Heath,  36 
Mich.  441. 

Nebraska.  —  Barnes  z\  Van  Keu- 
ren,  31  Neb.  165,  47  N.  W.  648; 
Royse  v.  State  Nat.  Bank,  50  Neb. 
16,  69  N.  W.  301. 

AVtt'  y'ork. — McCaughey  v.  Smith, 
27  N.  Y.  39. 

Application  of  Rule —  The  sign- 
ing by  a  third  party  as  surety  of  a 
note  payable  on  demand  some  months 
after  its  execution  by  the  original 
promisor  and  delivered  to  the  payee 
and  for  a  new  consideration,  is  a 
new  and  independent  contract  not 
requiring  the  consent  of  the  original 
promisor,  and  it  does  not  constitute 
an  alteration  of  the  contract  of  the 
original  parties.  Stone  v.  White,  8 
Gray  589.  The  court  said :  "  It  did 
not  in  any  way  change  or  affect  their 
rights.  It  was  a  new  and  indepen- 
dent contract,  made  on  a  sutificient 
consideration  with  a  third  party,  to 
which  their  assent  was  unnecessary. 
The  validity  of  such  contracts  hav-e 
been  often  recognized  in  this  com- 
monwealth. Tenney  r.  Prince,  4 
Pick.  385 ;  Bryany  v.  Eastman,  7 
Cush.  III.  See  also  Catton  v.  Simp- 
son, 8  Ad.  &  El.  136,  and  3  Nev.  & 
P.  248;  Hughes  V.  Littlefield,  18 
Me.  400 ;  Powers  v.  Nash,  37  Me. 
3,22." 

82.  Wersnian  v.  Werges,  112  U. 
S.  139;  Berryman  v.  Manker,  56 
Iowa'  150,  9  N.  W.  103;  Houck  v. 
Graham,  106  Ind.  195,  6  in.  E.  594.  55 
L.  R.  A.  727 ;  Sullivan  v.  Rudersill, 
63  Iowa  158,  18  N.  W.  856. 

83.  Taylor  r.  Johnson,  17  Ga.  521. 

84.  Sullivan  z:  Rudisell,  63  Iowa 
158,  18  N.  W.  856;  Bowser  i-.  Ren- 
dell,   31    Ind.    128;    Palmer  z:    Poor, 

Vol.  I 


7y6 


ALTERATION  OF  INSTRUMENTS. 


(C.)  Striking  Out  Parties.  —  Again  striking-  out,  by  erasure  or 
otherwise,  the  name  of  one  or  more  of  several  obHgors  to  a  written 
instrument,  without  the  knowledge  or  consent  of  the  remaining 
obligors,  is  a  material  alteration  as  to  such 
oblisrors."^ 


121  Ind.  135,  22  N.  E.  984;  Hoiick  v. 
Graham,  106  Ind.  195,  6  N.  E.  594. 
See  also  Anderson  v.  Bellinger,  87 
Ala.  334,  4  L.  R.  A.  680,  6  So.  82, 

13  Am.    St.    Rep.    46. 

85.  England — Nicholson  v.  Revell, 
4  Advl.  &  E.  675,  31  Eng.  C.  L. 
300. 

United  States.  —  Smith  r.  U.  S.,  2 
Wall. ;  Martin  v.  Thomas,  24  How. 
315;  Mersman  v.  Werges.  112  U.  S. 
139. 

Arkansas,— Sl3.i<:  z:  Churchill,  48 
Ark.  426,  3   S.   W.  352. 

Delaware.  —  Herdman  v.  Bratten, 
2  Harr.  396. 

Illinois.  —  Gillett  v.  Sweat,  6  III. 
475- 

Indiana.  — State  e.v  rel.  Griswold  v. 
Blair,  32  Ind.  313  ;  State  z:  Polkc,  7 
Blackf.  27. 

loiva.  —  McCramer  i'.  Thompson, 
21  Iowa  244;  State  v.  Craig,  58  Iowa 
238,    12  N.   W.  301. 

Missouri.  —  Briggs  v.  Glenn,  7  Mo. 
572 :   State  V.   Findley,    loi    Mo.   217, 

14  S.   W.    185. 

Pennsylvania. — Barrington  j'.  Bank 
of  Washington,  14  Serg.  &  R.  405. 

Te.ras.  —  Davis  z:  State,  5  Tex. 
App.  48  (citing  numerous  authori- 
ties) ;  Collins  z:  State,  16  Te.x.  App. 
274. 

Vermont.  —  Dewey  v.  Bradhury,  i 
Tyler    186. 

I'irginia.  —  Blanton  z'.  Com.,  91 
Va.   I,  20  S.   E.  884. 

Washington.  —  King  Co.  z'.  Ferry, 
.S  Wash,  s'36,  19  h.  R.  A.  500,  34  Am. 
St.   Rep.  886. 

The  Reason  is  that  such  an  alter- 
ation materially  changes  the  con- 
tract of  the  remaining  ohligors,  be- 
cause it  increases  the  amount  which 
each  of  them  may  be  held  to  con- 
tribute. Martin  z'.  Thomas,  24  How. 
315;   Smith  V.  U.   S.,  2  Wall.  219. 

The  Deliberate  Cancellation  by 
the  Holder  of  an  Indorsement  on  a 
Note,  discharges  the  liability  of  such 
indorscr  to  the  holder,  and  so 
operating,  it  will  also  discharge  from 

Vol.  I 


liability  to  the  holder,  the  subsequent 
indorser.  Curry  v.  The  Bank  of 
Mobile,   8   Port.    (Ala.)    360. 

Erasure  of  Indorsement  by  In- 
dorser After  Payment When   one 

who  indorses  a  note  before  its  de- 
livery, but  who  is  not  a  party  thereto 
on  the  face  of  the  note,  subsequently 
pays  it  and  sues  the  maker,  the 
erasure  of  his  indorsement  by  a 
pen  mark  drawn  through  his  sig- 
nature is  not  a  material  alteration 
as  between  the  parlies  to  the  suit. 
Tutt  V.  Thornton.   57  Tex.  35. 

Payee  Erasing  Signature  as  Surety 
and  Indorsing. —  In  Lunch  v.  Hicks, 
80  Ga.  200,  4  S.  E.  255,  the  payee 
of  the  notes  in  suit,  having  at  first 
signed  them  as  security,  and  having 
failed  in  his  attempt  to  negotiate 
them,  erased  his  indorsement,  and 
indorsed  them  to  the  plaintiff.  It 
was  held  that  this  did  not  constitute 
a  material  alteration. 

In  Blewett  z:  Bash,  22  Wash.  536, 
61  Pac.  770,  a  suit  to  foreclose  a 
mortgage  which  the  plaintiff  had  paid 
off,  as  guarantor,  it  was  held  that 
the  plaintiff  was  not  released  from 
his  obligation  as  guarantor,  by  the 
fact  that  the  name  of  one  of  the 
joint  obligors  was  erased,  because 
such  an  erasure  is  not  material  unless 
done  without  their  consent  or  ac- 
quiescence. 

The  Erasure  of  the  Name  of  One 
of  the  Original  Subscribers  to  the 
Capital  Stock  of  a  Corporation, 
before  the  articles  were  filed,  does 
not  alter  the  subscription  paper,  in 
an  action  by  the  corporation  against 
the  remaining  subscribers,  where  it  is 
fairly  inferrible  from  all  the  circum- 
stances that  such  erasure  was  made 
with  the  knowledge  of  the  defend- 
ants and  of  the  corporation  and  at 
the  request  of  the  person  whose 
name  was  erased  and  without  any 
fraudulent  intent.  Rensselaer  & 
Washington  Plank  Road  Co,  v. 
Wetzcll,    21    Barb.    56. 


ALTERATION  OF  INSTRUMENTS. 


T')7 


Erasing  a  Forged  Signature  before  the  delivery  of  the  instrument 
to  the  obligee,  who  knew  nothing  of  stich  forged  signature  or  of  its 
subsequent  erasure,  is  not  a  material  alteration.*" 

(D.)  Ixsi-RTiNG  Name  of  Sirner  in  Body  of  Instrument.  —  It  is  not  a 
material  alteration  of  a  written  instrument  for  the  holder  thereof 
to  insert  the  name  of  the  signer  or  maker  in  the  body  of  the  instru- 
ment, although  after  delivery  and  without  his  knowledge  or  con- 
sent.^' 

(2.)  Alterations  Affecting  the  Personality  of  Parties — (A.)  In  GenER.\l. 
Again,  anv  alteration  of  a  written  instrument,  without  the  knowl- 
edge or  consent  of  all  the  parties  thereto,  which  operates  to  change 
the  personality  of  one  or  more  of  the  parties,  is  a  material  altera- 
tion as  to  the  non-consenting  parties.** 


Erasure  of  Signature  to  Several 
Obligation — In  Whittlesley  v.  Frantz, 
74  X.  V.  456,  an  action  on  a  sub- 
scription contract  to  the  capital  stock 
of  a  corporation,  the  subscription 
paper,  when  offered  in  evidence, 
showed  the  cancellation  of  one  of 
the  subscribers,  a  memorandum  ap- 
pearing opposite  his  name,  "  by 
agreement,"  dated  a  date  subsequent 
to  the  time  of  the  defendant's  sub- 
scription ;  there  being  no  explanation 
of  the  cancellation  outside  the  paper 
itself.  The  court  held  the  alteration 
to  be  immaterial. 

86.  York  Co.  'SI.  F.  Ins.  Co.  v. 
Brooks,  51   JMe.  506. 

87.  Reed  v.  Kemp,  16  111.  445; 
State  ex  rel.  McCarthy  v.  Pepper,  31 
Ind.  76;  Fouriner  z:  Cyr,  64  Me. 
32:  Smith  V.  Crooker,  5  .Mass.  538. 

88.  Canada.  —  Henderson  ■;■.  Ver- 
milyea,  27  U.  C.  Q.  B.  544. 

United  States. —  Steele  i'.  Spencer, 
I   Pet.  552. 

Alabama.  —  Montgomery  z\  Cross- 
thwait,  90  Ala.  553,  8  So.  498,  12  L. 
R.  A.  140;  Hollis  z:  Harris,  96  Ala. 
288,   II   So.  377. 

Illinois.  —  Vincent  Z'.  People,  25 
III.  412. 

Indiana.  —  State  c.v  rel.  La  Porte 
Co.  ''.  \'an  Pelt,  i  Ind.  304. 

Maine.  —  Sheridon  v.  Carpenter, 
61  Me.  83 ;  Goodwin  v.  Norton,  92 
Me.  532,  43  Atl.  hi;  Chadwick  v. 
Eastman,  53  Me.  12. 

Massachusetts. — Wilde  v.  Armsby, 
6  Cush.  314. 

Micliigan.  —  Aldrich  v.  Smith,  37 
Mich.  468,  26  Am.   Rep.  536. 

Missouri.  —  First     Nat.     Bank     z'. 


Fricke.  75  Mo.  178.  42  Am.  Dec.  397; 
Haskell  z:  Champion,  30  Mo.  136; 
State  V.  jMcGonigle,  loi  Mo.  353,  13 
S.  W.  758.  8  L.  R.  A.  735,  20  Am. 
St.  Rep.  609. 

Nezu   Jersey.  —  York   Z'.    Janes,   43 
N.  J.   Law  332. 

Oregon.  —  Simpkins     z:     Windsor, 
21   Or.  382,  28   Pac.  72. 

Pennsylvania.  —  Smith   v.   Weld,  2 
Pa.    St.   54. 

il'ashington.  —  Fairhavcn  z'.  Cow- 
gill,  8  Wash.  686,  36  Pac.  1093,  32 
Pac.  538,  19  L.  R.  .^.  500,  34  Am.  St. 
Rep.  880 :  King  County  f.  Ferry,  5 
Wash.  538.  wherein  the  rule  was  rec- 
ognized, but  held  not  to  be  applicable 
because  the  erasure  was  not  of  the 
signature  of  the  surety,  but  his  name 
on  the  body  of  the  bond  was  erased 
and  another  substituted,  the  bond  be- 
ing regular  on  its  face  and  the  ob- 
ligee having  no  notice  of  the  change. 
A  Bail  Bond  is  materially  altered  by 
the  erasure  of  the  name  of  one  of 
the  sureties  and  substitution  of 
another  in  his  stead,  without  the 
knowledge  and  consent  of  the  other 
sureties.  Kiser  z\  State,  13  Tex. 
App.  201. 

Words  Descriptive  of  Person. 
In  Hayes  z'.  Mathews,  63  Ind.  412, 
30  Am.  Rep.  226,  the  note  in  suit  read 
"  We  promise  to  pay,"  but  was 
signed  with  the  individual  names 
of  the  makers,  followed,  however, 
with  the  words  "  trustees "  etc.  of 
the  defendant's  church ;  and  it  was 
held  that  the  erasure  of  the  words 
"  trustees "  etc.  was  an  immaterial 
alteration,  inasmuch  as  the  note  pur- 
ported  to  be   the   individual   note  of 

Vol.  I 


798 


ALTERATIOX  Of  IXSTRUMEXTS. 


(B.)  Substituting  Pavek,  Obucek.  Etc.  —  Any  alteration  in  a  writ- 
ten instrument,  by  erasure  and  substitution,  or  otberwise.  tbe  effect 
of  which  is  to  change  the  payee  or  obHgee  therein,  after  its  delivery, 
by  the  party  interested  in  the  instrument,  is  a  material  alteration/^" 


tlie  makers,  the  additional  words 
constituting  merely  a  description  of 
their  persons  without  in  any  way 
affecting  the  legal  character  of  the 
note  itself.  See  also  Hayes  v. 
Brupaker,  6s  Ind.  27;  Burlingame  v. 
Brewster.  79  111.  515.  22  .-Vm.  Rep. 
177- 

Individual   Signature   Changed   to 

Signature  as   Agent A  change   in 

the  form  of  the  execution  of  a  deed, 
whereby  the  signature  of  the  grantor 
instead  of  being  in  his  individual 
capacity,  becomes  the  signature  of  a 
third  person  under  and  by  virtue 
of  the  power  of  attorney  to  him  is  a 
material  alteration;  and  if  made  by 
the  grantee  or  by  some  third  person 
with  his  consent  or  by  or  with 
the  consent  of  one  claiming  title 
under  him.  and  without  the  prior  or 
subsequent  knowledge  and  consent  of 
the  grantor,  constitutes  a  material 
alteration  of  the  deed  in  so  far  as 
concerns  any  action  on  its  covenants 
by  a  party  to  the  alteration.  North 
I'.  Henneberry.  44  Wis.  306. 

The  Middle  Initial  of  a  Man's 
Name  is  generally  regarded  as  im- 
material ;  and  its  erasure  is  not  of 
itself  sufficient  to  cast  suspicion  upon 
the  instrument;  especially  if  the  gen- 
uineness of  the  instrument  in  other 
respects  is  fully  established.  Banks 
z>.   Lee,   7$  Ga.   25. 

89.  United  States.  —  Sneed  v. 
Sabinal  M.  &  M.  Co.,  7.3  Fed.  925, 
affirming   71    Fed.   49,3,    18   C.    C.   A. 

213- 

loica.  —  Bell  ■:■.  ^Nlahin,  69  Iowa 
408.  29  N.  W.  331. 

Kansas.  — •  Horn  T'.  Newton  City 
Bank,  32  Kan.  518.  6  Pac.  1022,  citing 
Bank  v.  Hall,  i  Halst.  (N.  J.)  215; 
Draper  v.  Wood,  112  Mass.  315,  17 
Am.    Rep.    92. 

Maine.  —  Dolbier  i'.  Norton,  17 
Me.  307. 

Massachusetts.  —  Stoddard  r'.  Pen- 
niman,   108  Mass.   360,   11    .\m.   Rep. 

Missouri. — German   I'aiik  r'.   Dunn, 


62  Mo.  79 :  Rol)inson  v.  Berryman, 
22  Mo.  App.  509. 

Nebraska.  —  Erickson  z:  First  Xat. 
Bank,  44  Neb.  622,  62  N.  W.  1078,  28 
L.  R.  A.  577,  48  Am.  St.  Rep.  753, 
citing  Patch  t'.  Washburn,  16  Gray 
82. 

Ohio.  —  Davis  T'.  Bauer,  41  Ohio 
St.  ^25-7. 

Vermont.  —  Broughton  ?■.  Fuller. 
9  Vt.  373. 

Application  of  Doctrine.  —  In 
German  Hank  v.  Dunn,  62  Mo.  79. 
after  a  note  was  completed,  in  the 
absence  and  without  the  authority  or 
knowledge  of  the  maker,  the  name 
of  the  payee  was  by  the  holder 
erased,  and  his  own  name  sub- 
stituted. It  appeared  that  the  note 
was  in  fact  made  for  the  holder's 
benefit,  and  there  was  no  evidence 
that  the  erasure  was  made  with  any 
sinister  or  fraudulent  motive.  It 
was  urged  that  the  alteration  was  not 
a  material  one,  as  it  did  not  Ihwart 
the  intention  of  the  maker ;  but  the 
court,  in  accord  with  its  previous 
decisions,  enforced  the  rigid  doc- 
trine that  fraud  should  be  prevented 
even  in  its  incipient  stages,  by  put- 
ting an  absolute  interdict  on  all  un- 
authorized tamperings.  thereby  plac- 
ing the  holders  of  paper  under  the 
strong  bonds  of  pecuniary  self  in- 
terest   to    keep    it    entirely    intact. 

Inserting  Proper  Obligee  in  Bond. 
In  Turner  v.  Billagram,  2  Cal.  520, 
the  bond  in  question  was  made  pay- 
able to  the  acting  sheriff  instead  of 
the  party  who  was  to  be  protected 
by  its  execution;  this  was  the  result 
of  mistake  alone,  and  when  dis- 
covered the  name  of  the  officer  was 
erased  and  that  of  the  proper  obligee 
inserted.  It  was  held  that  this  did 
not  affect  the  bond.  Sec  also  Hale 
V.   Russ,    I    Me.   334. 

In  Elliott  v..  Blair,  47  111.  342,  a 
holder  of  a  note  in  suit  added  to  the 
name  of  the  payee  the  words  "  & 
Company;"  and  it  was  held  that  this 
alteration   was   immaterial. 

In    Granite    K.    Co.    v.    Bacon,    15 


Vol.  I 


AI.rERATIOX  Of  IXSTRUMEXTS. 


IV) 


Adding  the  Word  "  Cashier  "  after  the  name  of  the  pa\ce  of  an  exe- 
cuted note,  with  the  consent  of  the  maker,  but  not  of  the  suret\-.  is  a 
material  aheration."" 

Erasing  the  Name  of  a  Special  Indorsee  of  a  promi.ssor\'  note  and 
substitutini;  the  name  of  another,  without  the  knowledge  or  consent 
of  the  indorsee,  is  a  material  alteration  as  against  the  latter."' 

(C.)  Correction  of  N.\me.  —  But  an  alteration  is  not  material 
where  it  is  in  fact  but  a  mere  correction  in  the  name  of  one  of  the 
parties. "- 

(D.)  Description  oi-  Person.  —  Xor  is  an  alteration  material  where 
the  change  consists  of  the  addition  of  a  mere  description  of  the 
person."^ 


Pick.  239,  I'y  die  note  in  suit  the 
defendant  promised  to  pay  to  the 
plaintiff  the  amount  sued  for.  The 
note  was  indorsed  hy  a  third  person 
and  delivered  to  the  plaintiff's  treas- 
urer, who,  without  the  knowledge  or 
consent  of  defendant.  interlined 
above  the  plaintiff's  name,  the  name 
of  the  indorser.  but  did  not  erase  the 
name  of  the  plaintiff,  as  payee.  It 
was  held  that  the  most  that  could 
be  inferred  was  that  it  was  a  pro- 
posal to  insert  the  name  of  another 
payee  never  acceded  to,  and  there- 
fore, did  not  constitute  an  alteration ; 
as  mere  senseless  words  written  on 
an  instrument  complete  in  itself  do 
not  affect  the  terms,  the  effect,  or 
the  identity  of  the  contract,  and  so 
are  immaterial. 

90.  Hodge  c'.  Farmers  Bank.  7 
Ind.   .App.   94,   J4   N.   E.    132. 

91.  Grimes  v.  Piersol.  25  Iml. 
246,  affirmed  ,^0  Ind.   I2g. 

92.  State  v.  Dean,  40  Mo.  464; 
Davis  V.  Rankin  Bldg.  &  Mfg.  Co. 
V.  Di.x,  64  Fed.  406;  Latshaw  v.  Hihe- 
beil,  3  Penny.  (Pa.)  257;  Pardee  v. 
Findley.  31  111.  174,  83  Am.  Dec.  219; 
Onttonn  r.  Dulin,  72  Md.  536,  20 
Ki\.  134:  First  Nat.  Bank  r."  Wolff, 
79  Cal.  69.  21   Pac.  551. 

Alteration     Correctly     Describing 

Payee An   alteration   in   the   name 

of  the  payee  of  a  note,  the  only 
effect  of  which  is  to  correctly  describe 
the  party  to  whom  tbe  promise  was 
in  fact  understandingly  made,  is  not 
material.  Derby  v.  Thrall,  44  Vt. 
413,  8  .^m.  Rep.  389. 

Scratching  Out  the  Dot  Over  the 
Letter  "  I "  hi  the  name  of  the 
grantee   in  a  patent   is  not   sufficient 


to  exclude  the  patent  as  evidence, 
where  it  does  not  appear  that  the 
change  is  material  or  that  it  was 
made  after  the  patentee  came  into 
possession  of  the  patent.  Morgan 
V.  Curtenins,  4  McLean  366,  17  Fed. 
Cas.    No.   9799. 

Adding  Christian  Names.  —  In 
Blair  z\  Bank  of  Tcnn..  11  Humph- 
reys 84,  the  bill  in  suit  was  drawn 
by  two  persons  as  co-partners,  who 
were  not,  in  fact,  such,  and  the  al- 
teration consisted  of  the  individual 
signatures  of  the  drawers  under  the 
joint  name  made  after  acceptance: 
and  it  was  held,  that  this  did  not 
constitute  a  material  alteration  of  the 
bill.  It  was,  ill  effect,  said  the  court, 
"but  adding  the  christian  names  of 
the  drawers,  whose  surnames  Iiad 
been  affixed  to  the  bill,  before  ac- 
ceptance, and  were  so  affixed  by  the 
mutual  assent  of  the  drawers.  The 
omission  of  the  christian  names  of 
tbe  drawers,  was  one  which  the  law 
supplied,  and  which  did  not  affect 
their  liability  to  the  acceptor  or  other 
parties." 

■Where  the  Surname  of  the  Payee 
■Was  Interlined  subsequently  to  the 
delivery  of  a  promissory  note,  but  it 
was  proved  that  the  note  was  orig- 
inally given  to  the  payee  whose  name 
was  inserted,  it  was  held  that  the 
alteration  was  not  material.  Mouchet 
V.  Cason  &  Hill,  i  Brev.  ( S.  C.) 
307- 

93.  Casto  v.  Evinger.  17  Ind.  .\pp. 
298.   46   N.   E.   648. 

The  Addition  of  the  Word 
"  Junior "  to  a  Man's  Name  is 
adopted  as  a  convenient  term  of 
designation,  but  is  not  a  part  of  the 

Vol.  I 


800 


ALTERATION  OP  IXSTRUMEXTS. 


(3.)  Alterations  Affecting  the  Relations  of  Parties.  —  Again,  any 
alteration,  the  effect  of  which  is  to  change  the  relations  of  the  par- 
ties, is  material  :'■'''  as  for  example,  when  a  person  who  has  signed 
as  surety,  becomes  a  principal  maker  in  consequence  of  the  altera- 
tion ^■'^  or  when  a  guarantor  becomes  a  surety.''" 

i.  Matters  in  Respect  of  the  Consideration.  —  It  has  Ix-en  held 
that  any  alteration  of  a  written  instrument,  the  effect  of  which  is  to 
change  the  consideration  as  therein  recited,  is  material.'''      So  also, 


name ;  and  hence  will  not  constitute 
a  material  alteration.  Coit  z:  Stark- 
weather, 8  Conn.  289.  Contra.  — 
Broughton  z\  Fuller,  9  Vt.  373, 
wherein  it  is  held  that  this  is  a 
material  alteration. 

Description    of    Person In 

Sharpe  z\  Bellis,  61  Pa.  St.  69,  100 
Am.  Dec.  618,  it  appeared  that  the 
note  in  suit  had  been  drawn  in  blank 
and  indorsed  by  the  defendant  as 
president,  he  refusing  to  indorse  in- 
dividualh'.  The  note  was  afterwards 
filled  up  with  the  defendant's  name 
as  payee,  and  the  "  pres't  "  erased. 
It  was  then  handed  to  the  plaintiff, 
who  had  no  knowledge  of  the 
erasure,  but  did  know  of  the  de- 
fendant's connection  with  the  com- 
pany, for  whose  debt  the  note  was 
given,  and  was  received  by  the  plain- 
tiff. The  court  said  :  "  There  can 
be  no  difference  in  principle  between 
simply  adding  the  word  'agent' 
when  no  principal  is  disclosed,  and 
the  word  '  pres't '  when  no  corpo- 
ration or  company  is  disclosed.  On 
this  note  so  indorsed,  without  ex- 
trinsic proof  of  knowledge  on  part 
of  the  plaintiffs,  this  indorsement,  we 
think,  would  have  imported  a  legal, 
personal  obligation,  and  in  this  as- 
pect the  erasure  of  the  affi.x  would  be 
an  immaterial  alteration.  If,  how- 
ever, the  plaintiff's  did  know  the 
official  relation  of  the  defendant  to 
the  company,  the  erasure  was  ma- 
terial. It  changed  the  nature  of  the 
defendant's  obligation  from  an  offi- 
cial representative  act  to  a  personal 
undertaking.  It  was  then  not  ad- 
missible in  evidence,  provided  that 
fact  sufficiently  appeared  before  its 
offer." 

94.     Changing    Relation    of    Par- 
ties  The  bolder  of  a   note   with   a 

blank  indorsement  by  the  payee  has 
no  legal  right  to  change  the  obliga- 

Vol.  I 


tion  of  the  indorsee  by  writing  a 
contract  of  guaranty  over  the  name 
of  the  payee,  "  without  the  knowledge 
or  consent  of  the  payee."  Belden  v. 
Hann,  61  Iowa  42,  15  N.  W.  591  ; 
Needhams  r.  Page,  3  B.  Mon.  (Ky.) 
465. 

95.  Laub  -■.  Paine,  46  Iowa  550. 
In  Humphreys  v.  Crane,  5  Cal.  173, 

a  memorandum  had  been  made  upon 
a  note  in  suit  to  the  effect  that  cer- 
tain parties  who  had  signed  it  were 
sureties.  This  memorandum  the 
holder  tore  off.  It  was  held  that  the 
alteration  was  not  material.  The 
court  said ;  "  The  defendants  were 
liable  to  the  plaintiff,  whether  they 
signed  as  principals  or  sureties,  and 
it  is  well  settled  that  an  alteration 
which  does  not  vary  the  ineaning, 
the  nature  or  the  subject  matter  of 
a   contract,    is   iminaterial." 

96.  Robinson  f.  Reed,  46  Iowa 
219. 

97.  £;(g/o»(f  —  Knill  v.  Williams, 
10  East  431. 

Alabama.  —  Carlisle  v.  People's 
Bank,    122   Ala.   446,   26   So.    115. 

Illinois.  —  Benjamin  v.  McConnel, 
9  111.  536,  46  Am.  Dec.  474. 

Kansas.  —  Johnson  v.  Moore,  33 
Kan.  90,  5  Pac.  406. 

Minnesota.  —  Russell  v.  Reed,  36 
Minn.  376,  31   N.  W.  452. 

A  Change  in  i.ie  Recited  Con- 
sideration of  a  Mortgage  is  imma- 
terial when  no  change  whatsoever 
is  inade  in  the  description  of  the  debt 
to  be  secured  therein.  Cheek  v.  Nail, 
112  N.  C.  370,  17  S.  E.  80. 

In  Magers  v.  Dunlap,  39  III.  App. 
618,  the  note  offered  in  evidence 
contained  the  clause  "  for  labor," 
which  the  evidence  showed  had  been 
added  after  the  execution  of  the 
note.  The  evidence  also  showed  that 
the  real  consideration  of  the  note 
was  the  professional  services  of  the 


ILTER.rnoX  or  IXSTRC-.]fEXTS. 


801 


it  is  a  material  alteration  of  an  instrument  to  insert  a  recital  of  a 
consideration  where  the  instrument  as  executed  recited  no  con- 
sideration."*' I'.ut  not  so  of  an  alteration  in  the  account  of  a  mere 
recital  in  a  deed  or  contract  of  a  consideration,  whose  sole  purpose 
is  to  show  that  there  was  a  valuahle  consideration  paid  or  to  be 
paid;"''  nor  where  the  alteration  makes  the  instrument  express  the 
real  consideration  paid.' 

j.  Matters  in  Respect  of  the  l^raiiiise. —  (1.)  In  General.  —  Any 
alteration,  whereby  the  promise  is  caused  to  read  differently  from 
the  promise  as  expressed,  is  material. - 

(2.)  Description  of  Property. — Any  alteration  in  a  writins;'  trans- 
ferring- property,  whereb\-  the  description  of  the  property  transferred 
is  so  changed  as  to  in  fact  cause  the  writing  to  transfer  property 
other  than   as  originall}'  expressed,   is  material."  except  where  the 


plaintiff  as  a  physician.  It  wa.s  held 
that  no  riglil  of  the  defendant  was 
or  could  he  afifected  by  the  words 
inserted,  and  hence  the  alteration 
was   immaterial. 

Additional  Words  to  Explain  Con- 
sideration—  In  Gardiner  -e.  Ilar- 
hack,  21  III.  129,  the  alteration  con- 
sisted of  the  addition  of  the  words 
"  $10  dollars  and  fifty  interest,"  fol- 
lowing the  clause  "  valne  received." 
The  court  in  holding  this  to  be  an 
immaterial  alteration  said :  "  Had 
they  been  inserted  before  the  note 
was  signed  and  made  a  part  of  it, 
we  are  not  able  to  perceive  that  they 
would  have  added  any  further  lia- 
bility than  what  the  language  al- 
ready used  had  imposed.  Occupying 
the  position  they  did,  at  the  con- 
clusion of  the  note,  they  would  rather 
seem  to  explain  the  preceding  lan- 
guage used,  than  to  import  a  new 
obligation." 

98.  Low  X'.   Argrove,   30  Ga.    129. 

99.  Reed  v.  Kemp,   16  111.  445'. 
Consideration     Immaterial.  —  .\n 

interlineation  in  an  instrument  re- 
citing a  consideration  therefor,  which 
is  subsequently  striken  out.  will  he 
regarded  as  immaterial,  where  't  in 
fact  makes  no  difference  upon  wliat 
consideration  the  instrument  was 
made.  Westmorland  i'.  Westmor- 
land, 91   Ga.  233,   17   S.   E.   1033. 

!•  Murray  v.  Klinzing,  64  Conn. 
78,  29  Atl.  244,  wherein  the  alter- 
ation consisted  of  inserting  in  the 
blank  of  the  clause  "  for  the  con- 
sideration of  dollars,"  the 

amount. 

51 


Filling  Blanks.  —  In  Vose  v. 
Dolan,  108  Mass.  155.  11  Am.  Rep. 
331,  the  plaintiff,  in  consideration  of 
dollars,  sold  to  the  de- 
fendant, certain  property,  the  quan- 
tity being  unknown.  Subsequent  to 
the  writing  the  parties  agreed  that 
tlu  quantity  should  be  ascertained! 
by  a  third  person  and  the  blanks 
fuled  up,  which  was  done.  It  was 
held  that  this  was  an  immaterial 
r.lteration,  in  no  way  changing  the 
terms  of  the  writing  or  enlarging 
the    defendant's    liability    under    it. 

2.  Thus,  in  American  Pub.  Co.  z'. 
Fisher,  10  Utah  147,  37  Pac.  259,  the 
plaintiff  signed  a  written  offer  to 
manufacture  goods  for  the  defend- 
ant, and  the  defendant  signed  his 
name  below  that  of  the  plaintiff. 
Subsequently  the  plaintiff  interlined 
above  the  defendant's  signature  the 
words,  "  all  terms  and  conditions 
included  in  above  approved,  read 
and  agreed."  It  was  held  that  the 
alteration    was    material. 

Inserting  After  the  Word  Mer- 
chantable the  Word  "  Young,"  in 
the  clause  "merchantable  neat  stock," 
is  a  material  alteration.  Martindale 
f.  FolleU,  I  N.  H.  95. 

Adding   Other  Property It   is   a 

material  alteration  for  a  vendee  in 
a  bill  of  sale  to  add  other  property  to 
be  transferred  thereimdcr,  after  its 
execution  and  without  the  knowl- 
edge or  consent  of  the  vendor.  Babb 
7'.  Clemson,  10  Serg.  &  R.  (Pa.)  419, 
13    Am.    Dec.   684. 

3.  Pereau   ■;•.    Frederick,    17    Neb. 

Vol.  I 


802 


ALTERATION  OF  IXSTKUM HX'TS. 


sole  purpose  of  the  alteration  is  to  cure  an  im])ertect  description  ,* 
to  more  particularly  describe  the  location  of  the  premises;''  or  to 
particularize  a  more  general  description." 

(3.)  The  Amount.  —  Any  unauthorized  change  by  one  of  the  i)ar- 
ties  to  a  writing  of  the  amount  intended  to  be  evidenced  by  the 
writing  whereby  it  becomes  nominally  a  promise  to  pay  either  a 
greater  or  less  sum  than  that  originally  expressed  is  a  material 
alteration.' 


117,  22  N.  W.  235;  Montag  i'.  Linn, 
23   111.  .S5I- 

It  is  a  material  alteration  of  a 
promissory  note  which  recites  on  its 
face  that  it  is  given  for  the  purchase 
price  of  the  buildings  on  lot  i, 
to  erase  the  word  "  on "  and  insert 
the  word  "  and "  so  as  to  make  the 
note  read  that  it  is  given  for  the 
purchase  price  of  the  buildings  and 
lot  I.  Richardson  v.  Fellner,  g  Okla. 
513,    60    Pac.    270. 

Adding  Quantity. —  In  Shelton  r. 
Deering,  10  B.  Mon.  405,  the  deed 
was  originally  drawn  and  acknowl- 
edged, describing  the  land  con- 
veyed by  metes  and  bounds,  without 
naming  any  quantity;  but  before  it 
was  acknowledged  by  the  husband, 
he  inserted  the  words,  "  containing 
by  a  survey  two  hundred  acres  "  as 
part  of  the  description,  and  also  in 
the  covenant  of  warrantry  which 
purported  to  be  joined  the  words 
"  and  that  the  same  shall  contain 
two  hundred  acres."  It  was  held 
that  the  alteration  was  immaterial, 
inasmuch  as  it  did  not  change  the 
legal  effect  of  the  deed  in  respect 
to  the  wife. 

Description  Sufficient  to  Include 
Additional  Property.  —  .\n  inter- 
lineation in  the  description  of  land 
conveyed  by  the  deed  in  question, 
indicating  a  purpose  to  include 
other  property  in  the  property  trans- 
ferred, is  immaterial,  where  the  de- 
scription of  the  land  is  sufficient  of 
itself  to  include  such  oilier  property. 
Brown  1:  Pinkham,   18  Pick.   172. 

Adding  the  Words,  "  More  or 
less "  to  the  Quantity  of  Land 
contracted  to  be  conveye<l,  by  tlie 
seller  after  the  execution  of  the  con- 
tract by  the  purchaser  without  his 
knowledge  or  consent,  is  a  material 
alteration    of    the    contract    of    pur- 

Vol.  I 


chase.       Sherwood     %■.     Mcrritt,     83 
Wis.   233,   53   N.   W.   512. 

4.  Sharpe  v.  Orme,  61  Ala.  263: 
Hatch  V.  Hatch,  9  Mass.  ,-?07,  6  .\ni. 
Dec.  67. 

Filling  Blanks.  —  In  Vose  i>. 
Dolan,  108  Mass.  155,  11  Am.  Rep. 
331,  the  quantity  of  goods  sold  and 
intended  to  be  transferred  by  the 
writing  in  question  was  left  blank, 
and  subsequent  to  the  execution  of 
the  writing,  tlie  parties  agreed  that 
a  third  person  should  ascertain  and 
fill  in  the  blank,  which  was  done ; 
and  it  was  held  that  this  did  not 
constitute  a  material  alteration.  See 
also  State  f.  Dean,  40  Mo.  464; 
Rowley    r.    Jcwett,    ^6    Iowa    4Q2,    9 

N.  W.  335- 

5.  Location  of  Premises.  —  In 
Gordon  v.  Sizer,  39  Miss.  S05.  the 
court  said :  "  The  omission  of  the 
interlined  words  would  only  render 
the  description  of  the  premises  in 
that  part  of  the  deed  obscure  and 
uncertain,  and  the  use  of  the  same 
words  in  the  subsequent  part  would 
show  what  was  intended,  and  render 
the  former  description  certain  and 
clear.  In  either  of  these  views  the 
olijection   was   properly  overruled." 

6.  Particularizing  General  De- 
scription.— In  Churchill  v.  Beilstein, 
9  Tex.  Civ.  App.  445;  29  S.  W.  392. 
the  contract  in  question  provided 
for  the  erection  of  a  dwelling  for  the 
defendants  "on  their  lot  on"  (a 
designated  street)  ;  and  it  was  held 
that  the  insertion  after  the  execution 
and  acknowledgment  of  the  contract 
of  the  description  of  the  lot,  by  lot 
and  block,  was  held  not  to  be  ma- 
terial. 

7.  England.- — Gardner  v.  Walsh. 
5  Ellis  &  B.  83,  85  Hng.  C.  I,.  83. 

Alabama.  —  Green  v.  Sneed,  loi 
Ala.  205,  13  So.  277,  46  \m.  St.  Rep. 
119. 


. i /. TER. I TJOX  OF  /XSTR UMEX TS. 


803 


Attorneys'  Fees.  — The  unauthorized  hiserlion  of  a  clause  in  an 
instrument  wherehy  the  makers  or  obUgjors  are  rendered  Hable  for 
attorneys'  fees,  for  whicli  there  was  no  Habihty  under  the  instrument 
as  first  executed,  is  a  material  alteration.* 

(4.)  The  Interest (A.)  Chance  oi-'  R.\te.   —  Any    alteration    of    a 

written  instrument,  after  its  execution  and  without  authority,  the 
elifect  of  which  is  to  chantje  the  rate  of  interest  to  be  paid,  either 


Arkansas.  —  Chism  i'.  Tooiner,  27 
Ark.   108. 

California.  —  People  7'.  Knceland, 
31   Cal.  288. 

Connecticut. — ^  Aetna  Nat.  Bank 
V.   VVinclie.'iter,  43   Conn.   391. 

Delaware.  —  Bank  of  Newark  v. 
Crawford,  2  Housl.  282. 

Georgia.  —  Winkles  r.  Guenther, 
98  Ga.  472,  25  S.  E.  527:  Wlieat  v. 
Arnold,  36  Ga.  479. 

Idaho.  —  Mnlkey  v.  Long  (Idaho), 
47    Pac.   949. 

Illinois.  —  Sans  v.  People,  8  III. 
:i2y;   Alerritt  v.  Boyder,   191   111.   136, 

60  N.    E.   907. 

Indiana.  —  Collier  v.  Waugli.  64 
Ind.  456;  Hout  V.  Oeler.  80  fnd.  83. 

Iowa.  —  Knoxville  Nat.  Rank  v. 
Clark,  51  Iowa  264,  i  N.  \V.  491,  33 
Am.  Rep.  129 ;  Maguire  v.  Eich- 
nieier,  109  Iowa  301,  80  N.  W.  395. 

Kentuclcy.  —  Woolfolk  r.  Bank  of 
America,  10  Bnsh  504-513. 

Maine.  —  Dover  i'.  Robinson,  64 
Me.  183;  Hewins  z'.  Cargill,  67  Me. 
554- 

Maryland.  —  Burrows  v.  Klunk,  70 
Md.  451.  3  L.  R.  A.  576,  17  Atl.  378, 
14  A.  S.   R.  371. 

Missouri.  —  State  e.v  rel.  Jackson 
Co.  V.  Chick,  146  Mo.  645,  48  S.  W. 
829. 

Massachusetts.  —  Wade  v.  With- 
ington,  I  Allen  561 ;  Greenfield  Sav. 
Bank  z'.  Stowell,  123  Mass.  iq6,  25 
Am.  Rep.  67;  Doane  v.  Eldridge,  16 
Gray  254;  Cape  Ann  Nat.  Bank  z'. 
Burns,   129  Mass.  596. 

Nebraska.  —  State  Sav.  Bank  '■. 
Shaffer,  9  Neb.  I,  i  N.  W.  g8o,  31 
Am.  Rep.  394 ;  Goodwin  z\  Pluggc, 
47  Neb.  284,  66  N.  W.  407. 

Nezv  Hamf<shire.  —  Goodman  v. 
Eastman,  4   N.   H.  455. 

Minnesota.  —  Renville  Co.  Z'.  Gray, 

61  Minn.  242,  63   N.  W.  635. 

Nezv  Me.rico.  —  Ruby  i'.  Talbot, 
5'N.  Mex.  251,  21  Pac.  72,  3  L.  R.  A. 
724. 


Nezi'  York.  —  Flannagan  v.  Nat. 
Union  Bank  (City  Court  of  N.  Y.), 
2  N.  Y.  Supp.  488. 

North  Carolina.  —  Cheek  v.  Nail, 
112  N.   C.  370,   18  S.  E.  80. 

Ohio.  —  Portage  Co.  Branch  Bank 
z:  Lane,  8  Ohio  St.  405. 

Pennsvlvania.  —  Worrall  v.  Ghecn, 
39   Pa.   St.  388. 

South  Carolina.  —  Mills  z\  Starr. 
2  Bailey  359. 

South  Dakota.  —  Searles  Z'.  Seipp, 
6  S.  D.  472,  61  N.  W.  804. 

Virginia.  —  Batchelder  z'.  White, 
80  Va.   103. 

U'isconsin.  —  Matteson  7'.  Ells- 
worth, 33  Wis.  488,  14  Am.  Rep.  766. 

For  the  Rule  as  to  Marginal  Fig- 
ures hulicating  the  amount,  see  iii/Tii 
II-3-C-e-(3). 

8.  Monroe  z'.  Paddock,  75  Ind. 
422 ;  Coles  z'.  Yorks,  28  Minn.  464 ; 
First  Nat.  Bank  i'.  Laughlin,  4  N.  D. 
391,  61   N.  W.  473. 

Penalty  Fixed  by  Bond.  —  In 
White  Sewing  I\lach.  Co.  z'.  Dakin, 
86  Mich.  581,  49  N.  W.  583,  13  L.  R. 
-'^-  313.  it  was  held  that  the  clause, 
"  together  with  10  per  cent,  attor- 
ney's fees,"  interlined  in  a  penal 
bond  after  its  execution  was  im- 
material. "  The  damages,"  said  the 
court.  "  including  the  interest,  where 
it  is  proper  to  allow  it  to  be 
assessed  under  the  conditions,  can- 
not exceed  the  penalty ;  and,  if  they 
equal  the  penalty,  they  can  only- 
draw  interest  from  the  date  of  the 
judgment.  The  promise  to  pay  10 
per  cent,  and  attorney's  fees  is  no 
part  of  the  penalty  of  the  bond, 
and  by  no  possiliility  can  it  affect 
the  judgment  to  be  rendered  upon  the 
bond,  nor  the  amount  of  damages 
to  be  assessed." 

Alteration  Increasing  Amount. 
So  also  is  an  alteration  whereby  the 
liability  for  attorney's  fees  is  in- 
creased in  amount.  Burwell  i'.  Orr, 
84   111.  465- 

Vol.  I 


.sn4 


ALTERATIOX  OP  INSTRUMEXTS. 


1)_\'  way  of  increasing  it,''  or  decreasing  it,  is  material.'"  (Otherwise, 
however,  when  the  alteration  consists  of  a  memorandum  of  a  new 
contract,  independent  of  the  promise." 

(B.)  Adding  Interest  Clause  to  Non-Interest  Bearing  Instrument. 
Again,  an  alteration,  making  the  debt  interest-bearing,  whereas  it 
was,  when  the  writing  was  executed,  non-interest  bearing,  is  mate- 
rial.^-    But  not  where  the  instrument  would  in  anv  event  bear  the 


9-  England.  —  Warrington  v. 
Early,  2  Ellis  &  B.  763,  75  Eng.  C.  L. 
763. 

Delaii'arc.  —  Warren  t'.  Layton,  3 
Harr.   404. 

Illinois.  —  Vogle  v.  Ripper,  34  III. 
100,   85   Am.    Dec.   298. 

Indiana.  —  Bowman  v.  Mitchell,  yq 
Ind.  84;  Sharks  v.  .Mbert,  47  I  nil. 
461;  Schuewind  v.  Hackett,  ^4  Ind. 
248. 

Maine.  —  Lee  v.  Starbird,  55  Me. 
491- 

Neiv  Mexico.  —  Ruby  v.  Talbot,  5 
N.  Mex.  251,  21   Pac.  72,  3  L.  R.  .V 

7^4- 

New  York.  —  Weyerhanscr  ?■.  Dun, 
100  N.  Y.  150,  2  N.  E.  274. 

Ohio.  —  Harsh  v.  Klepper,  28  Ohio 
St.  200. 

South  Carolina.  —  Heath  ?■.  lUaUe, 
28  S.  C.  406,  5  S.  E.  842;  Sanders 
V.  Bagwell,  32  S.  C.  238,  10  S.  E. 
946,   7   L.    R.   A.   743. 

Virginia.  —  Dobyns  v.  Rawley,  76 
Va.  537. 

In  Burkholder  v.  Lapp  E.xecutor, 
31  Pa.  St.  322,  an  alteration  of  the 
rate  of  interest  from  4  1-2  to  4  3-4 
per  cent.,  after  the  bond  was  over- 
due, was  held  to  be  immaterial. 

10.  Connecticut.  —  Little  v.  Fow- 
ler,  I   Root  94. 

Indiana.  —  Post  v.  Losey,  in  Ind. 
74.  12  N.  E.  121. 

Minnesota. — Filmore  Co.  v.  Green- 
leaf,  80  Minn.  242,  83  N.  W.  157. 

Missouri.  —  Whitneer  v.  Frye,  10 
Mo.  348. 

Nebraska.  —  Courcanip  v.  Weber, 
39   Neb.   533,   S8   N.   W.    187. 

Rhode  Island.  —  Keene  i'.  Weeks, 
ig  R.  I.  ,309,  :i_^  Atl.  446. 

Striking  Out  the  Rate  of  Interest 
was  held  to  be  a  material  alteration, 
in  Moore  z:  Hutchinson,  69  Mo. 
429. 

11.  Littlcfield    ?'.    Combs,    71     .Me. 

Vol.  I 


no;  Tremper  t.  Hemphill,  8  Leigh 
623,  ?i  Am.  Dec.  673;  Carr  r.  Welch, 
46  III  88:  Hufif  r.  Cole,  45  Ind-  300; 
lUicklen   1'.    Huff,   53    Ind.   474. 

12.  Canada.  —  Halcrow  v.  Kelly, 
28  U.  C.  C.  P.  SSI. 

Alabama.  —  Glover  t.  Robbins,  49 
Ala.  219,  20  Am.  Rep.  272;  Brown 
z\  Jones,  3  Port.  420 ;  Lamar  i'. 
Brown,  56  Ala.   157. 

Arkansas.  —  Little  Rock  Trust  Co. 
r.  Martin,  S7  .\rk.  277,  21  S.  W. 
468. 

Colorado.  —  Hooper  iv  Colling- 
wood,  10  Colo.  107,  13  Pac.  909,  ID 
\m.  St.  Rep.  565. 

Delazcare.  —  Warpolc  v.  Ellison, 
4  Houst.  322. 

District  of  Columbia.  —  Lewis  z: 
Shepard,   5   Mackey,  46. 

Georgia.  —  Gwin  t'.  Anderson,  91 
Ga.   827,    18   S.    E.   43- 

Indiana.  —  Brooks  z\  .Mien,  62 
Ind.  401  ;  Kountz  z'.  Hart,  17  Ind. 
329;  Palmer  z'.  Poor,  121  Ind.  133'. 
22   N.   E.  984,  6   L.   R.   A.   460. 

lozca.  —  Smith  z:  Eats,  81  Iowa 
23s,  46  N.  W.  mo,  25  Am.  St.  Rep. 
486;  Shepard  v.  Whetstone,  51 
Iowa  457,  I  N.  W.  753,  3s  Am.  Rep. 
143 ;  Woodworth  Z'.  Anderson,  63 
Iowa  503,  19  N.  W.  296. 

Kentucky.  —  Lockname  z\  Emmcr- 
son,  II  Bush  69. 

Maine.  —  Waterman  v.  Vose,  43 
Me.  504;  Lee  z'.  Starbird,  55  Me. 
491. 

Maryland.  —  Owen  j'.  Hall,  70  Md. 
97,    16    Atl.    376. 

Massacliusctts.  —  Fay  z:  Smith,  1 
.'\llcn  477;  Draper  z:  Wood,  112 
Mass.    315,    17    Am.    Rep.   92. 

Michigan.  —  Bradley  z\  Mann,  37 
Mich.  I ;  Holmes  z\  Truniper,  22 
Mich.   427,   7   Am.   Rep.   661. 

Missouri.  —  Ivory  i'.  Michael,  3}i 
Mo.  398;  Lubbering  z\  Kohlbrecher, 
22  Mo.  596;  Capital  Bank  '•.  Arms- 
strong,  62  Mo.  59;  Washington  Sav. 


ALTER.rnoX  OP  IXSTRVMESrS. 


805 


rate  of  interest  inserted.''' 

(C.)  Time  Whkn  Intf.rf.st  Begins.  —  Any  unauthorized  alteration, 
the  effect  of  whicli  is  to  change  the  time  from  which  the  debt  is  to 
draw  interest,  is  material.'* 

(D.)  Time  ok  Payment  of  Interest.  —  Any  alteration  is  material 
where  the  effect,  is  to  convert  the  instrument  from  one  bearing 
ordinary,  simple  interest,  into  one  bearing  interest  payable 
annually.'"'  or  semi-annually,'"  or  c|uarter-annually.'' 

(5.)  Character  of  Promise.  — -loint  or  Several.  —  An  alteration  in  a 
promise  which  as  written,  is  joint  or  several,  whereby  it  becomes  a 
joint    promise   alone,    is   a   material   alteration."*     ( )therwise.   how- 


Bank  V.  Ecky.  5  Mo.  27J :  Preslniry 
V.   Michael,  33  \\o.  542. 

Nebraska.  —  Davis  v.  Henry.  13 
Neb.  497.  14  N.  W.  s.^?;  Hnrll)nt  v. 
Hall,  .39  Nel).  889,  58  N.  W,   538. 

NexK'  York.  —  Schwarz  v.  Oppokl. 
74  N.  Y.  307;  McGrath  v.  Ckark,  56 
N.   Y.   34,    15   Am.   Rep.   372. 

Nortli  Carolina.  —  Long  Z'.  Mason, 
84  N.  C.  15. 

Ohio.  —  Jones  i'.  Bangs,  40  Ohio 
St.  i.TO.  48  Am.  Rep.  664,  citing  nu- 
merons  authorities ;  Thompson  1'. 
Massie.  41   Ohio   St.   307. 

Pt'iiiisvlz'anla. — Fnhner  i'.  Seitz, 
68  Pa.  "St.  237,  8  Am.  Rep.  172; 
Gettysburg  Nat.  Bank  z\  Cliishohn, 
169  Pa.  St.  564,  32  Atl.  7,?o,  47  Am. 
St.  Rep.  929;  Craigliead  i'.  Mcl.oney. 
99    Pa.    St.    211. 

Soittli  Carolina.  —  Plvler  !■.  Elliott. 
19  S.  C.  257. 

Tennessee.  —  McVev  ?■.  Ely.  ^  Lea 
438. 

Il'iseonsin.  —  Kilkclly  ;■.  Martin, 
34    Wis.    525. 

13.  James  r.  Dalbey.  107  Iowa 
463,   78  N.   W.  51. 

14.  .Irhansas. — Little  Rock  Trust 
Co.  z:  Martin,  57  .\rk.  277,  21  S.  W. 
468. 

Illinois.  —  Benedict  z\  Miner,  58 
111.  19:  Black  z:  Bowman,  15  111. 
App.  166. 

Indiana.  —  Dielz  z\  Harder,  72 
Ind.  208;  Franklin  L.  Ins.  Co.  z\ 
Courtney.  60  Ind.  134;  Coburn  !■. 
Webb,  56  Ind.  96,  26  Am.  Rep.  15. 

Kansas.  —  Sherley  v.  Sampson,  5 
Kan.  App.  465,  46  Pac.  994. 

-Mieliigan.  —  Nelson  z:  Dutton,  Jl 
Mich.   416,    16    N.    W.    791- 

.Nebraska.  —  Courcanip  z\  Weber, 
.?9  Neb.   533.  58  N.   W.   187. 


Il'iseonsin.  —  Page  z\  Danaher.  43 
Wis.   221. 

15.  Marsh  z\  Griffin,  42  Iowa  403 ; 
Kennedy  i'.  Moore.  17  S.  C.  464; 
Gordon  v.  Robinson.  48  Wis.  493, 
4  N.  W.  5-9- 

In  Patterson  z'.  McNerley.  16  Ohio 
St.  348.  the  court  .said ;  "  There  is 
no  doulit  that  the  interlining  of  the 
word  '  paid.'  before  the  word  "  an- 
nually.' was  a  material  alteration  of 
the  note.  The  effect  of  the  alteration 
was  to  add  to  the  existing  terms  of 
the  writing  a  further  stipulation  that 
the  interest  accruing  upon  the  prin- 
cipal sum  named  in  the  note  should 
be  />i!id  aitnually;  and  as  a  conse- 
(pience.  if  the  interest  should  not  be 
promptly  paid  as  it  fell  due.  then 
the  interest  so  in  arrear  should  bear 
interest." 

Conifiare  Leonard  v.  Phillips,  .39 
Mich.  182,  33  Am.  Rep.  370.  wherein 
the  court,  in  holding  such  an  al- 
teration immaterial  said :  "  The 
proper  construction  to  be  given  the 
note  as  thus  changed  is  as  though 
it  had  been  made  to  read  ten  per 
cent,  per  annum,  and  when  so  con- 
structed the  alteration  added  nothing 
to  the  extent  of  the  maker's  liability 
nor  did  it  change  their  liability  m 
any  way." 

16.  Dewey  z:  Reed,  40  Barb.  16; 
Fulmer  z\  Seitz.  68  Pa.  St.  237,  8 
Am.  Rep.  172;  Boalt  "■.  Brown,  13 
Ohio  364;  Blakey  t'.  Johnson.  13 
Bush  (Ky.)  197;  Neff  z:  Homer, 
63   Pa.   St.   327. 

17.  Wilson  z'.  Hayes,  40  Minn. 
531.  42  N.  W.  467.  4  L.  R.  -A.,  igo. 

18.  Ecbert  z\  Louis.  84  Ind.  99; 
Humphreys  z'.  Guillow.  13  N.  H.  385, 

Tol.  I 


806 


JLTER.rnoX  Of  lA'STRUMENTS. 


ever,  of  an  altcratiim  wliicli  changes  a  joint  promise  into  a  joint  and 
several  promise.''' 

(6.)  Payment  of  Exchange.  —  Adding  a  clause  to  a  note  providing 
for  the  payment  by  the  maker  of  the  rate  of  exchange  is  a  material 
alteration.-" 

k.  Matters  in  Respect  of  the  Perfonnancc.  —  (1.)  The  Time. 
Any  unauthorized  alteration  by  a  party  to  the  writing  whereby  the 
time  of  the  act  to  be  performed  is  accelerated  or  extended,-'  such 
as  payment  of  the  debt  evidenced  by  the  writing,  is  material.--     So 


,^8  Am.  Dec.  499.     Contra.  —  Eddy  v. 
I'lOiid,   ig  Me.  461. 
Changing  Several  Indorsement  to 

Joint  Indorsement In  .Murrison  v. 

Smith,  13  Mo.  234,  53  Am.  Dec.  145, 
it  was  held  that  the  holder  of  note 
severally  indorsed  in  blank  by  two 
or  more  persons,  has  no  right  to  fill 
up  one  indorsement  over  the  signa- 
tures, so  as  to  make  the  assignment 
tn  him  the  joint  act  of  all  those  whose 
names  are  thus  written  upon  it. 

19.  Miller  v.  Reed,  27  Pa.  St.  244, 
67  Am.  Rep.  459 ;  Kline  v.  Raymond, 
70  Mo.  271  ;  Laudaner  v.  Siou.x  Falls 
Imp.  Co.,  10  S.  D.  20:;,  72  N.  W. 
467. 

In  Warring  v.  Williams,  8  Pick. 
322,  79  Am.  Dec.  752,  where  an 
agreement  signed  by  three  persons, 
was  afterward  altered  by  the  con- 
sent of  two  of  them,  by  adding  seals 
to  the  names  of  the  signers,  and  in- 
terlining the  words  "  jointly  and 
severally,"  and  was  afterward  de- 
livered by  those  two,  it  was  held  that 
tlic  alteration  was  not  material. 

20,  Merrick  v.  Bowry,  4  Ohio  St. 
fio.  See  also  Hirschfield  Z'.  Smith, 
L.    R.    I   C.    P.   353. 

Expense    of    Transmitting    Money 

to    Place   of   Payment In    Bullock 

V.  Taylor,  39  Mich.  137,  33  Am.  Rep. 
356,  it  was  held  that  a  provision 
in  a  note  for  the  payment  of  current 
exchange  or  express  charges  is  nu- 
gatory and  does  not  add  to  or  vary 
the  sureties'  liability,  since  the  prom- 
isor must  be  liable  for  the  expense  ' 
of  transmitting  the  money  to  the 
place   where   the  note  is   payable. 

81.  U.  S.  Glass  Co.  -e.  West  Vir- 
ginia  Flint   Bottle   Co.,   81    Fed.  993. 

22.  England.  —  Paton  v.  Winter, 
I    Taunt.    420. 

Canada.  —  Westloh  ;'.  Ilrown,  43 
V.   C.   Q.   B.   402. 

Vol.  I 


Alabama. — -Lesser  v.  Scholze,  93 
Ala.  338,  9  So.  273. 

Indiana.  —  Stavner  v.  Joyce,  82 
Ind.  35 ;  Bell  v.  State  Bank,  7  Blackf. 
456. 

Iowa.  —  Eckert  v.  Pickel,  ^9  Iowa 
545.    13   N.   W.   708. 

Kentuckv.  —  Lisle  ■;■.  Rogers,  18  B. 
Mon.  528." 

Maine.  —  Hervcy  v.  Ilervey,  15 
Me.   357- 

Massacliusctts. — Wheelock  v.  Free- 
man, 13  Pick.  165,  23  Am.  Dec.  674: 
Davis  V.  Jenney,  i  Aletc.  221. 

Minnesota.  —  Flanigan  ?'.  Phelps. 
42  Minn.   186,  43  N.  W.   11 13. 

Mississippi.  —  Henderson  j'.  Wil- 
son, 6  How.  65. 

Missouri.  —  King  r.   Hunt,   13  Mo. 

97- 

AVie  York.  —  Waring  i'.  Smyth,  2 
Barb.  Ch.  119,  47  Am.  Dec.  299. 

Pennsylvania. — Hartley  v.  Corboy, 
150  Pa.   St.  23,  24  Atl.  295. 

Tennessee.  —  Crockett  i'.  Thomas- 
sou,  5   Sneed  342. 

Power  of  Attorney  to  Confess 
Judgment —  In  Hodge  r.  Oilman, 
20  111.  437,  it  was  held  that  inter- 
lining the  words  "  before  or "  be- 
tween the  words  "  time  "  and 
"  after,"  in  the  clause,  "  at  any  time 
after  the  said  note  becomes  due," 
in  the  power  of  attorney  to  confess 
judgment,  was  a  material  alter- 
ation. 

Inserting  the  'Word  "  Months " 
in  the  clause  "  twenty-four  after 
date "  in  a  note  is  not  a  material 
alteration  of  the  note.  Conner  v. 
Routh,  7  How.  (Miss.)  176,  40  Am. 
Dec.  59. 

For  cases  as  to  changing  the  time 
of  the  payment  by  a  change  in  the 
dale  of  the  instrument,  see  supra  this 
title,  "  Matters  in   Resi'Uct  of  the 


ALTERATIOX  OP  INSTRUMENTS. 


807 


also  is  an  alteration  which  deprives  the  obligor  of  his  right  to  days 
of  grace. -■'■ 

(2.)  The  Place.  —  Again,  it  is  a  material  alteration  of  a  note,  pay- 
alile  generallw  to  insert  a  place  of  payment  :'-*  or  to  change  the  place 
of  payment.-'' 


E.XECUTION       or       THE       IxSTRUMENT; 

D.xte:     n-3-C-f-(2)". 

23.  Steiiian  v.  Moody,  lOO  Ga. 
i,?6.  28  S.  E.  30.  Contra. — Tranten 
;■.  Hibbard  (Ky.,)  3i  S.  W.  169, 
holding  otherwise  because  the  note 
was  non-negotial)le. 

,24.     England.  —  Calvert    v.    Baker, 
4  \r.  &  W.  417,  2  Jur.  1020. 

.Alabama.  —  Toonicr  '■.  Rutland.  57 
Ala.  379,  29  Am.  Rep.  722;  Winter 
V.    Pool,   100  Ala.  503,   14  So.  411. 

California.  —  Pelton  t.  San  Jacinto 
Lumb.  Co..   113  Cal.  21.  45  Pac.  551. 

Dclaii'arc.  —  Sudler  1:  Collins,  2 
Houst.   538. 

Georgia.  —  Gwin  v.  Anderson,  91 
Ga.  827.   18  S.  E.  4.^. 

Illinois.  —  Pahlman  r.  Tavlor,  75 
111.  629. 

Indiana.  —  Ballard  v.  Franklin  L. 
Ins.  Co.,  81  Ind.  239;  ^IcCoy  v. 
Lockwood,   71    Ind.   319. 

Io7va. — -Adair  v.  England,  58  Iowa 
314.  12  N.  W.  377;  Black  z'.  DeCanip, 
-^  Iowa  105,  39  N.  W.  215;  Knox- 
ville  Nat.  Bank  '■.  Clark,  51  Iowa 
264,  I   N.  W.  491,  ij  Am.  Rep.   129. 

Kentucky.  —  Whitesides  v.  Bank  of 
Kentucky,  lO  Bush  501,  19  Am.  Rep. 

74- 

.Mississi[<pi.  —  Oakey  v.  Wilcox,  3 
How.  3310. 

Xchraska.  —  Townsend  .'.  Star 
Wagon  Co.,  10  Neb.  615,  35  Am. 
Rep.  493,  7  N.  W.  274. 

New  York.  —  Woodworth  z'.  Bank 
of  America,  19  Johns,  391,  10  Am. 
Dec.  403 ;  Nazro  f.  Fuller,  24  Wend. 

.^74- 

Ohio.  —  Sturgcs  ;■.  \\'illiams,  9 
Ohio  St.  443. 

Pennsylvania.  —  Hill  1'.  Cooley,  46 
Pa.  St.  259 ;  Southwark  Bank  v. 
Gross,  35'  Pa.  St.  80. 

IVest  I'irginia. — Moreland  ?'.  Nat. 
Bank,  5  W.  Va.  74,  13  Am.  Rep. 
636. 

Place  of  Delivery —  In  Brady  z\ 
Berwind-White  Coal  M.  Co.,  94  Fed. 
28,  wherein  a  contract  for  the  pur- 
chase and  sale  of  coal,  provided  gen- 


erally for  the  payment  thereof  at  so 
nnich  per  ton,  it  was  held  that  the 
subsequent  interlineation  of  the 
phrase  "  f.o.b.  cars  at  mine "  was 
material. 

Inserting  the  Word  "  At  "  Before 
the  Bank  Named  as  the  place  of 
payment  is  not  a  material  alteration. 
Simmins   e'.   Atkinson.  69  Miss.  862, 

12  So.  263,  23  L.  R.  A.  599. 
Acceptance  Naming  Place  of  Pay- 
ment  In  Niagara  District  Bank  v. 

Fairman  Mfg.  Co.,  31  Barb.  (N.  Y.) 
403,  it  was  held  to  be  a  material 
alteration  of  a  bill  of  exchange  for 
the  drawee,  in  his  acceptance  thereof, 
to  designate  as  a  place  of  payment, 
a  place  other  than  his  place  of  resi- 
dence. See  also  Walker  v.  Bank  of 
New  York.  13  Barb.  (N.  Y.)  636; 
Troy  City  Bank  v.  Laman,  19  N.  Y. 
477.  But  it  is  not  a  material  alter- 
ation of  such  a  bill  for  the  drawee 
to  designate  as  the  place  of  payment 
some  particular  place  in  the  same 
city.  Mvers  -'.  Standart,  1 1  Ohio 
St.  29. 

25.  Charlton  f.  Reed,  61  Iowa 
166,  16  N.  W.  64,  47  Am.  Rep.  808; 
Bank  of  Ohio   Valley  r.   Lockwood, 

13  W.  Va.  392;  Adair  v.  England, 
58  Iowa  314,   12  N.  W.  277. 

Memorandum    Naming     Place     of 

Payment .\    memorandum    at    the 

foot  of  a  note  designating  a  par- 
ticular place  at  which  it  is  payable 
does  not  constitute  part  of  the  con- 
tract. Williams  f.  Waring.  10  Barn. 
&  C.  2,  21  Eng.  C.  L.  11;  American 
Nat.  Bank  v.  Bangs.  42  Mo.  450,  97 
.\m.   Dec.   349. 

Noting  the  Residences  of  the 
Drawers  and  Indorsers  of  a  Bill  of 
Exchange,  after  their  names,  does 
not  affect  the  identity  of  the  bill, 
as  to  any  of  the  parties  to  it.  It  is 
in  the  nature  of  a  memorandum  for 
the  notary,  that  he  may  know  how 
to  address  notice  to  the  protest.  It 
does  not  vary  the  tenor  of  the  bill, 
nor  add  to  the   responsibility  of  the 

Vol.  1 


808 


ALTER.rriox  or  ixstrumbxts. 


Erasing  Place  of  Payment.  —  Tlu'  alteration  of  a  imtc  after  its 
delivery  to  the  payee,  by  the  erasure  of  the  place  at  which  it  was 
made  payable,  is  material."" 

(3.)  The  Manner. — .\n  unauthorized  alteration,  the  etTecl  of  which 
is  to  authorize  payment  in  a  manner  different  from  that  expressed 
in  the  instrument  as  executed,  is  material.-'  So  also  is  an  altera- 
tion which  changes  a  note  payable  generally  into  oni-  payalile  in 
gold  coin,'-"  or  into  one  payalile  in  s])ecie.-" 

4,  Burden  of  Proof  and  Presumptions. — A.  Rii.r.  As  in  .\o.\- 
Appakkxt  Ai,ti:k.\tiuxs.  —  As  has  been  previously  shown,  the  bur- 
den of  proof  to  establish  the  fact  of  an  alteration  where  the  same 
does  not  appear  on  the  face  of  the  instrument,  lies  with  him  who 
asserts  that  fact.'"'  But  when  the  facts  of  the  alteration,  and  that 
it  was  made  subsequent  to  the  execution  of  the  instrument,  are 
admitted'"  or  have  been  established,  the  presumption  arises  that  the 
alteration  is  unauthorized  and  was  made  by  the  party  producing 
the  instrument,  or  by  one  under  whom  he  claims,  and  it  devolves 
upon  him  to  overcqme  such  presumption  by  showing  that  the  alter- 
ation was  not  unauthorized,  or  has  been  ratified,  or  that,  without 
his  knowledge,  it  was  made  ])v  a  stranger. -'-^ 


indorsers.      Struthcrs   t:    Kendall.   41 
Pa.   St.  214,  80  Am.   Dec.  610. 

26.  White  v.  Hass,  32  Ala.  430, 
70  Am.  Dec.  548.  Coi\il>arc  Major 
V.  Hanson,  2  Biss.  195,  Fed.  Cas. 
8982.  "The  rights  of  "the  defend- 
ant." said  the  court,  "are  thereliy  en- 
larged, and  in  no  respect  limited,  and 
he  cannot  complain  unless  he  can  in 
some  manner  connect  the  plaintifif 
with  the  alteration,  or  can  show  that 
he  tendered  the  money  at  the  place 
stated  and  has  been  damnified." 

27.  As  where  a  writing  calling 
for  payment  in  "  drafts  to  the  order 
of"  the  promisee  is  changed  so  as  to 
be  iiayable  "  in  current  funds."  Angle 
V.  Northwestern  Nat.  L.  Ins.  Co  ,  92 

u.  S.  330.  • 

28.  Wills  '■.  Wilson.  3  Or.  308; 
Hanson   v.    Crawley,   41    ('la.   303. 

Such  an  Alteration  Destroys  the 
Identity  and  Legal  Effect  of  the 
Instrument,  and  it  is  no  longer  the 
agreement  the  makers  promised  to 
perform,  and  cannot  legally  he  used 
in  evidence  against  them.  Hogarth 
?'.    Breedlove,    39   Te.x.    561. 

So  also  an  alteration  changing  a 
note  payable  in  gold  or  its  equivalent 
into  one  payable  gener.illy  is  mate- 
rial.    Church  V.   Howard,   17   Him  5. 

La'w    Requiring   Debt    Payable   in 

Vol.  I 


Gold But.   in    Bridges   v.   Winters, 

42  Aliss.  135,  2  Am,  Rep.  598,  it 
was  held  that  where  the  makers  of 
a  note  could  not  discharge  their 
indebtedness  in  any  other  currency 
than  gold,  their  legal  liability  is  not 
changed  Ijy  inserting  the  words  "  in 
gold;"  that  such  an  alteration  only 
expresses  what  the  law  implies,  and 
hence  is  immaterial. 

29.  Darwin   v.    Rippev,   63    N.    C. 

30.  See   sHfra.   this   title,    I-i-A. 

31.  Howell  !■.  Cloman,  112  N.  C. 
77,  23  S.  E.  95 ;  Havens  v.  Osborn, 
36  N.  J.   Kq.  426. 

Admitting  Alteration  and  Suing 
on  Original  Debt — Where  the  holder 
of  a  note  which  he  has  altered  in  a 
material  respect  to  his  own  advan- 
tage, sues  on  the  original  debt,  ad- 
mitting the  alteration,  but  denying 
any  fraudulent  intent,  and  averring 
that  it  was  made  without  his  knowl- 
edge and  consent,  the  burden  rests 
upon  him  to  show  that  there  was  no 
fraudulent  intent  wlien  the  alter- 
ation was  made.  Warder  B.  &  G.  Co. 
;'.  Willgard,  46  Minn.  531,  49  N.  W. 
300,  24  Am.   St.   Rep.  250. 

32.  United  States.  —  Sneed  7'.  Sa- 
berial  M.  &  Mill.  Co.,  73  Fed.  925, 
20  C.  C.  A.  2,^0. 


ALTliRATlOX  Ol-   IXSTh'l  'MliXTS. 


Ni') 


Presumption  of  Consent.  —  All  alteration  of  a  note,  not  apparent  on 
ins])ection.  and  made  Ijefore  anyone  as  holder  or  pa\ee  had  an\-  lethal 


Ahilniiiui.  —  Whitsett  f.  Womack. 
8  Ala.  466;  Davis  v.  Carlisle.  6  Ala. 
707:  Winter  r.  Pool,  too  Ala.  303, 
14  So.  411;  White  I'.  Hass,  32  Ala. 
4,^0,  70  Am.  Dec.  548 ;  Glover  f. 
Gentry,  104  Ala.  222,  16  So.  38. 

UHnois.  —  Hodge  <•.  Gilman,  20 
111.  W- 

Indiana.  —  Bowman  <■.  Mitchell.  70 
Ind.  84 ;  Emerson  f.  Opp,  Q  Ind. 
App.  581.  34  N.  E.  840;  Cochran  f. 
Nebeker,  48  Ind.  459:  Green  z\  Beck- 
ncr,  3  Ind.  App.  39,  29  N.  E.  172. 

fnzi'a.  —  Robinson  v.  Reed.  46  Iowa 
219;  Shroeder  t'.  Webster,  88  Towa 
627.  55  N.  W.  569. 

Kcntiickw  —  FJherl  v.  McClehmd, 
8   Rnsh   577. 

Massachusetts.  —  Draper  v.  Wood, 
112  Mass.  315.   17  Am.   Rep.  92. 

Michigan.  —  Eherenwood  v.  Web- 
ber. 100  .Mich.  314,  58  N.  W.  665; 
Willett   V.   Shepard.   34   Mich.    106. 

Missouri.  —  Capital  Hank  i'.  Arm- 
strong, 62   Mo.   59. 

-Vi'Ti'  )'()/7v.  —  Glcason  i'.  Hamilton, 
h8  N.  Y.  35.?,  .^4  N.  E.  283,  21  L. 
R.  .\.  210. 

North  Carolina.  —  Martin  t.  Buffa- 
loe.  121  N.  C.  24,  27  S.  E.  995. 

Fcnnsylz'auia. — Hartley  v.  Corboy, 
150    Pa.    St.    23,   24   Atl.   295'. 

Wisconsin.  —  North  i'.  Henne- 
brrry.    44   Wis.    306. 

Burden  of  Proving  Authority. 
In  an  action  against  an  officer  for 
serving  a  writ  of  replevin  against 
plaintitif  without  taking  a  replevin 
imnd,  wdiere  it  is  proved  that  the 
bond  returned  with  the  writ  was 
originally  made  to  a  different  obligee 
and  was  altered  by  the  officer  and 
made  payable  to  the  plaintiff,  ii  is 
not  incumbent  on  the  plaintiff  to 
prove  that  the  defendant  had  not 
authority  to  make  the  alteration,  but 
the  burden  is  on  the  defendant  to 
show  that  he  had  authority.  Dol- 
bicr  7'.   Norton,   17  Mc.  307. 

Burden  of  Proving  Consent. 
In  Baxter  z'.  Camp,  2,^  Conn.  245,  41 
.\tl.  803,  the  instrument  sued  on 
when  produced  showed  on  its  face 
either  that  the  signature  had  been 
crossed    out    or    that     it    had    been 


written  over  a  line  of  crosses  such 
as  are  commoidy  used  for  canceling 
writing,  or  that  it  had  been  re-writ- 
ten or  re-traced  over  a  previous  sig- 
nature which  had  been  first  erased. 
Which  of  these  was  true  would  be 
disclosed  oidy  by  extrinsic  evidence. 
The  defendant  testified  that  he  had 
crossed  out  his  signature  immedi- 
ately after  making  it  and  long  before 
it  came  into  the  plaintiff's  hands. 
Thereupon,  the  trial  court  ruled 
that,  as  he  had  admitted  making  the 
crosses,  he  had  the  Inirden  of  prov- 
ing that  he  made  tliem  with  the  con- 
sent of  his  wife,  to  whom  he  had 
executed  writing  for  the  benefit  of 
the  plaintiff.  But  upon  appealing, 
the  court  said:  "There  was  no 
sufficient  ground  for  any  presump- 
tion, either  of  law  or  fact,  which 
could  throw  upon  the  defendant  the 
burden  to  which  he  was  thus  sub- 
jected. The  plaintiff's  case  rested 
on  a  document,  the  defendant's  sig- 
nature to  which  had  plainly  been  the 
subject  of  erasure,  alteration  or  can- 
cellation. He  was  bound  to  prove 
that  the  defendant's  signature  was 
still  upon  it,  or  else  that  it  was  upon 
it  when  delivered  to  Mrs.  Camp,  and 
liad  not  since  been  canceled  with 
her  consent.  The  document  did  tiot, 
alone,  establish  either  fact.  Proof 
that  the  defendant  canceled  his  sig- 
nature raised  no  presumption  that  it 
was  canceled  without  his  wife's  con- 
sent. Fraud  is  never  presumed ;  and 
still  less,  crime.  The  question  pre- 
sented for  decision  as  to  whether 
the  alterations  were  authorized  or 
unauthorized,  was  simply  beclouded 
|]y  an  appeal  to  the  rules  respecting 
Inirden  of  proof  as  applicable  to  pre- 
sumptions arising  in  the  course  of  a 
trial.  It  was  to  be  decided  in  view 
of  all  the  circumstances  before  the 
court,  and  guided  by  no  other  rule 
as  to  the  onus  /trobandi  than  that 
which  requires  a  plaintiff,  where  the 
defense  is  a  denial.  In  prove  his 
case." 

Burden  of  Disproving  Fraud. 
In  Bery  v.  Mariette,  P.  &  C.  Ry. 
Co.,  26  Ohio  St.  673.  an  action  upon 

Vol.  I 


810 


ALTERATION  OP  fNSTRUMENTS. 


claim  ui^on  it.  and  while  il  was  in  the  hands  of  one  of  the  promis- 
ors, must  be  presumed  to  have  been  made  by  their  consent/" 

B.  Rule  As  to  Apparent  Altekations.  —  a.  Statement  As  to 
Rules.  —  Whether,  on  the  prochiction  of  a  written  instrument,  which 
appears  to  have  been  altered  in  a  material  respect,  it  is  incumbent 
on  the  party  offering  it  in  evidence  to  first  give  evidence  to  explain 
the  appearance  of  the  writing,  is  a  much  vexed  question,  and  the 
books  are  full  of  diverse  decisions.  The  courts  generally  state  the 
rules  four  different  ways."'  lUit  this  conflict  has  been  character- 
ized as  being  more  apparent  than  real."'' 

b.  Presumption  of  Alteration  Before  Deliz'ery.  — Accordingly  one 
line  of  cases  holds  that  an  apparent  alteration  is  presumed,  in  the 
absence  of  any  explanation,  to  have  been  made  simultaneously  with 
or  before  the  delivery  of  the  instrument,  and  hence  no  explanation 
is  required  in  the  first  instance ;"''  or,  as  it  is  sometimes  expressed, 


a  subscription  to  corporate  stock, 
wliich  after  its  execution  had  l)een 
materially  altered  without  the 
knowledge  or  consent  of  the  maker, 
■wherein  the  execution  of  the  con- 
tract, as  set  out,  was  denied,  it  was 
held  the  plaintiff  could  not  recover 
the  amount  due  on  the  original  sub- 
scription, without  showing  that  the 
alteration  was  not  fraudulently  made 
by  it. 

33.  Eddy  v.   Bond,   19  Ale.  461. 

34.  For  cases  discussing  at  great 
length  this  conflict,  see  Neil  v.  Case, 
25  Kan.  355;  W'ilson  v.  Hayes,  40 
i\Iinn.  5-;i.  42  X.  W.  467.  4  L.  R.  A. 
195. 

35.  Cox    I'.    Palmer,   3    Fed.    16. 
3G.     United     States.    —    Little     r. 

Herndon,  10  Wall.  26,  19  L.  Ed.  878, 
119  U.  S.  156. 

.'Uabaiiia.  —  Ward  v.  Cheney,  117 
Ala.  238,  22   So.  996. 

Florida.  —  Orlando  v.  Gooding,  34 
Fla.  244,  15  So.  770;  Kendrick  t'. 
Latham,  25  Fla.  819,  6  So.  871  (cit- 
ing Stewart  ''.  Preston,  i  Fla.  i.) 
Coin[>are  Harris  v.  Bank  of  Jackson- 
ville, 22  Fla.  501,  I  So.  140,  to  the 
effect  that  the  party  producing  and 
claiming  under  the  paper  is  bound 
to  explain  every  apparent  and  mate- 
rial alteration.  If  it  appears  to 
have  been  altered,  he  must  explain 
this  appearance.  If  there  is  appar- 
ent upon  its  face  any  mark  of  or 
ground  for  suspicion,  he  must  re- 
move the  suspicion.  But  if.  on  the 
other  hand,  however  material  in  fact 

Vol.  I 


the  alteration  of  the  bill  may  be, 
there  is  upon  its  face  no  evidence  or 
mark  raising  a  suspicion  thereof,  the 
holder  is  not  called  upon  to  make  an 
explanation  on  the  mere  production 
of  the  bill,  or  to  introduce  any  testi- 
mony until  the  alteration  has  been 
shown  by  sufficient  evidence  outside 
of  the  paper. 

Georgia.  —  Printup  v.  i\litchell,  17 
Ga.  558,  63  Am.  Dec.  258;  Westmor- 
land V.  Westmorland,  g  Ga.  233,  17 
S;  E.  1033 ;  Thrasher  v.  Anderson, 
45  Ga.  538.  Cowfaie  Wheat  -e.  Ar- 
nold, 36  Ga.  479,  wherein  it  was  held 
that  if  the  instrument,  when  offered," 
appears  to  have  been  altered,  it  is  in- 
cumbent on  the  party  producing  it 
to   explain   such   alteration. 

Maryland.  —  Wickes  'e.  Caulk.  5 
Har.  &  J.  36. 

Micltigan.  —  Brand  ?'.  Johnrowe, 
60  Mich.  210,  26  N.  W.  883;  Monroe 
v.  Eastman,  31  Mich.  283;  Sirrine  v. 
I^riggs,  31  Mich.  443.  Compare  Wil- 
lett  V.  Shepard,  34  Mich.  106;  Com- 
stock  V.  Smith,  26  Mich.  306. 

Minnesota.  —  Wilson  v.  Hayes,  40 
Minn.  531,  42  N.  W.  467,  4  L.  R.  A. 
196. 

Missouri. — McCormik  f.  Fitzmor- 
ris,  39  Mo.  24;  Stillwell  i:  Patton, 
108  Mo.  352,  18  S.  W.  1075:  Burnett 
7:  McCluey,  78  Mo.  676;  Paramore 
I'.  Lindsey,  63  Mo.  63. 

A'cbraslca.  —  Dorscy  v.  Conrad,  49 
Neb.  443.  68  N.  W.  645  (overruling 
Johnson  v.  First  Nat.  Bank,  28  Neb. 
792,    45    N.    W.    161 ;    Courcamp    v. 


ALTERATIOX  OF  IXSTRrMEXTS. 


811 


the  proof  or  admission  of  the  signature  of  the  maker  is  Iriiiui  facie 
evidence  that  the  instrument  written  over  it  is  his  act,  and  this  will 


Weber,  39  Neb.  533,  58  N.  W.  187; 
and  following  Bank  Z'.  Morrison,  17 
Xeb.  341,  22  N.  \V.  782,  52  Am.  Rep. 
417;  Goodwin  r.  Plugge,  47  Neb. 
284,  66  N.  W.  407-) 

Xi'W  Jersey.  —  Nortb  River 
Meadow  Co.  v.  Christ  Church,  22  N. 
J.  Law  424,  S3  Am.  Dec.  258;  Cum- 
l)crland  Bank  v.  Hall,  6  N.  J.  Law, 
I  Halst.  215  ;  Hnnt  v.  Gray,  35  N.  J. 
Law  227,  ID  Am.  Rep.  232 ;  Den  v. 
Farlee,  21  N.  J.  Law  279.  And  see 
Hoey  z:  Jarman,  39  N.  J.  Law  523, 
to  the  effect  tliat  a  party  offering  an 
instrument  showing  an  alteration  on 
its  face  need  not  under  ordinary  cir- 
cumstances explain  the  alteration  by 
evidence  aliunde.  Putnam  :■.  Clark, 
X^  N.  J.  Eq.  338. 

North  Carolina.  —  Norfleet  v.  Ed- 
wards, 7  Jones  L.  455 ;  Pullen  v. 
Shaw,  3  Dev.  238. 

North  Dakota.  —  Cass  Co.  v.  Am. 
Exch.  State  Bank,  9  N.  D.  263,  83 
N.  W.  121  ;  First  Nat.  Bank  v. 
Laughlin,  4  N.  D.  391,  61  N.  VV.  473. 

Ohio.  —  Franklin  z:  Baker,  48 
Ohio  St.  296,  27  N.  E.  550,  29  Am. 
St.  Rep.  547;  (distinguishing  Hunt- 
mgton  z:  Finch,  3  Ohio  St.  445,  as 
not  being  in  point,  for  the  reason 
that  there  the  only  question  was  as 
10  the  materiality  of  the  change  that 
had  been  made  in  the  note  —  the 
erasure  of  the  name  of  the  surety. 
The  facts  were  not  in  dispute.  The 
court  simply  held  that  the  erasure  of 
the  name  of  the  surety,  at  his  re- 
quest and  with  die  permission  of  the 
payee,  did  not  affect  the  rights  of 
the  principal,  and  so  did  not  amount 
10  such  an  alteration  as  would  in- 
validate the  note.  The  observations 
of  the  court,  it  was  said,  might,  con- 
formably to  a  view  taken  by  many 
courts  at  that  day,  indicate  an  opin- 
ion that  the  burden  of  explaining 
what  are  termed  alterations  of  a 
suspicious  character  is  on  the  plain- 
tiff. But,  it  was  said,  no  such  ques- 
tion was  before  the  court,  and  its 
remarks  should  be  confined  to  the 
case    it    had   under   consideration.) 

In  Vermont  it  is  held  that  an  alter- 
ation   of    a    written     instrument,    if 


nothing  appear  to  the  contrary, 
should  be  presumed  to  have  been 
made  at  the  time  of  its  execution. 
But,  generally  the  whole  inquiry, 
whether  there  has  been  an  alteration, 
and,  if  so,  whether  in  fraud  of  the 
defending  party  or  otherwise,  to  be 
determined  by  the  instrument  itself, 
or  from  that  and  other  evidence  in 
the  case,  is  for  the  jury.  The  court, 
upon  the  usual  proof  of  the  execu- 
tion of  the  instrument,  should  admit 
it  in  evidence,  without  reference  to 
the  character  of  any  alterations  upon 
it,  leaving  all  testimony  in  relation 
to  such  alteration  to  be  given  to  the 
jur}',  and  passed  upon  by  them,  un- 
der proper  instructions  from  the 
court  upon  any  given  state  of  facts. 
Beaman  v.  Russell,  20  Vt.  205,  49 
Am.  Dec.  775. 

Erasing  Names  of  Attesting  Wit- 
nesses  In  Wickes  v.  Caulk,  5  Har. 

&  J.  (Md.)  36,  it  was  held  that  at- 
testing witnesses  are  not  necessary 
to  a  deed,  and  where  their  names 
have  been  erased,  it  is  incumbent  on 
the  party  seeking  to  avoid  the  deed 
to  prove  that  the  erasure  was  made 
after  its  execution  and  delivery. 

Erasing  Credit  on  Note.  —  Where 
a  credit  has  been  indorsed  on  a 
bond,  or  note,  and  is  afterwards 
erased,  it  devolves  upon  the  obligee 
or  payee  to  account  for  the  erasure. 
The  indorsement,  if  made  with  the 
consent  of  the  obligee  or  payee, 
amounts  to  an  admission  of  payment, 
and  if  not  made  with  his  consent,  it 
devolves  upon  him  to  prove  that 
fact.  McElroy  z:  Caldwell,  7  Mo. 
231. 

Erasing  Indorsement  on  Note. 
In  an  action  upon  a  note,  it  is  not 
necessary  for  the  plaintiff  to  explain 
an  erased  indorsement  found  upon 
the  note.  The  defendant  must  prove 
the  indorsement  to  have  been  made 
so  as  to  transfer  the  right  to  the 
note,  to  use  it  as  a  defense.  Finney 
z:  Turner,   10  Mo.  208. 

Erasure  of  Obligor's  Signature. 
In  Blewett  r.  Bash,  22  Wash.  536, 
6l  Pac.  770,  while  recognizing  the 
rule  stated  in  the  text,  the  court  held 

Vol.  I 


812 


.ILTlih'.ITJOX  Ol-  JXSTKCMEXTS. 


stand  as  biiuHny;  jirouf  unless  the  maker  can  i'e!)nt  it  1)\  evidence 
that  the  alteration  was  made  after  delivery,  and  that  the  question 
when,  by  whom,  and  with  what  intent,  the  alteration  was  made, 
should  be  submitted  to  the  jury  as  cjuestions  of  fact  npnn  all  the 
evidence,  both  intrinsic  and  extrinsic.''' 

c.  No  Presumption  Either  JVay.  —  Another  line  of  cases  is  to  the 
effect  that  an  alteration  apparent  on  the  face  of  the  instrument 
raises  no  presumption  either  for  or  against  the  instrument,  but 
leaves  the  question  as  to  the  time  when  it  was  done,  or  by  whom, 
to  be  ultimately  determined  b\'  the  jury  upon  proofs  to  be  adduced 
by  him  who  offers  the  instrument  in  evidence,  and  who  has  the  bur- 
den of  proving  that  the  instrument  declared  on  and  put  in  evidence 
is  substantially  the  instrument  made  by  the  opposite  party.^' 


that  it  could  not  apply  in  llic  case  of 
the  erasure  of  a  signature  of  an 
obligor,  since  such  erasure  could 
only  have  been  made  after  execution 
of  the  writing. 

Interlineations  in  a  Deed  in  the 
Handwriting  of  the  Officer  Who  At- 
tested it  Officially,  will  lie  presumed 
to  have  been  made  at  or  before  the 
execution  of  the  deed.  Bedgood  t. 
McLain,  8g  Ga.  793.  15  S.  E,  670. 

37.  Wilson  v.  Hayes,  40  Minn. 
531,  42  N.  W.  467,  4  L.  R.  A.  196. 
See  also  Davis  v.  jfenny,  i  Mete. 
(Mass.)  221.  The  court  upon  the 
usual  proof  of  the  execution  of  the 
instrument  should  admit  it  in  evi- 
dence without  reference  10  the  char- 
acter of  any  alterations  upon  it. 
about  which  the  court  will  presume 
nothing.  leaving  the  whole  question 
Id  he  passed  on  by  the  iury.  Printup 
V.  Mitchell.  17  Ga.  =;=;«.  (13  A'",  l^tc. 
^58. 

38.  Shroeder  z:  Webster.  88  Iowa 
627.  ,s,i  N.  W.  569;  .Magec  v.  .\llison, 
94  Iowa  527.  63  N.  W.  ,t,J2:  Niel  v. 
Case.  25  Kan.  355 ;  Stale  v.  Roberts, 
:\7  Kan.  437.  15  Pac.  593. 

Statement    of   the    Rule Appar- 

rni  aluralicjn-.  are  often  made  before 
delivery,  and  .sometimes  alterations 
arc  made  after,  with  or  without  au- 
thority. Hence,  the  mere  fact  of  alter- 
ation furnishes  no  evidence  as  to 
when  it  was  made,  or  wdiether  made 
by  authority  or  not.  If.  from  the 
fact  of  alteration,  it  may  not  be  pre- 
sumed that  it  was  made  after  deliv- 
ery, and  without  aulboriiy.  then 
surely  the  burden  nf  so  jiroving  is 
upon   him   wlio  alleges   it.      Hagan  f. 


.Merchants  &  Bankers'  Ins.  Co.,  81 
Iowa  321.  46  N.  W.  1 1 14.  23  .\m.  St. 
Rep.  493. 

In  Massachusetts,  the  rule  is  stated 
thus:  "The  further  instruction  that. 
in  the  absence  of  all  proof  to  the 
contrary,  the  presumption  of  law  was 
that  the  interlineations  and  altera- 
tions were  made  prior  to  or  contem- 
poraneously with  the  execution  of 
the  mortgage,  was  wrong.  There  is 
no  such  legal  presumption.  If  it 
were  so.  the  party  setting  up  the  in- 
strument might  always  introduce  the 
instrument  as  a  genuine  one.  and  it 
would  stand  as  such  if  no  evidence 
was  introduced  by  the  other  party  to 
show  that  it  was  in  fact  altered 
after  the  execution.  Now  the  bur- 
den is  on  the  party  offering  the  in- 
strument, to  prove  the  genuineness 
of  the  instrument,  and  that  the  alter- 
ations apparent  on  the  same  were 
honestly  and  properly  made.  To 
what  extent  he  shall  be  re(piired  to 
introduce  evidence  will  depend  upon 
the  peculiar  circumstances  of  each 
case.  The  alterations  may  be  of 
such  a  character  that  he  may  safely 
rely  upon  the  paper  itself,  and  the 
subject  matter,  as  authorizing  the  in- 
ference that  the  alteration  was  made 
before  the  execution,  or  he  may  in- 
troduce some  very  slight  evidence  to 
account  for  the  apparent  interlinea- 
tions. But  there  is  no  presumption 
of  law,  either  that  the  alterations 
and  interlineations  apparent  on  the 
face  of  a  deed  were  made  prior  to 
the  execution  of  the  instrument,  or 
that  they  were  made  subsequently. 
That  question  is  to  be  settled  by  the 


Vol.  I 


ALTER. trios  (>!■'  IXSTRi'MIiXrS. 
d.  Prcsuinf'tioii  of  Alteration  .Iftcr  Delivery. 


813 


(1.)   General  Rule. 

A  third  line  of  authorities  holds  that  sueh  an  alteration  raises  a 
])resumption  against  the  writing',  and  hence  in  order  to  render  the 
instrument  admissible,  imposes  ujjon  the  party  producinn;  the  instru- 
ment the  hmxlen  to  explain  the  alteration  hy  proper  evidence.^" 


jury,  upon  all  the  evidence  in  the 
case  offered  by  the  parties,  and  the 
surrounding  circumstances,  including, 
of  course,  the  character  of  the  altera- 
tions and  the  appearance  of  the  in- 
strument alleged  to  have  been 
altered."  Ely  v.  Ely,  6  Gray  43g. 
And  see  Wilde  v.  Armsby,  6  Cusli. 
.314;  Simpson  :'.  Davis.  119  Mass. 
269,  20  Am.  Rep.  324 ;  Belfast  Nat. 
Bank  !■.   Harrinian,  68   Me.   522. 

39.  United  States.  —  Smith  r. 
United  States,  2  Wall.  219:  Abbe  '■. 
Rood,  6  McLean  106,  Fed.  Cas.  No.  6. 

.4rkansas.  —  Chism  v.  Toomer,  2y 
.\rk.  108.  Compare  Gi.st  'e.  Gans,  ,30 
.\rk.  285,  holding  that  an  apparent 
alteration  creates  no  legal  presump- 
tion that  it  was  fraudulently  altered. 
and  under  the  issue  of  non  est  faetiiiii 
the  question  is  to  be  determined  from 
the  appearance  of  the  paper  in  con- 
nection with  tlie  evidence  adduced. 

California.  —  An  express  statute 
requires  an  explanation  of  an  appar- 
ent alteration  liy  the  party  producing 
the  paper.  Corcorn  >■.  Doll,  32  Cal. 
82;  Miller  z:  Luo,  80  Cal.  257,  22 
Pac.  19=; ;  Roberts  v.  Unger,  30  Cal. 
676. 

Idaho.  —  Mulkey  r.  I^ong  (Idaho.) 
47  Pac.  949.  Compare  Dengel  r. 
Levy,  I  Idaho  742. 

///j)!o;'.y.  —  Gillett  v.  Sweat,  6  111. 
475;  Catlin  Coal  Co.  ?■.  Lloyd,  t8o 
111.  398,  54  N.  E.  214,  72  Am.  St.  Rep. 
216;  Sissoii  V.  Pearson,  44  111.  ."Kpp. 
81;  Walters  v.  Short,  10  111.  252; 
McAllister  v.  Avery.  17  111.  .\pp. 
568;  Hodge  V.  Gilman.  20  111.  437; 
Pyle  V.  Oustatt,  92  111.  209.  Compare 
Miliken  v.  Marlin,  67  111.  13;  Dcho- 
ney  v.  Soucie,   17  111.  App.  234. 

Kentucky.  —  Elbert  v.  ^McClelland. 
8  Bush  577. 

Louisiana.  —  Pipes  v.  Hardesty,  9 
La.  Ann.  152,  61  Am.  Dec.  202; 
McMicken  v.  Beauchamp,  2  La.  290; 
Union  Bank  7'.  Brewer,  2  La.  .\nu. 
83i;  (to  the  effect  that  an  alteration 
in   a  note   will  be  presumed   fraudu- 


lent.) See  also  Martin  v.  Creditors, 
14  La.  Ann.  393. 

.Maine.  —  Dodge  i\  Haskell,  69  Me. 
429 ;  Croswell  i'.  Labree,  81  Me.  44, 
16  Atl.  331,  10  .\m.  St.  Rep.  238; 
Johnson  r.  Heagan,  23  Me.  329. 
Compare  Boothby  z:  Stanley,  34  Me. 
515,  Gooch  z:  Bryant,  13  Me.  386. 

.'[[ississippi.  —  Croit  z:  White,  36 
Miss.  455;  Ellison  z'.  JNIobile  &  O. 
R.  Co.,  36  Miss.  572 ;  Everman  v. 
Robb,  52  Miss.  653,  24  Am.  Rep.  682. 

iVeze  Hampshire.  —  Dow  z<.  Jewell, 
18  N.  H.  340,  45  Am.  Dec.  371; 
Humphreys  t'.  Guillow.  13  N.  H.  385, 
38  Am.  Dec.  499;  Cole  z\  Hills.  44 
N.  H.  227. 

Nczv  York.  —  Jackson  v.  Osburn,  2 
Wend.  555,  20  Am.  Dec.  649 ;  Gowdey 
z\  Robbins,  3  App.  Div.  353,  38  N. 
Y.  Supp.  280;  Herrick  v.  Malin,  22 
Wend.  .;88:  Solon  v.  Williamsburg 
Sav.  Bank,  114  N.  Y.  122,  21  N.  E. 
168;  Nat.  Ulster  Co.  Bank  v.  Mad- 
den, 114  N.  Y.  280,  21  N.  E.  408.  II 
Am.  St.  Rep.  633;  Ridgeley  v.  John- 
son, II  Barb.  527;  Acker  z\  Ledyard, 
8  Barb.  514;  Cliappell  z\  Spencer,  23 
Barb.  584. 

Oregon.  —  In  Oregon  a  statute  re- 
quires a  party  offering  an  altered  in- 
strument to  explain  the  alteration; 
and  failure  to  comply  with  the  stat- 
ute is  ground  for  rejecting  the 
offered  instrument.  Simpkins  v. 
Windsor,  21  Or.  382,  28  Pac.  72; 
First  Nat.  Bank  v.  Mark,  35  Or.  122, 
57  Pac.  326.  But  this  statute  is  not 
aiiplicable  when  it  is  shown  that  the 
alteration  was  not  made  after  the 
execution  of  the  paper.  Neckum  v. 
Gaston,  28  Or.  322,  42  Pac.   130. 

South  Carolina.  —  Vaughan  v. 
Fowler,  14  S.  C.  355,  i7  Am.  Rep. 
731  ;  Burton  z\  Pressly,  i  Chev.  Eq. 
1  :  Kennedy  v.  Moore,  17  S.  C.  464. 
Compare  Wicker  z:  Pope,  12  Rich. 
Law  387,  75  Am.  Dec.  732,  to  the 
elTect  that  whether  an  alteration  was 
made  before  or  after  an  instrument 
was  executed,  is  generally  a  question 

Vol.  I 


814 


ALTERATION  Of  INSTRUMENTS. 


Alteration  Noted.  —  Where  an  apparent  alteration  is  noted  at  the 
foot  uf  the  paper,  the  party  producing  it  lias  not  the  burden  to 
explain  the  alteration.'"' 

Altered  Instrument  to  Corroborate  Oral  Testimony.  —  And  a  deed  is 
admissible  without  evidence  to  explain  an  apparent  alteration,  when 
it  is  offered  merely  to  corroborate  the  testimony  of  the  party  pro- 
ducing it,  as  to  the  occurrence  of  a  transaction  forming  the  princi- 
pal issue. ■'^ 

Action  to  Cancel  Altered  Instrument.  —  W  bile  the  burden  is  with  a 
party  seeking  to  enforce  a  contract  to  relieve  it  from  the  effect  of 
any  material  alteration  made  in  it  after  its  inception,  that  rule  is 
not  necessarily  ap]:)licable  to  a  defendant  in  an  action  brought  to 
have  a  security  held  by  him  canceled  upon  that  ground,  when  it 
appears  that  such  defendant  is  in  no  sense  chargeable  with  uiala 
fides  in  that  respect. ^- 

(2.)  Alteration  to  Conform  Paper  With  Itself. —  Hut  where  the  alter- 
ation consists  of  an  interlineation  of  matter  embraced  in  another 
portion  of  the  paper,  so  that  the  paper  as  a  whole  reads  connectedly, 
without  reference  to  the  fact  of  the  interlineation,  the  presumption 
should  be  indulged  that  the  alteration  was  made  either  before  the 
execution  of  the  paper  or  afterwards  by  consent  of  the  parties.^" 

(3.)  Correction  of  Error.  —  So  it  has  been  held  that  an  alteration, 
whose  sole  purpose  was  to  correct  an  error,  will  be  presumed  to 
have  been  made  before  dcliverv  of  the  instrument." 


of  fact  for  the  jury  to  decide,  and  the 
party  offering  the  instrument  is  not 
bound  to  offer  evidence  to  show 
when  the  aheration  was  made,  but 
may  rely  upon  appearances  on  the 
face  of  the  instrument  itself  to  ex- 
plain it. 

Texas.  —  Jacobey  i'.  Brigman, 
(Tex.,)  7  S.  W.  .^66;  Dewees  v. 
Bhmtzer,  70  Te.\.  406,  7  S.  W.  820; 
Heath  v.  State,  14  Tex.  App.  213; 
Park  V.  Glover,  23  Tex.  469. 

Virginia.  —  Hodsett  v.  Pace,  82  Va. 
873,  6  S.  E.  217;  Slater  v.  Moore.  86 
Va.  26,  9  S.  E.  419  (citing  Priest  v. 
Whitacre,  78  Va.  151  ;  Elgin  v.  Hall, 
82  Va.  680;  Angle  r.  Ins.  Co.,  92  U. 
S.  330;  Batchclder  <•.  White,  80  Va. 
103.) 

IVisconsiti.  —  North  v.  Heiin1)erry, 
44  Wis.  306.  And  see  Schwahii  t'. 
Mclntyre,   17  Wis.  232. 

Seal  Cut  Off.  —  When  a  sealed  note 
was  found  amongst  the  papers  of  the 
payee  after  his  death,  with  the  seal 
carefully  cut  off,  leaving  a  mere  fila- 
ment l)y  which  it  was  allowed  to  re- 
main   attached    to    show     what     liad 


been  the  character  of  the  instru- 
ment, it  was  held  that  the  destruction 
of  the  seal  was  to  be  attributed  to 
the  payee.  Porter  <■.  Doliv,  2  Rich. 
Eq.    (S.  C.)   49. 

Annexed  Paper  Detached.  —  In 
McCullough  r.  Wall.  4  Rich.  Law 
(S.  C.)  68,  53  Am.  Dec.  71S,  a  deed 
referred  to  a  plat  annexed,  but  when 
produced  the  plat  (admitted  to  be 
the  same  to  which  the  deed  referred) 
was  separate  from  it,  although  it  was 
manifest  that  it  had  been  altered  by 
wafers,  and  it  was  held  that  no 
further  explanation  of  the  mutilalion 
was  necessary. 

40.  Howell  V.  Hanrick,  88  Tex. 
383,  29  S.  W.  762. 

41.  Hay  v.  Douglas.  32  N.  Y. 
Super.  Ct.   (12  Sweeny)  49. 

42.  Solon  z\  Williamsburg  Sav. 
Bank.   114  N.   V.    122,  21    N.  E.    l68. 

43.  Gordon  7'.  Sizer,  39  Miss.  805. 

44.  Correction  of  Error.  —  In 
Houston  t'.  Jordan,  82  Tex.  352,  18 
S.  W.  702,  an  error  in  the  descrip- 
tion of  property  transferred  by  hus- 
band and  wife  was  pointed  out  to  the 


Vol.  I 


ALTERATION  OF  LXSTRUMIiXTS. 


Si; 


(4.)  Alteration  Must  Be  Apparent.  —  Jn  order  to  raise  the  presiiiiii)- 
tion  that  the  paper  has  been  altered  and  put  the  holder  to  proof 
explaining  it,  it  is  necessary  that  it  plainly  appear  from  the  face  of 
the  paper  that  it  has  been  altered.  It  is  not  sufficient  that  it  is 
probable  that  an  alteration  has  been  made,  but  it  must  be  manifest 
to  the  inspection  of  the  jury  that  it  has  been  made.'''' 

(5.)  Official  Documents.  —  The  rule  which  excludes  jiapers,  on 
account  of  an  unexplained  alteration,  applies  to  papers  in  possession 
of  the  party  to  be  injured  or  benefited  thereby,  but  not  to  official 
documents  not  in  the  custody  or  under  the  control  of  the  parts. ^" 
e.  Burden  of  Proof  As  Dependent  on  Suspicious  Cltaractcr  of 
Alterations. —  (1.)  Rule  Stated.  —  P)Ut  irrespective  of  the  conflict  of 
authorities  shown  by  the  preceding  sections,  it  is  held  that  in  case 
the  alteration  is  of  a  suspicious  character,  or  bears  the  ear  marks 
of  fraud,  the  burden  is  then  upon  the  party  producing  the  writing 
to   explain   the   alteration   by   proper   evidence.''"     And    where   the 


husband  after  the  execution  of  the 
deed,  but  before  its  acknowledg- 
ment, which  was  corrected  by  some 
one  prior  to  the  delivery  of  the  deed 
by  the  husband.  It  was  held  that,  in 
the  absence  of  evidence  to  the  con- 
trary, the  correction  would  be  pre- 
sumed to  have  been  made  before 
acknowledgment  by  the  wife  and  be- 
fore dehver}'. 

45.  Ellison  V.  Mobile  &  O.  R.  Co., 
36  Miss.  572. 

46.  Devoy  v.  New  York,  36  Barb. 
264,  22  How.  Pr.  226.  See  also  Mil- 
ler V.  Alexander,  13  Tex.  497,  65  Am. 
Dec.  73,  where  the  court  said: 
"  Every  alteration  on  the  face  of  an 
instrument  which  evidences  the 
agreement  renders  it  suspicious :  and 
this  suspicion  the  party  claiming  un- 
der, is  ordinarily  held  bound  to  re- 
move. I  Greenl.  Ev.,  §§  564,  568.  It 
was  probably  upon  this  principle  that 
the  evidence  in  this  case  was  ex- 
cluded ;  not  adverting  to  the  distinc- 
tion between  the  alteration  of  a  pri- 
vate instrument  by  one  of  the  parties 
to  it  and  the  alteration  by  a  sheriff 
or  other  officer  of  his  entries  made 
to  evidence  his  official  acts,  which  it 
is  every  day's  practice  to  admit,  by 
way  of  amendment  of  his  returns, 
and  which  cast  no  suspicion  upon  the 
fairness  and  truthfulness  of  the  re- 
turns theiTiselves."  Comfarc  Dolbier 
T.  Norton,  17  i\Ie.  307. 

47.  United     States.    —    Smith     z: 


United  States,  2  Wall.  219;  Cox  7'. 
Palmer,  i  McCrarv  431,  ^  Fed.  Cas. 
No.   16. 

.Alabama.  —  Glover  '■.  Gentry.  104 
Ala.  222,  16  So.  38:  Ward  v.  Clieney, 
117  Ala.  238,  22  So.  996;  Wisdom  r. 
Reeves,  no  Ala.  418.  18  So.  i^; 
Barclift  v.  Treece,  77  Ala.  528;  Hill 
V.  Nelins,  86  .Ma.  442,  5   So.  796. 

Arkansas.  —  Gist  z\  Dans,  30  Ark. 
285. 

California.  —  Sedgwick  z'.  Sedg- 
wick, 56  Cal.  213. 

Delazvarc.  —  Welch  z'.  Coulborn,  3 
Houst.  647.  See  also  Hollis  Z'.  Van- 
dergrift,  5  Houst.  521.  Compare 
Warren  v.  Layton,  3  Harr.  404. 

District  of  Columbia.  —  Pengli  v. 
Mitchell,  3  App.  D.  C.  321. 

Florida.  —  Orlando  Z'.  Gooding,  34 
Fla.  244,  15  So.  770;  Kendrick  v. 
Lathan,  25  Fla.  819,  6  So.  871. 

Georgia.  —  Gwin  z\  .Anderson.  91 
Ga.  827,   18  S.  E.  43- 

Illinois.  —  Catlin  Coal  Co.  7'. 
Lloyd,  180  111.  398.  54  N.  E.  214,  7^ 
.\m.  St.  Rep.  216. 

Indiana.  —  Ins.  Co.  of  N.  A.  v. 
Brim,  in  Ind.  281,  12  N.  E.  31.=;; 
Stoner  v.  Ellis,  6  Ind.   152. 

/oit'fl.  —  Harlan  v.  Berry,  4  Greene 
212. 

Kansas.  —J.  I.  Case  Thresh.  Mach. 
Co.  V.  Peterson,  51  Kan.  713,  :iT,  Pac. 
470;   Neil  V.   Case,  23   Kan.  35's. 

Maine.  —  Croswell  z'.  Labree,  81 
Me.  44,  16  Atl.  331,  10  .\m.  St.  Rep. 
238. 

Vol.  I 


816 


Al.'I'LiR.l'I'lOS  Ol'   IXSTRLWinXTS. 


])aper  has  been  received  conditicjiially  upnii  promise  <.>f  CDiinsel  to 
give  the  proper  explanatory  evidence,  and  this  is  not  fjiven.  the 
court  sliould,  if  the  susjiicion  be  so  clear  as  not  to  leave  any  question 
for  the  jury,  strike  out  the  i)aper/'* 


Massiiihusctl.':. — Wililc  j'.  Arnisljy. 
6  Cusli.  314, 

Michigan.  —  Sirrine  t:  Briggs,  31 
Mich.  443;  Muiiroe  ■;:  Eastman,  31 
Mich.  283;  Brand  v.  Jolnirowe,  60 
:\Iich.  aro,  26  N.  W.  883;  Wil.son  z\ 
]]otchkiss,  81  Mich.  172,  4;  N.  W. 
8.38. 

Minnesota.  —  See  Wilson  v.  Hayes, 
40  Alinn.  531,  42  N.  W.  467,  4  L.  R. 
A.  196,  where  the  rnle  is  recognized 
but   is  criticised. 

Missouri.  —  McCormick  7'.  Fitz- 
niorris,  39  Mo.  24 :  Mathews  i:  Coal- 
tcr,  9  Mo.  705 ;  Paraniore  v.  Lind- 
sev,  63  Mo.  63;  Stillwell  v.  Patton, 
108  Mo.  352.  18  vS.  W.  1075. 

.Yezf  York.  —  Jackson  z'.  Osliorn, 
2  Wend.  555,  20  Am.  Dec.  649 ;  Prin- 
gle  V.  Chambers,  i  Abb.  Pr.  58; 
Smith  t'.  ;McGowan,  3  Barb.  404 : 
O'Donnell  z\  Harmon,  3  Daly  424. 

Ohio.  —  Huntington  z:  Finch.  3 
Ohio  St.  445. 

South  Carolina.  —  Wicker  z:  Pope, 
12  Rich.  Law  .387,  75  Am.  Dec.  732. 

South  Dakota.  — Cosgrove  z'.  Fane- 
bust,  10  S.  D.  213,  72  N.  W.  469. 

Tennessee- — Farnsworth  Z'.  Sharp, 
4  Sneed.   55. 

Tcra.?.  —  Collins  t'.  Ball,  82  Tex. 
259,  17  S.  W.  614,  27  Am.  St.  Rep. 
877 ;  Rodriguez  Z'.  Haynes,  76  Tex. 
225,  13  S.  W.  296 ;  Davis  z'.  Stale, 
5'  Tex.  App.  48:  Kiser  r.  State,  13 
Tex,  App.  201  ;  Collins  i'.  State,  ifi 
Tex.  App.  274. 

J'ernwnt.  —  Bcaman  v.  Russel,  20 
Vl.  205,  49  Am.  Dec.  775. 

IVcst  Virginia.  —  Conner  z\  Flcsli- 
man,  4  W.  Va.  693. 

Wisconsin.  —  Page  v.  Danahcr,  43 
Wis.  221 ;  Maldaver  v.  Smith,  102 
Wis.  ^o,  78  N.  W.   140. 

Statement  of  the  Rule.  —  If  llic 
interlineation  is  in  itself  suspicious, 
as,  if  it  appears  to  be  contrary  to  the 
probable  meaning  of  the  instrument 
as  it  stood  before  the  insertion  of  the 
interlined  words  ;  or  if  it  is  in  a  hand- 
writing different  from  the  body  of 
the    inslrument.    or    appears    to    have 


1)een  wrilUn  with  dilTerenl  ink.  in 
all  such  cases,  if  the  court  considers 
the  interlineation  suspicious  on  its 
face,  the  presumption  will  be  that  it 
was  an  unauthorized  alteration  after 
execution.    Cox  v.  Palmer,  3  Fed.  16. 

In  Pennsylvania,  the  rule  is  stated 
thus  :  "  When  a  contest  occurs,  and 
the  instrument  is  offered  in  evi- 
dence, the  question  at  once  arises 
whether  the  alteration  is  beneficial  to 
the  party  offering  it ;  if  it  be,  we  do 
not  presume  a  forgery,  but  we  hold 
the  party  offering  it  in  evidence  and 
seeking  advantage  from  it,  l)Ound  to 
explain  tlie  alteration  to  the  satisfac- 
tion of  the  jury.  If  the  interlinea- 
tion or  erasure  has  been  noted  in 
the  attestation  clause  as  having  been 
made  before  signature,  this  is  suffi- 
cient ;  or  if  tlie  similarity  of  ink  and 
hand-writing,  or  the  conduct  of  the 
parties,  or  other  facts  proved,  shall 
persuade  a  jury  that  it  was  so  made, 
the  instrument  is  relieved  from  sus- 
picion, and  the  party  offering  it  is 
entitled  to  the  benefits  of  it.  So  long 
as  any  ground  of  suspicion  is  appar- 
ent on  the  face  of  the  instrument, 
the  law  presumes  nothing,  but  leaves 
ihe  question  as  to  the  time  when  it 
was  done,  to  be  ultimately  found  by 
the  jury  upon  proofs  to  be  adduced 
by  him  who  offers  it  in  evidence.'' 
Jordan  z\  Stewart,  23  Pa.  St.  244, 
(citing  Stahl  v.  Berger,  10  Serg.  & 
R.  170,  13  Am.  Dec.  666;  Babli  z: 
Clemson,  Ibid.  424;  Barrington  v. 
Bank  of  Washington,  14  Serg.  &  R. 
405;  Heffelfinger  v.  Shutz,  16  Serg. 
&  R.  46;  Hudson  z>.  Reel,  5  Barr 
279,)  See  also  Robinson  z\  Myers, 
67  Pa.  St.  9;  Nibbitt  v.  Turner.  155 
Pa.  St.  429,  26  Atl.  750;  McHale  z: 
McDonnell,  175  Pa.  St.  632,  34  All. 
966. 

48.  Sweitzer  z\  Allen  Pd.-g.  Co., 
76  Mo.  App.  I. 

And  if  the  Writing  Be  Essential 
to  the  Cause  of  Action,  the  court 
may  direct  a  nonsuit  or  verdict. 
Tillou  z\  Clinton  &  Iv  Ins.  Co.,  7 
Barb.   564. 


Vol.  I 


ALTERATION  OF  INSTRUMENTS. 


817 


(2.)  Suspicious  Alterations  Defined.  —  It  is  impossible  to  state  a 
general  rule  which  will  show  just  what  character  of  an  alteration 
will  be  required  in  order  that  it  may  be  termed  suspicious  within 
the  meaning-  of  the  rule  just  stated.  Instances,  however,  are  cited 
in  the  note.'*" 


49.  Hill  V.  Nelius,  86  Ala.  442,  5 
So.  796;  Hodsett  V.  Pace,  82  Va. 
873.  6  S.  E.  217;  Wilson  V.  Hotch- 
kiss,  81   Mich.   172.  45  N.  W.  838. 

Erasures  and  Interlineations  in  a 
Material  Part  of  the  Deed,  of 
which  no  notice  is  taken  at  the  time 
of  the  e.xeciition.  Smith  v.  McGowan, 
3  Barb.  404. 

Difference  in  Ink  and  Hand- 
writing  The    insertion    in    a    note 

of  an  increased  rate  of  interest,  in  an 
ink  different  from  the  body  of  the 
note  arid  not  written  in  the  manner 
usually  to  be  expected,  is  such  an 
alteration  as  creates  a  sulficient 
ground  of  doubt  to  require  the  party 
using  it  to  explain  the  alteration. 
Sheldon  v.  Hawes,  15  Mich.  519.  See 
also  Paraniore  Z'.  Lindsey,  63  Mo.  63. 

But  in  Smith  v.  McGowan,  3  Barb. 
404,  the  court  said :  "  There  is  no 
principle  of  the  common  law  which 
requires  a  deed  to  be  written 
throughout  with  the  same  colored  ink. 
The  fact  that  ink  of  different  colors 
is  used  may  or  may  not  afford  evi- 
dence of  a  fraudulent  alteration  of 
an  instrument.  It  may  often  be  an 
important  item  of  evidence  on  that 
question.  And  it  may  be  consistent 
with  the  utmost  honesty.  There  is 
nothing  in  the  fact,  considered  in  it- 
self, which  will  require  the  court  to 
exclude  the  instrument  for  that  rea- 
son, as  matter  of  law.  It  may  be  a 
proper  consideration  for  the  jury,  in 
connection  with  other  facts,  on  the 
question  of  a  fraudulent  alteration ; 
but  the  question  was  not  put  to  the 
court  in  that  way." 

Blemishes  in  Negotiable  Paper. 
Negotiable  paper  is  always  pre- 
sumed, in  the  absence  of  evidence, 
to  have  been  issued  clear  of  all  blem- 
ishes, erasures  and  alterations, 
whether  of  the  date  or  body  of  the 
instrument;  and  the  burden  of  show- 
ing that  it  was  defective,  when  is- 
sued, is  upon  the  holder,  even  though 
the    alteration    be    beneficial    to    the 


maker.  Heffner  v.  VVenrich,  32  Pa. 
St.  423.  To  siinilar  effect  see  Simp- 
son V.  Stackhouse.  9  Pa.  St.  186,  49 
Am.  Dec.  554 ;  Paine  v.  Edsell,  19 
Pa.  St.  178;  Robinson  v.  Myers,  67 
Pa.  St.  9;  Hill  V.  Cooley,  46  Pa.  St. 
259;  Appeal  of  Hess,  134  Pa.  St.  31, 
19  Atl.  434,  19  Am.  St.  Rep.  669 
(holding  that  the  holder  of  an 
altered  instrument  has  the  burden  of 
proof,  even  though  both  drawee  and 
payee  be  dead;)  Clark  v.  Eckstein, 
22  Pa.  St.  507,  62  Am.  Dec.  381 ; 
Hood's  Appeal,  (Pa.  St.,)  7  Atl.  137. 
But  the  fact  that  the  words  "  ten  per 
cent."  in  a  note  are  written  in  an  ink 
different  from  the  body  of  the  note 
and  from  the  signature  of  the  maker, 
there  being  no  interlineation  resorted 
to  to  insert  the  words,  they  being 
in  their  natural  order  and  position, 
as  if  written  when  the  remainder 
of  the  note  was  written  or  inserted 
in  a  space  left  to  receive  them,  does 
not  cast  upon  the  note  such  suspicion 
that  the  payee  suing  upon  it  must, 
before  offering  it  in  evidence,  show 
that  the  words  were  made  by  au- 
thority of  the  maker,  or  before  the 
execution  of  the  note.  Jones  v.  Ire- 
land. 4  Iowa  63,  68.  See  also,  Ault 
V.  Fleming,  7  Iowa  143.  And  see 
Wilson  7'.  Harris,  35  Iowa  507, 
wherein  it  was  held  that  the  fact 
that  a  portion  of  an  indorsement 
signed  by  the  defendant,  is  written 
in  different  ink  and  handwriting 
from  the  lialance,  does  not  afford 
such  ftfiina  facie  evidence  of  a 
fraudulent  alteration  as  to  require 
the  plaintiffs  to  explain   the   same. 

Interlineations  in  Same  Ink  as 
Body  of  Paper In  Vickery  v.  Ben- 
son, 26  Ga.  582,  it  was  held  that  the 
presumption  should  be  indulged  that 
interlineations  in  the  same  ink  and 
handwriting  as  the  body  of  the  cer- 
tificate to  the  copy  of  a  deed  were 
rightfully  made.  See  also  Zimmer- 
man V.  Camp,  IS5  Pa.  St.  152,  25 
,\ll.    1086. 


.S2 


Vol.  I 


818 


ALTEKATIOX  OP  JXSTKUMENTS. 


Interlineations  Completing  Imperfect  Description.  —  Inteiiiiieations  are 
not  of  themselves  of  a  character  to  excite  suspicion  wlien  they  are 
mere  completions  of  imperfect  descriptions  of  parcels  of  the  lands 
conveyed,  and  of  the  aggregate  number  of  acres,  the  deed  importing 
a  sale  by  description  or  metes  and  bounds,  and  not  by  the  quantity."'" 

f.  Distinction  Between  Deeds  and  Other  Instruments.  —  Some  of 
the  courts  in  holding  that  in  the  case  of  deeds  the  presumption  is 
that  the  alteration  was  made  before  the  execution  of  the  deed,"'^ 
seek  to  make  a  distinction  between  deeds  and  other  instruments  ;^'- 
but  others  disregard  any  such  distinction,  merely  applying  the  rule 
adopted  by  that  particular  jurisdiction  without  regard  to  the  nature 
of  the  instrument  or  other  writing. ^'^ 

5.  Order  of  Proof.  —  Where  it  is  incumbent  upon  the  party 
producing  an  instrument  showing  a  material  alteration  on  its  face, 
to  explain  the  alteration,  whether  the  explanatory  evidence  or  the 
writing  shall  be  first  introduced  in  evidence,  is  within  the  discretion 
of  the  court;  he  may  receive  the  writing  subject  to  explanation  or 
on  condition  that  counsel  will  give  the  explanation.'"* 


50.  Sharpe  -'.  Ornie,  6i  .Ala.  263, 
wherein  the  court  said:  "These  in- 
terhneations,  merely  curing  an  im- 
perfect description  of  the  particular 
parcels  of  the  lands,  accord  with  all 
the  purposes  and  objects  of  the  con- 
veyance, and  it  is  but  a  fair  pre- 
sumption that  their  omission  in  the 
original  writing  of  the  deed  was 
merely  inadvertent.  The  inadvertence 
was  corrected,  so  soon  as  it  was  dis- 
covered, it  is  also  fair  to  presume. 
The  legal  presumption  under  the 
circumstances,  is,  that  they  were 
made  before  the  acknowledgment  of 
execution,  and  the  burden  of  repel- 
ling the  presumption  rested  on  the 
party  asserting  the  contrary." 

51.  United  5/a/c.f.— Little  I'.  Hern- 
don,  10  Wall,  26,  19  L.  Ed.  878. 

Alabama.  —  White  f.  Hass,  32  Ala. 
430,  70  Am.  Dec.  548. 

Florida.  —  Ken<lrick  v.  Latham,  25 
Fla.  819.  6  So.  871. 

Georgia.  —  Bedgood  v.  McLain,  89 
Ga.  793,  15  S.  E.  670;  Collins  v. 
Horning,  96  Ga.  360,  23  S.  E.  401. 

Michigan.  —  Munroe  i'.  Eastman, 
31    Mich.   283. 

Mississipfii.  —  Ellison  v.  Mobile  & 
O.  R.  Co.,  36  Miss.  572,  where  the 
rule  is  discussed  but  not  applied. 

Missouri.  — ;Holton  v.  Kemp,  81 
Mo.  661 ;  McCormick  r.  Fitzmorris, 
39  Mo.  24;   Paraniore  t'.  Lindsey,  63 


Mo.  63;  Stilhvell  v.  Fatton,  108  Mo. 
352,   18  S.  W.   1075. 

Nebraska.  —  Dorsey  v.  Conrad,  49 
Neb.  443,  68  N.  W.  645'- 

Texas.  —  Rodriguez  v.  Haynes,  76 
Tex.   225,   13   S.   W.   296. 

Contra.  —  Ely  v.  Ely,  6  Gray 
(Mass.)    439. 

52.  Nagles  Estate,  134  Pa.  St. 
31,  19  Atl.  434,  19  Am.  St.  Rep.  669; 
Simpkin  v.  Stackhouse,  9  Pa.  St. 
186,  49  Ain.  Dec.  554. 

53.  Wood  r.  Steele.  6  Wall.  80; 
Wilson  V.  Hayes,  40  Minn.  531.  42 
N.  W.  467,  4  L.  R.  A.  196  (citing 
numerous  authorities)  ;  Franklin  v. 
Baker,  48  Ohio  St.  296,  27  N.  E.  55°, 
29  Am.  St.  Rep.  547 ;  Neil  v.  Case, 
25    Kan.    355. 

54.  Smith  v.  McGowan,  3  Barb. 
404;  Smith  V.  U.  S.,  2  Wall.  219; 
Nickum  z'.  Gaston,  28  Or.  322,  42 
Pac.  130;  Stayncr  ''.  Joyce.  82  Ind.  35, 
22  N.  E.  89. 

Evidence  After  Argument  to  Jury. 
In  Kiscr  z\  State.  13  Tex.  App.  201, 
it  was  held  error  to  permit  a  party 
producing  an  instrument  showing  a 
suspicious  alteration  to  make  proof 
explaining  the  alleralioa  after  the  ar- 
gument to  the  jury  had  been  com- 
pleted. The  court  said :  "  It  is 
within  the  discretion  of  the  court  to 
admit  testimony  at  any  time  before 
the  argument   of   the   case   has   been 


Vol.  I 


ALTERATION  OF  INSTRUMBXTS. 


81') 


6.  Parol  Evidence.  —  A.  In  General.  —  It  is  a  t^cncral  rule  that 
parol  evidence  is  admissible  to  prove  the  time  when,  the  person  by 
whom,  and  the  circumstances,  under  which  an  alteration  was  made,''-' 
or  to  explain  the  purpose  of  the  alteration.'^" 

Immaterial  Alteration.  —  So  also,  oral  testimony  of  the  subject 
matter  referred  to  in  a  deed  may  be  admitted  for  the  purpose  of 
showing  that  an  unnoted  erasure  is  immaterial.^' 

B.  Alteration  tsy  Stranger. — Again,  when  it  is  incumbent  on 
a  party  offering  an  altered  instrument  to  explain  the  alteration,  he 
may  resort  to  parol  evidence  showing  that  the  alteration  was  made 
bv  a  stranarer  without  his  knowledge.'** 


concluded,  but  we  know  of  no  rule 
of  law  which  confers  such  discretion 
where  the  argument  has  lieen  con- 
cluded, and  we  think  it  would  be  im- 
prudent to  sanction  such  a  practice." 

55.  Alabama. — Connally  t'.  Sprag- 
ins,   66   Ala.    258. 

Georgia.  —  Bowe  v.  Dotterer,  80 
Ga.  so,  4  S.  E.  253. 

Indiana.  —  Schneider  "•.  Rapp,  33 
Ind.  270. 

Massacliusclts.  —  Heywood  i'.  Per- 
rin,  ID  Pick.  228,  20  Am.  Dec.  518; 
Smith  V.  Jagoe,  122  Mass.  538,  52 
N.  E.  1088. 

Oregon.  —  Wren    ;■.    Fargo,   2    Or. 

Pennsylvania.  —  Winters  v.  Mon- 
roe. :63  Pa.  St.  239,  29  Atl.  916. 

South  Carolina.  —  Monchet  v. 
Cason  &  Hill,  i  Brev.  307. 

IVisconsin.  —  Lowe  v.  Merrill,  i 
Pinn.   340. 

The  party  having  the  burden  of 
accounting  for  alteration  may  satisfy 
that  burden  as  well  by  proof  from 
circumstances  as  by  calling  witnesses. 
Burton  7'.  Presslv,  1  Chev.  Eq.  (S. 
C.)   I. 

56.  Johnson  r.  Wabash  M.  &  V. 
P.  R.  Co..  16  Ind.  389;  Johnson  v. 
Pollock,  58  111.  181  ;  Jenkinson  v. 
Monroe,    61    Mich.    454,    28    N.    W. 

663. 

Alteration   to   Express  Agreement. 

Parol  evidence  is  admissible  to  show 
that  the  alteration  in  the  date  of  the 
paper  was  merely  an  attempt  to  so 
change  the  writing  as  to  make  it  ex- 
press the  agreement  which  was 
originally  entered  into  between  the 
parties.  Barlow  7'.  Buckingham,  68 
Iowa  169,  26  N.  W.  58,  58  .'\ni.  Rep. 
218. 

Testimony     of     the     Officer     Who 


Gave  a  Tax  Receipt  on  whicli 
figures  have  been  erased  is  admis- 
sible to  show  that  such  figures  re- 
ferred to  a  special  tax  and  were 
erased  by  him  because  the  ta,x  had 
not  been  paid.  Stringham  v.  Osh- 
kosh.  22  Wis.  326. 

Accidental  Erasure In  an  action 

on  a  bank  check,  it  is  competent  for 
the  plaintiff  to  prove  that  a  line 
drawn  through  a  portion  of  the 
amount  of  the  check  was  not  intended 
as  an  erasure,  but  that  it  was  either 
upon  the  check  when  it  was  drawn 
and  was  not  discovered,  or  that  it 
was  subsequently  placed  there  by  ac- 
cident— especially  when  the  figures 
in  the  margin  tend  to  show  the  same 
fact.  Henrietta  Nat.  Bank  v.  State 
Nat.  Bank,  80  Tex.  648,  16  S.  W.  321, 
26  Am.  St.  Rep.  773. 

57.  Hanrick  r.  Patrick,  119  U.  S. 
156. 

58.  Alabama.  — WM  v.  Nelius,  86 
Ala.  442,  5  So.  796;  Winter  v.  Pool, 
100  Ala.  503,  14  So.  411. 

Arkansas.  —  Andrews  r.  Calloway, 
50  Ark.   358,   7    S.   W.   449. 

Florida.  —  Orlando  v.  Gooding,  34 
Fla.  244,   15   So.  770. 

Idaho.  —  Mulkey  v.  Long  (Idaho), 
47    Pac.    949- 

Illinois.  —  Condict  t'.  Fowler,  106 
111.   105. 

Indiana.  —  Green  v.  Bcckner,  3  Ind. 
App.   39,   29   N.   E.    172. 

Kentucky.  —  Lee  v.  Alexander,  9 
B.  Mon.  25.  48  Am.  Dec.  412. 

Massachusetts.  —  Drum  v.  Drum, 
133  Mass.  566;  Nickcrson  v.  Swett, 
135   Mass.   514. 

iMichigan.  —  White  S.  M.  Co.  v. 
Dakin.  86  Mich.  581,  49  N.  W.  583, 
13  L.  R.  A.  313. 

Vol.  I 


820 


ALTERATION  OF  IXSTRUMENTS. 


C.  Consent  of  Maker  or  Obligor.  —  So,  also,  he  may  by  parol, 
show  that  the  alteration  was  in  fact  made  with  the  knowledge  and 
consent  of  the  maker  or  oblia^or.^" 

Alterations  to  Correct  Errors.  —  So,    also,    the    alteration    may    be 


Mlssissil>l>i.  —  Croft  v.  White,  36 
Miss.  455. 

Nc'ji'  Jersey.  —  Hunt  r.  Gray,  35  N. 
J.  Law  227,   10  Am.  Rep.  232. 

Neitf  York.— Nzt  Ulster  Co.  Bank 
V.  Jtladden,  114  N.  Y.  280,  21  N.  E. 
408,  II  Am.  St.  Rep.  633;  Martin  v. 
Tradesmen's  Ins.  Co.,  loi  N.  Y.  498, 
5  N.  E.  338. 

Ohio.  —  Thompson  v.  Massie,  41 
Ohio    St.   307. 

Oregon.  —  Whitlock  v.  Mausick, 
10  Or.  166. 

Tennessee.  —  Boyd  v.  McConnel, 
10  Humph.  68. 

Te.ras.  —  Tutt  r.  Thornton,  57  Te.x. 

35-     .  . 

Wisconsin.  —  Union  Nat.  Bank  v. 
Roberts,  45  Wis.  373. 

59.  United  States.  — -  Speake  v. 
U.  S.  9  Cr.  28,  3  L-  Ed.  64s ;  Mundy 
V.   Stevens,  61  Fed.  yj. 

Alabama.  —  Ravisies  v.  Alston,  5 
Ala.  297 ;  White  v.  Hass,  32  Ala. 
430,   70  Am.   Dec.   548. 

Illinois.  —  McNail  z\  Welch,  125 
111.   623,   18   N.   E.  737- 

Indiana.  —  Richmond  Mfg.  Co.  v. 
Davis,  7  Blackf.  412. 

loti'a.  —  Browning  v.  Gosnell,  91 
Iowa  448,   59  N.   W.  340. 

Massacliusetls.  —  Boston  v.  Ben- 
son,  12  Cush.  61. 

Missouri.  —  Evans  v.  Foreman,  60 
Mo.    449. 

Nebraska.  — BoWand  r.  Griffith,  13 
Neb.  472,  14  N.  W.  387. 

North  Carolina.  —  Campbell  v. 
McAustin,  2  Hawks,  i:^,  II  Am.  Dec. 
738;  Howell  z\  Clonian,  117  N.  C. 
77,  23  S.  E.  95- 

Pennsylvania. — Miller  v.   Gilleland, 

19  Pa.  St.  119;  Smith  v.  Weld,  2  Pa. 
St.  54;  Stahl  V.  Berger,  10  Serg.  & 
R.  170,  13  Am.  Dec.  666;  Myers  v. 
Nell,  84  Pa.   St.  369. 

South  Dakota.  —  Wyckof?  v.  John- 
son, 2  S.  D.  91,  48  N.  W.  837- 
Texas.  —  Taylor  v.  Moore   (Tex.), 

20  S.  W.  53. 

In  Krause  f.  Meyer,  32  Iowa  566, 
tlic  court  permitted  evidence  to  go  to 

Vol.  I 


the  jury,  against  defendant's  objec- 
tion, of  a  conversation  had  between 
one  of  the  plaintiffs  and  their  agent, 
in  which  plaintiffs  were  informed 
that  defendant  had  authorized  the 
alteration.  Defendant's  counsel  in- 
sisted that  the  court  erred  in  over- 
ruling the  objection  to  the  evidence. 
The  court  said :  "  We  are  of  a  dif- 
ferent opinion.  It  was  competent  to 
show  the  good  faith  and  innocence 
of  plaintiffs,  that  they  acted  upon 
information  of  the  assent  of  defend- 
ant to  the  change  in  the  note,  which 
they  directed.  This  information  was 
brought  them  through  a  proper  chan- 
nel, and  the  fact  that  they  did  re- 
ceive it  was  certainly  proper  to  be 
given  in  evidence.  And  that  is  all 
that  the  evidence  amounts  to.  Proof 
of  the  conversation  was  a  direct, 
accurate  and  proper  way  to  show 
that  plaintiffs  did  receive  such  infor- 
mation as  well  as  the  manner  in 
which  they  received  it,  which  was 
also   proper   to   be   shown." 

In  King  v.  Bush,  36  111.  142,  it  was 
held  that  evidence  showing  that  the 
note  in  suit  as  it  appeared  at  the 
lime  of  trial  had  been  presented  to 
tlie  maker  and  admitted  by  him  to  be 
correct,  was  sufficient  to  show  that 
the  alteration  was  made  previous  to 
its  execution,  or  if  afterwards  that  it 
was  with  his  consent. 

Proceedings  in  a  Partition  Suit 
nearly  two  years  after  the  grantor 
had  full  knowledge  of  the  alteration 
in  the  deed,  wherein  it  appeared  that 
he  testified  that  the  grantee  in  such 
deed  owned  the  interest  which  such 
deed  purports  to  convey,  are  per- 
tinent evidence  to  show  his  assent 
to  such  alteration  as  lawfully  made. 
North  V.  Henneberry,  44  Wis.  306. 

In  Horton  v.  Horton,  71  Iowa  448, 
32  N.  W.  45'2,  it  was  held  that  an 
indorsement  of  the  place  of  pay- 
ment of  a  note,  made  by  the  payee 
after  the  maker's  death,  was  imma- 
terial, inasmuch  as  the  payee  was 
administratrix  of  the  maker's  es- 
tate. 


ALTERATION  OT  INSTRUMENTS. 


821 


shown  to  have  been  made  in  good  faith  to  correct  an  error,  under 
circumstances  showing  the  implied  authority  from  the  other  party 
to  make  the  correction.''" 

Other  Similar  Transactions.  —  It  is  not  competent,  however,  in 
order  to  show  that  a  party  to  a  note  in  suit,  has  authorized  the 
insertion  of  a  clause,  to  show  that  he  was  a  party  to  other  notes 
containing  similar  clauses."^ 

D.  Ratification  of  Unauthorized  Alteration.  —  So,  also,  he 
may  show  that  although  made  without  such  knowledge  and  consent, 
the  maker  or  obligor  subsequently  ratified  the  alteration. '^- 

7.  Sufficiency  of  Attempted  Explanation A.  In  General.  —  If 

the  evidence  given  to  explain  the  alteration  is  of  such  cogency  that 
the  paper  as  explained  would  sustain  a  verdict  in  favor  of  the  party 
producing  it,  the  court  should  let  the  paper  go  to  the  jury  with  such 
explanatory  evidence."^ 


60.  Lee  V.  Butler,  167  Mass.  426, 
46  N.  E.  52,  57  Am.  St.  Rep.  466. 
See  also  Martin  v.  Tradesmen's  Ins. 
Co.,  loi  N.  Y.  498,  5  N.  E.  338. 

61.  Iron  Mountain  Bank  v.  Mur- 
dock  &  .\rrastrong,  62  Mo.  70. 

68.  England. — Tarleton  v.  Shing- 
ler,  7  M.  G.  &  S.  812,  62  Eng.  C.  L. 
812. 

Illinois.  —  King  v.  Bush,  36  III. 
142;  Goodspeed  v.  Cutler,  75  III.  534. 

Massachusetts.  —  Prouty  v.  Wil- 
son, 123  Mass.  297. 

Michigan.  —  Stewart  v.  First  Nat. 
Bank,  40  Mich.  348;  Jenkinson  v. 
Monroe  etc.  Co.,  61  Mich.  454,  28 
N.   W.  663. 

Minnesota.  —  Jauney,  Sample  &  Co. 
V.  Gochruigcr,  52  Minn.  428,  54  N.  W. 
481. 

Missouri.  —  Workman  v.  Campbell, 
57   Mo.  53. 

Nezi'  Hanifshiic.  —  Humphreys  v. 
Guillow,  13  N.  H.  385,  38  Am.  Dec. 

Pennsylvania.  —  Wilson  v.  Jamie- 
son,  7  Pa.  St.  126. 

South  Carolina.  —  Jacobs  v.  Gal- 
breath,  45  S.  C.  46,  22  S.  E.  757. 

Tennessee.  —  RatclifF  v.  Planter's 
Bank,  2  Sneed.  425. 

Offer  to  Pay  Debt It  is  com- 
petent to  show  that  the  obligors  of  a 
writing,  with  knowledge  of  the  al- 
teration, offered  to  make  payment 
thereon  (Browning  v.  Gosnell,  91 
Iowa  448,  59  N.  W.  340)  ;  and  asked 
for  time  in  which  to  pay  the  bal- 
ance. Dickson  v.  Bamberger,  107 
Ala.  293,   18  So.  290. 


Readiness    to    Ratify    Alteration. 

.\ccording  to  Booth  v.  Powers,  56  X. 
Y.  22,  an  action  for  the  conversion 
of  a  promissory  note,  in  which  the 
defendant  set  up  an  unauthorized  al- 
teration by  the  payee  after  the  ex- 
ecution and  delivery  of  the  note,  it 
seems  that  plaintiff  may  rebut  the 
defendant's  evidence  of  alteration,  bj- 
showing  a  readiness  on  the  part  of 
the  maker  of  the  note  to  ratify  same 
and  to  admit  the  note  to  be  a  valid 
obligation. 

■When  the  Plaintiff  Has  Denied 
That  the  Instrument  Was  Altered, 
he  cannot  be  allowed  to  give  evi- 
dence to  show  subsequent  ratification 
of  the  alteration.  Capital  Bank  7'. 
Armstrong,  62  Mo.  59. 

63.  United  States.  —  Rosenbug  z\ 
Jett,  72  Fed.  90. 

Alabama.  —  Ward  v.  Cheney,  117 
.\la.  238,  22  So.  996. 

Illinois.  —  Catlin  Coal  Co.  v. 
Lloyd,  180  111.  398,  54  N.  E.  214. 
72  AiTi.   St.  Rep.  216. 

Michigan.  —  Pearson  f.  Hardin,  95 
Mich.  360,  54  N.  W.  504. 

Xehraska.  —  Holland  f.  Gritfith,  13 
Neb.  472,  14  N.  W.  387. 

'Pennsylvania.  —  Winters  v.  Mow- 
rer,  163  Pa.  St.  239,  29  Atl.  916; 
Miller  v.  Stack,  148  Pa.  St.  164,  23 
Atl.  1058. 

Time  Book  Kept  by  Different  Per- 
sons.—  A  time  book  is  properly  ad- 
mitted in  evidence  over  the  objection 
that  it  was  kept  by  different  persons, 
and  that  it  showed  on  its  face  that 
it   had  been   altered   with   fraudulent 

Vol.  I 


822 


ALTERATION  OF  INSTRUMUNTS. 


B.  Cogency  of  Proof.  —  The  evidence  should  be  clear  and  satis- 
factory that  it  was  done  under  such  circumstances  as  will  rebut  all 
motive  of  any  fraudulent  intention."* 

III.  QUESTIONS  OF  LAW  AND  FACT. 

1.  Materiality  of  Alteration.  —  The  question  whether  or  not  an 
alteration  in  a  written  instrument  is  a  material  one  should  not  be 
submitted  to  the  jury,  but  it  is  a  question  of  law  for  the  court  to 
determine."" 

2.  The  Fact  of  the  Alteration.  —  IJut  the  question  whether  there 
has  in  fact  been  an  alteration  is  one  for  the  jury  to  determine  from 
the  instrument,  in  connection  with  the  explanatory  evidence  adduced 
by  the  parties."" 


intent,  where,  although  there  is 
ground  for  claiming  from  its  ap- 
pearance that  there  had  been  some 
additions  to  the  original  entries,  its 
condition  and  the  method  pursued 
in  making  the  entries  are  fully  ex- 
plained by  some  of  the  parties  who 
made  them.  The  jury  is  competent 
to  consider  it  and  the  explanations 
given,  and  to  determine  its  value. 
Gutherless  ?■.  Ripley,  98  Iowa  290, 
ti;  N.  W.  log. 

A  Statute  Requiring  Explanation 
of  an  Apparent  Alteration  is  Com- 
plied With  when  the  party  present- 
ing the  instrument  in  evidence  has 
shown  that  there  has  been  no  alter- 
ation therein  since  it  came  to  his 
hands.  Mulkey  v.  Long  (Idaho), 
47  Pac.  949;  Sedgwick  v.  Sedgwick, 
56  Cal.  213. 

64.  Wheat  z:  Arnold,  36  Ga.  479- 
See  also  Pew  z:  Laughlin,  3  Fed.  39, 
wherein  the  court  said :  "  One  who 
seeks  to  avoid  the  language  in  which 
such  an  instrument  is  drawn,  as  by 
proving  the  assent  of  parties  to  a 
change,  or  otherwise,  must  be  held 
to  full  and  satisfactory  proof  of  the 
fact." 

65.  United  Stales.  —  Steele  v. 
Spencer,  i  Pet.  (U.  S.)  352,  7  L.  Ed. 
259;  Wood  V.  Steele,  6  Wall.  80,  18 
L.  Ed.  725. 

Alabama.  —  Payne  v.  Long,  121 
Ala.  38s,  25   So.   780. 

Arkansas.  —  Overton  v.  Matthews, 
35   Ark.    146,   37   Am.    Rep.   9. 

Georgia.  —  Pritchard  v.  Smith,  77 
Ga.  463;  Winkles  v.  Guenther,  98 
Ga.    472,    25    S.    E.    527.      Compare 


Reinhart  r.  Miller,  22  Ga.  402,  68 
Am.   Dec.   506. 

Illinois.  —  Donnel  Mfg.  Co.  v. 
Jones,  49  111.  App.  327;  Milliken  v. 
Marlni,   67    111.    I3- 

Indiana.  —  Cochran  v.  Nebeker,  48 
Ind.  459. 

lozca.  —  Benton  Co.  Sav.  Bank  v. 
Strand,  106  Iowa  606,  76  N.  W.  looi. 

Maine.  —  Belfast  Nat.  Bank  v. 
Harriman,  68  Me.  522. 

Mississippi.  —  Hill  v.  Calvin,  4 
How.    (Miss.)   231. 

Missouri.  —  Holloa  v.  Kemp,  81 
Mo.  661. 

Nebraska.  —  Fisherdick  v.  Hutton, 
44  Neb.  122,  62  N.  W.  488. 

Oklahoma.  —  Richardson  v.  Fill- 
ner,  9  Okla.  513,  60  Pac.  270. 

Pennsylvania. — Stephen  v.  Graham, 
7  Serg.  "&  R.  505,   10  Am.   Dec.  485. 

South  Carolina.  —  Kinard  v.  Glenn, 
29  S.  C.  590,  8  S.  E.  203.  And  see 
Jacobs  V.  Gilreath,  45  S.  C.  46,  22 
S.  E.  757,  where  this  principle  was 
affirmed  but  the  charge  held  not  to 
be  open  to  the  objection  of  sub- 
mitting the  question  of  the  material- 
ity of  the  alteration  to  the  jury. 

Te.vas. — Randall  r.  Smith,  2  Posey 
Unrep.  Cas.  397. 

I'irginia.  —  Keen  Z'.  Monroe,  75 
\'a.  424. 

66.  United  States.  —  Steele  v. 
Spencer,  I   Pet.  352. 

Colorado.  —  Huston  z:  Plato,  3 
Colo.  402. 

Georgia.  —  Printup  z'.  Mitchell.  17 
Ga.    558,   63   Am.    Dec.   258. 

Illinois.  —  Miliken  z\  Martin,  67 
111.   13- 


Vol.  I 


ALTERATION  OF  IXSTRUMENTS. 


823 


But  it  is  error  to  submit  tlie  question  to  the  jury  for  their  deter- 
niination  from  a  mere  inspection  of  the  paper  itself.""  And  where 
tlie  alteration,  if  any,  is  material  it  is  error  to  sulimit  the  fact  of 
tlie  alteration  to  the   jury.''* 

3.  Time  of  the  Alteration.  —  So,  also,  it  is  for  the  jury  to  deter- 
mine the  time  when  an  alteration  was  made,  where  the  alteration 
is  apparent  on  the  face  of  the  paper.*"' 


IniHamt.  —  Stoncr  f.  Ellis,  6  Ind. 
1 52. 

/t)7i'(7.  —  Horten  v.  Horten,  71 
Iowa  448,  32  N.  W.  452. 

Maine.  —  Belfast  Nat.  Bank  v. 
Harriman,  68  Me.  522. 

Michigan.  —  Comstock  v.  Smith,  26 
Midi.   306. 

Missouri.  —  Holton  v.  Kemp,  81 
Mo.  661 ;  Paramore  X'.  Lindsey,  63 
Mo.  63. 

Nebraska.  —  Stoiigh  -'.  Ogden,  49 
Xeb.  291,  68  N.   W.   516. 

Nc'M  Hampshire.  —  Cole  v.  Hills, 
44  N.  H.  227. 

New  Jersey.  —  Richman  v.  Rich- 
man,  10  N.  J.  Law  114;  Hunt  v. 
Gray,  35  N.  J.  I,aw  227.  10  Am.  Rep. 
232. 

Oklahoma.  —  Richardson  v.  Fell- 
ner,  9  Okla.  513.  60  Pac.  270. 

Pennsylvania.  —  Stahl  v.  Berger, 
10  Serg.  &  R.  170,  13  Am.  Dec.  666. 

■Vermont.  —  Beaman  v.  Russell,  20 
Vt.  205,  49  Am.  Dec.  775. 

IVest  Virginia.  —  Conner  t'.  Flesh- 
man,  4  W.  Va.  693. 

IVisconsi)!.  —  North  r.  Henne- 
berry,   44  Wis.   306. 

67.  Horton  7:  Horton,  71  Iowa 
448,   32  N.   W.  452. 

68.  Palmer  v.  Largent,  5  Neb.  223, 
2^  Am.  Rep.  479. 

69.  Alabama.  —  Ward  ?'.  Cheney, 
117  Ala.  238,  22  So.  996. 

Colorado.  —  Huston  1:  Plato,  3 
Colo.  402 ;  Schmidt  r.  Stecker,  3 
Colo.   273. 

Conneeticut. — Bailey  v.  Taylor  11 
Conn.  531,  29  Am.   Dec.  321. 

Georgia.  —  Planters  &  Merchants' 
Bank  v.  Erwin,  31  Ga.  371  ;  Reinhart 
V.  Miller,  22  Ga.  402,  68  Am.  Dec. 
506. 

Illinois.  —  Dehoney  v.  Soucie,  17 
111.  App.  234;  Milliken  z:  Marlin,  67 
III.   13. 

Kansas.  —  Neil  v.  Case,  25  Kan. 
355,   37  Am.    Rep.   259. 


l.onisiana.  —  Pipes  v.  Hardesty,  9 
I,a.   Ann.    152,  61    Am.   Dec.   202. 

Maine.  —  Crabtree  v.  Clark,  20  Me. 
337- 

Massacliusetts.  —  Norwood  v.  Fair- 
service,  Quincy  189;  Newman  v. 
Wallace,   I2I-  Mass.  323. 

Michigan.  —  Wilson  v.  Hotchkiss, 
81  Mich.  172,  45  N.  W.  838. 

Minnesota.  —  Wilson  "•.  Hayes,  40 
JNIinn.  531,  4  L.  R.  .\.  196,  42  N.  W. 

467- 

Mississippi.  —  Commercial  &  R. 
Bank  v.  Hum,  7  How.  414;  Wilson 
V.  Henderson,  9  Snied.  &  M.  375,  48 
.•\ni.   Dec.   716. 

Missouri.  —  Beach  v.  Heck,  54  Mo. 
.\pp.  ^99;  Paramore  z\  Lindsey,  63 
Mo.  63. 

Nebraska.  —  Bank  of  Cass  County 
-•.  ilorrison,  17  Neb.  341,  22  N.  W. 
782,  52  Am.  Rep.  417;  Lamb  v. 
Briges  22  Neb.  138,  34  N.  W.  217; 
Goodin  v.  Plugge,  47  Neb.  284,  66 
N.  W.  407. 

Nezi'  Hampshire.  —  Cole  v.  Hills, 
44  N.  H.  227;  Hill  V.  Barnes,  11 
N.  H.  395. 

New  Jersev.  —  Cumberland  Bank 
V.  Hall,  I  Halst.  215  (6  N.  J.  L.)  ; 
Hunt  I'.  Gray,  35  N.  J.  L.  227,  ID 
Am.  Dec.  232. 

Nezv  York.  —  Pease  z\  Barnett,  27 
Hun  378;  Acker  z\  Ledyard,  8  Barb. 
514:  Pringle  i'.  Chambers,  i  Abb. 
Pr.  58;  Tuthill  zi.  Hussey,  7  N,  Y. 
Supp.  547,  27  N.  Y.  St.  362. 

Pcnnsvlvania.  —  Heffelfinger  v. 
Shntz,  16  Serg.  &  R.  46 ;  Heffner  v. 
Wenrich,  32  Pa.  St.  423 ;  Martin  v. 
Kline,  157  Pa.  St.  473,  27  Atl.  753. 

South  Carolina.  ■ —  Commissioners 
of  Pore  z'.  Hauion,  I  Nott  &  McC. 
554 ;  Wicker  v.  Pope,  12  Rich.  L. 
387.  75  Am.  Dec.  732. 

Te.vas.  —  Rodriguez  v.  Haynes,  76 
Tex.  225,   13   S.   W.  296. 

Virginia.  —  Ramsey  z'.  McCue,  21 
Gralt.   349- 

Vol.  I 


824 


ALTERATION  OF  INSTRUMENTS. 


4.  Person  Making  the  Alteration.  —  Again,  it  is  for  the  jury  to 
determine  who  made  the  alteration.'" 

5.  Intent.  —  It  is  also  a  question  for  the  jury  to  determine  with 
what  intent  an  alteration  was  made.'' 

6.  Consent.  —  So,  also,  whether  or  not  the  alterati(Mi  was  made 
with  the  knowledge  and  consent  of  the  other  party  to  the  instrument 
is  one  for  the  jury.'- 

7.  Ratification.  —  And  whether  or  not  an  unauthorized  alteration 
has  been  ratified  liy  the  part}'  affected  thereby,  is  also  a  question  for 
the  jury.'* 


70.  Aliibaina.  —  Ward  v.  Cliciicy, 
117  Ala.  238,  22  So.  996. 

Illinois.  —  Milliken  v.  Marliii,  66 
111.   13. 

Minnesota.  —  Wilson  v.  Haves,  40 
Minn.  531,  42  N.  W.  467,  4  I,'  R.  A. 
196. 

New  York.  —  Artisans'  Bank  v. 
Backus,   31    How.    Pr.   242. 

Pennsylvania.  —  ^Martin  z'.  Kline, 
157  Pa.  St.  473,  .27  Atl.  753. 

Texas.  —  Rodriguez  v.  Haynes,  76 
Tex.  225,   13  S.  W.  296. 

Virginia.  —  Ramsey  v.  McCue,  21 
Gratt.   349. 

71.  Alabama.  —  Ward  v.  Cheney, 
117    Ala.   238,   22   So.   996. 

Colorado.  —  Huston  v.  Pialo,  3 
Colo.   402. 

Georgia.  —  Pritchard  v.  Sniilli,  77 
Ga.  463;  Printnp  v.  Mitchell,  17  Ga. 
558,   63   Am.   Dec.   258. 

Maine.  —  Belfast  Nat.  Bank  v. 
Harrinian,  68  Me.   522. 

Minnesota.  —  Wilson  v.  Hayes,  40 
Minn.  531,  42  N.  W.  467,  4  L.  R.  A. 
196. 

Missouri.  —  McCormick  v.  Fitz- 
morris,  39  Mo.  24. 

Nezv  Hampshire.  —  Cole  v.  Hills, 
44  N.  H.  227. 

Neiv  York.  —  Kelly  v.  Indemnity 
Fire  Ins.  Co.,  38  N.  Y.  322. 

Vol.  I 


Pennsylvania.  —  Hudson  v.  Reel, 
5  Pa.  St.  279. 

Te.vas.  —  Rodriguez  v.  Haynes,  76 
Te.x.  225,  13  S.  W.  296. 

Virginia.  —  Ramsey  v.  McCue,  21 
Gratt.   349. 

72.  Connecticut.  —  Bailey  !■.  Tay- 
lor,  II   Conn.  531,  29  Am.   Dec.  321. 

Indiana.  —  Cochran  v.  Ncbeker,  48 
Ind.    459. 

Iowa.  —  Williams  v.  Barrett.  52 
Iowa  637,  3  N.  W.  690. 

Maine.  —  Belfast  Nat.  Bank  v. 
Harrinian,   68   Me.   522. 

Mississippi.  —  Wilson  v.  Hender- 
son, 9  Smed.  &  M.  375,  48  Am.  Dec. 
716. 

Missouri.  —  McElroy  v.  Caldwell,  7 
Mo.  231. 

South  Carolina.  —  Jacobs  ;'.  Gil- 
reath,  45  S.  C.  46,  22  S.  E.  757. 

'Virginia.  —  Keen  v.  Monroe,  75 
Va.  424. 

M'iseonsin.  —  North  r'.  Hcnneberry, 
44  Wis.  306. 

73.  Lammers  v.  While  S.  M.  Co.. 
23  Mo.  App.  471.  Compare  Dickson 
V.  Bamberger,  107  Ala.  293,  18  So. 
290,  wherein  the  courl  holds  that  it 
is  for  the  court  alone  lo  pass  upon 
the  legal  sufficiency  of  the  facts  to 
constitute  ratification. 


AMBIGUITY. 

By  Clark  Ross  Mahan. 

I.  UNAMBIGUOUS  WRITING,  826 
II,  PATENT  AMBIGUITY,  827 

1.  Genera!  Rule  Stated,  827 

2.  Inquiry  Into  Snrronnding  Ciretinislances,  829 

A.  General  Rule,  829 

B.  Illustrations  of  Rule  Applied  to  Particular  Instru- 

ments, 832 

a.  Contracts  Generally,  832 

b.  Contracts  of  Guaranty,  833 

c.  Contracts  of  Conveyance  and  Sale,  834 

d.  Coni'cxances,  S35 

e.  Wills,' ^2,6 

C.  Nature  and  Extent  of  Inquiry,  837 

a.  Previous  Negotiations,  837 

b.  Declarations  of  Parties,  838 

(i.)   Generally,  838 

(2.)   Parties  to   Conveyances,  838 

c.  Practical  Construction,  839 

( I.)   In  General,  839 

(2.)    Under  Conveyances,  840 

d.  Meaning  in  Trade  or  Art,  840 

e.  Usage  of  the  Business,  843 

III.  LATENT  AMBIGUITY,  844 

1.  In  General,  844 

2.  Illustrations  of  Rule  Applied  to  Particular  Instruments, 

846 

A.  Contracts  Generally,  846 

B.  Contracts  of  Guaranty,  847 

C.  Chattel  Mortgages,  847 

D.  Contracts  for  Sale  of  Land.  847 

E.  Conveyances,  847 

a.  Description  of  Premises,  847 

(i.)   In   General,  847 

(2.)    Tz^'o     Descriptions     Applying     to 

Same  Subject  Matter,  849 
(3.)   Description  Applicable  to  T'cvo  or 

More  Objects,  849 

b.  Description  of  Party,  850 

(i.)   In  General,  850 

(2.)   Duplicate  Grantees,  850 

Vol.  I 


826 


AMBIGUITY. 


F.  Leases.  850 

G.  Coiivcxaiices  b\  Public  Officers,  8^1 
H.  J'r'/7/^-,"85i 

a.  Description  of  Subject  Matter,  851 

b.  Description   of  Dcz'isee  or  Legatee,  853 
3.  Creating  Ambiguity  by  Parol,  855 

IV.  INTERMEDIATE  OR  MIXED  AMBIGUITY,  855 

V.   QUESTIONS  OF  LAW  AND  FACT.  853 

I.  UNAMBIGUOUS  WRITING. 

Where  a  writing  is  entirely  free  from  any  ambiguity  whatsoever, 
extrinsic  evidence  is  not  admissible  to  aid  or  explain  any  of  its 
terms. ^ 

No  Matter  How  Difficult  it  Is  to  Interpret  an  Instrument,  if  the  court 
does  finally  mterpret  it,  there  is  no  ambiguity  about  it  which  will 
warrant  the  introduction  of  parol  testimony. - 


1.  United  States.  —  Holmes  r. 
Montauk  Steamboat  Co.,  93  Fed. 
731 ;  Kemble  i'.  Lull,  3  McLean  272, 
14  Fed.  Cas.  No.  7683. 

Connecticut.  —  Adams  z\  Turner 
(Conn.),   46  Atl.   247. 

Georgia.  —  Harrison  i'.  Tate,  100 
Ga._  383.  28  S.  E.  227. 

Kansas.  —  Cross  v.  Thompson,  50 
Kan.  627,  ^2  Pac.  357. 

Kentucky.  —  Franklin  F.  Ins.  Co. 
z:  Hellerick.  20  Kv.  Law  1703,  4g  S. 
W.   1066. 

.Maryland.  —  Neal  z\  Hopkins,  87 
Md.    19,   39  Atl.   322. 

Massachusetts.  —  Revere  v.  Leon- 
ard, I  Mass.  91  ;  Stowell  Z'.  Buswcll. 
135  Mass.  340. 

Michigan.  —  Brown  z\  Schiap- 
pacasse,  115  Mich.  47,  72  N.  W.  1096. 

Missouri.  —  Schickle  Z'.  Chouteau 
H.  &  V.  Iron  Co.,  84  Mo.   161. 

Nebraska.  —  Drexel  v.  Murphy,  sg 
Neb.  210,  80  N.  W.  813. 

Nezu  York.  —  De  Remer  z'.  Brown 
(N.  Y.),  59  N.  E.  129. 

North  Carolina.  —  Chard  z\  War- 
ren, 122  N.  C.  75,  29  S.  E.  373. 

Texas.  —  Jones  z:  Hanna  (Tex. 
Civ.  App.),  60  S.  W.  279. 

Vermont.  —  Herrick  z:  Noble.  27 
Vt.  I. 

IVest  Virginia.  —  Camden  v.  Mc- 
Coy, 48  W.  Va,  377,  37  S.  E.  637. 

Vol.  I 


ll'isconsin.  —  Hooker  z:  Hyde,  61 
Wis.  204,  21  N.  W.  52. 

Illustrations.  —  An  insurance  pol- 
icy excepted  some  "  oil  in  the  tanks." 
It  was  attempted  to  be  proved  the 
tanks  referred  to  were  those  insured 
in  a  separate  policy ;  but  the  court 
held  that  as  the  meaning  of  the 
words  was  clear  and  unambiguous, 
such  parol  testimony  must  be  ex- 
cluded. Weisenberger  z:  Harmony 
Ins.  Co.,  56  Pa.  St.  442.  Where  a 
lease  purported  to  be  made  for  a 
"  term  of  si.x  months,  from  the  6th 
day  of  December.  1881,  which  term 
shall  end  on  the  6th  day  of  May, 
1882,"  the  court  held  that  there  was 
no  ambiguity  which  would  warrant 
the  admission  of  parol  testimony, 
but  a  mere  inaccuracy  in  stating  the 
termination  of  the  lease,  which  must 
yield  to  the  term  granted  under  it. 
Nindle  z\   State  Bank.   13   Neb.  245. 

2.  San  Diego  Flume  Co.  v. 
Chase   (Cal.),  32  Pac.  245. 

"  The  Language  May  Be  Inaccu- 
rate, but  if  the  court  can  determine 
the  meaning  of  this  inaccurate  lan- 
guage, without  any  other  guide  than 
a  knowledge  of  the  simpje  facts  upon 
which,  from  the  nature  of  language 
in  general,  its  meaning  depends,  the 
language,  although  inaccurate,  can- 
not be  ambiguous."  Riggs  v.  Myers, 
20   Mo.  239. 


AMBIGUITY. 


827 


II.  PATENT  AMBIGUITY. 

1.  General  Rule  Stated.  —  The  rule  in  respect  of  the  admissibility 
of  extrinsic  evidence  to  explain  an  ambiguity  apparent  on  the  face 
of  an  instrument  of  writing  is  generally  stated  as  excluding  such 
evidence,-'   unless    it   is   otherwise   expressly   provided   by   statute;* 


3.     Statement     of     Rule — "  The 

general  rule  seems  lu  be,  that  for  an 
apparent  ambiguity,  or  uncertainty 
upon  the  face  of  the  instrument,  no 
proof  can  be  admiued,  if  it  be  per- 
fectly consistent  in  itself;  but  if 
there  is  difficulty  in  applying  its 
terms  to  the  suliject-matter.  with 
reference  to  which  those  terms  or 
stipulations  were  made,  then  parol 
evidence  is  admitted.  The  reason 
of  the  rule  is  perfectly  clear;  the 
object  of  the  law  is  to  carry  into 
effect  the  intention  of  the  parties,  as 
expressed  through  the  medium  of 
language,  which  they  have,  more  or 
less,  solemnly  and  deliberately  com- 
mitted to  writing.  Now,  let  it  be 
supposed  that  this  apparent  am- 
biguity, inherent  in  the  words  them- 
selves, is  perfectly  inconsistent  and 
unintelHgiblo.  and  is,  moreover,  in- 
capable of  being  explained  and  made 
intelligible  by  any  one  of  the  rules 
of  interpretation  known  to  the  law, 
the  effect  of  admitting  vague  and 
imcertain  testimony  of  the  intention 
of  the  parties,  would  be  to  substitute 
a  contract,  or  create  terms  or  stip- 
ulations, in  reference  to  the  subject- 
matter  of  the  instrument,  entirely 
independent  of  the  particular  ex- 
pressions which  the  party  or  parties 
thought  fit  to  use.  Suppose,  again, 
that  the  words  arc  intelligible,  but 
capable,  upon  their  face,  of  two 
constructions,  and  parol  testimony  is 
admitted  to  settle  which  meaning 
shall  be  taketi,  is  it  not  clear  that  it 
is  the  testimony  admitted  which 
produces  the  effect,  and  not  the  lan- 
guage of  the  instrument  ?  There  is 
one  instance  where  such  testimony 
is  admitted,  sometitnes  mentioned  as 
an  exception,  but  which,  in  fact,  is 
not.  Where  expressions  or  technical 
terms  are  used  in  the  instrument, 
unintelligible  to  the  common  reader, 
yet  susceptible  of  a  definite  inter- 
pretation by  experts,  then  explanation 
is     admitted     for     the    purpose     of 


effectuating  the  intention  of  tlie  party 
through  the  medium  of  his  own  lan- 
guage. Atty.-Gen.  v.  Clapham,  31 
E.  L.  &  E.  R.  164;  I  Greenl.  Ev., 
298-99 ;  2  Stark.  Ev..  756."  Brauns 
V.   Stearns,   i   Or.  368. 

"  If  Such  a  Defect  Can  Be  Sup- 
plied by  Parol  Proof,"  said  the 
court  in  Dingman  zk  Kelly,  7  Ind. 
717,  "the  statute  of  frauds  is  of  no 
avail.  The  proof  would  more  than 
alter  or  vary  the  terms  of  a  deed ; 
it  would  make  one,  which,  indepen- 
dent of  such  proof,  could  have  no 
operation    whatever." 

4.  In  Georgia,  the  code  expressly 
provides  that  parol  evidence  is  ad- 
missible to  explain  a  patent  am- 
biguity. Hill  V.  Felton,  47  Ga.  455, 
15  Am.  Rep.  643;  Bell  v.  Boyd,  53 
Ga.  643;  Barrett  v.  Powell,  63  Ga. 
552;  Ferrell  v.  Hurst,  68  Ga.  132; 
Burgd  V.  Hamilton,  72  Ga.  568;  Jen- 
nings V.  Athens  Bank,  74  Ga.  782; 
Turner  v.  Berry,  74  Ga.  481  ;  Savan- 
nah R.  Co.  V.  Collins,  77  Ga.  376; 
Mohr  V.  Dillon,  80  Ga.  572,  5  S.  E. 
770;  Johnston  v.  Patterson,  86  Ga. 
725,  13  S.  E.  17;  American  Ex. 
Bank  t'.  Ga.  Con.  Co.,  87  Ga.  651, 
13  S.  E.  505;  Atlanta  v.  Schmeltzer, 
83  Ga.  609.  10  S.  E.  543 ;  Brown  v. 
Doane,  86  Ga.  22.  12  S.  E.  I79.  n 
L.  R.  A.  381  ;  Wheelwright  v.  Aiken, 
92  Ga.  394,  17  S.  E.  610;  Shore  v. 
Miller  (Ga.),  4  S.  E.  561;  Neal  v. 
Reams,  88  Ga.  298.  14  S.  E.  617; 
Cent.  R.  Co.  v.  Ga.  Exchange,  91  Ga. 
389.  17  S.  E.  904;  Penn  Tobacco 
V.  Lehman.  109  Ga.  428,  34  S.  E. 
679;  Follendore  v.  Follendore  (Ga.), 
35  S.  E.  676;  Trumlin  v.  Perry  (Ga.), 
34  S.  E.   171. 

By  the  Georgia  code,  "  where  the 
rules  of  construction,  as  understood 
before  the  passage  of  the  code,  failed 
to  enlighten  the  court  as  to  the 
meaning  of  the  instrument,"  parol 
evidence  was  admissilile.  "  whether 
the  ambiguity  was  patent  or  latent." 
Hill  V.  Felton,  47  Ga.  455.  15  Am. 
Rep.  643. 

Vol.  I 


828 


AMBIGUITY 


and  the  rule  as  thus  stated  is  appHed  to  all  classes  of  instruments 
in  which  it  is  sought  to  explain  by  parol  such  an  ambiguit)',  without 
regard  to  their  character,  whether  under  seal  or  not,  whether  vol- 
untary or  growing  out  of  proceedings  in  invituni,  or  whether  within 
the  statute  of  frauds  or  not,  and  the  like."^ 


5.  England.  —  HoUier  v.  Eyre,  9 
CI.  &.  P".  I  ;  Cheyneys  v.  Case,  5 
Coke  68;  Saiinderson  v.  Piper,  5 
Bing.  (N.  C.)  41S,  35  Eng.  C.  L. 
162  J  Smith  v.  Oeffnyes,  15  Al.  &  W. 
561. 

Canada.  —  Clark  z>.  Boiinycastle,  3 
U.  C.  Q.  B.  (O.  S.)  528. 

United  States.  —  Keniiel  v.  Wil- 
son, 4  Wash.  C.  C.  308,  2  Fed.  Cas. 
No.  7685. 

Alabama.  —  Dane  v.  Glennon,  72 
Ala.  160;  Ravisies  v.  Stoddart,  32 
Ala.  599. 

Arkansas.  —  Fuller  t'.  Fellows,  30 
Ark.  657 ;  Tatuni  v.  Croom,  60  Ark. 
487,  30  S.  W.  885. 

California.  —  Mesick  v.  Sunder- 
land, 6  Cal.  297 ;  Brandon  v.  Leddy, 
67  Cal.  43,  7  Pac.  33 ;  In  re  Young's 
Estate,  123  Cal.  337,  55  Pac.  ion. 

Illinois.  —  Griffith  v.  Furry,  30  111. 
251,  83  Am.  Dec.  186;  Pantoti  v. 
Tefft,  22  111.  367;  Hamilton  v.  Har- 
vey, 121  111.  469,  13  N.  E.  210,  2 
Am.  St.  Rep.  118. 

Indiana.  —  Grimes  v.  Harmon,  35 
Ind.   198,  9  Am.  Rep.  690. 

Louisiana.- — Mithoff  v.  Byrne,  20 
La.  Ann.  363. 

Maryland.  —  Clark  v.  Lancaster, 
36  Md.  196,  II  Am.  Rep.  486;  Cas- 
telman  v.  Duval,  89  Md.  657,  43  Atl. 
821;  Newcomer  7'.  Kline,  11  Gill  & 
J.  457,  37  Am.  Dec.  74. 

Massachusetts.  —  Stoner  r.  Free- 
man, 6  Mass.  435. 

Minnesota.  —  McNair  t'.  Toler,  5 
Minn.    435. 

Mississippi.  —  Silden  v.  Coffee,  55 
Miss.  41. 

Missouri.  —  Campbell  v.  Johnson, 
44  Mo.  247;  Carter  z'.  Holman,  60 
Mo.  498. 

Nezv  Hampshire.  —  Brown  v. 
Brown,  43  N.  H.  17. 

New  Jersey.  —  Carr  v.  Passaic 
Land,  Imp.  &  BIdg.  Co.,  22  N.  J. 
Eq.   85. 

North  Carolina.  —  Holman  v. 
Whitacre,  119  N.  C.  113,  25  S.  E. 
793. 

Vol.  I 


Oregon.  —  Noyes  v.  Stauff,  5  Or. 
455- 

Pennsylvania.  —  Wriglit  f.  Weak- 
ley, 2  Watts  89. 

Tennessee.  —  Barnes  v.  Sellars,  2 
Sneed   33. 

Wisconsin.  —  Cole  v.  Clark,  3 
Finn.  303. 

Omitting  Dollar  Mark  at  Top  of 
Column The  omission  in  an  as- 
sessment roll  at  the  Iiead  of  a  column 
intended  for  valuation  of  the  prop- 
erty assessed,  of  anything  lo  indi- 
cate what  the  figures  in  the  column 
were  intended  to  represent,  is  an 
incurable  patent  ambiguity  not  ex- 
plainable by  extrinsic  evidence. 
People  V.  San  Francisco  Sav.  Union, 
31  Cal.  132.  Compare  San  Luis 
Obispo  Co.  V.  White,  91  Cal.  432, 
24    Pac.   864. 

Chattel  Mortgagor  Not  Named  As 
Owner.  —  In  Kelly  r.  Reid,  57  Miss. 
89,  a  mortgage  of  a  certain  number 
of  animals  did  not  designate  the 
mortgagor  as  their  owner,  nor  lo- 
cate them  other  than  in  a  certain 
county  and  state,  and  evidence  was 
excluded  to  show  that  the  mort- 
gagor owned  the  animals  and  no 
others.  Compare  Spivey  7\  Grant,  96 
N.  C.  214,  2  S.  E.  45,  disapproving 
this  ruling.  See  also  Barker  v. 
Wheelip,  5  Humph.  (Tenn.)  329,  42 
Am.   Dec.  432. 

Failure  to  Specify  Securities  In- 
tended.—  A  nK'inorandum  of  con- 
tract for  the  sale  of  real  estate 
provided  for  the  delivery  of  the  deed 
upon  receipt  of  the  cash  payments, 
and  "  the  securities  for  the  deferred 
payments,"  without  specifying  the 
kind  or  character  of  the  securities. 
Held,  that  the  contract  was  bad  for 
uncertainty  as  to  its  terms  in  this 
particular.  George  7:  Conhaim,  38 
Minn.  338,  37  N.  W.  791. 

A  Description  of  Property,  as 
situate,  lying  and  being  in  the  city 
of  Sacramento  and  State  of  Cali- 
fornia, and  "consisting  of  two  thou- 
sand two  hundred  town  lots,  be  the 
same    more   or   less,    said    lots   being 


AMBIGUITY. 


H2'i 


2.  Inquiry  Into  Surrounding  Circumstances.  —  A.  General 
Rule.  —  The  rule  as  just  stated,  however,  has  been  characterized 
as  being  too  broadly  stated,  for  the  reason,  it  is  said,  that  fre- 
quently in  respect  of  tlic  particular  case  before  the  court,  the  rule, 
however  broadly  stated,  was  correct  in  its  application,"  because  the 
ambiguity  in  question  was  so  radical  in  its  nature  as  to  be  beyond 
the  reach  of  explanation  by  any  extraneous  evidence ;'  that  it  is  not 
true  that  every  ambiguity  appearing  upon  the  face  of  an  instrument 
of  writing,  if  that  alone  be  looked  to,  can  not  be  explained  by 
extraneous  evidence,"  but  that  it  is  a  generally  recognized  rule  that 


bounded  according  to  the  original 
plat  or  plan  of  said  city."  is  an  il- 
lustration of  a  patent  ambiguity 
which  cannot  be  cured  by  parol  evi- 
dence. Mesick  v.  Sunderland.  6  Cal. 
297. 

The  Beed  of  a  Tax  Collector 
who  sells  in  i)iviltiiii,  by  virtue  of 
power  conferred  by  law,  must  in 
itself  be  sufficient  to  convey  the  thing 
sold.  The  deed  cannot  be  reformed 
so  as  to  help  out  a  defective  descrip- 
tion. There  is  no  "  aggrcgatio 
inciitiiini  "  which  the  instrument  has 
mistaken.  Bowers  z'.  Andrews,  52 
Miss.  596. 

Failure  of  Will  to  Describe  Prop- 
erty To  Be  Sold.  —  A  testator 
requested  his  e.xecutors  "  to  sell  and 
dispose  of  the  following-described 
land  "  but  left  out  the  description. 
Held,  that  evidence  that  he  owned  a 
parcel  of  land  not  specifically  dis- 
posed of  was  not  admissible  for  the 
purpose  of  supplying  the  missing 
description.  Crooks  v.  Whitford,  11 
Mich.  159. 

Antecedent      and      Relative In 

Lord  Cheney's  Case.  5  Coke  68a,  the 
Lord  Warden  of  the  Cinque  Ports 
devised  to  his  son  in  tail,  remainder 
to  C  in  tail  male,  on  condition  "  that 
he.  or  they,  or  any  of  them,  shall 
not  alien;"  and  evidence  was  held 
inadmissible  to  show  that  the  tes- 
tator meant  the  conditioning  clause 
to  include  his   son,   and  not   C  only. 

6.  Schlottman  v.  Hoffman,  73 
Miss.  188,  18  So.  893,  55  Am.  St. 
Rep.  527 ;  Ladnier  j'.  Ladnier,  75 
Miss.  777.  25   Sn.  430. 

7.  Mississifipi. — Holmes  i'.  Evans. 
48   Miss.  247,   12  .\m.  Rep.  372. 

Missouri.  —  Donnell  Newspaper 
Co.  V.  Jung.  81    Mo.  App.  577. 

Xczf  York.  —  LTnited  Press  v.  New 
York    Press   Co.,    164   N.   Y.  406,   58 


N.    E.    527 ;    Burnett   z\    Wright,    44 
N.  Y.  St.  14.  17  N.  Y.  Supp.  309. 

Tcvas.  —  Curdy  v.  Stafford  (Tex, 
Civ.  .\pp.),  27  S,  W.  823;  McKinzic 
7'.  Stafford,  8  Tex,  Civ,  .^pp.  121,  27 
S.  W.  790;  Pfeiffer  v.  Lindsay,  66 
Tex.   123,   I    S,  W,  264. 

Vermont.  —  Pingry  v.  Watkins,  17 
\'t,   379. 

IVisconsin.  —  Campbell  r.  Pack- 
ard, 61  Wis.  88,  20  N.  W,  672:  In  re 
Willey's  Estate  (Wis.),  80  N.  W. 
102. 

An  Inherently  Insufficient  Descrip- 
tion in  a  Sale  on  Execution,  cannot 
1)0  helped  out  by  evidence  of  facts 
tending  to  show  what  property  the 
officer  probably  intended  to  sell. 
Herrick  v.  Morrill,  37  Minn.  250,  33 
N.    W.  849. 

8.     Schlottman     v.     Hoffman,     73 
Miss.    188,    18    So.   893, 
Lord  Bacon's  Definition   Criticized 

As    Too     General In     Peacher    v. 

Strauss,  47  Miss,  353,  the  court  said : 
"  According  to  Lord  Bacon,  the 
learned  author  of  these  rules,  patent 
ambiguities  are  '  never  holpen  by 
averment ;  '  but  Kent  says,  that  rule 
is  too  general;  vol.  2,  p.  747;  and  is 
not  of  universal  application.  Broom's 
.Max,  472;  21  Wend,  651;  23  ib.  71; 
I  Mason  11;  i  Tex,  377;  3  Binn. 
587;  4  ib.  482;  3  Stark,  Ev,  1021. 
.\nd  subsequent  authorities  have  left 
few  cases  subject  to  its  operation, 
mainly  those  so  uncertain  as  to  be 
incapable  of  execution  or  enforce- 
ment. 2  Pars,  on  Cont.  557,  note  e. 
Indeed,  these  rules  of  Lord  Bacon 
are  less  regarded  of  late  than  they 
were  formerly,  Ib.  and  cases.  A 
simpler  rule,  perhaps,  in  most  cases, 
is  this,  that  evidence  may  explain 
but  cannot  contradict  written  lan- 
guage.    Ib.   563" 

"  The    Current    of    the    Decisions 

Vol.  I 


830 


AMBIGUITY. 


the  court  may  hear  evidence  of  the  facts  and  circumstances  sur- 
rounding the  making  of  the  instrument,  its  subject  matter,  and  all 
proper  collateral  facts;"  but  that  if  the  written  language  used  is, 


Evidently  Is,  if  not  to  disregard 
altogether  Lord  Bacon's  ride  as  to 
patent  ambiguities,  to  enlarge  the  ex- 
ceptions to  it  as  far  as  that  can  be 
done  without  violating  the  rule  that 
parol  evidence  is  not  to  reform  or 
engraft  a  new  contract  on  the  old, 
but  only  to  explain  the  intentions 
of  the  parties."  Roberts  i'.  Short, 
I    Tex.   373. 

In  Ely  f.  Adams,  19  Johns.  (N. 
Y.)  313,  Spencer.  Ch.  Justice,  says: 
"  Where  a  question  arises  on  the 
general  intention  of  the  parties,  con- 
cerning which,  the  instrument  is  not 
decisive,  proof  of  independent  facts, 
collateral  to  the  instrument,  may  be 
properly  admitted  ;  and  accordingly  in 
that  case,  evidence  was  received,  of  a 
conversation  between  the  parties,  at 
the  time  of  making  the  writing,  and 
of  other  collateral  and  extraneous 
facts,  in  order  to  show,  what  kind, 
or  degree  of  '  indulgence  '  ( that  being 
a  word  of  equivocal  import)  was  in- 
tended by  the  Darties.  And  see 
Peak's  Ev.  116;  Phil.  Ev.  343,  344; 
The  King  v.  The  Inhabitants,  etc., 
8  T.  R.  379;  Doe  v.  Burt,  i  T.  R. 
701  ;  Cole  V.  Wendall.  8  Johns.  R. 
116;  The  ^Mechanics'  Bank  v.  The 
Bank  of  Columbia,  5  Wheat.  326;  and 
The  Union  Bank  v.  Hyde,  6  Wheat. 
572,  all  of  which,  seem  to  show, 
that  the  admissibility  of  parol  evi- 
dence is  not  restricted  to  cases  in 
which  the  uncertainty  is  strictly  and 
exclusively  such  as  is  properly 
termed,  ambiguitas  latens."  See  also 
Bell  Admrs.  v.  Martin,  18  N.  J.  Law 
167. 

Three      Rules      Deducible      From 

Authorities "From  the  authorities 

we  have  been  able  to  examine  three 
rules  which  may  be  taken  to  be  cor- 
rect :  First.  Where  the  instrument 
itself  seems  to  be  clear  and  certain 
on  its  face,  and  the  ambiguity  arises 
from  some  extrinsic  or  collateral 
matter,  the  ambiguity  may  be  helped 
by  parol  evidence.  Second.  Where 
the  ambiguity  consists  in  the  use  of 
equivocal  words  designating  the  per- 
son or  subject-matter,  parol  evi- 
dence of  collateral  or  extrinsic  mat- 
ters may  be  introduced  for  the  pur- 

Vol.  I 


pose  of  aiding  the  court  in  arriving 
at  the  meaning  of  the  language  used. 
Third.  Where  the  ambiguity  is  such 
that  a  perusal  of  the  instrument 
shows  plainly  that  something  more 
must  be  added  before  the  reader  can 
determine  what  of  several  things  is 
meant,  the  rule  is  inflexible  that 
parol  evidence  cannot  be  admitted 
to  supply  the  deficiency.  .A.bout  this 
last  named  class  of  cases  there  can- 
not, under  the  authorities,  be  any 
question.  They  belong  to  the  am- 
biguitas patens  of  Lord  Bacon." 
Palmer  v.  Albee,  50  Iowa  429.  See 
also  Holmes  v.  Simon,  71  Miss.  245, 
15  So.  70. 

The  Distinction  Between  Patent 
and  Latent  Ambiguities  is  now 
regarded  as  intended  to  enable  the 
court  to  distinguish  between  cases 
curable  and  those  of  incurable  un- 
certainty; to  carry  the  aid  of  evi- 
dence as  far  as  it  can  go,  without 
making  for  the  parties  what  they  did 
not  make  for  themselves.  Brannan 
v.   Mesick,   10  Cal.  95. 

■'  When  the  person  or  thing  is 
designated  on  the  face  of  the  in- 
strument by  terms  imperfectly  under- 
stood and  equivocal,  admitting  either 
of  no  meaning  at  all  by  themselves, 
or  of  a  variety  of  different  meanings, 
referring  tacitly  or  expressly  for  the 
ascertainment  and  completion  of  the 
meaning  to  extrinsic  circumstances, 
it  has  never  been  considered  an  ob- 
jection to  the  evidence  of  those  cir- 
cumstances, that  the  ambiguity  was 
patent,  manifested  on  the  face  of  the 
instrument."  Plumer  M.  R.  in  Col- 
poys  I'.  Colpoys,  Jacobs  451.  In  a 
covenant  to  "  permit  the  use  of 
water  from  my  dam."  notwithstand- 
ing ;he  uncertainty  as  to  whicli  dam 
was  meant,  was  patent  upon  the  in- 
strument, parol  evidence  was  held 
cdmissible  to  clear  up  the  uncer- 
tainty. Fish  i\  Hubbard's  Adm'rs, 
21   Wend.    (N.   Y.)   651. 

9.  England.  —  Charter  v.  Charter, 
L.  R.  7   H.  L.  364- 

Canada.  —  Harris  :•.  Moore,  lO 
Out.   App.    ID. 

United  States.  —  West  v.  Smith, 
loi    U.   S.  263;   Drovers'  Nat.   Bank 


AMBIGUITY. 


831 


when  viewed  by  the  court  in  the  hght  of  such  suiTOunding-  facts 
and  circumstances,  still  ambiguous  and  incapable  of  interpretation, 
it  is  then  a  case  of  a  hopeless,  incurable  ambiguity. '" 


V.  Albany  Co.  Banlc,  44  Fed.  18^: 
Standard  S.  M.  Co.  v.  Leslie,  78 
Fed.    325. 

Alabama.  —  McGhee  v.  Alexander, 
104  Ala.   116.   16  So.   148. 

Arkansas.  —  Merrill  v.  Sypert.  65 
Ark.  SI,  44   S.   W.   462. 

California.  —  Baker  v.  Clark,  128 
Cal.  181  ;  Lassing  i'.  James,  107  Cal. 
.^48;   Piper  V.  True,  36  Cal.  606. 

Cojinccticut. — In  re  Curtis  Castle 
.\rbitration,  64  Conn.  501.  30  Atl. 
769.  42  Am.   St.   Rep.  200. 

Florida.  —  Solary  v.  Webster,  35 
Fla.   363.   17   So.   646. 

Illinois.  —  Barrett  v.  Stow,  15  111. 
423;  Chambers  v.  Prewitt.  71  111. 
App.   119,  affirmed  50  N.  E.   145. 

Indiana.  —  Martindale  v.  Parsons, 
98   Ind.    174. 

Iowa.  —  Rush  V.  Carpenter.  54 
Iowa  132,  6  N.  W.  172;  McClelland 
V.  James,  2ii  Iowa  571  ;  Palmer  v. 
Albee,  50  Iowa  429. 

Kansas.  —  Citizen's  Bank  v.  Brig- 
bam  (Kan.),  60  Pac.  754. 

Kcntnet:y.  —  Henry  v.  Henry,  81 
Ky.   34^. 

Louisiana.  —  Lee  v.  Carter,  52  La. 
Ann.    1453,   27    So.   739. 

Maine.  —  Nichols  v.  Frothingham, 
45   Me.  220,  71   Am.  Dec.  539. 

Maryland.  —  Haile  Z'.  Pierce,  ;^2 
Md.   327.   3   Am.   Rep.    139. 

Massachusetts.  —  Adams  z\  Mor- 
gan, 150  Mass.  248.  22  N.  E.  708; 
Sargent  z'.  Adams,  3  Gray  72,  68  Am. 
Dec.  718. 

Mississif'f'i.  —  Schlottman  z\  Hoff- 
man, 73  Aliss.  188,  18  So.  893;  Heirn 
V.  JNIcCoughan,  32  Aliss.  17,  66  Am. 
Dec.  588. 

Missouri.  —  Ellis  v.  Harrison,  104 
Mo.  270,   16  S.  W.   198. 

New  York.  —  Thomas  z'.  Scott, 
127  N.  Y.  I33v  27  N.  E.  961  ;  Garvin 
Mach.  Co.  V.  Hammond  Tpyewriter 
Co.,  42  N.  Y.  Supp.  564 ;  French  z\ 
Carhart,  i  N.  Y.  96;  Hunneman  v. 
Kosenback,  39  N.  Y.  98 ;  Agawam 
Bank  z'.  Strever,  18  N.  Y.  502;  Pet- 
rie  z'.  Hamilton  College,  158  N.  Y. 
458,  53  N.  E.  216. 

Ohio.  —  Worman  i'.  Teagarden,  2 
Ohio  St.  380. 

Pennsylzania.  —  Berridge    i'.    Glas- 


sey,  112  Pa.  St.  442,  3  All.  583,  56 
Am.  Rep.  332. 

Rhode  Island.  —  Kinney  z:  Flvnn, 
2   R.   I.   319. 

South  Carolina.  —  Craig  z'.  Pervis, 
14  Rich.  Eq.   150. 

South  Dakota.  —  Blodd  "■.  Fargo 
&  S.  Elev.  Co.,  I  S.  D.  71,  45  N.  W. 
200. 

Tennessee.  —  Nashville  L.  Ins.  Co. 
z:  Mathews,  8  Lea  499. 

Te.ras.  —  VVatrous  v.  McKie,  54 
Tex.  65 ;  Gardner  v.  Watson.  76  Te.\. 
25,   13   S.   W.  39- 

Vermont.  —  Lowry  v.  Adams,  8 
Vt.  157;  Kinney  z\  Hooker,  65  Vt. 
^^3,  26  Atl.  690.  36  Am.  St.  Rep. 
864.^ 

Virginia.  —  Richardson  z'.  Planters 
Bank,  94  Va.  130,  26  S.  E.  413. 

West  Virginia.  —  Camden  v.  Mc- 
Coy, 48  W.  Va.  377.  i7  S.  E.  637. 

Wisconsin'.  —  Lyman  "'.  Babcock, 
40  Wis.  503;  Bancroft  v.  Grover,  23 
Wis.  463,  99  Am.  Dec.  195. 

U  yoming.  —  Frank  v.  Hicks.  4 
Wyo.  502,  35  Pac.   1025. 

Acts  As  Part  of  the  Res  Gestae, 
lu  Kingsford  v.  Hood,  105  Mass. 
495,  on  the  trial  of  a  writ  of  entry, 
it  was  shown  that  demandant's 
father  paid  the  consideration  for  and 
received  a  deed  of  the  preinises 
while  his  son  (of  the  same  name) 
was  a  year  old,  and  that  the  father 
became  insane  two  years  afterwards. 
Demandant  claimed  to  be  the 
grantee,  and  that  his  father  took  the 
conveyance  as  a  provision  for  him. 
It  was  held  admissible  to  show 
further  that  the  father  mortgaged 
the  premises,  and  that  the  same 
were  sold  under  foreclosure,  on  the 
ground  that  any  acts  or  declarations 
of  his  which  formed  part  of  and 
gave  character  to  his  occupation 
were  competent  evidence  as  part  of 
tlie  res  gestae:  but  declarations  of 
the  grantor  to  the  scrivener  to  the 
effect  that  it  was  to  be  a  deed  to 
the  infant  son  were  excluded.  See 
also  Simpson  z\  Dix,   131   Mas--.   179. 

10.  Language  Viewed  in  Light 
of  Circumstances When  the  lan- 
guage is  of  such  a  character  as  to 
show  that  the  parlies  had  a  fixed  and 

Vol.  I 


832 


AMBIGUITY. 


Purpose  of  the  Inquiry.  —  Extraneous  circumstances  are  not  re- 
sorted to  for  the  purpose  of  controlling  the  writing  and  engrafting 
a  new  one  on  such  proof,  but  for  the  purpose  only  of  explaining 
and  understanding  truly  the  meaning  of  the  parties  who  had  used 
such  words  of  doubtful  signification." 

A  Statute  Forbidding  the  Reception  of  Evidence  to  Vary  a  Writing 
does  not  operate  to  exclude  evidence  of  the  circumstances  under 
which  a  written  instrument  was  made,  or  to  which  it  relates. '- 

B.  Illustrations  of  Rule  Applied  to  Particular  Instru- 
MEXTS.  —  a.  Contracts  Generally.  —  In  respect  to  the  explanation 
of  the  terms  employed  in  contracts  generally,  the  rule  admitting  the 
surrounding  circumstances  is  invoked.'^     So  also,  such  evidence  is 


definite  meaning  which  they  intended 
to  express,  and  used  language 
adequate  to  convey  that  idea  to  per- 
sons possessed  of  all  the  facts  which 
they  had  in  view  at  the  time  they 
used  the  language,  it  then  hecomes 
the  duty  of  the  court  to  learn  those 
facts,  if  need  be,  by  parol  proof,  and 
thus  as  far  as  possible  by  occupying 
the  place  of  the  parties  employing 
the  expressions,  ascertain  the  sense 
in  which  they  were  intended  to  be 
used.  But  if  the  language  itself 
shows  that  the  parties  using  it  had 
no  fixed  and  definite  idea,  which 
they  intended  to  convey,  then  bring- 
ing the  language  in  contact  with  no 
state  of  extraneous  facts  could 
enable  the  words  themselves  to 
convey  a  clear  and  definite  idea,  be- 
cause, after  all,  it  must  be  the  lan- 
guage used  in  view  of  the  circum- 
stances, that  conveys  the  meaning 
of  the  parties."  Doyle  t.  Teas,  4 
Scam.    (111.)   202. 

11.  Roberts  v.  Short,  i  Tex.  373. 
And  see  cases  cited  in  the  preceding 
notes  of  this  section. 

The  Principal  Upon  Which  Evi- 
dence of  Surrounding  Circum- 
stances Is  Admissible  in  the  exposi- 
tion of  written  cnniracts  is  that  the 
court  may  be  placed,  as  near  as 
possible,  in  the  situation  of  the  par- 
ties whose  language  is  to  be  inter- 
preted. Rut  such  evidence  is  not 
admissible  to  prove  an  unexpressed 
intention  of  the  parties,  or  their 
prior  negotiations,  which  must  be 
deemed  to  be  merged  in  the  written 
instrument.  Its  use  is  limited  simply 
to  develop  and  throw  light  upon  the 
real  meaning  of  that  which  is  writ- 
ten, in  case  of  ambiguity  arising 
from    tlie    face    of    the    instrument. 

Vol.  I 


King  V.  Merriman,  38  Minn.  47,  35 
N.   W.   570. 
Intent   of  Parties  the  End  Desired. 

If  an  instrument  of  writing  is 
obscure,  the  ascertainment  of  the 
intent  of  the  parties  to  it  should  be 
the  end  sought,  and,  if  that  end 
can  be  accomplished  by  evidence 
aliunde,  it  should  be  admitted.  Cox 
V.  Rust  (Tex.  Civ.  App.),  29  S.  W. 
807. 

Where  the  alleged  acceptance  of 
an  order  is  ambiguous  on  its  face, 
and  can  be  explained  so  as  to  ascer- 
tain the  true  intention  of  the  parties 
by  parol  testimony,  it  is  properly  ad- 
missible for  that  purpose,  (jallagher 
V.  Black,  2  Me.  99. 

12.  Bogk  V.  Gassert,  149  U.  S.  17, 
13   Sup.   Ct.  738,  37  L.   ed.  631. 

13.  England.  —  Bruflf  v.  Cony- 
beare,  13  J.  Scott  (N.  S.)  263,  106 
Eng.  C.  L.  261  ;  Osborn  v.  Wise, 
32  Eng.   C.  L.  859. 

United  States.  — Chy  v.  Field,  138 
U.  S.  464,  II  Sup.  Ct.  419;  Amer- 
ican Trust  Co.  •:'.  Takashadi,  in 
Fed.   125. 

Alabama.  —  Whatley  v.  Rees 
(Ala.),  29   So.  606. 

Colorado.  —  McPhee  v.  Young.  13 
Colo.  80,  21    Pac.   1014. 

Connecticut.  —  Construction  Infor- 
mation Co.  !■.  Cass  (Conn.),  50 
Atl.    563. 

Idaho.  —  Burke  Land  &  L.  S.  Co. 
V.  Wells.  Fargo  &  Co.  (Idaho),  60 
Pac.  87. 

Illinois.  — Irmn  v.  Powell  (III), 
58    N.   E.   941- 

Indiana.  —  Thomas  v.  Traxel 
(Ind.),  59  N.   E.   48.V 

lozva.  —  Kelly  v.  Fcjervary,  in 
Iowa  693,  83  N.  W.  791 ;  Clement  v. 


AMBIGUITY. 


833 


admissible  to  appi}-  the  instrument  to  its  suhjeet  matter,'""  and  to 
identify  the  parties  thereto.'"' 

b.  Contracts  of  (iiuvtvity.  —  Again,  gnaranties,  Hke  other  con- 
tracts, must  be  construed  so  as  to  give  effect  to  the  intention  of  the 
parties,  and  if  this  be  doubtful,  because  of  an  ambiguity  therein, 
resort  may  be  had  to  evidence  of  the  situation  and  surroundings  of 
the  parties  in  order  to  solve  the  difficulty.'" 


Drybread,  io8  Iowa  701,  78  N.  W. 
235- 

Kansas. — Coates  r.  Siilau,  46  Kan. 
341,  26  Pac.  720;  Simpson  t'.  Kini- 
berlin,    12    Kan.    579. 

Kntluckv.  —  Crane  i'.  Williamson 
(Ky.),  63  "S.  W.  610. 

Maryland.  —  Morrison  z'.  Baecli- 
told,   93   Md.    319,   48  Atl.   926. 

Massachusetts.  —  Alvord  i'.  Cook, 
174  Mass.   120,  54  N.  E.  499. 

Xlichigan.  —  Preston  Nat.  Bank  z'. 
Emerson    (Mich.),  60  N.  W.  981. 

Minnesota.  —  Bell  f.  Mendenhall, 
78  Minn.  57,  80  N.  W.  843. 

.Missouri.  —  Nordyke  &  M.  Co.  7'. 
Kehlor.  155  Mo.  643,  56  S.  \V.  287, 
78  Am.    St.   Rep.  600. 

Nebraska.  —  State  v.  Cass  Co.,  60 
Neb.  566.  83  N.  W.  733- 

Nezu  Hampshire.  —  Grant  v.  Lath- 
rop,  23  N.   H.  67. 

Sc'd'  York.  —  Cole  z'.  Wcndel,  8 
Johns.  116;  ^lanchester  Paper  Co. 
V.  Moore.  104  N.  Y.  680.  10  N.  E. 
861. 

North  Carolina.  —  Richards  z\ 
Schlegelmich,  65  N.  C.  150. 

Ohio.  —  Mosier  t'.  Parrv,  60  Ohio 
St.   388,  54  N.   E.  364- 

Pennsylvania.  —  Schwab  z\  Gin- 
kinger,  181   Pa.   St.  8,  ^7  .\tl.   125. 

Tennessee.  —  Turner  v.  Jackson 
(Tenn.),   63    S.   W.    511. 

Texas.  —  Eikel  z\  Randolph 
(Te.x.),  25   S.   W.   62. 

Utah.  —  Brown  v.  Markland,  16 
Utah  360,  52  Pac.  597,  67  Am.  St. 
Rep.   629. 

I'ennoiit.  —  Young  v.  Young,  59 
Vt.    342,    ID   Atl.    528. 

Washington.  —  Pennsylvania  Mtge. 
Inv.  Co.  z\  Simms,  16  Wash.  243,  47 
Pac.  441. 

JVest  J'irginia.  —  Scraggs  r.  Hill. 
37  W.  Va.  706,  17  S.  E.  185. 

JVisconsin.  —  Boden  Z'.  Maher,  los 
Wis.  539.  81   N.  W.  661. 

JVyoming.  —  North  Platte  Co.  z\ 
Price,  4  Wye.  293,  33   Pac.  664. 


14-  Idaho.  —  Kelly  7'.  Leachman 
(Idaho),  33  Pac.  44,  34  Pac.  813. 

lozva.  —  Aleader  z'.  Allen  (Iowa), 
81    N.   W.   799. 

Kansas.  —  Bell  z'.  Rankin,  x  Kan. 
App.    209.    40    Pac.     1094. 

Maine.  —  Gillerson  v.  Small,  45 
Me.    17. 

Maryland.  —  Warfield  z:  Booth,  •!3 
Md.  63. 

Massachusetts.  —  Sweet  z\  Shum- 
way,  102  Mass.  365,  3  Am.  Rep.  471. 

Michigan.  —  Norris  z'.  Shower- 
man.   2   Doug.    16. 

Mississippi.  —  Shackelford  v. 
Hooker,  54  Miss.  716. 

Nezv  Jersey.  —  Sandford  z\  New- 
ark &  H.  R.  Co.,  37  N.  J.  Law   i. 

Pennsylvania.  —  Foster  z'.  Mc- 
Graw,  64  Pa.  St.  464. 

J'ermont.  —  New  England  Works 
z'.  Bailey,  69  Vt.  257,  37  Atl.  1043. 

JFest  J'irginia.  —  Caperton  v. 
Caperton,  36  W.   Va.  479,    15   S.   E. 

257- . 

ll'isco)isin.  —  Andrews  v.  Robert- 
son.  Ill   Wis.   334,  87   N.   W.   190. 

In  Applying  a  Lease  to  the  Land 
Described  as  located  on  designated 
streets,  it  is  competent  to  show 
where,  at  the  time  of  the  execution 
of  the  lease,  the  streets  were,  and 
what  building  there  was  on  the  cor- 
ner of  those  streets  recently  erected 
by  the  lessor.  Durr  z'.  Chase,  161 
.Mass.  40,  36  N.  E.  741. 

15.  Warfield  z'.  Curd,  =;  Dana 
(Ky.)  318;  Shackelford  z:  Hooker, 
54  Miss.  716. 

16.  Hamill  v.  Woods  (Iowa),  62 
N.  W.  735 ;  Hotchkiss  z\  Barnes.  34 
Conn.  27,  91  Am.  Dec.  713;  Gardner 
r.  Watson,  76  Tex.  25,  13  S.  W.  39; 
White's  Bank  v.  Myles,  73  N.  Y. 
335.  29  Am.  Rep.  157 ;  Michigan 
State  Bank  v.  Peck,  28  Vt.  200; 
Waldheim  z:  Miller,  97  Wis.  300, 
72  N.  W.  869;  Wills  z:  Ross,  77 
Ind.   I,  40  Am.  Rep.  279. 

Result  of  the  Circumstances. 
But    even    if    the    broadest    viow    be 


53 


Vol.  I 


834 


AMBIGUITY. 


c.  Contracts  of  Coin'cyuiicc  aiitl  Sale. — Aniljiguous  lerms  in  a 
contract  for  the  conveyance  of  real  property  may  be  sufficient  under 
the  statute  of  frauds  when  construed  according  to  the  evidence  per- 
missible under  the  rule  allowing  extrinsic  evidence  of  the  surround- 
ing facts  and  circumstances  to  aid  or  explain  such  terms."  And  so 
also  may  be  the  tcFms  of  a  contract  of  sale  or  assignment." 


adopted  in  respect  of  the  admissi- 
bilily  of  evidence  of  the  circum- 
stances surroimding  the  parties,  or 
contemplated  by  them  when  a  con- 
tract is  entered  into,  a  witness  can- 
not state  what  in  his  opinion  was  the 
resvdt  of  the  circumstances  or  that  'n 
his  opinion,  they  Hmited  or  changed 
the  language  of  the  written  con- 
tract. Swain  I'.  Granger's  Union, 
69   Cal.    186.    10    Pac.    404. 

17.  England.  —  Oliver  t'.  Hunting, 
L.  R.  44  Ch.  Div.  J04. 

Alabama.  —  O'Neal  '■.  Scixas,  85 
Ala.  80,  4  So.  74S. 

California.  —  Prehle  r.  .Abrahams, 
88  Cal.  245,  26  Pac.  99,  22  .\m.  Si. 
Rep.  30  r. 

Georgia.  —  Towner  v.  Thompson, 
82  Ga.  740,  9  S.  E.  672. 

lozca.  —  Brown  v.  Ward  dowa), 
81    N.  W.  247. 

Maryland.  —  Stockham  ■;•.  Stock- 
ham,    32    Md.    196, 

Massaclnisctts.  —  .At wood  v.  Cobl>, 
16  Pick.  227,  26  Am.  Dec.  657;  Hur- 
ley V.  Brown,  98  Mass.  545,  96  Am. 
Dec.   671. 

Minnesota.  —  Ham  r.  Johnson,  51 
Minn.   105,  52  N.  W.    1080. 

Nebraska.  —  Ballon  7'.  Sherwood, 
32  Neb.  666,  49  N.  W.  790. 

Nezi.1  York.  —  Waring  v.  Ayres,  40 
N.  Y.  357- 

Oregon.  —  Richards  z\  Snider,  1 1 
Or.    197,    3    Pac.    177. 

Pennsylvania.  —  Stamels  v.  Denis- 
ton,  193  Pa.  St.  548,  44  Atl.  575. 

Te.vas.  —  Ragsdale  v.  Mays,  65 
Te.x.   255. 

Washington.  —  Langert  i'.  Ross,  i 
Wash.   250,  24   Pac.   443. 

Contracts  Within  Statute  of 
Frauds.  —  In  Dorris  v.  King 
(Tenn.),  54  S.  W.  683,  it  was  held 
that  evidence  of  the  surrounding 
facts  and  circumstances  was  admis- 
sible for  the  purpose  of  making 
more  definite*  the  land  referred  to 
in  a  contract  for  the  sale  and  de- 
livery of  all  timber  of  a  certain  kind 
on   the   settler's   "  lands,"   not    within 

Vol.  I 


the  statute  of  frauds.  The  court 
said,  however,  that  "  The  rule  would 
be  different  where  the  contract,  un- 
der the  statute  of  frauds,  is  required 
to  be  in  writing,  or,  at  any  rate, 
would  have  less  extensive  applica- 
tion, as  in  such  cases  the  terms  of 
the  contract  must  be  found  entire 
in  the  contract  itself  as  to  stipula- 
tions and  subject-matter."  See  also 
the  case  of  Hanincr  t'.  Sharp.  11 
Heisk.  (Tenn.)  704;  Hyde  r.  Har- 
den, 3  Heisk.  (Tenn.)  515;  Mum- 
ford  t'.  Railroad  Co..  2  Lea  (Tenn.') 
398,    31    Am.    Rep.    616. 

18.  England. — McDoi<ald  t'.  I.ong- 
bottom,    102   Eng.   C.   L.  977- 

United  States.  —  Case  Mfg.  Co.  v. 
Soxinan,  138  U.  S.  431,  11  Sup.  Ct. 
360;   Nash  V.  Towne,  5  Wall.  68g. 

Indiana.  —  Cross  i'.  Pearson,  17 
hid.  612. 

lozi'a.  —  Pratt  r.  Prouty.  104  Inwa 
419,  73  N.  W.  1035,  65  .Am.  St.  Rep. 
472. 

Louisiana.  —  Campbell  T'.  Short.  35 
La.  .Ann.  447. 

.Massachusetts.  —  New  England 
Dressed  ;\L  &  W.  Co.  v.  Standard 
W.  Co.,  165  Mass.  328,  43  N.  E. 
112,  52  Am.   St.   Rep.   516. 

Mississift^i.  —  Tufts  z\  Greene- 
wald,  66  Miss.  360.  6  So.   156. 

.Missouri.  —  Edwards  v.  Smith,  O3 
Mo.   119. 

Nezv  York.  —  Emmett  v.  Penoyer, 
151  N.  Y.  564,  45  N.  E.  1041. 

Ohio.  —  Dayton  z'.  Hoaglund,  y) 
Ohio   St.  671. 

Vermont.  —  Hart  ;■.  Hammctt,  18 
■Vt.    127. 

Wisconsin.  —  Brittingham  &  H. 
I^umb.  Co.  z'.  Manson,  108  Wis.  221. 
84  N.  W.   183. 

In  an  action  on  a  contract  to  sell 
plaintiffs  all  the  cattle,  of  what- 
soever age,  on  defendant's  ranches, 
except  a  certain  number  of  steers, 
the  contract  being  silent  as  to  the 
class  or  ages  of  the  steers  reserved, 
where  defendants  refuse  to  deliver 
certain   cattle,   parol   evidence   is   ad- 


AMBIGUITY. 


8.0 


d.  Conveyances.  —  Again,  deeds  are  to  be  interpreted  according 
to  their  subject  matter,  and  such  construction  given  to  them  as 
will  carry  out  the  intention  of  the  parties,  when  it  is  legally  possible 
to  do  so  consistently  with  the  language  of  the  instrument.  If  the 
language  of  the  instrument  is  vague  and  general,  parol  evidence  is 
admissible  of  any  extrinsic  circumstances  tending  to  show  definitelv 
what  things  were  intended  by  the  parties ;  not  that  such  evidence 
enlarges  or  diminishes  the  estate  granted  or  premises  conveyed,  but 
It  identifies  the  subject  matter  on  which  the  deed  operates."     And 


missible  to  show  that  tlie  steers 
reserved  were  sold  to  a  third  person, 
were  of  a  certain  age,  not  of  the  age 
of  those  which  defendants  refuse  to 
deliver,  and  that  the  parties  under- 
stood this  when  contracting.  Buford 
V.  Lonergan.  6  Utah  301,  22  Pac. 
164. 

19.  United  States.  —  Le  Franc  v. 
Richmond,  S  Sawy.  601,  15  Fed.  Cas. 
No.  8209 ;  Cavazos  i\  Trevino,  6 
Wall.   77i. 

Arkansas.  —  Walker  v.  David 
(Ark.),  60  S.  W.  418. 

California.  —  Baker  v.  Clark.  128 
Cal.   181,  60   Pac.  677. 

Colorado.  —  Gelwicks  v.  Todd,  24 
Colo.  494.  52  Pac.  788. 

Connecticut.  —  Post  Hill  Co.  v. 
Brandegee    (Conn.),   50  .\tl.   874. 

Georgia.  —  ]\[ayor  etc.  v.  Brown, 
99  Ga.  766,  26  S.  E.  76,^  ( under  the 
Georgia  code). 

Louisiana.  —  Watson  v.  Barber 
(La.),  29  So.  949. 

Ma/».'.  —  Cilley  z:  Childs,  73  Me. 
130. 

Maryland.  —  Fryer  v.  Patrick,  42 
JMd.   5"'. 

Massachusetts.  —  Waterman  v. 
Johnson.   13   Pick.  261. 

Michigan.  —  Powers  7'.  Hibbard, 
114   Mich.    533,   72   N.    W.   339. 

Minnesota.  —  Ripon  College  v. 
Brow,  66  Minn.  179.  68  N.  W.  837. 

.Missouri.  —  Preswell  v.  Headlev, 
141    Mo.    187,   43    S.   W.   ,378. 

New  Hani/'shire.  —  Bartlett  ■:■.  La 
Roachelle,  68  N.  H.  21 1,  44  .\tl. 
302. 

New  York.  —  Enimett  v.  Peuoyer, 
151  N.  Y.  567,  45  N.  E.  1041. 

Oregon.  —  Hicklin  f.  McClear,  18 
Or.   126,  22  Pac.   1057. 

Pennsylvania.  —  Palmer  i'.  Far- 
rell,  129  Pa.  St.  162,  18  .4tl.  761.  15 
Am.    St.   Rep.   708. 

Tc.ras.  —  Clark     t'.     Regan     (Tex. 


Civ.  App. ).  45   S.  W.   169;   McHugh 
I'.   Gallagher,    i    Tex.   Civ.   App.    196, 

20  S.    W.    1 1 15;    Curdv   r.    Stafford. 
88  Tex.   120,   .30  S.   W.   551. 

Vermont.  —  Kinney  i'.  Hooker.  65 
Vt.  335,  26  Atl  690.  •^6  .\m.  St. 
Rep.  864. 

Virginia.  —  Frencli  ?•.  Williams, 
8a(  Va.  462,  4  S.  E.  591. 

Washington.  —  Sengfclder   v.    Hill, 

21  Wash.  371,  58  Pac.  250. 

West  Virginia.  —  Hansford  1'. 
Chesapeake  Coal  Co..  22  W.  Va.  70. 

Wisconsin.  —  Sydnor  v.  Palmer,  29 
Wis.  226;  Murray  Hill  etc.  Co.  v. 
Milwaukee  etc.  Co.,  1 10  Wis.  555,  86 
N.   W.    199. 

IVyoming.  —  Frank  ',■.  Hicks.  4 
Wyo.  502,  35  Pac.  1025. 

In  Chambers  i'.  Ringstafif,  69  .Ma. 
140,  a  description  of  lands  in  a  mort- 
gage, void  on  its  face  for  ain- 
biguity,  was  allowed  to  be  aided  by 
oral  evidence  showing  that  the 
grantor  owned  and  resided  on  cer- 
tain lands  in  Alabama,  which  were 
known  and  described  by  the  saine 
numbers  as  those  employed  in  the 
mortgage.  The  ambiguity  arose 
from  the  fact  that  the  description 
employed  in  the  instrument  was,  on 
the  face  of  it,  equally  applicable  to 
many  tracts  of  land  located  in  various 
government  surveys.  The  conclusion 
was  reached  upon  the  principle  that 
parol  evidence  was  admissible  to 
show  the  surrounding  or  attendant 
circumstances  under  which  the  con- 
tract was  made,  and  to  identify  the 
subject-matter  to  which  the  parlies 
referred. 

line  Pointed  Out  by  Grantor. 
Evidence  that  the  grantor  in  such 
deed,  at  the  time  the  plaintiff  pur- 
chased of  the  grantee  therein,  pointed 
out  the  line,  was  properly  admitted, 
since  they  were  statements  made 
upon   the   land  by   the  owner  of  the 

Vol.  I 


83f) 


AMBIGUITY. 


this  is  also  the  rule  a]>i)lied  in  the  case  of  an  ambiguous  description 
of  the  parties.-" 

e.  Wills.  —  An  anibignous  description  in  the  terms  of  a  bequest 
or  devise  is  often  explained  under  this  rule,  by  resorting  to  the  facts 
and  circumstances  surrounding  the  testator  and  his  situation  in 
reference  to  the  subject  matter,  whether  in  respect  of  the  thing 
devised    or    bequeathed."'    or    in    identification    of    the    devisee    or 


land  adjoining,  in  derogation  of  his 
own  title  to  extend  over  the  line 
pointed  out.  Purkiss  v.  Ben,son.  6 
.Mich.  538. 

On  an  Issue  As  to  the  location  of 
a  Boundary  Line,  described  as  run- 
ning from  a  designated  point  on  a 
stated  line  to  "  the  shop  of  "  a  per- 
son named,  it  is  proper  to  show  that, 
at  the  time  of  tlic  making  of  the 
instrument  so  describing  the  bound- 
ary, there  was  a  platform  extending 
along  one  side  of  the  shop,  built  at 
the  same  time,  resting  on  the  same 
foundation,  and  used  in  connection 
with  it,  a  corner  of  which  was  the 
boundary  intended.  Dunham  v.  Gan- 
nett. 124  Mass.  151. 

Agreement  Upon  Boundary  Line. 
Where,  in  a  conveyance  of  land,  a 
description  is  given  which  is  am- 
biguous or  variable,  it  is  competent 
to  sliow  that  the  parties,  at  the  time 
of  the  conveyance,  agreed  upon  a 
certain  line  as  the  boundary  intended. 
Horner  v.  Stillwell,  35  N.  J.  Law 
307. 

20.  Fletcher  v.  .Mansm',  5  Ind. 
269;  Langlois  '•.'.  Crawford.  59  Mo. 
456;  Heath  v.  Hewitt,  127  N.  Y. 
166,  27  N.  E.  959,  24  Am.  St.  Rep. 
438,  13  L.  R.  A.  46;  Holmes  v. 
Moon,  7  Heisk.  (Tenn.)  506;  Leach 
V.   Dodson,  64  Tex.    185. 

21.  England.  —  In  re  Cheadle.  L. 
R.  2  Ch.  620. 

Georgia.  —  White  v,  Holland,  92 
Ga.  216,  18  S.  E.  17,  44  Am.  St.  Rep. 

87. 

Indiana.  —  Groves  i'.  Cnlph,  132 
Ind.    186,  31   N.   E.  569. 

/mi'o.  —  Chambers  v.  Watson.  60 
Iowa  339,  14  N.  W.  336. 

Kentucky.  —  Henry  J'.  Henry,  81 
Ky.  342-     ' 

Marvland.  —  Frick  v.  Frick,  82 
Md.  218,  33  Atl.  462;  Willett  V. 
Carroll,   13  Md.  459. 

-Massachusetts.  —  Denfield  v.  Pe- 
titioner, 156  Mass.  265,  30  N.  E. 
1018. 


Michigan.  —  Waldron  v.  Waldron, 
45  Mich.  350,  7  N.  W.  894. 

Mississif>f!.  —  Schlottman  r.  HofT- 
man,  7i  Aliss.  188,  18  So.  893,  55  Am. 
St.   Rep.    527. 

Missouri.  —  Briant  z'.  Garrison,  150 
Mo.  655,   52   S.   W.   361. 

Next'  Jersey.  —  Evans  v.  Griscom, 
42  N.  J.  Law  579,  .36  Am.  Rep.  542. 

New  York.  —  Lawton  v.  Corlies, 
127  N.  Y.  100.  27  N.  E.  847- 

0/»io.  — Black  V.  Hill.  32  Ohio  St. 

313- 

Pennsxlvania.  —  In  re  Gaston's 
Estate,  188  Pa.  St.  374,  41  Atl.  S29, 
68  Am.   St.  Rep.  874- 

Vermont.  —  Townsend  v.  Downer, 
2T:   \'t.  225. 

Condition  of  Testator's  Property. 
Family,  Etc.  —  While  no  construction 
can  be  indulged,  which  is  in  con- 
flict with  the  intention  of  the  tes- 
tator, as  expressed  in  his  will,  yet 
when  the  will  has  been  written 
by  an  illiterate  person,  without  any 
punctuation  marks  whatever,  and  its 
language  is  at  all  doubtful,  evidence 
as  to  the  condition  of  the  testator's 
property,  family,  etc..  is  admissible 
in  construing  its  terms.  Donohue  v. 
Donohue,   54   Kan.    1,36,   37   Pac.  998. 

Construing  Words  of  Indefinite 
Signification.  —  Where  words  of  in- 
definite signification  are  used,  such 
as  my  farm  and  plantation,  and 
there  is  nothing  on  the  face  of  the 
instrument  to  qualify  them  or  limit 
and  apply  them  to  a  particular  sub- 
ject-matter, evidence  of  extrinsic 
circumstances,  matters  of  fact,  as 
distinguished  from  mere 'declarations 
of  intention,  is  admissible  for  the 
purpose  of  ascertaining  in  what  sense 
such  definite  language  was  used. 
The  office  of  such  testimony  is  that 
of  interpretation — to  find  out  the  true 
sense  of  the  written  words  as  the 
parties  used  them.  When  such  evi- 
dence is  received  and  the  facts  are 
either  admitted  or  found  by  the  jury, 
the   intention   of  the   parties   is   to  be 


Vol.  I 


AMBIGUITY 


S37 


legatee. -- 

C.  Nature  and  Extent  op  Inquiry.  —  a.  Previous  Negotia- 
tions. —  So,  if  the  previous  negotiations  make  it  manifest  in  what 
sense  the  parties  understood  and  used  the  ambiguous  terms  in  the 
writing,  they  may  be  resorted  to,  and  indeed,  they  furnish  the  best 
definition  to  be  apphed  in  ascertaining  the  intention  of  the  parties."^ 
Thus,  the  subject  matter  of  the  writing  may  be  identified  by  proof 
of  what  was  before  the  parties  by  sample  or  otherwise,  at  the  time 
of  the  negotiations."* 


determined  by  a  construction  by  the 
court  from  the  language  of  the  entire 
instrument  after  the  sense  of  such 
general  words  has  been  ascertained 
by  the  extrinsic  truth.  Grisconi  v. 
Evens.  40  N.  J.  Law  402.  29  Am. 
Rep.  J51. 

Acts  of  the  Testator  After  the 
Execution  of  the  Will  may  be 
shown.  Succession  of  Ehrenberg, 
21   La.  Ann.  280,  99  .Am.  Dec.  729. 

22.  England.  —  In  re  Tavlor.  L. 
R.  34  Ch.  Div.   155. 

California.  —  In  re  Langdon's  Es- 
tate   (Cal.),  62   Pac.   73. 

Illinois.  —  Hawhe  v.  Chicago  & 
W.LR.  Co.,  165  111.  501.  46  N.E.  240, 

Ulassachuselis.  —  Tucker  7:  Sea- 
man's Aid  Soc,  7  Mete.  188;  Hink- 
ley  V.  Thatcher,  139  Mass.  477,  i 
N.  E.  840,  52  Am.  Rep.  719. 

Ohio.  —  Worman  !■.  Teagarden,  2 
Ohio  St.  380. 

Pennsylvania.  —  In  re  Gaston's  Es- 
tate, 188  Pa.  St.  374,  41  Atl.  529,  68 
Am.   St.   Rep.  874. 

Virginia.  —  Maund  v.  McPhail,  10 
Leigh   199. 

To  Enable  the  Court  to  Strike 
Out  What  Is  False  in  the  Designa- 
tion of  the  Legatee,  and  so  carry 
out  the  intent  of  the  testator,  parol 
testimony  has  been  introduced  to 
show  the  number,  the  degree,  and  the 
kinship  of  the  testator's  relations,  as 
well  as  how  he  regarded  them  and 
talked  about  them.  Atterburv  t. 
Straflford,  58  N.  J.  Eq.  186.  44  Atl. 
160:  citing  Lord  Camoys  i'.  Blun- 
dell,  I  H.  L.  Cas.  778;  Thomas  v. 
Thomas,  6  T.  R.  671  ;  Vernor  v. 
Henry,  3  Watts.  (Pa.)  393;  Smith 
V.  Smith,  I  Edw.  Ch.  (N.  Y.)  189; 
affirmed  in  4   Paige  272. 

23.  Stoops  V.  Smith.  100  Mass. 
63,  92  Am.  Dec.  76;  Keller  7'.  Webb, 
125     Mass.    88,    28    .\m.     Rep.    214; 


Quarry  Co.  v.  Clements,  38  Ohio  St. 
587.  43    Am.    Rep.   442. 

The  Terms  of  the  Negotiation 
Itself,  and  Statements  Therein 
made,  may  be  resorted  to  for  this 
purpose.  Foster  v.  Woods,  16  Mas.s. 
116;  Sargent  v.  Adams,  3  Gray 
(Mass.)  72,  63  Am.  Dec.  718;  Mun- 
ford  V.  Gething,  7  Com.  B.  N.  S. 
.305;  Chadwick  v.  Burnley.  12  Week. 
Rep.   1077. 

Articles  of  Agreement  in  Pursu- 
ance of  Which  a  Deed  Was  Exe- 
cuted may  be  admitted  in  evidence, 
to  show  the  intent  of  the  parties, 
where  there  is  an  ambiguity  in  the 
<leed  as  to  the  quantity  of  land  con- 
veyed thereby,  arising  from  a  con- 
flict between  the  calls  and  tne 
courses  and  distances.  Koch  v. 
Dunkel.  90  Pa.  St.  264.  See  also 
New  Jersey  Zinc  Co.  v.  Boston 
Franklinite  Co.,  15  N.  J.  Law  418, 
so  holding  of  such  a  writing,  in 
order  to  arrive  at  the  true  con- 
struction of  the  word  "  premises,"  as 
used   in   the   deed. 

24.  Swett  V.  Shumway,  102  Mass. 
365,  3  Am.  Rep.  471  ;  Bradford  v. 
Manly,  13  Mass.  139,  7  Am.  Dec. 
122;  Hogins  V.  Plympton,  11  Pick. 
(Mass.)  97;  Clark  v.  Hougton.  12 
Gray  (Mass.)  38;  Haven  v.  Brown, 
7  Me.  421,  22  Am.  Dec.  208. 

Representations  at  Time  of  Nego- 
tiations  In    Stoops    c'.    Smith,    100 

Mass.  63,  92  Am.  Dec.  76,  an  action 
on  a  contract  to  pay  for  "  inserting 
the  business  card  in  200  copies  of 
his  (plaintiff's)  advertising  chart  to 
be  paid  when  the  chart  is  published." 
it  was  held  competent  for  the  defend- 
ant to  introduce  evidence  of  rep- 
resentations by  the  plaintiff  at  the 
time  of  the  contract  as  to  the  ma- 
terial of  which  the  charts  were  to  be 
made  and  as  to  the  mode  in  which  he 
was  to  publish  it. 

Vol.  I 


838 


AMBIGUITY. 


b.  Declarations  of  Parties.  —  (1.)  Generally.  —  Within  the  rule 
admitting  evidence  of  surrounding  facts  and  circumstances  to  aid 
or  explain  an  ambiguity,  it  has  been  held  proper  to  receive  evidence 
of  declarations  of  the  parties  tending  to  show  what  they  understood 
the  ambiguous  term  or  expression  to  mean.-''  although  there  are 
cases  holding  to  the  contrary."" 

(2.)  Parties  to  Conveyances.  —  And  the  rule  allowing  evidence  of 
oral  declarations  of  the  parties  to  a  contract  to  aid  or  explain  an 
ambiguity  therein,  has  been  applied  to  evidence  of  declarations  of 
the  parties  to  a  conveyance." 


25.  Connecticut. — In  re  Curtis 
Cii.slle  Arbitration.  64  Conn.  501,  30 
All.   769,  42  Am,    St.   Rep.   200. 

Indiana.  —  Motsinger  v.  State,  123 
Ind.  498,  24  N.  E.  342. 

Kansas.  —  Coates  'c.  Sulau,  46 
Kan.  341,  26  Pac.  720. 

.1/(7/"^.  —  Gallagher  f.  Black.  2 
Me.  99. 

.Michigan.  —  Jenkinson  z\  Monroe, 
61    Mich.  454.  28   N.   W.   663. 

Minnesota.  —  Auttman  etc.  v.  Clif- 
ford, 55  Minn.  159,  56  N.  \V.  593,  43 
Am.  St.  Rep.  478;  Stoops  ''.  Smith, 
100  Mass.  63,  92  Am.  Dec.  76. 

Massachusetts.  —  MacDonald  v. 
Dana,  154  Mass.  152,  27  N.  E.  993. 

Missouri.  —  EUis  v.  Harrison,  104 
Mo.  270,  16  S.  W.  198. 

Nexi.'  Jersey.  —  Sandford  -e. 
Newark  H.  R."Co.,  37  N.  J.  Law   i. 

\ew  York.  —  Greenwood  r.  Mar- 
vin, III  N.  Y.  423,  19  N.  E.  228; 
Manchester  Paper  Co,  v.  Moore,  104 
N,  Y,  680,  10  N.  E.  861 ;  La 
Chicotte  V.  Richmond  R.  &  El.  Co., 
15  App.  Div.  380,  44  N.  Y.  Snpp.  75; 
Hart  ?■.  Thompson,  10  App.  Div,  183. 
41    N,   Y,   Siipp.  909. 

North  Carolina.  —  Sleadman  j', 
Taylor,  77   N.   C.   134- 

Pennsylvania.  —  Selden  v.  Wil- 
liams, 9  Watts,  9,  42  .\m.  Dec,  312. 

Te.ras.  —  Lemp  v.  Armcngol,  86 
Tex,  690,  26  S,  W.  941. 

L'/a/i,  — Bartels  v.  Brain,  13  Utah 
i()2.  44   Pac.  715. 

I'ermont.  —  Foster  v.  Dickerson, 
64  Vl.  233,  24  Atl  253;  Hubbard  v. 
Moore,  67  Vt.  532,  32  Atl.  465. 

Il'ashington.  —  Adamant  Co.  v. 
Bank.  5  Wash.  232.  31   Pac,  634, 

ll'isconsin.  —  Ganson  i',  Madigan, 
15  Wis.  158,  82  Am.  Dec.  652; 
Beason  v.  Kurz,  66  Wis,  448,  29  N. 
\V,  230. 

Written     Declaration In     Pass- 


more  V.  Eldridge,  12  Serg,  &  R. 
1  Pa.)  198.  in  a  suit  liy  assignees  of 
a  debtor  to  determine  if  hides  were 
included  in  an  assignment  by  him 
to  preferred  creditors,  the  descrip- 
tion of  the  property  Ijeing  obscure, 
a  written  paper,  addressed  by  the 
assignor  to  the  auctioneer  who  sold 
the  hides  under  the  assignment,  de- 
claring the  property  in  their  hands 
included  in  the  assignment,  was  held 
properly  in  evidence  as  amounting 
to  a  declaration  identifying  the 
property. 

Conversations  After  Execution  of 
Contract.  —  In  Saliin  i'.  Kendrick,  58 
App.  Div.  108,  68  N.  Y,  Supp.  546, 
It  was  held  that  the  admission  of 
evidence  of  conversation  after  the 
execution  of  a  contract  of  employ- 
ment as  salesman  presented  no  er- 
ror, because  it  tended  to  clear  up 
an  ambiguity  relating  to  the  provis- 
ion as  to  the  maximum  expenses  to 
be   incurred   in  making  sales, 

26.  Kretschmer  z\  Hard.  18  Colo. 
223,  32  Pac.  418;  McClelland  r. 
James,  33  Iowa  571  ;  Tuttle  r.  Bur- 
gett,  53  Ohio  St.  498,  42  N,  E.  427. 
53  Am.  St.  Rep.  649,  30  L.  R.  A. 
214;  Scraggs  i:  Hill,  37  W,  Va,  706, 
17  S.  E.  185;  Capcrton  v.  Caperton, 
36  W.  Va.  479,  15  S.  W.  257;  Con- 
nolly 1'.  Provincial  Ins,  Co.,  2  Q.  L. 
R.  6. 

27.-  Ellis  r.  Burden,  i  Ala,  458, 
as  explained  in  Meyer  i'.  Mitchell,  75 
.Via,  475 ;  Emery  v.  Webster,  42  Me, 
204.  66  Am.  Dec.  274;  Robinson  v. 
Doulhit,  64  Tex.  loi. 

Declarations  of  Auctioneer —  In 
Wright  r.  De  Klynne,  i  Pet,  C,  C. 
199,  30  Fed,  Cas,  No,  18,076,  a 
sheritT  conveyed  a  plantation  de- 
scribed as  "  Meridth's  Farm,"  and 
it  was  held  that  the  declarations  of 
the   sheriff   at   the   time   of   the    sale 


Vol.  I 


AMBIGUITY. 


839 


c.  Practical  L'oiistnictioii.  —  (i.)  in  General.  — Again,  under  the 
rule  allowino-  evidence  of  the  surrounding  circumstances  to  aid  or 
ex])lain  an  ambiguity,  it  is  proper  to  show  the  practical  construc- 
tion put   upon  the  writing  by  the  parties  liy  their  acts  under  it.-' 


were  admissible  to  show  that  cer- 
laiii  tiats  and  islands  were  not  in- 
cluded in  the  description. 

Parol  lividence  of  the  Declara- 
tions of  the  Grantor  is  admissible  to 
prove  the  identity  of  a  lot  referred 
to  in  a  deed  by  him,  conveying  cer- 
tain ■'  lots  in  the  town  ot  H.  marked 
on  the  recorded  plan  of  the  same 
town;"  notice  having  been  given  to 
one  of  his  executors,  a  defendant  in 
tile  snit.  and  he  having  sworn  that 
lie  never  saw  an}-  such  recorded  plan, 
and  the  records  of  the  proper  county 
having  been  diligently  searched, 
without  finding  any  recorded  plan. 
Patton  5'.  Goldsborough,  9  Serg.  & 
R.   (Pa.)  47. 

28.  United  States.  —  District  of 
Columbia  v.  Gallaher,  124  U.  S.  50.=;. 
o  Sup.  Ct.  585 ;  Union  Bank  v. 
Hyde,  6  Wheat.  572;  Steinbach  f. 
Stewart.  11  Wall.  566;  Knox  Co.  v. 
Bank,  147  U.  S.  91,  13  Sup.  Ct.  267; 
Cavazos  x'.  Trevino,  6  Wall.  773. 

Alabama,  —  Boykin  v.  Bank  of 
Mobile,  ^2  Ala.  262,  47  .\ni.  Rep. 
408. 

Arkansas.  —  Walker  v.  David. 
(Ark.),  60  S.  W.  4iS;  Robbins  v. 
Kimball,  55  .\rk.  414,  18  S.  W.  457, 
20  Am.  St.  Rep.  45. 

California.  —  Hill  i'.  McKay,  94 
Cal.  5,  29  Pac.  406. 

Colorado.  —  McPhee  v.  Young,  13 
Colo.  80,  21   Pac.   1014. 

Connecticut.  —  Bray  Z'.  Loonier.  61 
Conn.  456,  23  Atl.  831  ;  Wooster  v. 
Butler,  19  Conn.  308  ( citing  numer- 
ous authorities.) 

Illinois.  —  Cliurch  v.  Brose,  104 
111.  20ft;  Thomas  I'.  Wiggers,  41 
III.   470. 

Indiana.  —  Cravens  v.  Eagle  Co., 
120  Ind.  6,  21  N.  E.  981.  16  Am.  St. 
Rep,  298. 

Iowa.  —  Pratt  v.  Prouty,  104  Iowa 
419,  7i  N.  W.  1035,  65  Am.  St.  Rep. 
472;  Cobb  V.  :McElrov,  79  Iowa  603, 
44  N.  W.  824.  I  ' 

Kansas.  —  Cosper  7'.  Nesbit,  45 
Kan.  457,  25  Pac.  866,  26  Am.  St. 
Rep.   107. 

Maine.  —  Emery  v.  Webster,  42 
Me.  204,  66  Am.  Dec.  274. 


Massachusetts.  —  Winchester  v. 
Glazier,  152  Mass.  316,  25  N.  E. 
728,  9  L.  R.  A.  424;  Crafts  V.  Hib- 
bard,  4  Mete.  438;  Frost  v.  Spauld- 
ing,  19  Pick.  445,  31  Am.  Dec.  150; 
Clark  f.  Munyan,  22  Pick.  410,  a 
Am.  Dec.  752. 

Michigan.  —  Jenkinson  v.  Monroe, 
61   Mich.  454,  28  N.  W'.  663. 

Minnesota.  —  Engel  v.  Scott  &  H. 
Lum.  Co.,  60  Minn.  39,  61  N.  W.  825. 

.Mississi/'t'i.  —  Ramsey  v.  Brown, 
77  Miss.  124,  25  So.  151,  78  ,\m.  St. 
Rep.  519. 

Missouri.  —  Ellis  f.  Harrison.  104 
Mo.  270,  16  S.  W.  198. 

Nebraska.  —  Latenser  r.  Misner, 
56  Neb.  340,  76  N.  W.  897 :  Hale  v. 
Sheehan,  52  Neb.  184,  71  N.  W.  1019. 

New  Haml'shire.  —  French  %i. 
Hayes.  43  N.  H.  30.  80  .\m.  Dec.  127. 

Nezv  I'ocA-.  —  Sattler  v.  Hallock, 
160  N.  Y.  291,  54  N.  E.  667,  73  Am. 
St.  Rep.  686.  46  L.  R.  A.  679 :  French 
f.  Carhart,  i  N.  Y.  96. 

North  Carolina.  —  Goff  v.  Pope, 
83  N.  C.  123. 

0/1/0.  —  Mosier  v.  Parry,  60  Ohio 
St.  388,  54  N.  E.  364;  Butler  v. 
Moses.  43  Ohio  St.  166,   i  N.  E.  316. 

Pennsylvania.  —  Banhart  r.  Rid- 
dle. 29  Pa.  St.  92. 

Rhode  Island.  —  Phetteplace  :■. 
British  Ins.  Co.,   (R.   I.),  49  Atl.  23- 

Tennessee.  —  Powell  v.  Construc- 
tion Co.,  88  Tenn.  692.  13  S.  W.  691, 
17  Am.  St.  Rep.  925. 

Tc.ras.  —  Heidenheimer  z'.  Cleve- 
land, (Tex.),  17  S.  W.  524;  Pope  v. 
Riggs,  (Tex.  Civ.  App.).  43  S.  W. 
306. 

Utah.  —  Brown  v.  Markland,  16 
Utah  360,  s^  Pac.  597,  67  Am.  St. 
Rep.  629. 

Vermont. — Barker  z\  Trov  R.  Co., 
27  Vt.  766. 

I'irginia.- — Mut.  Assn.  z\  Taylor, 
99  Va.  208.  37  S.  E.  854. 

IVisconsin. — Wussow  Z'.  Hase,  108 
Wis.  3S2.  84  N.  W.  433;  Nilson  v. 
Morse,  52  Wis.  240,  9  N.   W.   i. 

Il'yoming.  —  Frank  z:  Hicks,  4 
Wyo.  502,  35  Pac.  1025. 

'■  Reasonable  Time."  — In  Goddard 
z:  Crefield  Mills,  75  Fed.  818,  a  con- 

Vol.  I 


840 


AMBIGUITY. 


So  also,  it  is  proper  to  show  the  practical  construction  which  the 
parties  have  put  upon  previous  similar  writings  in  the  same  terms.-* 

(2.)  Under  Conveyances.  —  So,  also,  the  rule  admitting  evidence  of 
the  practical  construction  given  by  the  parties  to  a  writing,  extends 
to  evidence  of  such  acts  in  order  to  resolve  the  ambiguous  terms  of 
a  convevance.""  But  it  is  error  to  admit  such  evidence  where  there 
is  no  such  ambiguitv  as  would  render  extrinsic  evidence  admis- 
sible.-^' 

d.  Meaning  in  Trade  or  Art.  —  It  may  be  shown  by  parol  that 
a  word  or  term  used  in  a  writing  has  acquired  a  peculiar  or  technical 


tract  tc  manufacture  and  sell  cotton 
goods  contained  a  clause  stipulating 
for  its  performance  within  a  rea- 
sonable time,  and  evidence  of  the 
acts  of  the  parties  showing  what 
period  of  time  they  contemplated  as 
being  reasonable,  was  held  admissi- 
ble. 

Legislative  Intent.  —  In  Cam- 
bridge V.  Lexington,  17  Pick. 
(Mass.)  222,  under  a  statute  cancel- 
ing the  obligation  of  one  of  three 
municipalities  to  maintain  a  bridge, 
the  usage  of  the  other  two  towns 
thereafter  was  shown  as  contempo- 
raneous construction  of  the  legisla- 
tive intent  that  they  should  share 
tlie  expense  between  them. 

29.  Gray  v.  Gannon.  4  ]lun  ( N. 
Y.)  57-. 

30.  hngliind.  —  Smith  v.  Earl  of 
Jersev  2  Brod.  &  Biiig.  472.  6  Eng. 
C.  L.  235;  Weld  V.  Hornby,  7  East 
195,  8  Rev.  Rep.  608. 

United  States.  —  Cavazos  v.  Trc- 
vino,  6  Wall.  77.^. 

.Alabama.  —  Wharton  i'.  Hannon, 
loi  Ala.  554,  14  So.  630. 

.Arkansas.  —  Walker  v.  David, 
(Ark.),  60  S.   W.  418. 

Colorado.  —  Kretschmcr  v.  Hard, 
18  Colo.  223,  32  Pac.  418. 

Connecticut. — Robhins  v.  Wolcotl, 
28  Conn.  395. 

Georgia.  —  Gress  Lum.  Co.  v. 
Coody,  94  Ga.  519,  21   S.  E.  217. 

Illinois.  —  Farman  t'.  Tompkins, 
171    III.  519,  49  N.   E.   568. 

Indiana.  —  Bever  7'.  Bever,  144 
Jnd.   157,  41   N.  E.  944- 

lozva.  —  Brown  v.  Ward,  (Iowa), 
81   N.  W.  247; 

.Maine.  —  Simpson  v.  Blaisdell.  85 
Me.  199,  27  Atl.  loi,  35  Am.  St.  Rep. 

348. 

Maryland.  —  Jacob  Tome  Inst.  v. 
Crothcrs,  87   Md.   569,  40  Atl.  26r. 

Vol.  I 


Massachusetts.  —  Lovejoy  i'. 
Lovett,  124  Mass.  270. 

Michigan.  —  ^loran  i\  Lezottc,  54 
Mich.  83,   19  N.   W.  757- 

Minnesota.  —  Beardsley  v.  Crane, 
52  Minn.   537.  54  N.  W.  740. 

Nciv  Hani/^shire.  —  Bell  v.  Wood- 
ward, 46  N.  H.  315. 

Nezv  Jersey.  —  Morris  R.  Co.  t. 
Bonnell,  34  N.  J.  Law  474. 

Neiv  York.  —  Stout  i:  Woodward, 
71  N.  Y.  590;  Stewart  z:  Patrick,  68 
N.  Y.  450;  Freud  ;■.  Kearney,  23 
Alisc.  685.  52  N.  Y.  Supp.   149. 

Ohio.  —  Mc.'^fferty  i'.  Conover.  7 
Ohio  St.  99,  70  Am.  Dec.  57. 

Oregon.  —  Richards  v.  Snider,  11 
Or.    197,  3   Pac.   177. 

South  Carolina.  —  Allen  r.  Fagan, 
6  S.  C.  206. 

Texas.  —  Linney  v.  Wood,  66  Tex. 
22,  17  S.  W.  244. 

Vermont.  —  Rugg  z\  Ward.  64  \'t. 
402.  23  Atl.  726. 

Virginia.  —  Knick  v.  KnicK,  75 
Va.   12. 

West  Virginia.  —  Gibney  v.  Fitz- 
simmons,  45  W.  Va.  3.U.  3-  S.  E. 
189. 

Wisconsin.  —  Janesville  Mills  v. 
Ford,  82  Wis.  416,  52  N.  W.  764. 

A  written  lease  described  the  de- 
mised land  as  "  four  acres,  out  of  lot 
four,"  in  a  certain  governmental  sub- 
aivision,  "  lying  north  of  the  rail- 
road track."  Held,  that  in  an  action 
between  the  lessor  and  the  lessee's 
assignee,  parol  evidence  was  admis- 
sible to  show  that  the  lessor  and  les- 
see, about  the  time  the  lease  was 
made,  had  gone  upon  the  land,  and 
agreed  upon  certain  lines  and  monu- 
ments as  defining  its  boundaries. 
Schneider  ?■.  Patterson,  38  Xeb.  680, 
57  N.  W.  398. 

31.  Grnbb  v.  Buford.  98  \'a.  553, 
37  S.  E.  4- 


AMBIGUITY. 


841 


sigfiiification   in   trade  or  art,  different   from  its  ordinary  meaning, 
for  the  purpose  of  showint:;-  wliich  meaning  was  intended/-     Snch 


32.  England.  —  Shore  v.  Wilson, 
9  Clark  &  F.  355- 

Alabama.  —  Smith  v.  Aiken,  75 
Ala.  209;  Jones  -'.  Anderson,  76  Ala. 
427. 

Georgia.  —  Dixon  v.  Cent,  of  Ga. 
R.,   (Ga.),  35  S.  E.  369. 

Illinois.  —  Stewart  v.  Smith.  28 
111.  397;  Myers  v.  Walker.  24  III. 
133;  Broadwell  v.  Broadwell,  6  111. 
599. 

Indiana.  —  Prather  !■.  Ro.ss,  17  Ind. 

495- 

lozva.  —  Pilmer    v.    Branch    Bank. 

16  Iowa  321  ;  Steyer  ?'.  Dwycr,  31 
Iowa  20;  Wood  z\  .\llen,  (Iowa), 
82  N.  W.  451- 

Kansas.  —  Seynionr  z\  .Armstrong. 
(Kan.),  64  Pac.  612. 

Massacliusctts.  —  Stoops  i\  Smith, 
100  Mass.  63.  92  Am.  Dec.  76. 

Michigan.  —  Dages  v.  Brake,  125 
Mich.  64,  83   N.  W.   1039. 

.Minnesota.  — St.  Panl  &  M.  Trust 
Co.  7'.  Harrison,  64  Minn.  300,  66  N. 
W.  980;  Maurin  ■<■.  Lyon,  69  Minn. 
257,  72  N.  W.  72,  65  Am.  St.  Rep. 
568. 

Missouri.  —  Long  Bros.  j'.  J.  K. 
Arnisby  Co.,  43  Mo.  App.  253 ;  Blair 
V.  Corby,  37  Mo.  313. 

Montana.  —  Newell     7:    Nicholson, 

17  Mont.  389,  43  Pac.  180. 

New  Hampshire.  —  Farnnni  z\ 
Concord  Horse  R.  Co.,  66  N.  H.  569, 
29  Atl.  541. 

Nezv  Jersey.  —  Hartwcl!  i'.  Cam- 
man,  10  N.  J.  Eq.  28.  64  Am.  Dec. 
448. 

Ncii'  York.  — Cohvell  z>.  Lawrence, 
38  Barb.  643 ;  Collender  z'.  Dinsmore, 
55  N.  Y.  200,  14  Am.  Rep.  224 :  Law- 
rence V.  Gallagher,  73  N.  Y.  613; 
Bissel  z'.  Campbell,  54  N.  Y.  353; 
Thompson  z'.  Sloan,  2^^  Wend.  71,  35 
Am.  Dec.  546;  Stroud  v.  Fritli,  ii 
Barb.  300;  Sleght  v.  Hartshome,  2 
Johns.  531. 

Oregon.  —  Abraham  v.  Oregon  & 
C.  R.  Co.,  37  Or.  495,  60  Pac.  899, 
82   Am.    St.    Rep.    779. 

Pennsylvania.  —  Carey  z\  Bright, 
58  Pa.  St.  70. 

Texas.  —  Dewees  v.  Lockhart,  i 
Tex.  535- 

Vermont.  —  Moore  i'.  Hill,  62  Vt. 
424,   19  Atl.  997. 


jriscoiisin.  —  Bedard  v.  Bonvillc, 
57  Wis.  270,  15  N.  W.  185. 

Statement     of     the     Rule The 

rule  is  too  axiomatic  to  require  the 
citation  of  authority  for  its  support, 
that  when  parties  have  deliberately 
reduced  their  engagements  to  writ- 
ing, in  terms  precise  and  unambigu- 
ous, their  intention  must  be  gathered 
from  the  whole  instrument,  and  the 
language  thus  chosen  to  express 
their  meaning,  and  parol  evidence  is 
inadmissible,  to  add  to.  contradict  or 
alter  snch  language,  or  to  support  a 
construction  at  variance  with  the 
fair,  plain  import  of  the  words  them- 
selves. When,  however,  the  agree- 
ment rests  in  doubt  and  uncertainty, 
because  of  the  use  of  terms  of  a 
technical  character,  or  so  indefinite 
in  their  reference  as  to  be  alike  ap- 
plicable to  different  things,  such 
technical  terms  may  be  explained, 
and  surrounding  facts  and  circum- 
stances may  be  shown,  to  enable  the 
court  to  point  the  proper  application 
as  intended  by  the  parties.  The 
range  of  this  inquiry  must,  of  course, 
be  limited  to  such  extrinsic  facts"  as 
have  some  relevanci'  to  the  subject 
of  inquiry,  and  cannot  be  extended 
to  embrace  facts  clearly  foreign  to 
any  possible  matters  mentioned  and 
referred  to  in  the  contract.  But,  in 
no  case  can  the  mere  admissions  or 
declarations  of  a  party  to  the  agree- 
ment in  respect  to  the  purpose, 
meaning  or  effect  of  any  of  its  pro- 
visions be  received  to  aid  or  influ- 
ence the  court  in  reaching  a  correct 
interpretation.  City  of  Winona  v. 
Thompson,  24  Minn.  199. 

"Season."  —  In  an  action  for  the 
breach  of  a  written  contract  of  em- 
ployment for  a  "  season  "  in  which 
the  duration  of  the  season  is  not 
specified,  parol  evidence  is  not  ad- 
missible to  define  the  term.  Walch- 
tershauser  z\  Smith.  10  N,  Y.  St.  552, 
10  N.  Y.  Supp.  535.  Compare 
.Alclntosh  -'.  Miner,  53  .\pp.  Div.  240, 
65  N.  Y.  Supp.  735- 

If  there  was  any  uncertainty,  on 
the  face  of  the  bill,  whether  the  word 
cashier  was  appended  to  the  name, 
or  rather,  whether  the  figures  and 
marks  were  intended  for  that  word, 

Vol.  I 


842 


AMBIGUITY. 


evidence  neither  varies  nor  adds  to  the  writing;',  hut  merely  trans- 
lates it  from  the  language  of  the  trade  or  art  in  c|uestion,  into  the 
ordinary  language  of  people  generally. ■'■''  Out  such  evidence  is  not 
admissible  where  it  is  apparent  that  the  word  or  term  in  question 
was  not  used  in  such  new,  peculiar  or  technical  sense. ''^ 

Medium  of  Payment.  —  It  has  been  held  competent  to  show  that  the 
I)arties  to  a  written  contract  l)y  the  word  "  dollars  "  intended  Con- 
federate dollars,  and  not  lawful  monev  of  the  United  States."''     So 


testimony  was  proper  and  necessary 
to  establish  that  fact.  In  the  fac 
similes  we  have  of  the  signatures  of 
some  distingnished  men.  it  would  be 
impossible  to  make  out  the  name,  ex- 
cept by  the  testimony  of  those  ac- 
quainted with  such  signatures.  This 
must,  from  the  nature  of  the  case,  be 
a  subject  to  be  estabHshcd  by  parol 
testimony.  Farmers'  &  Mechanics' 
I'.ank  V.  Day,  6  Vt.  36. 

33.  Maurin  i'.  Lyon,  69  Minn. 
257,  72  N.  W.  72,  65  Am.  St.  Rep. 
568. 

34.  Alabama.  — Mohb\e  M.  Dork 
&  Mut.  Ins.  Co.  V.  McMillan,  31 
Ala.  711. 

California.  —  Bullock  v.  Consum- 
ers' Luni.  Co.,   (Cal.),  31   Pac.  367. 

Illinois.  —  Lord  v.  Owen,  35  111. 
App.  382;  Galena  Ins.  Co.  v.  Kupfer, 
28  111.  ii2,  81   Am.  Dec.  284. 

Indiana.  —  Laugohr  v.  Smith,  81 
Ind.  495. 

Iowa.  —  Cash  i\  Ilinkle,  ,^0  Iowa 
623. 

Kansas.  —  Gowans  v.  Pierce,  57 
Kan.    180,   45    Pac.   586. 

.Wfl/Hr.  —  Littlefield  v.  Liltlefield, 
28  Me.   180. 

Massachusetts.  —  First  Nat.  Bank 
V.   Coffin,    162    Mass.    180,   38   N.   E. 

444- 

Netv  Jersey.  —  Hartwell  r.  Cam- 
man,  10  N.  J.  Eq.  128,  64  Am.  Dec. 
448. 

Ne'ii.'  York.  —  Strong  v.  Waters, 
27  App.  Div.  299,  50  N.  Y.  Supp. 
257;  Heiberger  v.  Johnson,  34  App. 
Div.  66,  53  N.  Y.  Supp.  1057. 

Texas.  —  Ginnuth  v.  Blankenship 
Co.  (Tex.  Civ.  App.),  28  S.  W. 
828. 

35.  United  States.  —  Thorington 
V.  Smith,  8  Wall,  i  ;  The  Confed- 
erate Note  Case,   19  Wall.  548. 

Alabama.  —  Hill  v.  Erwin,  44  Ala. 
661. 

Arkansas.  —  Roane  v.  Green,  24 
.'\rk.  210 

Vol.  I 


South  Carolina.  —  Ncely  v.  Mc- 
Fadden,  2  S.  C.  169. 

Te.ras.  —  Johnson  i'.  Blount,  48 
Tex.  38;  :\Iathe\vs  v.  Rucker,  41 
Tex.  636;   Roberts  •:■.   Short,   i    Tex. 

37.^- 

Statement  of  Rule.  —  It  is  quite 
clear  that  a  contract  to  pay  dollars, 
made  between  citizens  of  any  state 
of  the  Union,  while  maintaining  its 
constitutional  relations  with  the 
National  government,  is  a  contract 
to  pay  lawful  money  of  the  Linited 
States,  and  cannot  be  modified  or 
explained  by  parol  evidence.  But  it 
is  equally  clear,  if  in  any  other 
country,  coins  or  notes  denominated 
dollars  should  be  authorized  of  dif- 
ferent value  from  the  coins  or  notes 
which  are  current  here  under  that 
name,  that,  in  a  suit  upon  a  contract 
to  pay  dollars,  made  in  that  coun- 
try, evidence  would  be  admitted  to 
prove  what  kind  of  dollars  were  in- 
tended, and,  if  it  should  turn  out  that 
foreign  dollars  were  meant,  to  prove 
their  equivalent  value  in  lawful 
money  of  the  L'nited  States.  Such 
evidence  does  not  modify,  or  alter 
the  contract.  It  simply  explains  an 
ambiguity,  which,  under  the  general 
rules  of  evidence,  may  be  removed 
by  parol  evidence.  We  have  already 
seen  that  the  people  of  the  insurgent 
states,  under  the  confederate  govern- 
ment w'ere,  in  legal  contemplation, 
substantially  in  the  same  condition 
as  inhabitants  of  districts  of  a  coun- 
try occupied  and  controlled  by  an 
invading  belligerent.  The  rules 
which  would  apply  in  the  former 
case  would  apply  in  the  latter ;  and, 
as  in  the  former  case,  the  people 
must  he  regarded  as  subjects  of  a 
foreign  power,  and  contracts  among 
them  be  interpreted  and  enforced 
with  reference  to  the  conditions  im- 
posed by  the  conqueror,  so  in  the 
latter  case,  the  inhabilants  must  be 
regarded   as   under   the   authority   of 


AMBICUirv 


843 


also,  it  has  liuen  liclil  that  it  may  be  shown  that  an  ohHgation 
described  as  payable  in  tlollars  and  cents  was  in  fact  to  be  paid  in 
I'nited  States  bank  bills."'' 

e.  Usage  of  the  Business.  —  Evidence  of  the  known  ami  ordinary 
course  of  the  jiarticular  business  is  competent  for  the  purpose  of 
exijlaining  an  ambiguity,''  as,  for  instance,  that  according  to  usage 


the  insurgeiU  belligerent  power 
actually  established  as  the  govern- 
ment of  the  country,  and  contracts 
made  with  them  must  be  interpreted 
and  enforced  with  reference  to  the 
condition  of  things  created  by  the 
acts  of  the  governing  power.  Thor- 
ingfon  ?'.   Smith,  8  Wall.   i. 

36.  Morton  z'.  Wells,  i  Tyler 
(Vt.)  j8l,  so  holding  that  such  evi- 
dence does  not  controvert,  but  ex- 
plains the  writing.  Compare  Noe 
V.  Hodges,  3  Humph.  (Tenn.)  162, 
wherein  it  was  held  that  the  admis- 
sion of  parol  evidence  to  prove  that 
it  was  agreed  between  the  parties 
that  bank  notes  should  be  receivable 
in  discharge  of  an  obligation  paya- 
ble in  dollars  was  in  violation  of  the 
great  principle  that  parol  evidence 
shall  not  be  heard  to  add  to  or  vary 
a  writing.  See  also  Ehle  v.  Chitten- 
ango  1-iank,  24  N.  Y.  548,  wherein  it 
was  held  that  evidence  of  an  under- 
standing by  the  cashier  of  a  bank 
that  "  state  currency "  meant  coun- 
try l)ank  notes  current  in  New  York 
city  at  a  discount  of  a  quarter  of  i 
per  cent.,  but  not  showing  general 
usage  in  that  sense,  was  inadmissi- 
ble. 

37,  Robinson  v.  U.  S. 
363;  Salmon  Mfg.  Co.  7' 
14  How.  441. 

Connecticut.  —  Hatch  v. 
48  Conn.   1 17. 

Georgia.  —  .Maril  f.  Connecticut  F. 
In.s.  Co.,  95  Ga.  604.  2i  S.  E.  463,  51 
Am.  St.  Rep.  102,  30  L.  R.  A.  835. 

Itliiiois.  —  Elgin  7'.  Joslyn,  36  111. 
App.  301. 

Indiana.  —  Lyon  7\  Lcnon,  106 
Ind.  567.  7  N.  E.  311- 

Massachusetts.  — Brown  ■:•.  Brown, 
8  Mete.  573. 

Minnesota.  —  Breen  ;■.  Moran,  51 
Minn.  525,  53  N.  W.  755. 

Nc7V  Hampshire.  —  Cummings  ■:'. 
Blanchard,  67  N.  H.  268,  36  Atl.  ss6, 
68  Am.  St.  Rep.  664. 

Nezi'  Jersey.  —  Smith  f.  Clayton, 
29  N.  J.   Law   357. 


13   Wall. 
Goddard, 

Douglass, 


Ne-a'  York.  —  White  v.  Ellis- 
burgh,  18  App.  Div.  514,  45  N:  Y. 
Supp.  1 122;  Brunold  ■:■.  Glasser,  25 
Misc.  285,  53  N.  Y.  Supp.  1021  ;  Liv- 
ingston V.  Ten  Broeck,  16  Johns.  14, 
8  Am.  Dec.  287. 

Pennsyl'eania.  —  Brown  -e.  Brooks, 
25  Pa.  St.  210. 

Soutli  Carolina.  —  Goddard  v.  Bu- 
low,  1  Nott  &  McC.  45,  9  Am.  Dec. 
663. 

Te.vas.  —  Brennenian  v.  Birsh, 
(Tex.  Civ.  App.),  30  S.  W.  699. 

Jl'ashiiigton.  —  Adamant  Plaster 
Co.  7'.  Nat.  Bank,  5  Wash.  232,  31 
Pac.  634. 

Proof  of  Usage  is  received  in  ac- 
tions on  express  contracts,  upon  the 
ground  that  it  serves  to  explain  and 
ascertain  the  intent  of  the  parties  on 
some  point  as  to  which  their  con- 
tract is  silent.  Lamb  v.  Klaus,  30 
Wis.  94. 

It  is  permissible  for  the  owner  of 
a  steamboat,  when  sued  for  the  loss 
of  goods  by  fire,  to  show  by  parol 
that  the  exceptive  words,  "  dangers 
of  the  river,"  in  a  bill  of  lading,  by 
custom  and  usage  include  dangers  by 
fire.  McClure  &  Co.  v.  Cox  &  Co., 
,?2  Ala.  617,  70  Am.  Dec.  552;  citing 
Samoson  z\  Gazzam,  6  Port.  (Ala.) 
123,  30  .\m.  Dec.  578;  Hibler  ',■.  Mc- 
Cartney, 31  Ala.  501. 

Evidence  of  a  Prior  Course  of 
Dealing  between  the  parties  to  a 
contract  is  inadmissible  wdien  the 
contract  is  so  distinctly  drawn  as  to 
leave  no  ambiguities  for  parol  ex- 
planation especially  of  a  prior  course 
of  dealing  between  one  of  the  par- 
ties to  it  and  the  predecessors  of  the 
other  party ;  although  it  may  be 
shown  that  the  parties  in  their  deal- 
ings under  the  contract  varied  its 
terms  by  a  subsequent  parol  agree- 
ment. Conrad  7'.  Fisher,  37  Mo. 
App.  35-2- 

In  Penn.  Steel  etc.  Co.  7'.  Iron 
Co.,  I  Penn.  (Del.)  337,  41  Atl.  236, 
an  action  to  recover  goods  sold  un- 
der written  contract,  requiring  qual- 

Vol.  I 


844 


AMBIGUITY. 


in  the  insurance  Jjusiness  a  word  or  term  used  in  a  policv  has 
acquired  a  meaning  other  than  its  usual  and  ordinary  sense."*  Hut 
evidence  of  the  sense  in  which  a  word  or  term  was  understood  by 
other  persons  in  the  same  business  is  not  admissible,  unless  the 
party  to  the  writing  is  shown  to  have  known  of  such  otlier  transac- 
tions.^" 

III.  LATENT  AMBIGUITY. 

1.  In  General.  —  A  latent  ambiguity  being  one  that  is  evoked  by 
extrinsic  evidence,  it  follows  as  a  corollary  that  its  resolution 
should  be  effected  in  the  same  manner,  and  to  that  end.  parol  evi- 
dence is  always  admissible  to  aid  or  explain  such  an  ambiguity, 
provided,  of  course,  that  such  evidence  does  not  contradict  or  vary 
the  implications  of  the  written   terms  employed.*"     Facts  existing 


ity  and  workmanship  to  be  "  up  to 
standard,"  it  was  held  that  the  de- 
fendant could  not  show  that  he  con- 
tracted with  reference  to  a  standard 
defined  by  plaintiff  in  a  circular  is- 
sued by  him  in  regard  to  his  busi- 
ness, in  the  absence  of  evidence  that 
there  was  no  standard  recognized  by 
the  trade. 

The  Phrase  "  Rainy  Day "  being 
of  itself  indefinite  and  uncertain,  the 
sense  in  which  it  was  used  in  a  par- 
ticular contract  may,  therefore,  be 
shown  by  the  surrounding  circum- 
stances, including  the  usage  of  the 
particular  port  or  trade  to  which  the 
contract  relates.  Balfour  v.  Wilkins, 
5   Saw.   429,  2   Fed.   Cas.   No.  807. 

Oral  Evidence  Is  Admissible  to 
Show  That  by  Word  "  barrels."  used 
in  a  writen  contract,  the  parties  in- 
tended vessels  of  a  certain  kind  and 
capacity,  used  in  a  particular  busi- 
ness, and  not  a  measure  of  quantity 
as  per  statute  barrel.  Miller  ;■. 
State,  100  Mass.  518.  97  Am.  Dec. 
123. 

In  Montana,  liy  express  statute 
(Civ.  Code,  §§2209,  2210)  the  words 
of  a  contract  are  to  be  understood  in 
their  ordinary  and  popular  sense, 
and  technical  words  are  to  be  inter- 
preted as  usually  j.inderstood  by  per- 
sons in  the  business  to  which  they 
relate ;  and  accordingly  evidence  of 
qualified  witnesses  to  interpret  tech- 
nical terms  used  in  a  mining  lease 
according  to  the  usual  understanding 
of  miners,  is  competent.  Cambers  v. 
l.owry,  21    Mont.   478,   54   Pac.  816. 

38,  United  States.  —  Erhart  v. 
Ullman,  51  Fed.  414.  Com  pare  Mo- 
ran    <■.    Prather,   23   Wall.   492. 

Vol.  I 


Arkansas.  —  Western  Assur.  Co. 
V.  Altheimer,  58  Ark.  565,  25  S.  W. 
1067. 

Iov.<a.  —  Brown  v.  Lucas  Co..  94 
Iowa  70,  62   N.   W.   694. 

Massachusetts.  —  Whitmarsh  v. 
Conway  F.  Ins.  Co..  16  Gray  359, 
77  Am.  Dec.  414. 

Missouri.  —  Singleton  v.  St.  Louis 
Mut.  Ins.  Co.,  66  Mo.  63.  27  Am. 
Rep.  321. 

Neiv  York.  —  Petrie  v.  Phoenix 
Ins.  Co.,  132  N.  Y.  137,  30  N.  E.  380. 

Tennessee.  —  Fry  v.  Provident  L. 
Assur.   Soc,   (Tenn.),  38  S.  W.  116. 

Washington.  —  Reed  v.  Tacoma 
Ass'n.,  2  Wash.  198,  26  Pac.  252,  26 
.\m.   St.   Rep.  851. 

39.  Newhall  v.  .•Vppleton,  102  N. 
Y.  133,  6  N.  E.  120:  Fabbri  r.  Phoe- 
ni.x   Ins.   Co.,   55   N.   Y.   129. 

40.  England.  —  Smith  v.  Thomp- 
son, 8  C.  B.  44.  65  Eng.  C.  L.  44; 
Attorney  General  v.  Shore,  11  Sim. 
592;  Way  z\  Mearn,  !06  Eng.  C.  L. 
291. 

Canada.  —  Cutten  ;•.  Ker,  16  L'.  C. 
C.  P.  227. 

United  States. —  C\ay  v.  Field,  138- 
U.  S.  464,  II   Sup.  Ct.  419. 

Alabama.  —  McGhee  v.  .\lexander, 
104  Ala.  116.  16  So.  148;  Smith  v. 
.\iken,  75  Ala.  209. 

Arkansas.  —  Cato  v.  Stewart,  28 
.\rk.   146. 

California.  —  .\uzerais 
74  Cal.  60,  15  Pac.  371  ; 
Alesick,   10   Cal.  95. 

Colorado.  —  Blair  r. 
Colo.   397,  8   Pac.   569. 

Connecticut.  —  Lock  wood     v. 
sup,  9  Conn.  272. 


V.    Naglee, 
Brannan  v. 

Bruns,     8 


Jes- 


AMBIGUITY 


845 


prior  to,  and  at  the  t'lme  of  tlie  writing-,  may  be  shown   for  the 
purpose  of  clearing  up  a  latent  ambiguity.*' 


.     Georgia.  —  Hill   v.    Felloii.   47    C7a. 
455.  15  Am.  Rep.  643. 

Illiiwis.  —  Lvman  v.  Gedney,  1 14 
III.  388,  55  Am.  Rep,  8;i. 

Indiana.  —  Thomas  v.  Trozel, 
(Ind.).  59  N.  E.  683. 

/('-CO.  —  Palmer  v.  Albee,  50  Iowa 
429. 

Kansas.  —  Wyandotte  County  v. 
First  Presbyterian  Church,  30  Kan. 
620. 

Kentucky.  —  Breeding  z\  Tyler,  13 
B.   Mon.   477. 

Louisiana.  —  Tavlor  v.  Hollander, 
5  Mart.  (N.  S.)  295;  Pigean  v. 
Commean,  4  Mart.    (N.  S.)   190. 

,1/a/»<?.  —  Patrick  v.  Grant,  14  Me. 
233:  Pope  V.  Alachias  Water  Power 
Co.,  52  Me.  535 :  Emery  i\  Webster, 
42  Me.  204,  66  Am.  Dec.  274. 

Massachusetts.  —  Durr  v.  Chase. 
161  .Mass.  40,  36  N.  E.  741  ;  Proctor 
V.  Hartigan,  143  Mass.  462,  9  N.  E. 
841. 

Minnesota.  —  Reeves  v.  Cress,  80 
Mmn.  466,  83  N.  W.  443. 

Mississilfffi.  —  Wilson  v.  Home,  37 
Miss,  477 ;  Peacher  v.  Strauss,  47 
Miss.  353. 

.yiissouii.  —  GofF  v.  Roberts,  72 
]\Io.  570. 

Xezi'  Hampshire.  —  French  v. 
Hayes.  43  N.  H.  30.  80  .Am.  Dec. 
127;  Tilton  V.  American  Bible  Soc. 
60  N.  H.  377,  49  Am.  Rep.  321  ;  Bart- 
lett  I'.   Nottingham,  8  N,   H.  300. 

Nezi'  Jersey.  —  Hartwell  v.  Cam- 
man,  10  N.  J.  Eq.  128,  64  Am,  Dec, 
448. 

New    York.  —  Mann    v.    Mann,     i 

Johns,   Ch.   231  ;   Myers  v.   Paine,   i.? 

App.  Div.  i32.  43   N,   Y.   Supp,   133, 

North     Carolina.    —    i\IcDaniel    t. 

King,  90  N.  C.  597. 

Ohio.  —  Caldwell  v.  Carthage,  40 
Ohio   St.  453. 

Oregon.  —  Raymond  v.  Coffey,  5 
Or.  132. 

Pennsylvania.  —  Best  i'.  Ham- 
mond. 55  Pa,  St.  409. 

Soutli  Carolina.  —  Barkley  f. 
Barkley,  3  McCord  260:  Goddard  r. 
Bulow,  I  Nott,  &  McC,  45,  9  .A.ni, 
Dec.  663. 

Texas.  —  Bnsbv  v.  Bush,  79  Te.x, 
656.   15   S,  W.  638. 

Utah.  —  Cowlaim  v.  Doull.  4  Utah 
267,  9  Pac.  568. 


/  'ernitint.  —  Pitts  ;■,  Brown,  49 
\"t,  86,  24  .\m.   Rep.    114, 

I'irginia.  —  Wooton  z\  Redd.  12 
Gratt.  196;  Hawkins  v.  Garland.  76 
Va,   149,  44  Am.   Rep.   158. 

iriscoiisin.  —  Schmitz  z:  Schmitz, 
19  Wis,  222.  88  Am.  Dec.  681, 

Legislative    Intent In    State   v. 

Partlow,  91  N,  C,  550,  49  Am,  Rep, 
652,  on  the  trial  of  an  indictment 
under  an  act  proliibiting  the  sale  of 
liquor  within  three  miles  of  "  ]\Iount 
Zion  Church  "  in  a  certain  county, 
it  appeared  that  there  were  two 
churches  known  by  that  name  in  the 
county,  and  parol  evidence  to  ex- 
plain the  ambiguity  was  excluded 
under  the  rule  that  legislative  intent 
must  be  shown  by  the  terms  em- 
bodying it. 

Coloring  of  Lots  on  Map.  ^—  In 
Board  of  Education  z\  Keenan,  55 
Cal.  042,  parol  evidence  was  ad- 
mitted to  show  that  the  coloring  of 
certain  lots  on  a  map  was  intended 
to  designate  those  selected  by  com- 
missioners for  school  purposes.  See 
also  Board  of  Education  t.  Donahue. 
53  Cal,  190. 

Identification  of  Subject-Matter. 
In  American  Ex.  Bank  v.  Georgia 
Const,  etc,  87  Ga,  651,  13  S,  E,  505, 
a  letter  was  in  evidence  promising 
to  pay  "  the  notes  "  of  a  firm,  and, 
under  the  Georgia  Code  allowing  all 
ambiguities  to  be  explained  by  parol, 
it  was  shown  whether  the  term 
comprehended  notes  on  which  the 
firm  was  an  indorser,  as  well  as 
those  of  which  it  was  the  maker. 

Identification  of  Party  in  Writ. 
In  Stubbs  <■.  Cook,  Cro,  Jac.  624,  a 
replevin  was  discharged  on  showing 
that  the  execution  debtor  in  the  writ 
was  identical  in  name,  but  not  in 
person,  with  the  owner  of  the  goods 
distrained. 

Where  There  Were  Apparently 
Two  Perfect  Kecords  of  the  proceed- 
ings of  a  town  meeting,  it  was  held 
that  parol  evidence  must  of  neces- 
sity be  resorted  to,  to  determine 
which  is  the  legitimate  record. 
Walter   r.    Belding,   24   Vt.    658. 

41.  Crafts  z:  Hibbard,  4  Mete. 
(Mass,)  438;  Waterman  i\  Johnson, 
13   Pick,    (Mass.)   261. 

Vol.  I 


S4f, 


AMBIGUITY. 


2.  Illustrations  of  Rule  Applied  to  Particular  Instruments.  —  A. 

Contracts  Gemcuallv.  —  So  also,  the  reception  of  extrinsic  evi- 
dence to  aid  or  explain  a  latent  ambiguity  has  been  uphehl  in  the 
case  of  such  an  ambiguity  occurring  in  the  subject  matter  of  a 
contract  generally. ^- 

Terms  Applicable  to  Two  or  More  Objects.  — The  rule  admitting  ex- 
trinsic evidence  to  aid  or  explain  a  latent  ambiguity  has  been 
especially  invoked  in  those  instances  where  the  terms  of  the  contract 
in  question  are  susceptible  of  application  to  two  or  more  objects.''-' 


42.  United  States.  —  Clay  v. 
Field,  138  U.  S.  464,  11  Sup.  Ct.  419. 

Alabama.  —  Smith  v.  Aiken,  75 
Ala.  209. 

Colorado.  —  Hager  v.  Rice,  4 
Colo.  90,  34  Am.  Rep.  68  (bill  of 
e.xchange.) 

Connecticut.  —  CoUin.s  z\  Driscoll, 
34  Conn.  43. 

Georgia.  —  Johnston  i'.  Patterson, 
86  Ga.  725,  13  S.  E.  i7- 

Illinois.  —  Trustees  of  Schools  v. 
Rogers,  7  111.  App.  32  (township's 
treasurer's  bond)  ;  Hogan  z'.  Wal- 
lace,,63  III.  App.  385. 

Kentucky.  —  Kentucky  Ass'n.  v. 
Lawrence,  20  Ky.  Law  1700,  49  S. 
W.  1059;  Chapman  i'.  Clements, 
(Ky.),  56  S.  W.  646. 

Louisiana. — Thompson  v.  P.rolh- 
ers,  5   La.  279. 

Maine.  —  Storer  r.  Elliott  Co..  45 
Me.    175    (insurance   policy.) 

Maryland.  —  McCann  z\  Preston, 
79  Md.  223.  28  Atl.   1 102. 

Massachusetts.  —  Keller  %\  Webb, 
125  Mass.  88. 

Michigan.  —  Germain  z\  Cent. 
Lum.  Co.,  120  Mich.  61.  78  N.  W. 
1007;  Wickes  Bros.  v.  Swift  Elec. 
L.  Co.,  70  Mich.  322,  38  N.  W.  299. 

Missouri.  —  Franklin  Sav.  Inst.  t'. 
Board   of   Education,   75    Mo.   408. 

Neiv  Jersey.  — BeW  v.  Martin,  18 
N.  J.  Law  167. 

Next'  yorfe.  —  McNutty  v.  Urban, 
I  Misc.  422,  21  N.  Y.  Supp.  247; 
Cole  I'.  Wendel,  8  Johns.  116;  Burr 
V.  Broadway  Ins.  Co.,  16  N.  Y.  267; 
Bowman  v.  Agricultural  Ins.  Co.,  59 
N.  Y.  521  ;  Manchester  Paper  Co.  !■. 
Moore,  104  N.  Y.  680,  10  N.  E.  86r. 

North  Carolina.  —  Bryan  j'.  Harri- 
son, 76  N.  C.  360. 

Ohio.  —  Webster  v.  Paul,  10  C)liio 
St.  531. 

Pennsylvania.  —  Beaver  i'.  Slear, 
182  Pa.  St.  213.  37  Atl.  991. 


South  Carolina.  —  Craig  f.  Pervis, 
14  Rich.   Eq.   150. 

Tennessee.  —  Mumford  v.  Mem- 
phis &  C.  R.  Co.,  2  Lea  393,  31  Am. 
Rep.  616. 

Texas.  —  Busby  z'.  Bush.  79  Te.x. 
656,  IS  S.  W.  638;  Missouri  K.  &  T. 
R'.  Co.  v.  Graves,  (Tex.),  16  S.  W. 
102. 

Virginia.  —  Bank  v.  Mc\"eigh,  32 
Gratt.    (Va.)    530. 

Where  a  latent  ambiguity  appears 
in  a  certificate  of  fraternal  benefi- 
ciary association  as  to  the  beneficiary 
intended,  and  an  attempt  is  made  to 
identify  such  beneficiary,  the  testi- 
mony of  the  person  who  drew  the 
application  for  membership  in  such 
association  is  admissible  to  show  the 
circumstances  under  which  the  cer- 
tificate was  made,  but  testimony  as 
to  what  the  deceased  member,  after 
the  making  of  the  certificate,  said  as 
to  his  intention  is  not.  Hogan  t. 
Wallace,  63  111.  App.  383. 

43.  England.  —  Brufif  z-.  Cony- 
beare,  13  J.  Scott  (N.  S.)  263.  106 
Eng.  C.  L.  261. 

Kentucky. — Hall  z\  Coulee,  (Ky.), 
62  S.  W.  899  (bond  for  title,  descrip- 
tion of  premises.) 

Maine.  —  Mecher  v.  Ocean  Ins. 
Co.,  59  Me.  217  (policy  of  insurance, 
ambiguity    as    to    property    insured.) 

Maryland.  —  Planters'  Ins.  Co.  z\ 
Deford,  38  Md.  .?82. 

Massachusetts.  —  Sutton  !•.  Bow- 
ker,  5  Gray  416  (place  of  unloading, 
bill  of  lading.) 

Mississiltpi.  —  Wilson  v.  Home,  37 
Miss.  477  (memorandum  of  settle- 
ment.) 

Ncii'  Jersey.  —  Axford  -'.  Meeks, 
59  N.  J.  Law  502.  36  Atl.  1036. 

Nezv  York.  —  Bagley  Co.  z'.  Sara- 
nac  Co.,  135  N.  Y.  626,  32  N.  E.  1.32. 

Ohio.  —  Barrett   r.  Allen,   10  Ohio 


Vol.  I 


AMBIGUITY. 


847 


B.  Contracts  m'  Guaranty.  —  Kxtrinsic  evidence  lias  been 
received  for  the  purpose  of  aiding  or  explaining  a  latent  ambiguity 
in  a  contract  of  guaranty.^* 

C.  Chattel  MortcaciCs.  —  So  also,  a  latent  ambiguit\  in  the 
description  of  the  i)roperty  embraceil  in  a  chattel  mortgage  is 
explained  by  parol/^ 

D.  Contracts  for  Sale  of  Lan».  —  So,  where  a  contract  for 
the  sale  of  land  refers  to  some  extraneous  fact  or  facts  in  the 
description  of  the  land,  parol  evidence  of  such  facts  may  be  received 
to  identify  the  land.'"' 

E.  CowEVAXcES. — a.  Description  of  Prciiiiscs.  —  (1.)  In  General. 
Latent  ambiguities  in  the  description  of  premises  in  a  conveyance 
are  within  the  rule  admitting  extrinsic  evidence  in  aid  or  explana- 
tion thereof,  whether  the  ambiguity  occurs  in  respect  of  the  appli- 
cation of  the  terms  to  the  subject  matter  generally,"''  or  in  the  case 


426  (promissory  note,  mode  of  pay- 
ment.) 

Peniis\Ivania. — Lycoming  Ins.  Co. 
V.  Sailer,  67  Pa.  St.  108. 

South  Dakota.  —  First  Kat.  Bank 
r.  North,  2  S.  D.  480,  51   N.  W.  96. 

Wisconsin.  —  Fornette  f.  Car- 
michael,  41  Wis.  200  (contract  for 
sale  of  logs,  mode  of  ascertaining 
amount  due.) 

In  Mnmford  T.  Memphis  &  C.  R. 
Co.,  2  Lea  (Tenn.)  39J,  ,31  .\m.  Rep. 
616,  one  of  the  defendants  had  heen 
appointed  ticket  agent  for  the  plain- 
tiff railroad  at  Memphis,  and  gave 
bond  as  sucli  agent.  It  appeared 
that  the  plaintiff  maintained  two 
ticket  offices  in  that  city.  It  was 
held  that  parol  evidence  was  admis- 
sible to  show  to  which  office  the  ile- 
fendant  was  appointed. 

44.  Hamill  Co.  v.  Woods,  94 
Iowa  246,  62  N.  W.  735. 

45.  Galen  i'.  Brown,  22  N.  Y.  37. 

46.  Holmes  v.  Evans,  48  Miss. 
247,   12  Am.   Rep.  372. 

Indiana  Rule "  Where  the  de- 
scription ( in  a  contract  of  convey- 
ance) so  far  as  it  goes,  is  consistent, 
but  does  not  appear. to  be  complete, 
it  may  be  completed  by  parol  evi- 
dence, provided  a  new  description  is 
not  introduced  into  the  body  of  the 
contract."  Baldwin  z'.  Kerlin,  46 
Ind.  426. 

47.  United  States.  — Boardman  z\ 
Reed,  6  Pet.  328;  Deery  !■.  Crav,  10 
Wall.  263. 

Alabama.  —  Stamphiil    j'.    Bullen. 


121  Ala.  250,  25  So.  928;  Guilmanin 
I'.  Wood.  76  Ala.  204. 

Arkansas.  —  Dorr  i'.  School  Dis- 
trict,  40  Ark.   237. 

Colorado.  —  Sullivan  z\  Collins,  20 
Colo.   528. 

Connecticut.  —  Nichols  v.  Turney, 
15  Conn.  Id  ;  Collins  v.  Driscoll.  .^4 
Conn.  4,?. 

Georgia. —  Kirkpatrick  !■.  Brown, 
59  Ga.  450. 

Illinois.  —  Bybee  i'.  Hageman,  66 
111.  519;  Evans  V.  Gerry,  174  111.  595. 
51  N.  E.  615.^ 

Indiana.  —  Synimes  i'.  Brown.  13 
Ind.  318. 

Kentucky.  —  Baker  v.  Talbott,  6 
T.  B.  Mon.  179;  Breeding  z'.  Taylor, 
13  B.   Mon.  477. 

Louisiana.  —  Brand  i'.  Dannay.  8 
Mart.   (N.  S.)   159,  19  Am.  Dec.  176. 

Maine.  —  .\l)bott  f.  .\bbott,  51   Me. 

575- 

Massachusetts.  —  Crafts  z\  Hib- 
bard,  4  Mete.  448 ;  Hoar  v.  Gould- 
ing,  116  Mass.  132;  Putnam  v.  Bond, 
100  Mass.  58. 

Michigan.  —  Slater  z\  Breese,  36 
Mich.  77. 

Minnesota.  —  Slosson  i'.  Hall.  17 
Minn.  95. 

Mississipfi.  —  Ladnier  v.  Ladnier. 
75  Miss.  777,  25  So.  430;  Morton  r. 
Jackson,  i  Smed  &  M.  494,  48  Am. 
Dec.  107. 

Nezv  i'ork.  —  Petrie  f.  Hamilton 
College,  158  N.  Y.  458,  53  N.  E.  216. 

North  Carolina.  —  Blow  •!'. 
Vaughan,  105  N.  C.  198,  10  S.  E. 
891. 

Vol.  I 


S48 


IMBICriTY 


of    descriptions    falling'    within    the    purview    of    the    maxim    falsa 
dciiionstrafio  iioii  iiocct.''^ 


Ohio.  —  Caldwell  z\  Carthage,  40 
Ohio  St.  453. 

Pennsylvania.  —  Patton  ;'.  Gold- 
borough,  9   Scrg.   &  R.  47. 

Texas.- — Clark  v.  Regan,  (Tex. 
Civ.  App.),  45  S.  VV.  169;  Webb  -d. 
Frazar,  (Tex.  Civ.  App.),  29  S.  W. 
665 ;  Montgomery  '■.  Carlton.  56 
Tex.  361 ;  Kingston  r.  Pickens,  46 
Tex.  99. 

Vermont.  —  Hull  ''.  Fuller,  7  Vt. 
100. 

Wisconsin.  —  Lego  v.  Mealey,  79 
Wis.  211,  48  N.  W.  375,  24  Am.  St. 
Rep.  706;  Schmitz  v.  Schmitz,  ig 
Wis.  222,  88  Am.  IJcc.  681. 

The  Test  of  the  Admissibility  of 
Evidence  Dehors  the  Deed  is  in- 
vohed  in  the  question  whetlier  it 
tends  to  so  explain  some  descriptive 
word  or  expression  contained  in  it 
as  to  show  that  such  phraseology, 
otherwise  of  doubtful  import,  con- 
tains in  itself,  with  such  explanation, 
and  identification  of  the  land  con- 
veyed. The  doctrine  finds  its  sup- 
port in  the  maxim  "  Id  eertum  quod 
cerium  rcddi  potest."  Blow  v. 
Vaughan,  105  N.  C.  198,  10  S.  E. 
891. 

Conversation  at  Time  of  Making 
Deed.  —  In  an  action  of  ejectment 
where  the  question  involved  is 
whether  the  premises  in  suit  are  in- 
cluded in  the  description  in  a  cer- 
tain deed,  and  the  ambiguity  does 
not  appear  on  the  face  of  the  deed, 
but  only  by  evidence,  a  conversation 
between  the  parties  to  the  deed 
while  the  deed  was  being  drawn,  and 
in  the  presence  of  the  scrivener,  and 
in  accordance  with  which  an  altera- 
tion was  made  in  the  description,  is 
admissible  in  evidence  as  part  of  the 
res  gestae,  tending  to  identify  the 
boundaries  in  dispute.  Purkiss  t'. 
Benson,  28   Mich.   538. 

in  Bumpass  v.  Morrison,  70  Tex. 
756,  8  S.  W.  596,  under  a  clause  i.^ 
a  deed  retaining  a  lien  for  prospec- 
tive loss  touching  adverse  claims, 
evidence  was  admitted  in  a  suit  to 
foreclose  the  lien  to  show  the  suit 
anticipated  in  reference  to  the  title, 
and  the  expenses  incurred  in  de- 
fending it. 

In    Prentiss    t'.    Brewer,    17    Mich. 

Vol.  I 


635,  under  a  conveyance  of  "  the 
south  half  of  the  fractional  quarter  " 
of  a  designated  section,  it  was  shown 
that  the  section  was  irregular  in 
shape,  and  evidence  was  held  admis- 
sible to  show  that  the  moiet}'  was 
tended  to  be  that  of  actual  area,  and 
not  according  to  government  survey. 
See  also  Hartford  Co.  v.  Cambria 
Co.,  80  Mich.  491.  45  N.  W.  351; 
Owen  z:  Henderson,  16  Wash.  39,  47 
Pac.  215,  58  Am.  St.  Rep.  17. 

'■  Where  a  deed  in  one  case  bounds 
the  premises  conveyed  on  one  side 
by  a  certain  lane,  and  other  parts 
of  the  deed  cannot,  on  comparing  the 
description  with  the  premises,  be 
answered  unless  another  lane,  par- 
allel with  the  first  but  at  a  greater 
distance  from  the  opposite  side  of 
the  land  than  the  first  mentioned 
lane,  be  taken  as  the  monument, 
extrinsic  evidence  is  admissible  to 
explain  the  latent  ambiguity. 
Thornell  v.  Brockton,  141  Mass.  151, 
6  N.  E.  74- 

48.  Illinois.  —  Sharp  v.  Thomp- 
son,  100  111.  447,  39  Am.  Rep.  61. 

Indiana.  —  Lannan  v.  Crocker,  97 
Ind.  163,  49  Am.  Rep.  437. 

Kentucky.  —  Breeding  v.  Taylor, 
13  B.  Mori.  477. 

Louisiana.  —  Kcrnan  v.  Bahaiu,  45 
La.  Ann.  799,  13  So.   155. 

Michigan.  —  Slater  v.  Breesc,  36 
Mich.   77. 

Nezcj  Hampshire.  —  Cushman  v. 
Luther,  S3  N.  H.  562. 

North  Carolina.— God  r.  Pope,  83 
N.  C.  123. 

South  Carolina.  —  Milling  !■. 
Crankfield,   i   McCord  258. 

Texas.  —  Green  v.  Barnes,  9  Tex. 
Civ.  App.  660,  29  S.  W.  545;  Aram- 
bula  v.  Sullivan,  80  Tex.  615.  16  S. 
W.  436;   Early   7'.    Sterrett.    18  Tex. 

11.3- 

Virginia.  —  Elliott  v.  Horton,  28 
Gratt.   766. 

Under  a  claim  that  the  clause  of  a 
conveyance  creates  an  ambiguity  as 
to  the  premises  conveyed  thereby, 
extrinsic  evidence  is  not  admissible 
to  show  that  the  grantor  intended  to 
convey  according  to  such  clause 
where  other  parts  of  the  conveyance, 
by    reference    to    other    conveyances. 


AMBIGUITY. 


84  <> 


(2.)  Two  Descriptions  Applying  to  Same  Subject  Matter.  —  So  also, 
where  two  descriptions  of  the  premises  conveyed  are  found  to  apply 
to  the  same  subject  matter,  the  rule  admitting  extrinsic  evidence  is 
invoked.'"' 

(3.)  Description  Applicable  to  Two  or  More  Objects.  —  And  where  the 
terms  of  the  conveyance  are  applicable  indifferently  to  two  or  more 
tracts  of  land,  the  rule  admitting  extrinsic  evidence  mav  be 
invoked.-'^'  So  also,  in  the  case  of  the  extrinsic  of  two  or  more 
monuments  or  boundaries.^^ 


precisely  and  accurately  identifie'; 
the  premises  to  be  conveyed.  Stowell 
V.   Buswell,    I3S   Mass.   340. 

49.  Arkansas.  ■ —  Cato  v.  Stewart, 
28  Ark.   146. 

Colorado.  —  Sullivan  v.  Collins, 
20  Colo.  528,  39  Pac.  334. 

Illinois.  —  Evans  v.  Gerry,  174  111. 
595.  51    N.  E.  615. 

MassaclitiSi-tls.  —  Fisk  7:  Fisk,  12 
Cush.  150. 

Michigan.  —  Moran  v.  Lezotte,  54 
Mich.  83,   19  N.  W.  757. 

Missouri.  —  Thornton  v.  Missouri 
Pac.  R.  Co.,  40  Mo.  App.  265. 

i\'t-tt'  Jersey.  —  Thayer  v.  Torrey, 
37  N.  J.  Law-  339. 

Pcnnsvh'ania.  —  Hetherington  v. 
Clark,  30  Pa.  St.  393. 

Texas.  —  Giddings  v.  Day,  84  Tex. 
605,   19  S.  W.  682. 

50.  Alabama.  — Dorgan  v.  Weeks, 
86  Ala.  329.  5  So.  581. 

California.- — Vejar  v.  Mound  City 
Land  &  W.  Ass'n.,  97  Cal.  659,  32 
Pac.   713. 

Illinois.  —  Fisher  v.  Quackenbush, 
83  111.  310;  Bybee  v.  Hageman,  66 
111.  519. 

loii'a.  —  Palmer  v.  Albec,  50  Iowa 
429. 

Louisiana.  —  Bagley  -'.  Deimy,  26 
La.   Ann.  255. 

Maryland.  —  Rogers  v.  Moore,  7 
Har.  &  J.  III. 

Massachusetts.  —  Durr  v.  Chase, 
161  Mass.  40,  36  N.  E.  741  ;  Mead  i'. 
Parker,  115  Mass.  413,  15  Am.  Rep. 
110. 

Michigan.  —  Ives  v.  Kimball,  I 
Mich.  308. 

Mississippi.  —  Fonte  z'.  Fairman, 
48  Miss.  536. 

Nebraska.  —  Ballou  t'.  Sherwood, 
32   Neb.  666,  49  N.  W.  790. 

New  Hampshire.  —  Lathrnp  i; 
Blake,  23  N.  H.  46. 

54 


Nezi'  Mexico.  —  Gentile  v.  Cross- 
man,  7  N.   M.  589,  38  Pac.  247. 

North  Carolina.  —  McGIawhom  v. 
Worthington,  98  N.  C.  199.  3  S.  E. 
633. 

Pennsylvania.  —  Hetherington  7/. 
Clark,  30  Pa.  St.  393. 

South  Carolina.  —  Scates  v.  Hen- 
derson, 44  S.  C.  548,  22  S.  E.  724. 

Tennessee. —  Snodgrass  v.  Ward, 
3  Hayw.  40. 

Texas.  —  Bassett  v.  Martin,  83 
Tex.  339,  18  S.  W.  587. 

Wisconsin.  —  Sargeant  v.  Solberg, 
32  Wis.   127. 

Place  of  Sale  Under  Trust  Deed. 
In  Goff  V.  Roberts,  72  Mo.  570,  by 
the  terms  of  a  trust  deed  if  the 
grantor  defaulted  in  payment  of  a 
note  the  trustees  were  authorized  to 
sell  the  property  at  the  courthouse 
door  in  a  certain  town,  and,  as  there 
were  two  houses  called  such  in  the 
town,  parol  evidence  was  held  ad- 
missible to  show  which  was  in- 
tended. 

51.  United  States.— ^eeA  ;■.  Pro- 
prietors of  Locks  &  Canals,  8  How. 
274. 

Alabama.  —  Stamphill  v.  Bullen, 
121  Ala.  250,  25  So.  928. 

Connecticut.  —  Wooster  v.  Butler, 
19  Conn.  308. 

Indiana.  —  Hurst  v.  Francis,  5 
Ind.  302. 

Kentuckv.  —  Shelby  z:  Teris, 
(Ky.),  14  S.  W.  501- 

Maine.  —  Emery  j'.  Webster,  42 
Me.  204,  66  Am.  Dec.  274;  Tyler  z: 
Fickett,  73  JMe.  410. 

Massachusetts.  —  Flagg  v.  Mason, 
141  Mass.  64,  6  N.  E.  702;  Water- 
man V.  Johnson,  13  Pick.  261 ;  Mac- 
donald  v.  Morrill,  154  Mass.  270,  28 
N.  E.  259. 

Michigan.  —  Purkiss  v.  Benson,  28 
Mich.  538. 

Vol.  I 


850 


AMBIGUITY. 


b.  Dcscri[<tion  of  Party.  —  (1.)  In  General. —  Where  the  descrip- 
tion of  the  party  to  a  conveyance  is  equivocal  in  its  application  to 
the  person,  evidence  is  admissible  to  show  what  one  was  intended.''^ 

(2.)  Duplicate  Grantees.  —  In  case  the  description  of  a  grantee  can 
be  applied  to  two  or  nujre  persons  indifferently,  the  rule  admitting 
parol  evidence  to  show  the  one  intended  may  be  invoked."'' 

F.  Leases.  —  So  also,  a  latent  ambiguity  in  a  lease  may  be  aiiled 
or  explained  by  extrinsic  evidence.^* 


New  Hampshire.  —  Freiicli  v. 
Hayes,  43  N.  H.  30.  80  Am.  Dec.  127. 

New  Jersey. — Curtis  v.  ."Varonson, 
49  N.  J.  Law  68,  7  Atl.  886,  60  Am. 
Rep.  584. 

Nezv  York.  —  Stewart  v.  Patrick, 
68  N.  Y.  450. 

North  Carolina.  —  Lawrence  i'. 
Hyman,  79  N.  C.  209. 

Oregon.  —  Kanne  f.  Otty,  25  Or. 
531,  36  Pac.  537. 

Pennsvlvania.  —  Koch  v.  Dmikcl, 
90  Pa.  St.  264. 

Te.ras.  —  Johnson  t'.  Archibald.  78 
Te.x.  96,  14  S.  W.  266.  22  Am.  St. 
Rep.  27. 

Vermont.  —  Wead  x<.  St.  Johns- 
bnry  R.  Co.,  64  Vt.  52,  24  Atl.  361. 

Washington.  —  Reed  z\  Tacoma 
BIdg.  &  Sav.  Ass'n.,  2  Wash.  198,  26 
Pac.  252,  26  Ain.   St.  Rep.  851. 

52.  California. — Wilson  ','.  White, 
84  Cal.   239,  24  Pac.   1 14. 

Georgia.  —  Bowen  v.  Slaughter,  24 
Ga.  338.  71  Am.  Dec.  135 ;  Hender- 
son V.  Haskney,  23  Ga.  383,  68  .\m. 
Dec.   529. 

Illinois.  —  Young  v.  Lorain,  1 1 
111.  624,   52  Am.  Dec.  463. 

Louisiana.  —  Palangue  v.  Gucsnon, 
15  La.  311. 

Massachusetts.  —  Scanlan  v. 
Wright,    13   Pick.   523,   25   Am.    Dec. 

344- 

Minnesota.  —  Wakefield  v.  Brown, 
.38  Minn.  361,  37  N.  W.  788,  8  Am. 
St.  Rep.  671. 

Missouri. — Williams  v.  Carpenter, 
42  Mo.  327. 

Te.ras.  — French  v.  Koenig.  8  Te.x. 
Civ.   App.   341,  27   S.   W.   1079. 

Wisconsin.  —  Sydnor  v.  Palmer, 
29  Wis.  226;  Staak  v.  Sigelkow,  12 
Wis.  259. 

Where  a  Co-Partnership  Is 
Named  As  the  Grantee  in  a  Deed 
giving  the  surnames  of  the  partners, 
but  omitting  the  Christian  names, 
any  ambiguity  resulting  therefrom 
is  what  the  law  denominates  a  latent 
Vol.  I 


ambiguity,  and  parol  evidence  is  ad- 
missible to  remove  the  same  and 
identify  the  grantees.  Cole  v.  Mette. 
65  Ark.  503,  47  S.  W.  407,  67  Am.  St. 
Rep.  945.  See  also  Menage  v. 
Burke,  43  Minn.  211,  45  N.  W.  155, 
19  Am.  St.  Rep.  235 ;  De  Cordova 
V.  Korte,  7  N.  M.  678,  41  Pac.  5-26: 
and  where  there  is  a  conveyance  to 
one  partner  bj'  a  deed  absohite  on  its 
face,  and  it  is  attempted  to  be  shown 
that  it  was,  in  fact,  a  conveyance 
to  him  for  the  use  of  himself  and 
his  co-partners,  as  tenants  in  com- 
mon, parol  evidence  is  competent  to 
remove  that  ambiguity  by  showing 
that  it  was  owned  by  them  as  part- 
nership property.  Black's  .\pp.,  89 
Pa.  St.  201. 

53.  Arkansas.  — \\'o\ii  v.  Elliott,, 
(Ark.),  57  S.  W.  nil. 

Illinois.  —  Billings  !■.  Kankakee 
Co.,  67  111.  489- 

Massachusetts.  —  Simpson  f.  Di.x, 
131  Mass.  179;  Kingsford  v.  Hood. 
IDS  Mass.  495. 

Ne7i'  York.  —  Jackson  ?•.  Goes,  13 
Johns.  518. 

0/1/0.  —  Avery  <•.  Stites.  Wriglit, 
56. 

Wisconsin.  —  Begg  z'.  Begg,  56 
Wis.  534,   14  N.  W.  602. 

Where  a  deed  is  e.xecuted  to  a 
person  named  therein,  of  a  certain 
town,  and  it  is  shown  that  there  are 
two  persons  of  that  name,  father 
and  son,  residing  in  such  town;  this 
is  a  case  of  latent  ambiguity,  and 
parol  evidence  is  admissible  to  sliow 
which  of  those  persons  was  intended 
as  the  grantee.  Coit  z\  Stark- 
weather,  8   Conn.   289. 

54.  American  Sav.  Bank  v. 
Shaver  Carriage  Co.,  (Iowa).  82  N. 
W.  484;  Myers  v.  Sea  Beach  R.  Co., 
43  App.  Div.  573,  60  \.  Y.  Supp. 
284;  Paugh  V.  Paugh,  40  III.  .\pp. 
143;  Fowler  r.  Ni.xon,  7  Heisk. 
(Tenn.)  719. 


AMBIGUITY. 


S51 


G.  CowEYANCUs  BY  PciiLic  Offickrs.  —  The  weight  of  author- 
ity is  to  the  effect  that  the  rule  admitting-  extrinsic  evidence  to  aid 
or  explain  a  latent  ambiguity  in  instruments  of  writing  generally 
applies  with  equal  force  to  conveyances  by  public  officers,^^  although 
it  has  been  held  to  the  contrary."" 

H.  Wills.  —  a.  Description  of  Subject  Matter.  —  An  ambiguity 
in  the  description  of  the  thing  or  property  bequeathed  or  devised  in 


55.  Sullivan  t'.  Collins.  20  Colo. 
528,  39  Pac.  334;  Brown  7'.  M'alker, 
85  Mo.  262;  Billings  i'.  Kankakee 
Co.,  67  II!.  489:  Brown  z'.  Gnice.  46 
Miss.  299;  Wildasin  r.  Bare,  171 
Pa.   St.  387,  33  Atl.  36s. 

Statement  of  the  Rule.  —  It  is 
true  that,  if  a  sheriff  levies  on  a 
whole  tract  of  land,  and  describes  it 
accurately  in  his  levy  and  deed,  parol 
testimony  cannot  be  received  to  show 
that  he  intended  to  sell  less  than 
his  deed  describes,  or  that  he  ex- 
cepted a  part  of  the  premises  at  the 
time  of  the  sale.  But  that  is  not  the 
case  before  us.  The  testimony  of- 
fered is  not  to  contradict  the  levy 
and  deed,  but  to  explain  and  con- 
firm them.  The  plaintiff's  testimony 
had  shown  that  there  was  a  latent 
ambiguity  on  the  face  of  his  deed. 
It  purported  to  convey  a  single  tract 
of  land ;  it  described  one  tract  com- 
pletely, with  a  single  exception 
which  applied  to  another.  It  might 
be  void  for  uncertainty,  if  its  de- 
scription equally  applied  to  two 
tracts,  while  it  clearly  purported  to 
convey  but  one.  It  might  convey 
one,  and  the  part  of  the  description 
which  did  not  apply  to  that  would 
be  rejected  as  falsa  dcmonstratio.  or 
misdescription.  Or  it  might  possi- 
bly be  intended  to  convey  both ;  but 
in  the  present  case  the  latter  suppo- 
sition had  hardly  a  shade  of  proba- 
bility to  support  it.  Atkinson's  Les- 
see t'.  Cummins,  9  How.  479. 

In  Texas,  there  are  decisions 
to  the  effect  that  a  resort  to 
such  evidence  is  not  permissible 
to  aid  a  latent  ambiguity  in 
a  conveyance  by  a  public  officer. 
Wofford  V.  McKinna,  2^  Tex.  36,  76 
Am.  Dec.  53.  But  the  tendency  of 
recent  decisions  is  to  ignore  any 
distinction  between  such  convey- 
ances and  ordinary  conveyances,  and 
to  recognize  the  rule  as  stated  in  the 
text.     Frazier  v.  Waco   Bldg.   .\ssn. 


(Tex.  Civ.  .\pp.).  61  S.  W.  i.?2: 
Pierson  z'.  Sanger,  93  Tex.  160,  53 
S.  W.  1012;  Hermann  v.  Likens, 
90  Tex.  448,  39  S.  W.  382;  Barclay 
V.   Stuart,  4  Tex.  Civ.   App.  68i.   23 

s.  w.  799. 

In  Wisconsin,  it  was  formerly 
held  tliat  parol  evidence  was  not 
admissible  to  explain  a  latent  am- 
biguity in  such  a  document;  but 
this  rule  has  been  held  to  have  been 
modified  by  a  statute  so  as  to  let 
in  such  evidence.  Jenkins  v.  Sharpf, 
27   Wis.   472. 

56.  Birchmore  v.  Broughton, 
Harp.   (S.  C.)   300. 

Parol  evidence,  after  contlicling 
rights  have  grown  up,  cannot  be 
received,  to  make  the  levy  certain, 
which  before  was  wholly  uncertain. 
Gault  V.  Woodbridge,  4  McLean 
329,  ID  Fed.  Cas.  No.  5275. 

A  decree  for  the  enforcement  of 
a  mechanic's  lien,  in  which  the  prop- 
erty is  described  as  "  one  acre,  more 
or  less,  lying  north  of,  and  adjoin- 
ing the  northwest  corner  of  Sixby's 
addition  to  the  village  of  Van  Buren, 
in  the  county  of  La  Grange,  state 
of  Indiana,"  is  void  for  uncertainty, 
and  is  not  competent  evidence  to 
sustain  a  sheriff's  deed,  made  in  pur- 
suance of  an  order  of  sale  issued 
upon  such  decree.  It  is  not  com- 
petent in  such  cases,  by  parol  evi- 
dence, to  correct  a  radical  defect  in 
the  description  of  property  directed 
by  such  decree  to  be  sold,  or  to 
identify  it  with  that  claimed  by  the 
purchaser  under  a  sheriff's  deed:  and 
where  the  notice  of  lien  filed  by  the 
mechanic  describes  the  property  as 
above  set  forth,  and  adds  that  it  is 
the  same  land  "  conveyed  to  said 
G  by  one  E  B,"  said  last  named 
deed  will  not  be  competent  as  evi- 
dence to  sustain  such  decree,  for 
such  decree  must  itself  contain  an 
intelligible  description  of  the  prop- 
erty.    Munger  i'.   Green,  20  Ind.  .^8. 

Vol.  I 


852 


AMBIGUITY. 


a  will  comes  within  the  rule  admitting  extrinsic  evidence  to  aid  or 
explain  a  latent  amljiguity,  whether  the  ambiguity  is  in  the  descrip- 
tion generally  of  the  subject  of  the  bequest  or  devise,'''  in  which 
case  extrinsic  evidence  is  admissible  to  identify  the  thing  or  prop- 
erty intended;^"'  or  whether  the  ambiguity  arises  from  the  fact  that 
there  are  two  or  more  things  or  parcels  of  land  to  which  the  bequest 
or  devise  may  apply/"  in  which  case  the  identity  of  the  one  intended 
may  be  shown  by  evidence  of  declarations  of,  and  the  circumstances 
surrounding,  the  testator.'^" 


57.  England.  —  Alillcr  v.  Fraiers, 
8  Bing.  244,  21  Eng.   C.  L.  288. 

United  States.  —  Patch  v.  White, 
117   U.   S.  210,  6  Sup.   Ct.   617. 

Illinois.  —  Decker  v.  Decker,  121 
111.   341,   12   N.   E.   750. 

Kentucky.  —  Breckenridge  v.  Dun- 
can, 2  A.  K.  Marsh.  50,  12  Am.  Dec. 

359- 

Missouri.  —  Riggs  r.  JMyers,  20 
Mo.    239. 

Neti.'  Hampshire.  ■ —  Winkley  v. 
Kainie,  32  N.   H.  268. 

58.  England.  —  Miller  v.  Fraiers, 
8  Bing.  244,  21  Eng.  C.  L.  288. 

United  States.  —  Gilmer  v.  Stone. 
120    U.    S.    S86. 

Conneclieut.  —  Beardsley  v.  Amer- 
ican Home  Mis.  Sec,  45  Conn.  327. 

Illinois.  —  Decker  T.  Decker,  121 
111.    341,    12   N.   E.   750. 

Kentucky.  —  Breckenridge  v.  Dun- 
can, 2  A.  K.  Marsh.  50,  12  Am.  Dec. 

359- 

Massachusetts.  —  Hinckley  v. 
Thatcher,  139  Mass.  477,  i  N.  E. 
840,   52  Am.   Rep.   719. 

Missouri.  —  Riggs  ik  Myers,  20 
Mo.  239. 

iWiC  Haml>shire.  —  Pickering  v. 
Pickering,  50  N.  H.  349;  Winkley  v. 
Kaime,  32  N.   H.  268. 

AVii'  Jersey.  —  Taylor  i'.  Tolen,  38 
N.   J.   Eq.  91- 

Neiv  York.  —  Lefevre  v.  Lefevre, 
59  N.   Y.  434- 

North  Carolina.  —  Hatch  I'.  Hatch, 
2   Hayw.   ig. 

The  Admission  of  Such  Evidence 
Is  No  Encroachment  npon  the  rule 
(to  sustain  which  numerous  cases 
were  cited),  that,  "in  general,  parol 
evidence  of  the  intention  of  the  tes- 
tator is  inadmissihle  for  the  purpose 
of  e.xplaining,  contradicting  or  add- 
ing to  the  contents  of  the  will;  hut 
its  language  must  be  interpreted  ac- 
cording   to    its    terms."      Morgan    j'. 

Vol.  I 


Burrows,  45  Wis.  211,  30  Am.  Rep. 

Where  words  in  a  will  are  fairly 
and  legitimately  applicable  to  one 
thing  as  its  name,  and  are  equally 
applicable  to  another  thing  as  words 
of  description,  parol  evidence  is  ad- 
missible to  show  in  which  of  the 
two  senses  the  testator  was  in  the 
habit  of  using  the  words.  Boggs  v. 
Taylor,  26  Ohio  St.  604. 

59.  England.  —  ;\liller  z\  Fraiers, 
8  Bing.  244,  21   Eng.  C.  L.  288. 

Connecticut.  —  Doolittle  v.  Blakes- 
ley,  4  Day  265,  4  Am.   Dec.   218. 

Maryland.  —  Hammond  ',:  Ham- 
mond," 55  Md.   575. 

Massachusetts. — Sargent  i'.  Towne, 
10    Mass.    303. 

Michigan.  —  Waldron  v.  Waldron, 
45   Mich.  350,  7   N.   W.  894. 

Nets.'  Jersey.  —  Den  v.  Culberly,  12 
N.  J.   Law  308. 

North  Carolina.  —  Lowe  7'.  Carter, 
2   Jones    Eq.    377. 

0/!io.  — Black  V.  Hill,  32  Ohio  St. 

Pennsylvania.  —  Brownfield  v. 
Browntield,  12  Pa.  St.  13O,  51  .\m. 
Dec.   590. 

60.  England. — In  re  Kilvert's 
Trusts,  12  Eng.  C.  L.  183;  Grant 
I'.  Grant,  L.  R.  5  C.  P.  38. 

Connecticut.  —  Durham  v.  ,'\verill, 
45  Conn.  61,  29  Am.  Rep.  642. 

Illinois.  —  Bradley  i'.  Rees,  113 
111-   3^7.   55   Am.   Rep.  422. 

Indiana.  —  Daugherty  i'.  Rogers, 
iig  Ind.  254,  20  N.  E.  779. 

Joti'a.  —  Covert  Z'.  Sebern,  73  Iowa 
564,   35    N.   W.   636. 

Kentucky.  —  Cromie  Z'.  Louisville 
Orphan's    Home    Soc,    3    Bush.    365. 

Maine.  —  Howard  z'.  American 
Peace   Soc,  49  Me.   288. 

Massachusetts. — Morse  z'.  Stearics, 
131  Mass.  389;  Sargent  f.  Towne, 
ID  Mass.  303. 


AMBIGUITY. 


853 


b.  Description  of  Dci'iscc  or  Legatee.  —  Likewise,  where  an 
ambiguity  arises  in  respect  of  the  appHcation  of  the  designation  of 
the  devisee  or  legatee  named  in  a  will,  to  an  individual,"'  or  where 


Michigan.  —  Waldron  v.  Waldron, 
45   Mich.  350,  7   N.  W.  894. 

Nnu  Hampshire.  —  Tilton  v.  Am- 
erican Bible  Soc.  60  N.  H.  377.  49 
Am.  Rep.  321. 

Nen<  Jersey.  —  Den  v.  Cu1)berly,  12 
N.  J.  Law  308. 

Nezv  York.  —  St.  Luke's  Home  t'. 
Ass'n  for  Relief,  52  N.  Y,  191,  11 
Am.  Rep.  697;  Jackson  v.  Goes,  13 
Johns.  518;  Tillotson  ?■.  Race,  22 
N.  Y.   122. 

North  Carolina.  —  Lowe  v.  Carter, 

2  Jones   Eq.  377. 

O/n'o.  —  Black  v.  Hill.  ?,2  Ohio  St. 

313. 

Pennsylvania.  —  Vernor   i\    Henry, 

3  Watts  .185 ;   Brownfield  ;■.   Brown- 
field,  12  Pa.  St.  136,  51  Am.  Dec.  590. 

Tennessee.  —  Gass  v.  Ross,  3 
Sneed  211. 

Vermont.  —  Townsend  v.  Downer, 
23   Vt.   225. 

Virginia.  —  Maund  v.  McPhail,  lo 
Leigh   199. 

Wisconsin.  —  Webster  r.  Morris, 
66  Wis.  366.  28  N.  W.  353.  57  Am. 
Rep.  278. 

Declarations  of  the  Testator 
may  be  resorted  to  in  case  of  a 
latent  ambiguity,  which  arises  where 
there  are  two  or  more  persons  or 
things,  each  answering  exactly  to  the 
person  or  thing  described  in  the  will. 
In  such  an  event,  parol  evidence  of 
what  the  testator  said  may  law- 
fully be  adduced,  to  show  which  of 
them  he  intended ;  but  such  evidence 
will  not  be  allowed  to  show  that  he 
meant  a  thing  different  from  that 
disclosed  in  the  will.  Griscoin  v. 
Evens,  40  N.  J.  Law  402.  29  Am. 
Dec.  251. 

Upon  the  question  as  to  what  the 
words  used  by  the  testator  to  ex- 
press evidence  of  declaration  as  to 
what  were  his  intentions  in  the  dis- 
positions which  he  had  made,  Q,r  as 
to  the  ilisposition  which  he  intended 
to  make,  of  his  property,  is  inad- 
missible. But  where  it  is  found  that 
the  terms  used  apply  indifferently 
and  without  ambiguity  to  each  of 
several  subjects  or  persons,  then  evi- 
dence of  such  declarations  is  admis- 


sible. Wooten  ;■.  Redd,  12  Gratt. 
(Va.)    196. 

The  general  rule  that  parol  evi- 
dence is  admissible  to  explain  .a 
latent  ambiguity,  is  perfectly  well 
settled;  and  that  the  condition  of 
the  testator's  property  may  be  shown 
to  raise  this  ambiguity,  is  also  set- 
tled. Brainerd  1'.  Cowdrey.  16 
Conn.    1. 

Instructions  of  a  Testator  to  a 
Scrivener  who  drew  his  will  have 
been  held  admissible  in  case  of  a 
latent  ambiguity.  Den  v.  Cubberly, 
12    N.    J.    Law    308. 

Contra.  —  Hill  v.  Felton,  47  Ga. 
455.  15  Am.  Rep.  643 :  see  also 
Frick  V.  Prick.  82  Md.  218,  33 
Atl.  462,  wherein  the  court  said : 
"  We  cannot,  however,  resort  to 
extrinsic  evidence  as  to  ascer- 
tain from  the  scrivener  what  the 
testator  instructed  or  intended  hiin 
to  say,  as  was  attempted  in  this 
case,  nor  can  we  accept  the  declar- 
ations of  the  testator  to  establish 
his  intention,  or  to  aid  in  the  inter- 
pretion  of  the  will,  as  was  settled 
in  Cesar  v.  Chew,  7  Gill.  &  J.  (-Md.) 
127;  Zimmerman  f.  Hafer,  81  Md. 
.U7,  32  Atl.  316:  and  other  cases 
that   might  be   cited." 

61.  England.  —  Grant  v.  Grant. 
L.  R.  5  C.  P.  380.  727 ;  In  re  Wolver- 
ton's  Estate,  L.  R.  7  Ch.  Div.  I97_; 
Hiscocks  V.  Hiscocks.  5  M.  &  W. 
363,   52    Rev.   Rep.   748. 

Illinois.  — Bradley  z:  Rees.  113  III 
327,  55  Am.  Rep.  422. 

Indiana.  —  Skinner  t'.  Harrison 
Twp.,  116  Ind.  139.  18  X.  E.  5^9. 
2  L.   R.  A.   137- 

lozva.  —  Coovert  i'.  Sebern,  73 
Iowa  564.  35  N.  W.  636. 

Louisiana.  —  Barnabee  v.  Snaer, 
18  La.   .\nn.   148. 

.Massaclntsetts. — Bodman  !■.  Amer- 
ican Tract  Soc,  9  Allen  447 ;  Morse 
v.    Stearns,   131   Mass.   389. 

New  Jersey.  —  Atterbury  ;'.  Straf- 
ford, 58  N.  J.  Eq.  186,  44  Atl.  160. 

Ne7v  York.  — In  re  Wheeler,  32 
App.  Div.  183.  52  N.  Y.  Supp.  943, 
aMrnied  57  N.  E.  1128;  Gallup  v. 
Wright.   (M    How.    Pr.   286. 

Vol.  I 


854 


MDlGUirv. 


the  devisee  or  legatee  is  characterized  in  terms  which  are  words  of 
general  description  only,  rather  than  hy  the  use  of  an  exact  name,"' 
extrinsic  evidence  is  receivable  in  explanation  thereof ;  and  for  this 
purpose  evidence  of  the  testator's  declarations  to  show  what  person 
lij  meant  to  designate  by  the  description  is  admissible."^ 


y orth  Carolina.  —  Clarke  v.  Cot- 
ton. 2  Dev.  Eq.  301,  24  Am.  Dec. 
279. 

Pcnnsxk'ania.  —  Vernor  v.  Henry, 
,1  Watts"  385. 

Sonth  Carolina.  —  In  re  Rolib's  Es- 
tate. 3/   S.  C.   19,   16  S.   E.  241. 

Virginia.  —  Hawkins  v.  Garland,  76 
Va.   149,  44  Am.   Rep.   158. 

hi  Grant  v.  Grant,  L.  R.  2  Prob. 
&  Div.  8.  L.  R.  S  C.  P.  380,  727. 
a  devise  was  "  to  my  nephew  J  G," 
and  the  testator  had  such  a  nephew, 
l)ut  did  not  know  his  name  or  ex- 
istence and  was  unfriendly  with  his 
father.  Testator's  wife  had  a 
nephew  of  the  same  name,  who  had 
lived  with  the  testator  for  years, 
and  was  called  "  nephew  "  uy  him, 
and  testator  had  declared  that  he 
meant  to  make  this  latter  nephew 
his  heir  and  cut  ofif  his  brother's 
family.  These  facts  were  held  com- 
petent evidence  establishing  the 
claim  of  the  wife's  nephew.  Com- 
pare Wells  V.  Wells,  L.  R.  18  Eq. 
Cas.  504;  In  re  Fish,  L.  R.  2  Ch. 
Div.  (1894)  83;  In  re  Foster,  L.  R. 
17    Ch.   Div.   382. 

Where  inoney  is  bequeathed  to  a 
school  by  a  testatrix,  designating 
the  object  of  her  bounty  by  a  wrong 
name,  but  fixing  the  locality,  it  may 
be  shown  by  extrinsic  testimony 
what  school  was  intended  in  the 
will  and  that  it  was  the  only  school 
controlled  by  a  certain  denomination 
of  religious  people  in  that  place. 
Ross  V.  Kiger,  42  W.  Va.  402,  26 
S.    E.    193. 

If  there  are  two  societies  of  the 
same  name  which  is  used  by  a  tes- 
tator to  describe  a  legatee,  extrin- 
sic evidence  is  to  be  resorted  to  for 
the  purpose  of  ascertaining  which  he 
had  in  mind.  Bodman  z>.  American 
Tract   Soc,  9  Allen    (Mass.)    447. 

62.  England.  —  Allen  v.  Allen,  12 
.\(1.  &  E.  451  ;  In  re  Kilvert's  Trusts, 
i,.  k.  7  Ch.  App.  Cas.  170;  In  re 
Alchius'  Trusts,  L.  R.  14  Eq.  230; 
Doc  V.  Huthwaite,  3  Barn.  &  A.  632, 
5   iMig.   C.   L.   .S63. 

Vol.  I 


United  States.  —  Gilmer  ?•.  Stone, 
120  U.   S.  586. 

Connectieut.  —  Brewster  v.  Mc- 
Call,   15  Conn.  274. 

Illinois.  —  Missionary  Soc.  v. 
Mead,  131   111.   t,^.  2^  N.  E.  603. 

Indiana.  —  Elliott  v.  Elliott,  117 
Ind.  380,  20  N.  E.  264,  10  Am.  St. 
Rep.  54;  Denis  v.  Holsapple,  148 
Ind.  297,  47  N.  E.  631,  62  Am.  St. 
Rep.  526,  46  L.  R.  A.   168. 

Massaehusetts.  —  Faulkner  f.  Na- 
tional Sailors'  Hoine.  155  i\Iass.  458, 
29  N.   E.  645. 

New  Hampshire.  —  Tilton  v.  Am- 
erican Bible  Soc,  60  N.  H.  377,  49 
.A.!!!.   Rep.  321. 

Neiv  lersey.  —  Van  Nostrand  v. 
Board  of  Missions,  59  N.  J.  Eq. 
19,   44   Atl.   472. 

Neii.'  York.  —  Lefevre  v.  Lefevre, 
59  N.  Y.  434. 

North  Carolina.  —  Keith  7'.  Scales, 
124  N.  C.  497,  32  S.  E.  809. 

Pennsylvania.  —  Appeal  of  Wash- 
ington and  Lee  University,  1 1 1  Pa. 
St.  572,  3  Atl.  664. 

Rhode  Island.  —  Wood  t.  Ham- 
mond,  16  R.  I.  98,   17  Atl.  324, 

South  Carolina.  —  In  re  Robb's 
Estate,  37  S.  C.  19,  16  S.  E.  241. 

Tennessee.  —  Gass  f.  Ross,  3 
Sneed   211. 

I'ermont.  —  McAllister  j'.  McAl- 
lister, 46   Vt.   272. 

Virginia.  —  Hawkins  v.  Garland, 
76  Va.  149,  44  Am.   Rep.  158. 

IVest  Virginia.  —  Ross  v.  Kiger,  42 
\V.  Va.  402,  26  S.  E.  193. 

63.  Gord  I'.  Needs.  2  M.  &  W. 
129.  Dennis  i'.  Holsapple,  148  Ind. 
297,  47  N.  E.  331  ;  and  see  cases  cited 
in  notes  immediately  preceding. 

Circumstances  Indicative  of  the 
State  of  the  Testator's  Affections 
towards  the  object  of  his  bounty, 
or  the  relative  circumstances  of  his 
connections,  or  his  acts  and  declar- 
ations in  respect  of  the  thing  given, 
or  the  person  of  the  donee,  arc  con- 
stantly admitted.  With  this  view 
the  relative  amount  of  advance- 
ments   and    the    difference    in    value 


AMBIGUITY. 


855 


3.  Creating  Ambiguity  by  Parol.  —  It  is  not  enough  to  render 
parol  evidence  competent  to  show  circumstances  known  to  one  of 
the  jiarties,  but  unknown  to  the  other,  which  might  have  influenced 
tlie  former  in  making  the  contract ;  but,  in  order  to  create  an  ambi- 
guity in  the  use  of  common  and  ordinary  language,  so  as  to  open 
such  writing  to  parol  explanatory  evidence,  it  must  be  established 
by  proof  of  circumstances  known  to  all  of  the  parties  to  the  writing 
and  available  to  all,  in  selecting  the  language  to  be  employed  to 
express  their  meaning.** 

IV.  INTERMEDIATE  OR  MIXED  AMBIGUITY. 

The  difficulty  of  always  distinguishing  between  a  patent  and 
latent  ambiguity  has  led  to  the  suggestion  that  there  is  an  interme- 
diate class  partaking  of  the  nature  of  both  patent  and  latent  ambi- 
guity,"°  and  that  in  such  case  extrinsic  evidence  is  properly  resorted 
to  in  order  that  the  ambiguity  may  be  resolved ;""  but  this  suggested 
classification  has  been  criticised.*" 

V.  QUESTIONS  OF  LAW  AND  FACT. 

The  construction   of  an   instrument   of  writing,   being  matter  of 


of  the  portions  of  the  land,  woiihl 
he  proper  evidence.  Brownfield  v. 
Brownfield,  12  Pa.  St.  136,  51  .\ni. 
Dec.  590. 

Evidence  tliat  testator,  at  the  time 
of  making  his  will,  stated  that  he  had 
given  a  legacy  to  the  "  Shelter,"  and 
when  told  that  he  had  erroneously 
called  it  the  "  Nursery,"  he  replied 
that  he  did  not  wish  to  erase  any- 
thing from  the  will,  and  that  he 
meant  the  "  nigger  nursery,"  is  in- 
admissible. Wood  V.  Hammond,  16 
R.   I.   98,    17   Atl.   324- 

64.  Brady  v.  Cassidy,  104  N.  Y. 
147,  ID  N.  E.  131- 

65.  Peish  v.  Dickson,  i  Mason 
9,  19  Fed.  Cas.  No.  10,911,  wherein 
Judge  Story  discusses  this  difficulty 
and  suggests  the  classification  above 
stated. 

66.  United  States.  —  Peish  ?'. 
Dickson,  I  Mason  9,  19  Fed.  Cas. 
No.    10,911. 

Alabama.  —  Moody  v.  Alabama  G. 
S.  R.  Co.  (Ala.),  26  So.  952; 
Chambers  v.   Ringstaff,  69  Ala.    140. 

California.  —  Auzerais  v.  Naglee, 
74  Cal.  60,  15  Pac.  371  ;  Hawley  v. 
Bader,   15   Cal.  44. 

Mississippi.  —  Preacher  i'.  Strauss, 
47   Miss.   353. 

New  Mexico.  —  Gentile  v.  Crossan, 
7   N.    M.  589,   38   Pac.  247. 


iY«t'  York.  —  Fish  v.  Hubbard,  21 
Wend.  651. 

ll'isconsiit.  —  Reason  i'.  Kurz,  66 
Wis.  448.  29  N.  W.  230;  Ganson  f. 
Madigan,  15  Wis.  158,  81  Am.  Dec. 
652. 

In  an  action  concerning  a  disputed 
boundary  between  two  mining 
claims,  depending  on  an  agreement 
between  the  parties,  in  which  the 
word  "  north  "  was  used,  and  parol 
evidence  was  admitted  to  prove  that 
it  was  the  custom  of  the  locality  to 
run  boundary  lines  by  the  magnetic 
meridian,  and  that  that  was  the  un- 
derstanding of  the  parties.  Held, 
that  such  evidence  was  admissible, 
not  to  contradict  or  vary  the  term, 
but  to  ascertain  the  sense  in  which 
it  was  used.  Jenny  Lind  Co.  v. 
Bovver,   11    Cal.   194. 

67.  Schlottman  r.  Hoffman,  73 
Miss.  188,  18  So.  893,  55  Am-  St. 
Rep.  527,  wherein  the  court  says  that 
the  solution  of  the  difficulty  by 
Prof.  Greenleaf,  in  assigning  am- 
biguities of  this  character  to  the 
class  of  latent  ambiguities,  is  per- 
haps as  satisfactory  as  can  be  sug- 
gested, and  reconciles  many  appar- 
ently conflicting  statements  of  the 
rule.  See  also  2  Phil.  Ev.,  Cowen, 
Hill  &  Edward's  Notes  to  §3,  ch.  8. 

Vol.  I 


856 


AMBIGUITY 


law,  is  for  the  court ;  but  when  an  ambiguity  arises,  and  evidence 
is  received  in  explanation  thereof,  it  then  becomes  a  question  for  the 
jury  to  determine  the  meaning  of  the  ambiguous  language,***  anil  a 
charge  by  the  court  as  to  such  meaning  is  error."" 


68.  Unglaiid.  —  Smith  v.  Tlioiiip- 
son,  8  M.  &  G.  44,  65  Eng.  C.  L.  42- 

Georgia.  —  Hill  '■.  King  Mfg.  Co., 
79  Ga.   105,  3  S.  E.  445- 

Maine.  —  Fenderson  v.  Owen,  54 
Me.  372,  92  Am.  Dec.  551. 

New  Havipshire.  —  Barflett  v. 
Nottingham,    8    N.    H.    .^00. 

Neiv  Jersev.  —  Curtis  !■.  Aaronson, 
49  N.  J.  Law  68,  7  Atl.  886.  60  Am. 
Rep.  584. 


Nortli  Carolina. — Colgate  c'.  l.atta, 
115  N.  C.  127,  20  S.  E.  38S.  26  L. 
R.  A.  321. 

Pennsylvania.  —  Lycoming  Ins.  Co. 
V.  Sailor,  67  Pa.  St.  loS;  Cimimins 
V.  Germain  Am.  Lis.  Co.,  197  Pa. 
St.  61,  46  Atl.  902;  McCullough  V. 
Wainwright.    14   Pa.    St.    171. 

Te.vas.  —  Kingston  %'.  Pickins,  46 
Tex.   99. 

69.  Ginnuth  v.  Blankenship  (Tex. 
Civ.  App.),  28  S.  W.  828. 


AMNESTY.— See  Pardon. 


AMOUNT.— See  Books  of  Account,  Quantity. 


AN  NOTION— See  Corporations. 


ANCIENT   BOUNDARIES.— See  Boundaries. 


Vol.  I 


ANCIENT  DOCUMENTS. 

By  Edoar  W.  Camp. 

I.  DEFINITION,  860 
II.  DETERMINATION  OF  AGE,  860 

1.  Date  J-roin  Winch  Reckoned,  8C0 

A.  Geiierallv,  860 
P..   irilh,  860 

2.  Date  to  Which  Reckoned,  8(10 

3.  Proving  Age,  860 

A.  7  o  Be  Proved,  SCo 

B.  Method  of  Proof.  861 

a.  Direct  Evidence,  861 

b.  Circnnistantial  Evidence,  861 

(i.)    Generally,  861 
(2.)   Appearance,  861 
(3.)   Indorsements,  861 

III.  SHOWING  COMPETENCY,  862 

1.  Necessity  of  Proof.  862 

2.  Method  of  Proof,  862 

A.  Custody,  862 

a.  Importance  Of,  862 

b.  Proper,  Must  Be  .Shown,  863 

(i.)    Generally.  863 
(2.)   Presumptions.  SCi;^, 
(3.)  Exceptions,  863 

c.  B3.'  rF/?o;7j  /o  Be  Proved,  864 

d.  WAa/  /j-  Proper  Custody,  864 

(i.)   Generally,  864 
(2.)    Custody  of  Claimant,  8O3 
(3.)    fFM  0//;rr  Muniments]  865 
(4.)    Custody  of  Grantor,  866 

e.  iVcerf  A/'o;  Be  Most  Proper,  866 

f.  Explaining  Custody,  866 

g.  /.?  Question  for  Court.  866 

h.  Sufficiency  of  Custod\  As  Proof.  866 
(i.)   England  and  Canada,  866 
(2.)    I7;n7crf  6"to/(\f.  867 

B.  Possession,  868 

a.  JFi7/j  Custody  Snificient,  868 

b.  Whether  Indispensable,  869 

(i.)   Rulings  That  it  Is,  869 

(A.)   Prevailing  Rule  Formerly.  861) 

Vol.  I 


858  ANCIENT  DOCUMENTS. 

(B.)   Length  of  Possession.  869 
(C.)   Hou'  Proved.  870 
(D.)   E.rtenf  of  Possession.  870 
(E.)   E-vceptions.  870 
(2.)   Rulings  Thai  it  Is  Not.  871 

C.  Other  Corroborative  Facts,  872 

a.  Attestation  and  Record,  872 

b.  Payment  of  Ta.ves,  872 

c.  Acts  of  Oivnership,  872 

d.  Assertion  of  Rights.  873 

D.  Legal  E.v  cent  ion.  873 

a.  Mnst  Shoii<  Compliance  With  Lazi.\  873 

b.  Presumptions  in  Favor  Of,  873 

c.  Informalities  Do  Not  Vitiate,  873 

E.  Free  From  Gronnds  of  Suspicion.  874 

a.  Generally.  874 

b.  Unusual  Form,  874 

c.  Erasures,  874 

d.  Mutilation,  874 

e.  Alteration,  874 

(i.)    Generally.  874 

(2.)   Material'  to  Be  Explained.  874 

f.  Defective  Acknoz>.'lcdgment.  875 

F.  Direct  Proof  of  Execution.  875 

a.  fr/(r»  A'^o^  Required.  875 

(  T.)   Suhscrihina^    Ultness  Need  Not  Be  Called, 

875 
(2.)   A^'o)-  Accounted  For.  875 

b.  rF/;f»  .1/;/.?/  Bf  Proved.  876 

(i.)   Dff(/  a  Fraudulent  Act,  876 

(2.)    rF/7n-c  Custody.  Etc..  Not  Proved.  ^•-C^ 

c.  Method  of  Proof,  876 

(1.)   Rules  Relaxed,  876 

(2.)   Accounting  for  IVitncsscs,  876 

(3.)   Proof  of  Handii'riting,  877 

IV.  EXECUTION  BY  AGENT,  878 

1.  Recitals  Prove  Authoiit\,  878 

A.  General  Rule,  878" 

B.  Exception,  878 

a.  Authority  Producible,  878 

b.  Authority  Matter  of  Record,  879 

C.  Presumptions  in  Favor  of  Authority,  879 

2.  Where  There  Are  No  Recitals,  879 

A.  Proof  Required,  879 

B.  Presumptions  Indulged,  879 

C.  .S"//.;;///  T'-^'c/  SutJicicnt.  880 

Vol.  1 


ANCIENT  DOCUMENTS.  859 

V.  ORIGINALS  LOST  OR  INACCESSIBLE,  S8o 

1 .  Contents^  How  Trovcd,  880 

A.  As  Recent  Documents,  880 

B.  By  Ancient  Accepted  Copy.  880 

C.  B'y  Record  or  Certified  Copy.  881 

a.  Commonly  Used,  881 

h.   Original  Entitled  to  Record,  881 

c.   U'lien  Affidin'it  of  Forgery  Is  Filed,  881 

D.  jriierc  Copy  Imperfect.  882 

E.  iriicre  Original  in  Existence,  882 

2.  Proving  Loss.  882 

A.  SHsiht  Proof  Required.  882 

B.  When  No  Proof  Required.  882 

3.  Competency  of  Original,  883 

A.  Must  Be  Shozvn,  883 

B.  Method  of  Shozving,  883 

VI.  OBJECTIONS  TO  INTRODUCTION,  883 

VII.  PROVINCE  OF  COURT  AND  JURY,  884 

1.  Competency,  884 

A.  For  Court,  884 

B'.   What  Testimony  Heard  As  To.  884 

C.  Discretion  of  Court,  884 

2.  Genuineness,  884 

A.  Instructions  That  Paper  Is  Genuine.  884 
P..   When  Question  Is  for  Jury,  885 
C.  Burden  of  Proof,  885 

VIII.  RELEVANCY,  886 

1.  Rule,  886 

2.  Exceptions,  886 


CROSS-REFERENCES. 

Best  and  Secondary  Evidence ; 

Handwriting ; 

Maps ; 

Private  Writings;  l'ul)lic  Documents. 

Note.  —  This  article  includes  only  "  Ancient  Private  Writings," 
and  does  not  include  public  documents  or  maps. 

Vol.  I 


860 


A  NCI  EN  T  DOC  UMEN  TS. 


Note.  —  This  article  includes  only  Ancient  Private  Writings,  and 
does  not  include  Public  Documents  or  Maps. 

I.  DEFINITION. 

The  term  "  Ancient  Document  "  includes  any  pri\atc  writing* 
that  is  at  least  thirty  years  old." 

The  rules  as  to  Ancient  Writings  have  been  in  some  cases 
extended  to  documents  less  than  thirty  years  old  f  as  in  Canada  by 
statute.*     Formerly  in  England  a  greater  age  was  required.'' 

The  rules  concerning  Ancient  Writings  do  not  extend  to  recent 
entries  made  in  such  writings." 

II.  DETERMINATION  OF  AGE. 

1.  Date  From  Which  Reckoned.  —  A.  Genkrali.v.  —  The  age  of 
writings  generally   is   reckoned   from  the  time  of  their  execution.' 

B.  Wills.  —  But  some  authorities  hold  that  wills  age  only  from 
the  testator's  death.'' 

2.  Date  to  Which  Reckoned.  —  Age  is  reckoned  ddwn  to  tlie  date 
the  instrument  is  offered  in  evidence." 

3.  Proving  Age.  —  A.  To  Bit  Proved.  —  A  ])aper  offered  as 
ancient  must  be  proved  to  be  so:  the  fact  of  anticjuity  is  not  usually 
taken   for  g'ranted.'" 


1.  Doe  V.  Turnbull.  3  U.  C.  Q.  B. 
(Can.)  129;  Montsjomerv  "'.  Graham, 
31  U.  C.  Q.  B.  (Can.)  57;  Bell  v. 
Brewster,  44  Ohio  St.  690,  10  N.  E. 
679;  Holt  V.  Maverick,  86  Te.x.  457, 
23  S.  W.  75 ;  Stroud  r.  Springfield, 
28  Te.x.  649. 

2.  Barr  i'.  Gratz.  4  Wheat.  213; 
Fairly  r.  Fairly,  38  Miss.  280:  Quinn 
V.  Eagleston,  108  111.  248;  Swygart 
7:   Taylor,   i   Rich.   Law    (S.   C.)    54. 

3.  No  Fixed  Rule  as  to  Age. 
"  It  is  said  in  one  case  (12  Vin.  .\br. 
57,  pi.  9,  MSS.)  that  there  is  no 
fixed  rule  about  it,  but  that  it  had 
often  been  allowed  where  the  deed 
was  but  25  or  30  years  old."  Everley 
7'.  Stoner.  2  Yeates  (Pa.)  122;  and 
in  thai  case  a  deed  28  years  old  was 
admitted  without  calling  or  account- 
ing for  a  subscribing  witness.  But 
the  deed  was  identified  by  a  witness 
who  had  been  present  when  it  was 
executed. 

Deed   Twenty-five   Years   Old In 

Slroud  I'.  Springfield,  28  Tex.  649, 
a  paper  25  years  old  was  offered  as 
ancient;  the  supreme  court  held  it 
was  improperly  admitted,  but  ap- 
parently not  because  it  did  not  come 
within    the    definiticm    of    ,Tn    ancient 

Vol.  I 


writing,  but  because  it  was  not  suffi- 
ciently proved  under  the  rules  for 
proving    ancient    writings. 

4.  .\llan  V.  McTavish,  28  Grant's 
Ch.    (Can.)    539. 

5.  Sixty  Years Jackson-'.  Hlan- 

shan,   3   Johns.    (N.    Y.)    292. 

6.  Goulding  v.  Clark,  34  X.  H. 
148. 

7.  Mackery  ■:'.  Newbolt.  citoil  in 
Calthorpe  v.  Gough,  4  T.  R.  (num. 
&  E.)  707,  note;  Doe  v.  WoUey,  8 
Barn.  &  C.  22,  15  Eng.  C.  L.  I.W; 
Man  V.  Ricketts,  7  Beav.  93;  Mc- 
Kenire  v.   Eraser,  9  Ves.  5. 

8.  Jackson  f.  Blanshan,  3  Johns. 
(N.  Y.)  292  (but  Spencer  dissented, 
holding  that  age  should  be  reckoned 
from  date  of  execution  )  ;  Shaller  i'. 
Brand.  6  Binn.  (Pa.)  435;  Felherly 
T.  Waggoner,  11  Wend.  (N.  V.) 
^00.  But  see  Mackerv  v.  Newbolt, 
4  T.  R.  (Durn.  &  E.)  '709,  note,  and 
I\IcKenire    Z'.    Fraser,    9    Ves.    5. 

9.  Johnson  j'.  Shaw,  41  Tex.  428; 
Bass  7'.  Sevier,  58  Tex.  567;  Man  v. 
Ricketts,  7  Beav.  93. 

10.  Fairly  v.  Fairly,  38  Miss.  280; 
Doe  Stevens  v.  Clement,  9  U.  C.  Q. 
B.    (Can.)    650. 

Coiilra.  —  It  will  be  prcsunui!  that 


ANCIENT  DOCUMENTS. 


861 


B.  Method  of  I'roof. — a..  Direct  Evidence.  —  x\ge  may  be 
proved  by  the  direct  evidence  of  those  who  can  testif\'  to  having 
seen  the  paper  more  than  thirty  years  before." 

b.  Circiiiiistaiitial  Evidence. — (1.)  Generally.  —  Antiquitv  may 
Ije  shown  by  circumstances. ^- 

(2.)  Appearance.  —  Thus  the  court  will  take  into  consideration  the 
appearance  of  the  i)aper  and  of  the  writing  thereon.'^ 

(3.)  Indorsements.  —  Indorsements  on  the  paper  may  be  considered 
as  bearing  on  the  question  of  age." 


archives  became  such  at  their  date. 
Von  Rosenberg  v.  Haynes,  85  Te.\. 
357,  20  S.  W.   143. 

11.  To  prove  that  a  deed  is  more 
than  30  years  old  the  recorder  may 
be  called  to  testify  when  liis  in- 
dorsement thereon  was  made.  Cox 
V.   Cock.  59  Tex.  521. 

12.  An  Admission  Made  by  Party 
or  Privy.  —  Nixon  v.  Porter,  34 
]Miss.   697,   69   Am.    Dec.   408. 

A  Copy  shown  to  have  been  made 
more  than  thirty  years  before  may  be 
put  in  evidence  to  prove  that  the 
original  is  at  least  as  old.  Williams 
V.  Conger,  125  U.  S.  397'  8  Sup.  Ct. 

933-  ' 

Two  Seeds  Found   Together In 

Applegate  f.  Lexington  etc.  Min. 
Co.,  117  U.  S.  25s,  6  Sup.  Ct.  742,. 
it  was  held  that  where  it  appeared 
that  two  deeds  had  a  common  his- 
tory, were  found  together,  and  had 
been  relied  on  as  links  in  the  same 
title,  testimony  directly  applicable  to 
one  tended  to  support  the  other. 

13.  Kennard  v.  Withrow  (Tex. 
Civ.  App.),  28  S.  W.  226;  Hollis  V. 
Dashiell,  52  Tex.  187;  Pridgen  v. 
Green,  80  Ga.  737,  7  S.  E.  97. 

"  It  was  an  old  and  faded  paper 
and  was  apparently  of  corresponding 
age  with  its  purported  date  of  ex- 
ecution." Williams  v.  Conger,  49 
Tex.    582. 

Stooksberry  v.  Swan  (Tex.  Civ. 
App.),  21  S.  W.  694;  Bell  V.  Hut- 
chins  (Tex.  Civ.  App.),  41  S.  W. 
200;  Weitman  v.  Thiot,  64  Ga.  11; 
Corporation  of  Burford,  18  O.  R. 
(Can.)  ^46;  Davies  v.  Lowndes,  i 
Bing.    (N.   C.)    161. 

In  Perry  v.  Clift  (Tcnn.).  54  S.  W. 
121,  the  court  said:  "The  original 
is  sent  up  and  it  bears  on  its  face 
evidence  of  great  age,  in  the  tattered 
condition    of    the    paper,    its    color. 


and    the    faded    appearance    of    the 
ink." 

Character  of  Handwriting,  that  it 
is  of  the  period  wlien  the  paper  is 
alleged  to  have  been  made.  Duke  of 
Beaufort  v.  Smith,  4  Ex.  450,  19 
L.  J.  Ex.  97. 

14.  Stooksberry  v.  Swan  (Tex. 
Civ.  App.),  34  S.  W.  369.  21  S.  W. 
694,  22  S.  W.  963 ;  Whitman  v. 
Henneberry,  73  111,  109 ;  Pridgen  v. 
Green,   80   Ga.   7^7,   7    S.    E.   97. 

In  Bell  ?'.  Hutchins  (Te.x.  Civ. 
.\pp.),  41  S.  W.  200,  the  court  said: 
"  When  the  age  of  the  deed  is  the 
matter  under  investigation  the  in- 
dorsements made  thereon  and  cer- 
tificates attached  thereto,  which  in 
,iny  manner  indicate  its  age,  are 
matters  to  be  considered  by  the  jury. 
The  iuTy  can  look  to  the  deed,  its 
.•ippearance  and  all  indorsements 
(ihercon,    in    determining    its    age." 

A  Certificate  of  Recordation 
:ipparently  ancient  and  genuine  will 
lend  to  show  the  antiquity  of  the 
deed.  Applegate  v.  Lexington  etc. 
.\Iin.  Co.,  117  U.  S.  255,  6  Sup.  Ct. 
742. 
Even  Though  the  Certificate  is  Not 

Signed Stebbins    v.    Duncan,    108 

r.   S.  32,  2  Sup.  Ct.  313. 
Certificate  of  Record  in  the  Wrong 

County In    Pridgen   v.    Green,    80 

Ga.  737,  7  S.  E.  97.  there  was  a  cer- 
tificate of  registration  in  a  certain 
county  which  was  objected  to  be- 
cause the  land  conveyed  lay  in  an- 
other county  and  therefore  the  cer- 
tificate was  unauthorized.  Held,  that 
the  certificate,  being  over  thirty 
years  of  age,  might  go  before  the 
jury,  and  be  considered  by  them  as 
a  circumstance,  both  on  the  question 
of  the  antiquity  of  the  deed  and  of 
its  genuineness. 
"The    act    of    the    notary,    taking 

Vol.  I 


862 


ANCIENT  DOCUMENTS. 


III.  SHOWING  COMPETENCY. 

1.  Necessity  of  Proof.  —  It  has  often  been  said  that  Ancient  Writ- 
ings  prove  themselves.'"  but  such  is  not  the  rule.  In  order  that 
they  may  be  admitted  in  evidence  they  must  be  shown  to  be  prob- 
ably genuine.'" 

2.  Method  of  Proof.  —  A.  Custody. — a.  Importance  Of.  —  In 
determining  the  competency  of  an  ancient  document  offered  with- 
out proof  of  execution,  the  custody  from  which  it  comes  is  a  factor," 


proof  of  the  execution  of  the  in- 
strument under  his  seal  is  proof  that 
the  act  was  done  by  him  at  the  time 
stated,  and  the  act  of  the  clerk,  under 
the  seal  of  his  office,  certifying  that 
the  deed  was  recorded,  is  proof  that 
it  was  recorded  as  stated  and  at  the 
time  stated.  They  are  the  original 
acts  of  the  officers,  and,  being  under 
seal,  prove  themselves.  They  do 
not  prove  the  execution  of  the  deed, 
but  the  age  of  the  instrument,  and 
tend  to  establish  the  fact  that  its 
date  is  correct."  Kennard  T'.  With- 
row  (Tex.  Civ.  App.),  28  S.  W. 
226. 

15.  Beall  v.  Bearing,  7  Ala.  124; 
Adams  z'.  Roberts.  2  How.  486; 
Stroud  I'.  Springfield,  28  Tex.  649; 
King  V.  Watkins.  98  Fed.  913;  Green 
V.  Chelsea.  24  Pick.  (Mass.)  71; 
Everly  v.  Stoner,  2  Yeates  (Pa.)  122; 
Mapes  V.  Leal's  Heirs,  27  Tex.  345 ; 
Walker  ?■.  Peterson  (Tex.  Civ. 
App.),  3.^  S.  W.  269,  42  S.  W.  1045. 

"  The  deed  being  more  than  thirty 
years  old  required  no  proof."  Hen- 
thorn  V.  Sheperd,  i  Blackf.  (Ind.) 
IS7,  and  in  that  case,  apparently, 
the  deed  was  supported  by  nothing 
but  its  age. 

"  There  Are  Several  loose  Dicta 
to  be  found  that  an  ancient  deed 
proves  itself."  Kent,  in  Jackson  v. 
Laroway,  3  Johns.  Cas.  (N.  Y.)  283. 

Parish  Certificates  of  Pauper  Set- 
tlement—  King  f.  Ryton.  5  T.  R. 
259 ;  Rex.  z\  Netherthong,  2  M.  &  S. 
537. 

Ancient  Corporation  Records  held 
I0  prove  themselves.  Goodwin  v. 
Jack,  62  Me.  414;  King  v.  Little,  I 
Cush.  (Mass.)  436:  Rust  v.  Boston 
Mill  Corporation,  6  Pick.  (Mass.) 
158. 

16.  Chamberlain    v.    Sbowaltcr,    5 

Vol.  I 


Tex.  Civ.  .\pp.  226,  23  S.  W.  1017; 
Jackson  v.  Luquere,  5  Cow.  ( N.  Y.) 
221  ;  Stroud  7'.  Springfield.  28  Tex. 
649;  Little  v.  Downing.  37  N.  H. 
355 ;  Whitehouse  v.  Bickford,  29  N. 
H.  471  ;  Manley  v.  Curtis,  i  Price 
225 ;  Crispen  v.  Hannovan.  50  ^lo 
418;  Williams  v.  Bass,  22  Vt.  332' 
Havens  v.  Seashore  L.  Co..  47  N.  J 
Eq.  365.  20  .\tl.  497 ;  Jackson  v. 
Lamb,  7  Cow.  (N.  Y.)  4^1:  Hewlett 
V.  Cock,  7  Wend.  (N.  Y.)  371; 
Fogal  r.  Pirro.  10  Bos.  too.  23  \.  Y. 
Sup.  Ct.   100. 

Genuineness  Not  Presumed  From 
Antiquity.  —  When  the  signing  be- 
comes a  matter  of  legal  controversy 
it  must  be  established  by  proof. 
Showing  that  the  instrument  is 
•  thirty  years  old  has  no  greater  ten- 
dency to  prove  it  genuine  than 
would  the  fact  that  it  had  existed 
for  a  single  day.  The  mere  fact  of 
existence  has  no  tendency  to  prove 
legal  execution.  Indeed,  when  noth- 
ing has  ever  been  done  under  the 
deed,  the  lapse  of  time  tends  to 
discredit  it.  Willson  v.  Bitts,  4 
Dcnio    (N.   Y.)    201. 

Presumption  of  Genuineness  In- 
sufficient. ^  While  there  is  the  pre- 
svmiption  of  the  genuineness  of  a 
deed  more  than  thirt}'  years  old,  the 
party  offering  it  is  bound  to  use 
every  means  in  his  power  to  prove 
its  genuineness,  by  proof  of  posses- 
sion, by  proof  from  the  records 
where  it  has  been  recorded,  and  by 
testimony  of  the  attesting  witnesses, 
whenever  possible.  Smith  r.  Rankin, 
20  111.  14. 

17.  Stroud  V.  Springfield.  28  Tex-. 
649;  Stooksberry  v.  Swan  (Tex.  Civ. 
App.),  34  S.  W.  369:  Winn  v.  Pat- 
terson, 9  Pet.  663 ;  Stoddard  v. 
Chambers,  2  How.  284;  \Vil<on  z>. 
Simpson,  80  Tex.  279,  16  ?.  W.  40; 


AXClF.Xr  POCUMnXTS. 


Hf,?. 


and  an  important  one.''' 

b.  Proper.  Must  Be  Shoi\.'n.  — (1.)  Generally.  —  It  has  been  held 
that  a  showing  that  it  comes  from  proper  custody  is  indispensable.^" 

(2.)  Presumptions.  —  i]ut  where  it  is  shown  that  anciently  the 
paper  was  in  a  certain  custody  not  apparently  improper,  it  may 
be  jiresumetl  to  have  been  proper.-" 

(3.)  Exceptions.  —  And  the  rule  is  relaxed  as  to  papers  so  ancient 
that  the  proper  custody  cannot  he  determined ;-'  so  sometimes  in  case 


Thompson  i'.  Brannon,  14  S.  C.  542; 
Lyon  V.  Adde,  63  Barb.  (N.  Y.) 
89;  Fogal  V.  Pirro,  10  Bosw.  100,  23 
N.  y.  Sup.  Ct.  100;  Rogers  v. 
Sliorlis,  10  Grant's  Ch.  (Can.)  243; 
Van  Every  v.  Drake,  9  U.  C.  C.  P. 
(Can.)  478;  Carroll  r.  Norwood,  I 
Har.  (5e  J.  (Md.)  167;  Evans  v.  Rees, 
10   All.   &■    E.    151. 

18.  ■'  It  is  not  strictly  correct  to 
say  that  an  ancient  instrument  proves 
itself.  The  presumptions  that  follow 
from  the  conditions  that  indicate  its 
genuineness  are  allowed  to  take  the 
place  of  the  proof  necessary  at  com- 
mon law,  and  chief  among  these  con- 
ditions has  always  been  and  still  is 
the  fact  that  it  comes  from  a  proper 
custody.  To  dispense  with  this  re- 
t|uiremcnt  would  be  to  push  the  rule 
beyond  any  known  precedent ;  to 
throw  down  the  last  conservative 
barrier,  and  allow  every  instrument 
regular  upon  its  face,  and  appearing 
to  be  over  30  years  of  age  to  lie  in- 
troduced witliout  any  evidence  of  its 
execution.  We  do  not  wish  to  be 
understood  as  saying  that  it  is  neces- 
sary for  the  evidence  to  trace  step 
by  step  the  custody  of  the  instru- 
ment from  its  purported  date,  but 
that  some  fact  or  circumstance  should 
appear  to  indicate  that,  when  the  in- 
strument is  presented  to  the  court,  it 
has  come  from  the  place  or  deposi- 
tory where  it  would  naturally  be 
found  if  genuine."  Chamberlain  z: 
Showaiter,  5  Te.x.  Civ.  App.  226,  2;} 
S.  \V.  1017.' 

19.  Williamson  v.  Mosley,  1 10 
Ga.  53,  35  S.  E.  301  ;  Rogers  ?■.  Rid- 
dlesburg  C.  &  I.  Co.,  31  Leg.  Int. 
(Pa.)  325. 

Tn  Long  7'.  Georgia  Land  &  Lum. 
Co.,  82  Ga.  628,  9  S.  E.  425.  it  was 
held  that  in  the  absence  of  prelimii'ary 
proof  as  to  its  coming  from  proper 
custody,  a  deed  over  70  years  old  is 
not  admissible  in  evidence. 


Records  of  a  bishopric  dated  1321 
and  1412,  were  held  inadmissible  as 
not  coming  from  the  proper  office. 
They  were  produced  from  the  hands 
of  a  private  collector,  who  himself 
purchased  them  from  another  collec- 
tor. Their  genuineness  was  amply 
corroborated ;  but  it  was  held  that 
the  rule  as  to  proper  custody  could 
not  be  so  stretched.  Potts  r.  Du- 
rant.  3  Anstr.  789,  4  Rev.   Rep.  864. 

20.  In  Tolman  z\  Emerson,  4 
Pick.  (Mass.)  160,  a  book  of  the 
proprietors  produced  by  the  witness 
was  shown  to  have  come  to  him 
from  his  grandfather,  whose  execu- 
tor had  had  it  thirty  years.  Since 
there  was  no  showing  of  the  present 
existence  of  any  office  or  clerk  where 
the  book  ought  to  be  kept,  and  no 
depository  appointed  by  law,  it  was 
presumed  that  the  book  came  prop- 
erly into  tlie  custody  of  the  grand- 
father. 

21.  "  The  rule  of  evidence  requir- 
ing the  testimony  of  the  lawful  cus- 
todian of  books  of  record  offered  in 
evidence,  that  they  are  of  the  descrip- 
tion claimed,  before  they  are  admis- 
sible, has  been  repeatedly  relaxed  in 
the  case  of  ancient  books  of  record 
of  the  proprietors  of  land.  In  such 
instances  such  books  have  been  held 
to  prove  themselves.  When  ancient 
books,  purporting  to  be  tlie  records 
of  such  proprietary,  contain  obvious 
internal  evidence  of  their  own  ver- 
ity, and  there  is  no  evidence  of  the 
present  existence  of  the  proprietary 
or  of  any  person  representing  it.  or 
any  clerk  or  other  person  authorized 
to  keep  the  records,  they  are  admis- 
sible in  evidence  without  proof  of  the 
legal  organization  of  the  proprietary, 
or  of  its  subsequent  meetings.  King 
V.  Little.  I  Cush.  440;  Rust  z\  Bos- 
ton Mill  Corporation.  6  Pick.  165; 
IMonumoi  Great  Beach  j'.  Rogers,  I 
Mass.   159;  Pitts  V.  Temple.  2  Mass. 

Vol.  I 


864 


ANCIENT  DOCUMENTS. 


of  lost  papers,'--  and  where  there  are  other  cireumstances  corrobo- 
rating the  genuineness  of  the  deed,  production  from  the  proper 
custody  has  been  held  not  essential. ^^ 

()ne  that  has  asserted  the  genuineness  of  the  pa])er  cannot  object 
to  it  on  the  ground  of  improper  custody.-'' 

c.  By  Whom  to  Be  Proved.  —  It  was  once  said  that  the  custody 
must  be  testified  to  by  him  who  had  it.-^ 

d.  What  Is  Proper  Custody. — (1.)  Generally.  — A  paper  comes 
from  proper  custody  when  the  custody  is  such  as  would  be  rea- 
sonable and  ])robable  for  a  genuine  document  of  the  kind  offered  ;^'* 


538;  Tolmaii  I'.  Emerson,  4  Pick. 
160."  Goodwin  v.  Jack,  62  Me.  414. 
But  see  Swinnerton  v.  Stafford,  3 
Taunt.  91. 

22.  In  Case  of  a  Lost  Seed 
no  custody  of  which  at  any  time  can 
be  directly  proved,  the  fact  that  it 
was  recorded  raised  the  presumption 
that  it  was  delivered  and  so  obviates 
the  requirement  of  proof  of  custody, 
wliich  is  "  mainly  that  its  delivery 
may  be  evidenced  by  the  possession 
of  a  partv  claiming  under  it." 
Holmes  v.  Coryell,  58  Tex.  680. 

23.  Brown  v.  Woods,  6  Rich.  Eq. 
(S.  C.)  155;  Quinn  v.  Eagleston,  108 
111.  248;  Whitman  v.  Shaw,  166  Mass. 
451,  44  K.  E.  333,  where  an  old  map 
or  plan  was  let  in,  its  genuineness 
not  "being  questioned,  although  its 
custody  could  not  be  accounted  for. 

A  town  map  bearing  no  dale  but 
marked  with  the  letter  "  P  "  was 
offered  in  evidence.  It  did  not  come 
from  the  proper  custody  (that  of  the 
town  clerk,)  but  was  found  in  the 
possession  of  one  G.,  an  aged  sur- 
veyor, who  had,  more  than  thirty 
years  before,  been  town  clerk,  and 
who  testified  that  the  map  was  at  that 
dale  among  the  records  of  the  office. 
It  was  evidently  much  used  and 
worn.  Its  genuineness  was  held  to 
be  sufficiently  proved,  regardless  of 
the  fact  of  its  not  having  come  from 
the  proper  custody.  Gibson  z'.  Poor, 
21   N.  H.  440. 

Otherwise  Custody  Apparently  Im- 
proper Must  Be  Explained.  —  Cham- 
berlain !■.  Showalter,  5  Tex.  Civ. 
App.  226,  23  S.  W.   1017. 

24.  Miller  v.  Foster,  cilcd  in  n.ile 
to  Atkyns  v.  Hatton.  2  .\nstr.  386,  3 
Rev.  Rep.  :;89. 

25.  Evans  v.  Rees,  10  .\(\.  &  E. 
I.SI. 

Vol.  I 


26.  Former  Heirs  v.  Eslava,  II 
Ala.  1028;  Reg.  v.  Nytton,  2  El.  &  E. 
557,  29  L.  J.  N.  C.  109;  De  La  Vega 
r.  League,  (Tex.  Civ.  App.,)  21  S. 
W.  565 ;  Talbot  z'.  Lewis,  6  Car.  &  P. 
(X)3 ;  Templeton  r.  Luckett,  75  Fed. 
-'54 ;  Rex  z'.  Bathwick,  2  Barn.  &  A. 
6^9;  Blanchy-Jenkins  z\  Duirvaven, 
L.  R.  2  Ch.  Div.  121. 

Book  of  Records  of  Boston 
preserved  among  ihc  records  of  town. 
Rust  z:  Boston  Alill  Corporation,  6 
Pick.    (Mass.)    158. 

Vicar's  Books  and  Bishop's  Ordi- 
nances from  registry  of  bishop  or 
archdeacon  or  from  church  chest. 
.•\rmstrong  v.  Hewitt,  4  Price  216,  18 
Rev.  Rep.  707 ;  Atkyns  z'.  Hatton,  2 
Anstr.  386,  3  Rev.  Rep.  ^89 ;  Graves 
z'.  Fisher.  3  CI.  &  F.  i,  8  Bligh  (N. 
S.)   937- 

Custody  Traced  Back  to  Grantee. 
Cook  V.  Christie,  12  U.  C.  C.  P. 
(Can.)  S17. 

Most  Proper  Custody "  Docu- 
ments found  in  a  place  in  which  and 
under  the  care  of  persons  with  whom 
the  care  of  such  papers  might  natu- 
rally and  reasonably  be  expected  to 
be  found,  are  in  precisely  the  custody 
which  gives  authenticity  to  them." 
McCleskey  t'.   Lcadbettcr,   i   Ga.  551. 

Lease  Held  at  Lessee's  Disposal 
is  in  proper  custody.  Rees  z'.  Wal- 
lers, 3  M-  &  W.  5^7.  7  L-  J-  Ex.  138. 

Papers  Filed  With  Land  Commis- 
sioner  A     power    of    attorney     in 

Texas  after  presentation  to  the  com- 
missioner would  either  be  placed  by 
him  among  the  papers  pertaining  to 
the  title  issued  by  him,  or  1)e  returned 
to  the  party  presenting  it ;  conse- 
quently such  a  power  found  among 
the  papers  of  the  person  to  whom  it 
had    been    indorsed    conies    from    a 


ANCIENT  DOCUMENTS. 


865 


as  a  letter  among  papers  of  the  addressee ;-'  a  paper  found  in  a 
custody  provided  by  statute;-"  old  surveys  found  in  the  surveyor- 
general's  office  ;'-'■'  papers  found  on  file  as  exhibits  in  other  actions, 
come  from  proper  custody."" 

The  fact  that  the  custodian  bears  the  name  of  a  partv  to  the 
paper  ma\'  indicate  i)ropriety  of  the  custody."' 

(2.)  Custody  of  Claimant.  —  A  paper  is  in  proper  custody  if  in  the 
possession  of  one  claiming  imder  it,'-  or  of  his  representatives,^'' 
or  heirs.""* 

(o.)  With  Other  Muniments.  —  A  paper  comes  from  pro])er  cus- 
tody if  found  among  undisputed  numiments  of  title  to  the  land  to 
which  itself  relates."-'' 


proper  custody.  Williams  t'.  Con- 
ger, 49  Tex.  582. 

Deed  Found  in  County  Clerk's 
OfRce  among  papers  labeled  with 
grantee's  name.  Warren  i'.  Freder- 
ichs.  76  Tex.  647.  13  S.  W.  64.^  Rut 
see  Harris  v.  Hoskins,  2  Te.x.  Civ. 
App.  486,  22  S.  W.  251. 

Ancient  MSS.  Brought  From  the 
Bodleian  Collection  did  not  come 
from  the  proper  custody,  and  were 
consequently  inadmissible.  Michel  v. 
Rabbets,  cited  in  3  Taunt,  gi.  See 
also  Swinnerton  t.  Stafford,  3  Taunt. 

91- 

Book    Should   Be   Traced   Back   to 

Maker.  Randolph  :'.  Gordon.  5  Price 
312,  19  Rev.  Rep.  633,  that  was  an 
ancient  book  (MSS.)  produced  by 
the  grandson  of  the  maker,  but  not 
shown  to  have  been  found  among  the 
maker's  papers. 

27.  Bell  V.  Brewster,  44  Ohio  St. 
690,   10  N.  E.  679. 

28.  Wilson  v.  Bitts,  4  Denio  (N. 
Y.)  201. 

29.  Rodgers  r.  Ruddlesberger,  C. 
&  I.  Co..  31  Leg.  Int.  (Pa.)  325: 
Burchtield  i'.  McCauley,  3  Watts 
(Pa.)  9. 

30.  Culmore  r.  Wedlerker,  (Tex. 
Civ.  .\pp..)  44  S.  W.  676. 

Presumed  to  Have  Been  Exhibits. 
In  .Applegate  v.  Lexington  etc.  Min. 
Co.,  117  U.  S.  255,  6  Sup.  Ct.  742, 
deeds  were  found  in  the  office  of  a 
clerk  of  court  among  the  papers  of  a 
suit  in  that  court  in  which  suit  they 
would  have  been  proper  exhibits  and 
evidence,  and  it  was  fairly  to  be  in- 
ferred from  the  record  that  they  had 
been  offered  in  evidence.  The  cus- 
tody was  held  proper  and  beyond  sus- 
picion. 

31.  An    ancient    receipt    foimd    in 

55 


the  possession  of  a  man  bearing  the 
same  naine  as  the  one  to  whom  the 
receipt  was  given,  although  a 
stranger  to  the  action,  held  to  come 
from  the  proper  custody.  Per  Thom- 
son, C.  B.,  i;i  Bertie  ?'.  Beaumont,  2 
Price  .303. 

32.  Hollis  V.  Dashiell,  52  Tex. 
187;  Beaumont  Pasture  Co.  7'.  Pres- 
ton, 65  Tex.  448;  Williamson  v. 
Moseley,  no  Ga.  53,  35  S.  E.  301; 
Templeton  v.  Luckett,  75  Fed.  254: 
Williams  i:  Conger,  49  Tex.  582. 

A  receipt  more  than  too  years  old 
found  in  a  desk  used  for  thirty  years 
by  the  person  into  whose  possession 
such  receipt  should  have  passed, 
comes  from  a  proper  custody.  Lewis 
1:  Lewis,  4  W'atts  &  S.   (Pa.)  378. 

In  trespass  to  try  title,  plaintiff 
offered  in  evidence,  as  an  ancient  in- 
strument, a  deed  from  N,  the  com- 
mon source,  to  his  grantor,  purport- 
ing to  be  dated  in  1854.  There  was 
proof  that  plaintiff  obtained  it  from 
the  grantee,  who  had  it  in  possession 
in  1868,  when  he  returned  it,  for 
acknowledgment,  to  N,  who  prom- 
ised to  acknowledge  and  return  it ; 
that  N's  widow  returned  it  to  such 
grantee  after  N's  death,  and  that  the 
deed  was  the  same  in  1868  as  when 
oflFered  in  1802.  Held,  that  the  deed 
should  have  been  admitted.  Lunn  T. 
Scarborough.  6  Tex.  Civ.  .\pp.  15,  24 
S.  W.  846. 

33.  Orser  r.  Vernon,  14  V.  C.  C. 
P.   (Can.)   57.?. 

From  Trustees  of  Granted  Estate. 

Thompson  v.  Bennett.  22  U.  C.  C.  P'. 
(Can.)  393. 

34.  Hogaii  r.  Carruth,  19  Fla,  84; 
Pettingell  z:  Boynton  (Mass..)  29  N. 
E.  65s. 

35.  Hewlett  v.  Cock.  7  Wend.  (N. 

Vol.  I 


866 


JNCIENT  DOCUMBXrs. 


(4.)  Custody  of  Grantor.  —  I'.ut  a  deed  coming  from  the  possession 
of  the  grantor's  heirs  is  not  from  proper  custody.''" 

e.  Need  Not  Be  Most  Proper.  —  The  custody  need  not  be  the 
most  proper  one." 

i.  Msplainiiig  Ciislody.  —  Custody  prima  facie  improper  may  lie 
explained.^* 

g.  Is  Question  for  Court.  —  The  question  what  is  proper  custody 
is  for  the  court.^" 

h.  Sufficiency  of  Custody  As  Proof. —  (i.)  England  and  Canada. 
In  England,*"  a  different  rule  prevails,  but  apparently  in  Canada,*^ 


Y.)    371  ;   BuUen   v.    Michel.   4   Uow. 
297,  16  Rev.  Rep.  77. 

Reason  of  the  Rule.  — "  Ancient 
deeds  proved  to  have  been  found 
amongst  deeds  and  evidences  of  land 
may  be  given  in  evidence,  although 
the  execution  of  tliem  cannot  be 
proved,  and  the  reason  given  is.  '  that 
it  is  hard  to  prove  ancient  things, 
and  the  finding  of  iheni  /;(  sucli  a 
place  is  a  presumption  that  they  were 
fairly  and  honestly  obtained,  and  re- 
served for  use,  and  are  free  from 
suspicion  of  dislionesty.'  "  EUenlior- 
ough,  C.  J.,  in  Roe  v.  Rawlings,  7 
East  279. 

36.  Heintz  -•.  O'Donnell.  17  Tex. 
Civ.  App.  21,  42  S.  W.  797;  Williani- 
son  V.  Moseley,  no  Ga.  53,  35  S.  E. 
301.  Contra.  —  Patterson.  J.,  in  Doe 
v.  Samples,  8  Ad.  &  E.  154- 

37.  Williams  v.  Conger,  49  Tex. 
582 :  Whitman  i\  Shaw,  166  Mass., 
44  N.  E.  za ;  Doe  V.  Samples,  8  Ad. 
&  E.  154;  Croughton  v.  Blake, 
12  iM.  &  W.  705,  13  L.  J. 
Ex.  28;  Slater  v-  Hodgson,  9  Q. 
B.  727 ;  Shrewsbury  v.  Ruling,  1 1  Q. 
B.  884,  17  L.  J.  Q.  B.  190;  Jacobs  t'. 
Phillips,  82  Q.  B.  158,  15  L.  J.  Q.  H. 
47;  Andrews  v.  Motley,  12  C.  B.  (  N. 
S.)    514,  32  L-  J.  C.   P.   128. 

"  It  is  not  necessary  that  they 
should  be  found  in  the  best  and  most 
proper  place  of  deposit.  There  can 
only  be  one  such  place,  but  there  may 
be  many  that  are  reasonable  and 
probable,  though  differing  in  degree." 
Former  Heirs  'C.  Eslava,  11  .\la. 
1028. 

38.  Former  Heirs  7'.  Eslava.  1 1 
Ala.  1028;  Rees  v.  Walters,  3  M.  & 
W.  327,  7  L.  J.  Ex.  138;  Limn  v. 
Scarljorough,  6  Tex.  Civ.  .\pp.  15, 
24    S.   W.   846. 

"  It  is  when  documents  are  found 
in   other  than   their  proper   place   of 

Vol.  I 


deposit  that  the  investigation  com- 
mences, whether  it  was  reasonable 
and  natural,  under  the  circumstan- 
ces in  the  particular  case,  to  expect 
that  they  should  have  been  in  the 
place  where  they  are  actually  found, 
for  it  is  obvious,  that  whilst  there 
can  be  only  one  place  of  deposit 
strictly  and  absolutely  proper,  there 
may  be  various  and  many  that  are 
reasonable  and  probable,  though  dif- 
fering in  degree,  some  being  more 
so,  some  less ;  and  in  those  cases, 
the  proposition  to  be  determined  is, 
whether  the  actual  custody  is  so 
reasonably  and  probably  to  be  ac- 
counted for,  that  it  impresses  the 
mind  with  the  conviction  that  the 
instrument  found  in  such  custody 
must  be  genuine."  Per  Tindal.  C.  J., 
in  Bishop  of  iVIeath  v.  Marquis  of 
Winchester.  4  CI.  &  F.  44^.  3  Bing. 
(N.    C.)    304. 

39.  Cook  V.  Christie,  12  U.  C.  C. 
P.  (Can.)  S17;  Rees  v.  Walters.  3 
M.  &  W.  527,  7  L.  J.  Ex.  138.  See 
also  Jacobs  -c.  Phillips,  8  Q.  B.  is8, 
15  L.  J.   Q.   B.  47- 

40.  Clark  z\  Owens,  18  K.  V.  434 ; 
Havens  v.  Seashore  L.  Co.,  47  X.  J. 
Eq.  365,  20  Atl.  497;  Wynn  v. 
Syrwhett,  4  Barn.  &  A.  376 ;  Brishro 
V.  Cormican,  3  App.  Cas.  (Eng.) 
641 ;  Clarkson  v.  Woodhouse,  3 
Doug.  (Eng.)  189:  Doe  v.  Passing- 
ham,  2  Car.  &   P.  440,  .30  Rev.   Rep. 

Purporting  to  Show  Acts  of 
Ownership.  —  Malcolinsoii  ;■.  ( I'l  )ea, 
10  11.  L.  C.  593. 

"  Old  Leases  Have  Always  Been 
Considered  to  Be  Admissible  as 
being  evidence  of  acts  of  owner- 
ship. I  understand  this  to  rest  on 
the  principle,  that  when  at  a  distant 
period,  as  to  which  there  is  no  more 
direct  evidence  available,  you  find  a 


ANCIENT  DOCUMENTS. 


867 


the  mere  fact  of  proper  custody  makes  an  ancient  tlocument  com- 
petent. 

Corroboration  was  sometimes  required,*"  but  want  of  it  went 
rather  to  the  weight  than  to  the  admissibility  of  the  paper.*-' 

(2.)  United  States.  —  This  is  the  rule  in  some  of  the  United 
States/*  but   in  others   fartlier  corroboration  is   required,  at   least 


person  claiming  to  be  the  owner  of 
prcperty,  and  willing  to  make  him- 
self responsible  as  lessor  for  the  title 
to  it,  and  another  person  willing  to 
agree  to  give  rent  for  the  property 
and  to  enter  into  a  solenni  engage- 
ment as  a  tenant  of  it.  admitting  his 
landlord's  title,  these  circinnstances 
are  of  themselves  admissible  as  evi- 
dence of  title."  Cairns,  L.  C.  in  Bri- 
sliro  V.  Cormican,  3  -'\pp-  Cas.  641. 
But  see  Lancum  v.  Lovell,  6  Car.  & 

P-  437. 

41.  Doe  z:  Clement,  9  U.  C.  Q.  B. 
(Can.)  650;  Chamberlain  v.  Tor- 
rance, 14  Grant's  Ch.  (Can.)  181; 
Van  Every  :■.  Drake,  9  U.  C.  C.  P. 
(Can.)   478. 

42.  In  Brett  f.  Beales,  i  Kos.  & 
Mai.  416,  toll  tables  were  admitted 
on  proof  that  they  had  been  acted 
on,  but  a  deed  never  acted  on  was 
admitted,  bnt  only  to  prove  reputa- 
tion. See  also  Rogers  i'.  .\llen,  i 
Camp.  309,  10  Rev.  Rep.  689;  Lan- 
cum V.  Lovell.  6.  Car.  &  P.  437 ; 
Ranclifife  v.  Perkyns,  6  Dow.   149. 

43.  Cunningham  i'.  Davis.  175 
Mass.   213,   56  N.   E.   2. 

44.  Hogan  z:  Carruth,  19  Fla.  84; 
Follendore  i'.  Follendore,  no  Ga. 
359.  35  S.  E.  676.  But  see  Civil 
Code,  Georgia.  §3610;  and.  William- 
son t'.  Mosley,  no  Ga.  53,  35  S.  E. 
301 ;  Cunningham  v.  Davis,  175 
Mass.  213,  56  N.  E.  2;  Gardner  v. 
Grannis,  57  Ga.  539 ;  Harlan  v. 
Howard,  79  Ky.  373 ;  McReynolds  Z'. 
Longenberger,  57  Pa.  St.  13;  Settle 
I'.  Alison,  8  Ga.  201,  52  .\m.  Dec. 
383 ;  McCleskey  f.  Leadbetter,  i  Ga. 
551;  Former  Heirs  z'.  Eslava.  11 
Ala.  1028;  Hewlett  J'.  Cock,  7  Wend. 
(N.  Y.)  371;  Pendleton  v.  Shaw,  18 
Tex.  Civ.  .A.pp.  439.  44  S.  W.  1002 
(an  order  of  court  for  sale  of  land)  ; 
Doe  z'.   Roe,  31   Ga.  593. 

In  Missouri  the  court  said,  obiter, 
that  age  and  proper  custody  suflfice 
to  let  in  a  deed.  Long  z'.  McDow, 
87   Mo.   197.     But  the   deed  there   in 


question  was  a  patent  from  the 
United    States. 

In  'Vermont  in  Townsend  z\  Dow- 
ner, 32  Vt.  183,  age  and  proper  cus- 
tody were  said,  obiter,  to  be  suffi- 
cient. 

In  Ohio,  Bell  z'.  Brewster,  44  Ohio 
St.  690,  10  N.  E.  679.  In  that  case 
the  paper  was  merely  a  letter  and 
was  offered,  not  as  a  muniment  of 
title,  but  to  identify  a  person  by 
comparison  of  hands. 

In    Alabama Woods    v.    Montc- 

vallo  etc.  Co.,  84  .\la.  560,  3  So.  475. 

In  New  Hampshire,  as  to  records 
of  a  prnprietarv.  Little  z\  Downing, 
37    N.    H.   355- 

In  Texas '' It  has  all  the  essen- 
tials and  qualifications  to  make  it 
an  ancient  instrument.  It  comes 
from  the  proper  custody,  is  free 
from  suspicion,  and  is  over  30  ye.irs 
of  age,  and  was  therefore  admissible, 
at  common  law.  as  an  ancient  in- 
strument. .\mmons  v.  Dwyer,  78 
Te.x.  650,  15  S.  W.  1049;  Grain  v. 
Huntington,"  81   Tex.   614,   17   S.   W. 

243- 

"  In  the  case  of  Stroud  z\  Spring- 
field, 28  Tex.  664,  it  was  held  that, 
in  addition  to  the  other  essentials 
above  enumerated,  there  must  have 
been  some  act  of  ownership,  cor- 
roborative of  the  genuineness  of  the 
instrument,  before  it  could  be  con- 
sidered an  ancient  instrument.  The 
case  of  Holmes  z'.  Coryell,  58  Tex. 
688,  is  perhaps  a  little  more  liberal 
in  its  views  on  this  question,  and 
yet  there  is  drawn  from  the  opinion 
the  thought  that  all  proof  is  not 
dispensed  with;  and  the  case  of  Beau- 
mont Pasture  Co.  f.  Preston,  65 
Tex.  448,  rather  follows  in  its  wake. 
But  in  the  case  of  Parker  z:  Chan- 
cellor, 73  Tex.  478.  II  S.  W.  503; 
Ammons  z'.  Dwyer,  78  Tex.  639,  15 
S.  W.  1049,  and  Grain  z:  Hunting- 
ton, 81  Tex.  614,  17  S.  W.  243,  the 
broad  and  liberal  doctrine  is  laid 
down  that  where  a  deed  is  30  years 

Vol.  I 


868 


ANCIENT  DOCUMENTS. 


if  the  paper  offered  is  a  muniment  of  title. ^•'' 

B.  Possession. — a.  W'itli  Custody  Sufficient.  —  If  tlie  instru- 
ment is  a  muniment  of  title  found  in  proper  custody,  possession  con- 
formable to  it  is  strong  evidence  of  its  genuineness  and  sufficient  to 
permit  its  introduction  in  evidence.^''     The  rule  applies  as  well  to 


old,  and  is  free  from  suspicion,  and 
comes  from  the  proper  custody,  it 
would  be  admissible  in  evidence  as 
an  ancient  instrument."  Holt  v. 
-Maverick,    86    Tex.    457,    23    S.    VV. 

See  also  Cbambcrlin  ;■.  Showalter, 
5  Te.x.  Civ.  App.  226,  23  S.  W. 
1017;  JoueU  z\  Gunn,  13  Tex.  Civ. 
App.  84.  35  S.  W.  194;  Kennard  v. 
Withrow  (Tex.  Civ.  -A.pp.),  28  S. 
W.  226;  Mackay  v.  Armstrong,  84 
Tex.  159,  19  S.  W.  463:  Kellogg  v. 
McCabe,  14  Tex.  Civ.  App.  598,  .38 
S.  W.  S42;  Walker  v.  Peterson  (Tex. 
Civ.  .Vpp).  ii  S.  W.  269,  42  S.  VV. 
1045. 

Even  in  Case  of  a  Lost  Deed 
the  fact  of  its  existence  and  its  con- 
tents being  established.  Smith  v. 
Cavitt,  20  Tex.  Civ.  App.  .  .,  so  S. 
W.    167. 

An  Order  of  Court  for  sale  of 
land,  found  in  tlie  custody  of  the 
clerk  of  court,  though  not  in  the 
minutes  upon  regular  records  will 
be  presumed  genuine.  Pendleton  v. 
Shaw,  18  Tex,  Civ.  .^pp.  439,  44  S. 
W.   1002. 

45.  Clark  7'.  Owens,  18  N.  Y. 
434;  Havens  v.  Seashore  L.  Co.,  47 
N.  J.  Eq.  365,  20  Atl.  497 ;  Osborne 
T.  Tunis,  25  N.  J.  Law  633;  Frosf 
I'.  Frost,  21  S.  C.  501 ;  Cox  v.  Bow- 
man, 2  Yerg.  (Tenn.)  108;  Apple- 
gate  -■.  Lexington  etc.  M.  Co.,  117 
U.  S.  25s,  6  Sup.  Ct.  742;  McArthur 
V.  Morrison  (Ga.),  34  S.  E.  205; 
Williamson  v.  Moselev,  no  Ga.  53, 
35  S.  E.  301;  Burciifield  v.  Mc- 
Cauley,  3  Watts  (Pa.)  9;  Fogal  v. 
Pirro,  10  Bosw.  100,  23  N.  Y.  Sup. 
Ct.   100. 

Reasons  for  Requiring  Corrobora- 
tion. —  The  fact  of  proper  custody 
can  never  prove  much  in  favor  of 
the  deed,  for  if  it  were  a  forgery 
we  might  expect  to  find  it  in  the 
hands  or  control  of  those  who  in- 
tended to  use  it. 

In  the  absence  of  all  the  usual 
nroof  of  execution  nothing  can  tend 
to  corroborate  the  deed  but  acts  done 


under  it  or  the  recognition  of  its 
validity  by  those  who  have  an  in- 
terest in  the  other  direction.  When 
possession  has  accompanied  the  deed, 
or  other  unequivocal  acts  have  been 
done  under  it,  then  the  longer  it  has 
existed  the  stronger  is  the  nre- 
sumption  that  it  is  genuine.  But  if 
the  deed  has  never  been  put  in  use 
and  especially  if  the  right  which  it 
professes  to  give  has  been  denied 
by  an  adverse  possession,  then  the 
longer  the  deed  has  existed  the 
stronger  is  the  presumption  that  it  is 
not  a  genuine  instrument.  Wilson  v. 
Bitts,   4   Denio    (N.    Y.)    201. 

46.  Canada.  —  Orser  ;■.  Vernon. 
14  U.  C.  C.  P.  S7i:  Monk  V.  Farlin- 
ger,   17  U.  C.  C.  P.  41- 

Unilcd  States.  — \N?i\Xon  v.  Coul- 
son,  I  McLean  120,  29  Fed.  Cas.  No. 
17,132;  Meegan  v.  Boyle.  19  How. 
130;  Stoddard  v.  Chambers,  2  How. 
284. 

Alabama.  —  White  v.  Hutchings,  40 
.^la.    253. 

Georgia.  —  Bell  7'.  McCawley,  29 
(•a._  355- 

Kentucky.  —  Bennett  v.  Runyon,  4 
Dana  422;  Winston  v.  Gwathmey's 
Heirs,  8  B.  Mon.  19;  Thurston  v. 
Masterson,  g  Dana  228 :  Cook  i'. 
Totton,  6  Dana   108. 

Maine.  —  Crane  i'.  Marshall,  16 
Me.  27. 

Maryland.  —  Carroll  v.  Norwood, 
I    Har.   &  J.   167. 

Massachusetts. — Pettingell  ?■.  Boyji- 
ton  (Mass.),  29  N.  E.  655:  Stock- 
bridge  T.  West  Stockbridge,  14  Mass. 

Mississipt>i.  —  Fairly  v.  Fairly,  38 
Miss.   280. 

Nc'A'  Hampshire.  —  Waldron  i'. 
Tuttle,  4  N.  H.  371. 

.Vf7i'  )'o/7f.— Hewlett  v.  Cock,  7 
Wend.  371  ;  Wilson  v.  Betts,  4  Denio 
201;  Clinton  v.  Phelps.  9  Johns.  169; 
Jackson  v.  Christman,  4  Wend.  277 ; 
Clark   V.   Owens,    18   N.   Y.   434. 

North  Carolina.  —  Davis  -'.  Hig- 
gins,  91   N.   C.  382. 

South   Carolina. — Eubanks  v.  Har- 


Vol.  I 


AXCIENT  DOCUMENTS. 


869 


wills.-*' 

b.  Whether  liidisffcnsable.  —  (1.)  Rulings  That  it  Is.  —  (A.)  Prevail- 
ing Rule  Formerly.  —  Indeed,  it  was  formerly  asserted  that  such  pos- 
session must  be  shown,  in  order  to  warrant  the  introduction  of  the 
instrument  without  further  proof.** 

(B.)  Length  of  Possession.  —  And  some  cases  hold  that  such  pos- 
session must  be  shown  to  have  continued  thirty  years.-"''  But  this 
rule  is  not  s;enerallv  followed.^" 


ris,  I  Spear  183 :  Swygart  -■.  Taylor, 
I  Rich.  Law  54 ;  Wagner  v.  .Alton,  i 
Rich.  100;  Robinson  ;■.  Craig,  i  Hill 
Law  251  ;  Duncan  v.  Pieard,  2  Nott 
&  McC.  400;  Edmonston  v.  Hughes, 
1   Cheves  81  ;   Thompson  v.   Piullock, 

I  Bay  364 ;  Poison  v.  Ingram,  22  S. 
C.  541. 

Texas.  —  Gainer  v.  Cotton,  49  Te.x. 
lOl  ;  Schunior  v.  Russell,  83  Tex.  83, 
18  S.  W.  484:  Von  Rosenberg  r. 
Haynes.  85  Tex.  337,  20  S.   W.   143. 

I'crttwnt.  —  Townsend  t'.  Downer, 
^2  Vt.  183 ;  Booge  v.  Parsons,  2  Vt. 
450;   Bank  v.   Rutland,   t,},  Vt.  414. 

Virginia.  —  Shanks  i'.  Lancaster,  5 
C.ratt.   1 10,   so  .\ni.   Dec.    108. 

No  Conflict  on  This  Point "  The 

cases  are  entirely  harmonious  to  this 
extent — that  where  possession  of  the 
land  has  accompanied  the  deed,  that 
fact  furnishes  sufficient  evidence  of 
its  authenticity  to  justify  its  admis- 
sion." Havens  v.  Seashore  L.  Co., 
47  N.  J.  Eq.  365.  20  Atl.  497.  See 
also  Roe  r.  Doe,  Dud.   (Ga.)   168. 

47.  Jackson  i'.  Thompson,  6  Cow. 
(N.  Y.)    178:  Fetherly  i'.  Waggoner, 

II  Wend.  (X.  Y. )  599:  Jackson  z: 
Luquere,  5   Cow.    ( N.   Y.)    221. 

Although  Probate  Defective. 
Jordan  ;■.   Cameron.   12   Ga.  267. 

Although  Not  Probated.  —  Brad- 
street  r.  Clarke,  12  Wend.  ( N.  Y.) 
602. 

48.  Clarke's  Lessee  v.  Courtney,  5 
Pet.  319;  .'\rnold  v.  Gorr,  i  Rawl. 
(Pa.)  223;  Shaller  v.  Brand,  6  Binn. 
(Pa.)  435;  Starin  7'.  Bowne.  6  Barb. 
(N.  Y.)  109;  Homer  z'.  Cilley,  14 
N,  H.  85 ;  Zeigler  v.  Houtz,  i  Watts 
&  S.  (Pa.)  378:  McGennis  v.  Al- 
lison, 10  Serg.  &  R.  (Pa.)  197; 
Ridgcley  ?■.  Johnson,  9  Barb.  (N.  -Y.) 
327 ;  Sims  z:  De  Graffenreid,  4  Mc- 
Cord  (S.  C.)  253;  Dishazer  v.  Mait- 
land,  12  Leigh  (Va.)  524  (which 
case  is  overruled  bv  Carruthers  t'. 
Eldridge.   12  Gratt.    [Va.]   670*  :   Sit- 


tings   r.    Hall.    I    Har.    &    J.    (Md.) 
14.  2  .\m.   Dec.  502. 

Opinions  of  Kent  and  'Walworth. 
buch  was  the  opinion  expressed  by 
Ch.  Kent  (dissenting)  in  Jackson  v. 
Laroway,  3  Johns.  Cas.  (N.  Y.)  283, 
citing  Gilbert,  p.  89;  Peake  pp.  72, 
73;  Fleta  lib..  6  ch.  34:  i  Co.  Inst.. 
6  b. ;  Isaac  v.  Clarke,  i  Roll.  132; 
James  v.  Trollop,  Skinner  239  and 
2  .Mod.  i2i ;  Forbes  v.  Wale,  I 
Blackf.  532.  See  also  Kent's  opinion 
in  Jackson  :•.  Blanshan,  3  Johns.  ( N. 
Y. )  292,  3  .-Vm.  Dec.  485.  Chan- 
cellor Kent's  view  seems  again  to 
be  suggested  in  Jackson  v.  Brooks, 
8  Wend.  (N.  Y.)  426,  but  it  is  not  a 
direct  ruling  on  the  question.  .\nd 
as  late  as  1844  Chancellor  Walworth 
declared  in  Northrop  ;■.  Wright,  7 
Hill  476,  that  a  will,  more  than  30 
years  old,  could  not  be  received  in 
evidence  without  proof,  because  pos- 
session had  not  followed  it. 

49.  Jackson  v.  Thompson,  6  Cow. 
(N.  Y.)  178;  Fetherly  r.  Waggoner, 
II  Wend.  (N.  Y.)  599;  Jackson  r. 
Luquere,  5  Cow.  (N.  Y.)  221; 
Starin  v.  Bowen.  6  Barb.  (N.  Y.) 
109;  Walker  r.  Walker,  67  Pa.  St. 
185;  Robinson  '<■.  Craig,  i  Hill  Law 
(3.  C.)  389.  See  also  Nixon  v. 
Porter,  34  Miss.  697,  69  .A.m.  Dec. 
408:  Healy  v.  Moul,  5  Serg.  &  R. 
(Pa.)  181;  McGinnis  v.  .\llison.  10 
Serg.  &  R.    (Pa.)    197. 

50.  Jackson  f.  Luquere,  s  Cow. 
(N.    Y.)     221. 

Twenty  Years"  Possession  Enough. 
Gainer    !■.    Cotton,   40   Tex.    loi. 

Five  Years'  Possession  Sufficient. 
Wagner  ■;■.  .\hon,  i  Rich.  ( S.  C. ) 
100. 

Ten  Years'  Possession  'Without  Ob- 
jection  Hughes   V.    Wilkinson,    37 

>riss.    4S2. 

Several  Years King  r.  Sears,  91 

Ga.    S77,    18   S.    E.   830.^ 

Possession      'With      Other      Facts. 

Vol.  I 


870 


ANCIENT  DOCUMENTS. 


(C.)  How  Proved.  —  That  the  possession  was  held  under  the  instru- 
ment offered  may  be  estabhshed  by  circumstantial  evitlence,^'  or  by 
declarations  of  those  who  had  been  in  possession,"'-  and  it  may  be 
of  no  importance  that  the  person  in  possession  of  the  land  is  not  in 
possession  of  the  document.'^' 

It  is  enough  if  one  being  in  possession  claims  the  right  thereto 
under  the  document  though  he  did  not  enter  under  it.-'^ 

(D.)  Extent  of  Possession.  — The  possession  need  not  be  of  the 
entire  tract  conveyed  or  devised  ;^'^  nor  need  it  be  taken  or  held  by 
all  the  devisees  or  grantees.^" 

(E.)  Exceptions.  —  Where  it  appears  that  the  land  was  wholly 
unoccupied  for  a  long  time  after  the  date  of  the  document,  proof  of 
possession   is  of  necessity  dispensed  with."*'     Failure  to  take  pos- 


Stoddard  v.  Chambers,  2  How.  284, 
where  it  is  said  that  "  possession 
was   held   by   Stoddard   for  a   time." 

Weight  of  Authority In  Renter 

r.  Stnckart,  181  111.  529,  54  N.  E. 
loi4>  Magruder  J.  said :  "  Some  of 
tne  authorities  differ  as  to  whether  it 
is  necessary  to  show  that  possession 
was  taken  under  the  deed.  It  seems 
to  be  settled,  however,  by  the 
weight  of  authority,  that  such  pos- 
session if  necessary  to  be  shown, 
need  not  be  for  the  full  period  of 
,30  years,  if  there  are  other  circum- 
stances tending  to  show  the  genuine- 
ness of  the  instrument." 

51.  Cahill  v.  Palmer,  45  N.  Y. 
478. 

52.  Jackson  z:  Van  Dusen,  5 
Johns.   (N.  Y.)    144,  4  Am.  Dec.  3.?o. 

53.  Deed  Not  in  Possession  of  One 
Holding  Under  It —  Possession  may 
be  under  and  conformable  to  a  deed 
although  the  deed  is  not  in  posses- 
sion of  the  one  in  possession  of  the 
land.  "  If  property  passes  through 
a  dozen  hands  in  the  course  of  40 
years,  each  keeping  in  his  own  pos- 
session the  deed  given  to  him,  the 
possession  of  all  is  equally  under 
the  first  deed,  which  may  be  given 
in  evidence  as  an  ancient  deed, 
although  never  seen  by  any  but  the 
first  grantee  to  whom  it  was  given." 
Williams  v.  Conger,  125  U.  S.  397, 
S  Sup.   Ct.  933.  ' 

54.  Walton  v.  Coulson,  l  Mc- 
Lean 120,  29    Fed.  Cas.  No.  17,132. 

55.  It  is  not  necessary  in  order  to 
enable  an  instrument  to  be  read  as 
an  ancient  deed,  to  prove  a  cor- 
responding possession  of   every   por- 

Vol.  I 


tion  of  the  premises  which  it  pur- 
ports to  convey.  A  possession  of  a 
part  under  the  deed  affords  evidence 
of  its  authenticity  of  as  high  a  char- 
acter as  though  that  possession  ex- 
tended to  the  whole.  Jackson  j/. 
Davis,  S  Cow.  (N.  Y.)  123,  15  Am. 
Dec.  451  ;  Jackson  i'.  Luquere,  5 
Cow.  (N.  Y.)  221;  Townsend  v. 
Downer,  32  Vt.   183. 

56.  Under  the  rule  of  30  years 
possession  is  not  meant  that  where 
there  are  ten  devisees  of  separate 
parcels  to  ten  persons,  a  possession 
in  each  devisee  of  more  than  30  years 
must  be  made  out  before  the  will 
can  be  read  as  ancient.  Jackson  v. 
Luquere,  5  Cow.   (N.  Y.)   221. 

57.  Paying  Taxes  on  Wild  land 

Suificient Williams   i'.   Hillegas,   S 

Pa.   St.  492. 

Land  tjnoccupied  and  Considered 
Worthless.  —  In  Havens  t'.  Sea 
Shore  L.  Co.,  47  N.  J.  Eq.  365,  20 
Atl.  497,  the  land  in  question  had 
until  a  few  years  before  the  trial 
remained  unoccupied  and  had  been 
deemed  worthless.  The  deed  of- 
fered was  shown  to  be  more  than 
100  years  old,  had  been  passed  on 
to  successive  grantees  of  the  land, 
had  been  referred  to  in  subsequent 
deeds  and  in  one  recorded  deed  and 
had  the  appearance  of  genuineness. 
The  deed  was  admitted  on  this  show- 
ing. 

Rule  Requiring  Possession  Not 
Applicable.  —  When  it  is  admitted  by 
both  parties  that  the  lot  was  a  wild 
lot  and  was  never  occupied  by  any 
one  until  shortly  before  the  suit 
was  brought.  Pridgen  v.  Green,  80 
Ca.  737.  7  S.  E.  97- 


ANCIENT  DOCUMENTS. 


871 


session  may  be  explained  so  as  to  avoid  the  rule  reciuiring  it.-'^ 
Instruments  not  usually  followed  by  possession  are  admitted  with- 
out proof  of  it.'^'-'  Where  both  parties  claim  under  the  document 
possession  need  not  be  shown.""  The  rule  requiring  possession  to 
be  proved  was  relaxed  as  to  documents  of  great  antiquitv.'^^ 

(2.)  Rulings  That  it  Is  Not.  — But  the  highest  authority  now  holds 
that  without  possession  other  corroborative  evidence  may  suffice,"- 


58.  Explaining  Want  of  Posses-, 
sion.  —  In  Jackson  f.  Larouay,  3 
Johns.  Cas.  (.N.  Y.)  28J,  it  appeared 
that  for  years  after  the  testator's 
death  the  lands  devised  were  wild 
and  unoccupied  and  that  for  many 
years  after  they  had  been  occupied 
by  defendant's  predecessors  the  plain- 
tiff's ancestor,  claiming  under  the 
will,  had  no  notice  of  such  occupancy. 
It  was  held  that  these  facts  so  ex- 
plained want  of  possession  that  the 
will  should  be  admitted  if  other 
circumstances  appeared  sufficient  to 
raise   a    presumption    in    its    favor. 

59.  A  Mortgage. —Cunningham  ^•. 
Davis,   175   Mass.  213,  56  N.   E.  2. 

60.  Giddings     v.     Smith,     15     'Vt. 

344- 

61.  Where  the  transaction  is  so 
ancient  that  proof  of  contem- 
poraneous acting,  such  as  possession 
or  the  like,  is  not  probabl\'  to  be  ob- 
tained, its  production  is  not  required. 
Still  it  is  necessary  to  prove  some 
acts  of  modern  enjoyment  with 
reference  to  similar  documents  or 
that  modern  possession  or  use 
should  be  shown  in  corroboration  of 
the  ancient  documents.  Former 
Heirs   v.   Eslava,    11   Ala.    1028. 

62.  United  States.  —  Applegate  v. 
Lexington  etc.  Min.  Co.,  117  U.  S. 
255.  6  Sup.  Ct.  742 ;  Tempieton  v. 
Luckett,    75    Fed.    254. 

Alabama.  —  Former  Heirs  v.  Es- 
lava,  II   Ala.    1028. 

Massaclnisctts.  —  Cunningham  v. 
Davis,   175   Mass.  213,  56  N.  E.  2. 

Missouri.  —  Long  v.  McDow,  87 
Mo.    197. 

New  York.  —  Jackson  v.  Laroway, 
3  Johns.  Cas.  283 ;  Hewlett  v.  Cock, 
7  Wend.  371. 

Pennsylvania.  —  Williams  i'.  Hil- 
ligas.  5  Pa.  St.  492 ;  Walker  v. 
Walker,  67   Pa.   St.   185. 

South  Carolina.  —  Swygait  v.  Tay- 
lor,  I   Rich.   Law   54. 

Te.ras.  —  Stroud  z:   Springfield,  28 


Te.x.  649;  Johnson  v.  Timmons,  50 
Tex.  521 ;  Holmes  v.  Coryell,  58  Tex. 
680;  Williams  i:  Hardie  (Tex.  Civ. 
.\pp.),  21  S.  W.  267;  Lunn  V.  Scar- 
borough, 6  Tex.  Civ.  App.  15,  24 
S.  W.  846;  Ammons  v.  Dvvyer,  78 
Tex.  639,  IS  S.  W.  1049. 

Vermont.  —  Williams  v.  Bass,  22 
N't.  352. 

Other  Circumstances  May  Be  Re- 
sorted to,  to  raise  the  necessary  pre- 
sumption. Clark  V.  Owens,  18  N.  Y. 
434 ;  in  that  case  it  was  held  suffi- 
cient to  let  in  an  ancient  lease  that 
the  lessee  had  paid  rent  under  it, 
had  referred  to  it  in  conversation 
and  had  been  shown  the  lease  at 
least  twice. 

Possession  'Wanting;  Document  to 
be  Reasonably  Accounted  For. 
Jackson  ;•.  Laroway,  3  Johns.  Cas. 
(N.    Y.)    283. 

On  Proof  of  Execution  Except  De- 
livery  A  deed  more  than  30  years 

old,  unaccompanied  by  possession 
under  it,  was  admitted  where  all  the 
elements  of  its  e.xecution  were 
proved,  except  delivery.  Thursby  v. 
.Myers,    57   Ga.    155. 

Rule  in  Pennsylvania In 

Walker  v.  Walker,  67  Pa.  St.  185, 
it  is  said  that  it  has  never  been  e.x- 
pressly  decided  in  Pennsylvania  that 
nothing  but  proof  of  actual  posses- 
sion for  30  years  under  the  deed 
will  suffice  to  raise  a  presumption  of 
its  authenticity ;  but  where  posses- 
sion is  the  only  circumstance  relied 
on,  nothing  less  than  proof  of  pos- 
session   for   30  years   will   suffice. 

In  'Virginia.  —  After  an  elaborate 
review  of  the  authorities,  the  court 
overrules  Dishazer  v.  Maitland,  12 
Leigh  (Va.)  524,  and  holds  that  proof 
of  possession  is  only  one  of  the 
means  of  raising  a  presumption  of 
genuineness,  and  that  there  are  other 
means  which  should  not  be  excluded. 
Carruthers  v.  Eldridge,  12  Gratt. 
(\'a.)    670. 

Vol.  I 


872 


A \-CIEN T  DOC U MEN TS. 


but  that  in  absence  of  possession  there  must  be  e(|Uivalent  explana- 
tory proof."-' 

C.  Other   Coi<koi!orati\iJ    Facts. — a.  .Af testation   and  Record. 
Proof  of  attestation  and  record  is  sufficient  corroboration.''^ 

b.  Payment  of  Taxes.  ■ —  So  is  payment  of  taxes."'' 

c.  Acts  of  Oii'nershit>.  —  So,  too,  are  acts  of  ownership  consist- 
ent with  the  document.'''' 


63.  Former  Heirs  v.  Eslava,  ii 
Ala.  1028;  Carter  v.  Chaudron,  21 
Ala.  72;  White  'e.  Karris,  124  .Ma. 
461,  27  So.  259.  See  also  .\lleii  v. 
.McTavish,    28    Grant's    Ch.     (Can.) 

539. 

Possession  Not  the  Only  Corrobo- 
ration. —  Frost  c'.  Frost.  21  S.  C. 
501  ;  Harlan  v.  Howard,  79  Ky.  373 ; 
Wilson  V.  Betts,  4  Denio  (N.  Y.) 
201. 

Character  of  Corroboration  De- 
pends on  Instrument.  —  What  cir- 
cnmstances  of  corrohoration  sliall  he 
necessary  must  depend  in  each  case 
npon  the  purpose  and  character  of 
the  instrument.  They  must  be 
au-xiliary  to  its  apparent  antiquity 
and  sufficient  to  raise  a  reasonable 
presumption  of  its  genuineness. 
Stroud  V.  Springfield,  28  Tex.  649. 
See  also  Williams  ;■.  Conger,  49  Tex. 
582;  I. an  V.  Mumnia.  43  Pa.  St.  267. 
64.     Even  if  Not  in  Place  Required 

by    Law Whitman    v.    Heneherry, 

7.^  111.   1 01). 

Improperly  Certified  and  Recorded. 
llcdger  r.  Ward.  15  I'..  Mnn.  (  Ky. ) 
106. 

Recording  ^With  Other  Facts. 
Stoddard  v.  Chambers,  2  How.  284 ; 
King  V.  Sears,  91  Ca.  577,  18  S.  E. 
830. 

Acknowledgment,       With       Other 

Facts "The  court   did   not   err   in 

admitting  in  evidence  as  an  ancient 
instrument  a  conveyance  dated  June 
12,  1855,  and  acknowledged  Mar. 
31,  1859,  notvvitlistanding  there  was 
no  proof  of  possession  under  or 
referable  to  said'  deed.  Proof  that 
the  signature  of  the  acknowledgment 
was  in  the  handwriting  of  the  de- 
ceased officer  who  purports  to  have 
taken  it  in  connection  with  other 
corroborative  circumstances,  is  suffi- 
cient to  raise  a  reasonable  pre- 
sumption of  genuineness."  Williams 
V.  llardie  (Tex.  Civ.  .-Kpp. ).  21  S. 
W.  267. 

Vol.  I 


,     Attestation   Evidence   of   Delivery. 

Huff  V.  Crawford  (Tex.  Civ.  .\pp.), 
i2    S.    W.   592. 

In  Missouri  by  Statute,  the  mere 
fact  that  an  instrument  was  recorded 
more  than  30  years  before  it  is  offered 
in  evidence  suffices  to  let  it  in.  Cris- 
pen  V.  Hannavan,  12  Mo.  548.  By  a 
later  statute  the  period  was  reduced 
to  ten  years  hut  possession  or  claim 
of  title  under  it  for  that  titne  must 
also  be  shown.  Hoge  v.  Huff,  94 
Mo.  489,   7   S.   W.   443. 

( Doubtless  the  statutes  in  other 
states,  admitting  without  proof  in- 
struments that  have  been  properly 
recorded,  apply  to  ancient  documents 
as  well  as  to  others.) 

65.  Schuner  v.  Russell,  83  Tex. 
83,  18  S.  W.  484;  Von  Rosenburg  v. 
Haynes,  85  Tex.  357,  20  S.  W.  143 ; 
Wliite  V.  Farris,  124  .-Ma.  461,  27 
So.    259. 

For  Thirty  Years.  —  Cox  v.  Cock, 
S9  Tex.  521  ;  Williams  v.  Hillegas, 
5  Pa.  St.  492. 

Possession  of  Deed  and  Paying 
Taxes.  _Iu  Ryder  v.  Fash,  50  .Mo. 
476,  it  was  held  that  possession  of 
the  deed  itself  and  paying  ta.xes  on 
the  land  was  enough  to  let  in  the 
deed  as  ancient  without  further 
proof.  It  does  not  appear  for  how 
long  a  period  taxes  were  paid,  nor 
whether  the  land  was  actually  occu- 
l)icd  or  by  whom.  But  in  Shaw  v. 
Pershing,  57  Mo.  416,  it  appears 
that  the  land  there  involved  was 
never  actually  occupied  for  more 
llian  30  years  after  the  execution  of 
the  deed,  during  all  which  time  the 
grantee  had  kept  the  deed  and  had 
paid   ta.xes   on   the   land. 

66.  Chamberlin  v.  Showalter,  5 
Tex.   Civ.   ,\pp.   226,  2^   S.   W.    1017. 

After  Forty  Years  Acquiescence 
by  the  Assignor,  proof  of  execution 
of  a  land  warrant  cannot  be  required 
by  a  stranger  to  the  transaction. 
Botls  V.  Chiles,  21  B.  Mon.  (Ky.)  36. 


A -VC 7/1  A" V  nOC ■  UMEX TS. 


873 


d.  .issciiioii  of  Kii^hts.  —  Courts  have  reqiiiiL'il  it  to  be  shown 
that  the  document  has  been  in  some  manner  acted  on  :'■'  that  it 
appear  that  some  claim  has  been  asserted  under  it.''" 

D.  Legal  Execution.  —  a.  Must  Shoiv  Compliance  With  Lazi'. 
The  instrument  must  contain  e\"ery  essential  recpiirement  of  the  law 
under  which  it  was  made."'''  This  rule  applies  wliere  certain 
formalities  were  recjuired  in  case  of  deeds  executed  by  married 
women.'" 

b.  Prcsii Illations  in  Favor  Of.  —  But  in  other  cases  liberal  pre- 
sumptions have  been  indulged  in  favor  of  due  execution  of  ancient 
instruments.'' 

c.  Informalities  Do  Not  I'itiate.  —  lUit  the  alisence  of  formalities 
usual  but  not  going  to  the  validit\  of  the  instrument  may  be 
explained."- 


67.  Wilson  z:  Simpson.  8o  Tex. 
2/9,  l6  S.  W.  40;  Lau  J'.  Mnnniia,  43 
Pa.   St.  267. 

68.  Stoddard  v.  Chambers.  2  How. 
284;  Fulkerson  r.  Holmes,  117  U. 
S.  389,  6  Sup.  Ct.  780;  Walton  v. 
Coulson,  I  McLean  120,  29  Fed.  Cas. 
No.  i7,i.?2;  Barr  v.  Gratz,  4  Wheat. 

■Where  a  'Wm  Had  Not  Been 
Treated  as  'Valid,  as  no  claim  has 
been  set  up  under  it,  and  all  the 
heirs  have  acted  in  regard  to  the 
estate  of  their  father  as  though  he 
had  died  intestate,  the  will  cannot  be 
admitted  without  such  proof  as 
would  be  required  in  the  case  of 
writings  not  ancient.  Meegaii  z'. 
Boyle,   ig  How.  130. 

69.  ^leega^  v.  Boyle,  19  How. 
130 ;  in  that  case  the  law  required 
that  a  will  be  proved  by  the  attesting 
witness  within  one  month  after  de- 
cease of  the  testator  and  be  recorded, 
and  it  appeared  that  no  such  steps 
ha<l  been   taken. 

70.  Aleegan  r-.  Boyle,  19  How. 
130;  Parker  :'.  Chancellor,  73  Tex. 
47,1.  1 1  S.  W.  503 ;  Stooksberry  r. 
Swan  (Tex.  Civ.  .\pp.),  21  S.  W. 
694;  Rcaume  z\  Chambers,  22  Mo. 
36. 

71.  King  I'.  Whitchurcli,  7  Barn. 
&  C.  573 ;  King  v.  Catesbv,  2  Barn. 
&  C.  814. 

In  Hill  z:  Lord,  48  Me.  83,  it  is 
said:  "Various  defects  are  sug- 
gested in  some  of  the  earlier  con- 
veyances which  would  be  serious  if 
they  were  of  recent  date.  But  much 
is  to  be  presumed  in  favor  of  ancient 
deeds   if    accompanied    by  possession 


and  the  same  rule  may  be  applied  to 
wills  and  to  levies  of  execution  to 
some  extent." 

Use  of  Unstamped  Paper.  —  It  will 
he  presumed  that  the  officer  ex- 
ecuting an  instrument  was  authorized 
to  use  unstamped  paper.  Von 
Rosenburg  z\  Haynes,  85  Tex.  357, 
20  S.  W.   143. 

.'\fter  thirty  years  proceedings 
imder  a  certificate  of  pauper  settle- 
ment it  need  not  be  shown  to  have 
been  made  in  accordance  with  stat- 
ute. King  z:  Inhabitants  of  Far- 
rington,  2  T.  R.  466. 

72.  Where  a  deed  purported  to 
have  been  made  in  Te.xas  in  1836 
and  was  not  acknowledged,  certified 
to,  witnessed  nor  written  on  sealed 
paper,  Mr.  Justice  Bradley  said: 
"  The  circumstances  of  the  case  and 
of  the  time  are  sufficient  (if  any 
reason  is  necessary)  to  account  for 
the  absence  of  these  formalities." 
Williams  z:  Conger,  125  U.  S.  397,  8 
Sup.  Ct.  933.  See  also  Tex.  &  M. 
R.  Co.  z'.  Locke,  74  Tex.  ^70,  12  S. 
W.  80;   Hill  z:   Lord,  48  Me.  83. 

The  Unsettled  State  of  the  Coun- 
try, the  transfers  of  the  country 
from  one  sovereignty  to  another,  the 
rude  and  defective  organization  of 
the  government  are  facts  which  no 
courts  can  disregard  in  acting  upon 
transfers  of  property  between  indi- 
viduals. Technical  and  legal  forms 
cannot  be  required  among  people 
ignorant  of  the  forms  of  titles.  Stod- 
dard T'.  Chambers,  2  How.  284.  See 
also  Jackson  z:  Schoonmaker,  2 
Jolnis.   (N.  Y.)  230. 

Vol.  I 


874 


ANCIENT  DOCUMENTS. 


E.  Free  From  Grounds  of  Suspiciox.  —  a.  Generally.  —  It  is 
further  required  that  the  paper  be  free  from  any  just  grovmds  of 
suspicion""  apparent  upon  its  face  or  shown  by  some  fact  directly 
connected  witli  it."'' 

b.  Unusual  Form.  —  Fnit  the  mere  fact  that  the  form  of  the 
document  is  unusual  is  not  ground  of  suspicion.'" 

c.  Erasures.  —  Nor  necessarily  is  the  erasure  of  an  indorsement.''^ 

d.  Mutilation.  —  Nor  is  mutilation  necessarily  a  ground  of  sus- 
picion." 

e.  Alteration. —  (1.)  Generally.- — Nor  is  an  alteration  always 
ground  of  suspicion."** 

(2.)  Material,  to  Be  Explained.  —  ]5ut  material  alterations  appear- 
ing on  the  document  must  be  explained.'"     It  seems  to  be  a  suffi- 


73.  Doe  V.  Roe,  31  Ga.  593 ;  Orser 
V.  Vernon,  14  U.  C.  C.  P.  (Can.) 
573;  Monk  V.  Farlinger,  17  U.  C. 
C.  P.  (Can.)  41;  Fogal  v.  Pirro,  10 
Bosw.  100,  23  N.  Y.  Sup.  Ct.  100; 
Walton  z'.  Coulson,  i  McLean  120, 
29  Fed.  Cas.  No.  17.132;  Rogers  v. 
Shortis,  10  Grant's  Ch.  (Can.)  243. 
But  see  Davies  v.  Lowndes,  i  Bing. 
161,  where  a  will,  purporting  to  be 
of  the  17th  century,  showed  several 
letters  and  words  in  modern  char- 
acters, yet  the  will  was  admitted 
apparently  on  proof  of  custody  alone. 

An  Impeaching  Indorsement  Not 
Objected  to The  fact  that  tlie  re- 
corder had  made  a  note  on  the 
paper  recorded  that  the  same  ap- 
peared not  to  be  an  original  but 
might  be  a  copy  that  this  memoran- 
dum was  followed  by  the  words : 
"  It  is  a  copy  by  Dr.  K,"  taken  with 
the  fact  that  no  objection  appeared 
to  have  been  made  to  this  impeach- 
ment of  the  paper  when  returned  to 
the  grantee,  made  the  paper  prima 
facie  not  genuine.  Lau  r.  Mumma, 
43    Pa.    St.   267. 

Error  in  Dating  Does  Not  Vitiate. 
Jackson  v.  Schoonmaker,  2  Johns. 
(N.  Y.)  230. 

74.  "Suspicions  Arising  From  Ex- 
traneous Testimony  arc  for  the  jury 
in  passing  upon  genuineness  after 
the  paper  is  admitted."  Williams  v. 
Conger,  49  Tex.   =;82. 

75.  Hill  r.  Lord,  48  Me.  83. 
Although  the  form  of  an  ancient  in- 
strument otherwise  admissible  as  an 
ancient  document  may  be  unusual 
and  the  absence  of  certain  usual 
formal  requisites  might  excite  in- 
quiry bearing  on  the  genuineness  of 

Vol.  I 


the  papers  and  the  lime  and  cir- 
cumstances of  their  execution,  such 
inquiries  do  not  go  to  their  admis- 
sibility in  evidence  unless  suspicion 
other  than  such  as  may  arise  from 
their  form  be  cast  upon  them.  Tex. 
M.  R.  Co.  T.  Locke,  74  Tex.  370, 
12  S.  W.  80. 

76.  An  erasure  of  an  indorsement 
on  an  ancient  instrument  might  under 
certain  circumstances  be  considered 
confirmatory  of  its  genuineness.  Holt 
z:  ^lavericic,  5  Tex.  Civ.  App.  650, 
2^  S.  W.  751- 

77.  The  upper  part  of  an  ancient 
deed  which  had  been  cut  in  half, 
and  mutilated,  was  ofifered  in  evi- 
dence. Held,  that  the  fact  of  its 
mutilation  aflfected  its  weight,  but 
not  its  admissibility.  Per  Tindal. 
C.  J.  in  Lord  Trimmlestown  v. 
Kemmis,  9  CI.  &  F.  749.  To  same 
effect  Andrew  v.  Motley,  12  C.  B- 
(N.  S.)  S14,  32  L.  J.  C.  P.  128. 

78.  Walton  v.  Coulson,  i  McLean 
120,  29  Fed.  Cas.  No.  17,132;  in  that 
case  the  alteration  was  not  material 
and  not  in  the  interest  of  the  party 
claiming  under  the   instrument. 

But  This  Rule  'Was  Ouestioned 
in  Ridgelev  f.  Johnson,  9  Barb.   (N. 

V.)  527- 

79.  Walton  v.  Coulson,  i  McLean 
120,  29  Fed.   Cas.   No.   17,132. 

"  Same  Explanation  of  Interlin- 
eations and  Erasure  if  there  be  any 
of  a  serious  character,  should  always 
be  required  by  the  court  when  spec- 
ially demanded  and  insisted  on." 
Houston  t:  Blythe,  60  Tex.  506. 

Sec    article,    "  Alteration    of    In- 

STRVMENTS." 


ANCIENT  DOCUMENTS. 


875 


cient  explanation  to  show  that  the  alteration  itself  is  ancient.*" 

f.  Defective  Ackuozi'lcdgmeiit.  ■ —  A  document  otherwise  admissi- 
ble as  ancient  is  not  rendered  incompetent  by  a  defective  acknowl- 
edgment.*^ 

F.  Direct  Pkoof  of  Execution.  —  a.  JVlicii  Not  Required. 
(1.)  Subscribing'  Witness  Need  Not  Be  Called.  —  If  the  conditions  for 
admission  without  proof  of  execution  are  met,  that  proof  need  not 
be  made  even  though  the  means  for  making  it  are  at  hand.  A  sub- 
scribing witness  need  not  be  called  although  within  the  court's 
jurisdiction. *- 

(2.)  Nor  Accounted  For.  —  Absence  of  the  subscribing  witnesses 
need  not  be  accounted  for.*^     The  witnesses  are  presumed  dead*^  or 


80.  In  McCelvey  f.  Cryer,  8  Tex. 
Civ.  App.  437,  28  S.  W.  691,  the 
cnurt  said:  "Being  over  fifty  years 
of  age.  having  been  recorded  for  over 
forty  years,  and  having  come  from 
the  proper  source,  the  mere  fact  of 
the  erasure  of  the  name  '  Whiting ' 
and  the  insertion  of  the  name  '  Jor- 
dan '  would  not  throw  such  sus- 
picion upon  the  instrument  as  would 
necessitate  e.\planation  as  a  prerequi- 
site to  its  admission  as  an  ancient  in- 
strument." 

Deed  the  Same  Twenty-Four  Years 

Before A  deed  sliowed  on  its  face 

tliat  the  consideration  was  written 
in  different  and  fresher  ink  from 
the  body  of  the  deed,  and  the  periods 
separating  tlie  initials  of  the  signa- 
ture were  in  different  ink  from  the 
body  of  the  signature-  This  was 
sufficiently  met  by  the  proof  (if 
indeed  such  proof  was  required) 
that  in  these  respects  the  deed  was 
tTie  same  twent\'-four  years  before. 
Lunn  z'.  Scarborough,  6  Tex.  Civ.  ' 
.■\pp.  15,  24  S.  W.  846. 

81.  Perry  z:  Clift  (Tenn.  Ch. 
.\pp.),  54  S.  W.  123;  Frost  V.  Wolf, 
-7  Tex.  455,   14  S.  W.  440. 

Acknowledg'ment  Not  Inquired 
Into — Sniilli  ;■.  Cavitt,  20  Tex.  Civ. 
.\pp.    558,   50   S.    W.    167. 

82.  Jackson  i'.  Christman,  4 
Wend.  (N.  Y.)  277;  Shaw  v.  Per- 
shing, 57  Mo.  416;  Lunn  v.  Scar- 
borough, 6  Tex.  Civ.  App.  IS,  24 
S.  W.  846;  Allison  V.  Little.  85  Ala- 
512,  5  So.  221  ;  White  v.  Farris,  124 
Ala.  461,  27  So.  259;  Cunningham 
-■.  Davis,  175  Mass.  213,  56  N.  E. 
21;  Gardner  t'.  Grannis,  57  Ga.  539; 
Nixan    v.    Porter,    34    Miss.    697,    69 


.Am.  Dec.  408;  Doe  '■.  Burdett,  4  Ad. 
&  F..  19. 

The  Fact  of  Recordation  does 
not  change  the  rule  as  to  admission 
of  ancient  document  without  proof 
of  execution.  McArthur  -•.  Morrison 
(Ga.).  34  S.  E.  205, 

A  Subscribing  Witness,  Though 
in  the  Court  Room,  should  not  be 
called.  Kenyon,  J.  in  Marsh  v.  Coll- 
uett,  2  Esp.  665,  5  Rev.  Rep.  763. 

Contra.  —  Staring  z'.  Bowen,  6 
Barb.  (N.  Y.)  109.  See  also  Smith 
I'.  Rankin,  20  111.  14;  Thompson  v. 
Brannon,    14    S.    C.    542. 

Failure  to  Offer  Proof  of  Hand- 
writing raises  a  presumption  against 
the  paper.  Stroud  v.  Springfield,  28 
Tex.   649. 

83.  Vattier  z:  Hinde,  7  Pet.  252; 
Barr  Z'.  Gratz,  4  Wheat.  213;  Shaw 
z'.  Pershing,  57  Mo.  416;  Hinde  v. 
Vattier,  i  McLean  no,  12  Fed.  Cas. 
No.  6512;  McGennis  z'.  .■Mlison,  10 
Serg.   &   R.    (Pa.)    197. 

Reason  for  the  Rule It  is  a  rule 

adopted  for  common  convenience,  and 
founded  upon  the  great  difficulty  of 
proving  the  due  execution  of  a  deed 
after  an  interval  of  many  years.  And 
the  rule  applies  not  only  to  grants 
of  land,  but  to  all  other  deeds.  Winn 
z\   Patterson,  9  Pet.  663. 

84.  Lunn  v.  Scarborough,  6  Tex. 
Civ.  App.  15,  24  S.  W.  846;  Harlan 
z:  Howard,  79  Ky.  373;  Allison  v. 
Little,  85  Ala.  512,  5  So.  221 ;  Harris 
z'.  Hoskins,  2  Tex.  Civ.  App.  486, 
22  S.  W.  251  ;  Winn  z'.  Patterson,  9 
Pet.  663 ;  Mc.A.rthur  ■:■.  Morrison 
(Ga.),  34  S.  E.  205;  White  v. 
Farris,  124  Ala.  461,  27  So.  259. 
See  also  Willson  v.  Betts,  4  Denio 
(N.    Y.)    201;    Carter   r.    Chaudron, 

Vol.  I 


876 


ANCIENT  DOCUM HNTS. 


out  of  the  jurisdiction.'*"' 

b.  H'licn  Must  Be  Proi'cd.  —  (1.)  Deed  a  Fraudulent  Act.  — I'.ut 
if  the  making  of  the  instrunicnl  was  a  fraudulent  act  the  execution 
must  be  proved."" 

(2.)  Where  Custody,  Etc.,  Not  Proved. —  Where  the  conditions  for 
admission  of  ancient  instruments  without  proof  of  execution  are 
not  met  the  execution  must  be  proved.'*' 

c.  Method  of  Proof. —  (1.)  Rules  Relaxed. —  But  of  necessity  the 
rules  of  proof  are  relaxed,""  except,  according  to  some  authorities, 
in  the  case  of  wills.*"  Other  authorities  do  not  recognize  this 
exception.'-"*     Such  papers  may  be  admitted  although  the  attesting 


21  Ala.  72;  Mollis  -■.  Dasliiell,  52 
Te.x.  187.  But  compare  Hou.ston  z: 
Blythe,  60  Tex.  506. 

"  This  presumption  as  far  as  the 
rule  of  evidence  is  concerned  is  not 
affected  by  proof  that  there  are  wit- 
nesses living."  McReynolds  ?■.  Lon- 
genberger,  57  Pa.  I,^;  White  v. 
Huchings,  40  Ala.  2S3.  88  .'\ni.  Dec. 
766. 

85.  Nixan  v.  Porter,  ,34  Miss.  697, 
69  Am.  Dec.  408. 

86.  "  Where  a  man  conveys  a  re- 
version to  one,  and  after  conveys 
it  to  another,  and  the  second  pur- 
chaser proves  his  title,  the  first  deed 
must  be  proved  because  in  such  case 
the  presumption  arising  from  the 
antiquity  of  the  deed  is  destroyed 
by  an  opposite  presumption  ;  for  no 
man  shall  be  supposed  guilty  of  so 
manifest  a  fraud."  Chettle  z'.  Pound, 
Bull.    N.    P.   255;    Gilb.    Ev.   90. 

87.  Gainer  v.  Cotton,  49  Tex.  lOi  ; 
Williams  f.  Conger.  49  Tex.  582; 
Urket  V.  Coryell,  S  Watts  &  S.  tPa.) 
60. 

For  method  of  proving  private 
writings  generally  sec  article, 
"  Private  Writings." 

88.  Walton  v.  Coulson,  i  McLean 
J20,  29  Fed.  Cas.  No.  17,132;  Boehm 
7'-  Lugle,  I  Dall.  14;  McGennis  v. 
Allison,  10  Serg.  &  R.  (Pa.)  T97J 
Knight  z'.  Ferguson,  2  Nott.  &  McC. 
(S.   C.)   588. 

Proving  Signatures  of  Some  of 
Subscribing  Witnesses.  —  Peter- 
borough I'.   Lancaster,   14  \.   H.  382. 

Without    Proof    of    Delivery If 

all  other  elements  essential  to  ex- 
ecution are  proved  the  deed  will  be 
admitted.  Thursby  z\  Meyers,  57 
Ga.    155, 

Necessity   the  Basis   of  the   Rule. 

Vol.  1 


Courts  have  not  relaxed  the  rules  of 
evidence  in  relation  to  ancient  deeds 
because  time  alone  furnishes  any 
presumption  in  their  favor,  but  be- 
cause the  lapse  of  time  renders  it 
difficult  and  sometimes  impossible  to 
give  the  usual  proof  of  execution. 
Willson  z:  Belts,  4  Denio  (N-  Y.) 
201.  See  also  Coulson  v.  Walton,  9 
Pet.  62. 

89.  It  was  held  in  Jackson  "'. 
Luquere,  ;;  Cow.  (N.  Y.;  221,  tbat 
where  direct  proof  of  an  ancient  will 
is  necessary  it  must  be  fully  made, 
by  proving  the  handwriting  of  all 
the  witnesses.  "  Proof  of  the  hand- 
writing of  one  witness  raises  no 
presumption  that  either  of  the  others 
subscribed  his  name.  Cases  arising 
on  other  instruments,  do  not  decide 
the  case  of  a  will.  There  it  is 
enough  if  the  party  executed,  but  here 
he  must  execute  in  a  particular  man- 
ner or  his  will  is  utterly  void." 
See  also  Northrop  v.  Wright,  7  Hill 

,  (N.  Y.)   47(3. 

90.  Fetherly  r.  Waggoner,  II 
Wend.  (N.  Y.)  599- 

Lapse  of  time  is  an  element  favor- 
ing the  genuineness  of  a  will,  which 
is  perfectly  attested  and  the  signa- 
tures of  two  witnesses  to  which  are 
proven,  even  in  the  absence  of  the 
signature  of  the  testatrix.  "  It  is  the 
duty  of  the  court  to  ascertain,  from 
all  the  facts  and  circumstances, 
whether  the  instrument  offered  is  es- 
tablished with  reasonable  certainty, 
and  if  it  is,  to  receive  the  same." 
Rider  z:  Legg,  51  Barb.  (N.  Y.)  260. 

Presumption  in  Favor  of  Probate 
of  Will.— In  McClaskcy  r.  P.arr,  47 
Fed.  154,  it  is  said  that  the  ancient 
record  of  an  ancient  will  is  com- 
ix-lent  although   the   record  does  not 


ANCIENT  DOCUMENTS. 


877 


witnesses  canncit   full\'  recall  the  executicm.'" 

(2.)  Accounting  for  Witnesses.  —  The  strictest  possible  search  for 
the  subscribing  witnesses  is  not  required.''-  The  death  of  subscrib- 
ing witnesses  to  very  ancient  papers  will  be  presumed."" 

(3.)  Proof  of  Handwriting.  —  But  their  handwriting  must,  if  possi- 
ble, be  proved  in  the  same  manner  as  in  other  cases. "^  But  if  that  is 
impossible,  proof  by  comparison   with  other  'writings  is  allowed."" 


show  on  its  face  such  proof  made  a? 
entitles  the  will  to  probate.  It  will 
be  presumed  after  twenty  years,  from 
the  e.xistence  of  the  judicial  record 
that  the  requisite  proof  was  made. 

91.  Lawry  z'.  Williams,  13  Me. 
281,  where  a  deed  was  proved  by  one 
witness  who  could  not  testify  as  to 
delivery,  but  the  delivery  was  other- 
wise proved. 

Inability  to  State  Particulars. 
Although  a  witness  testifying  to 
execution  of  a  will  36  years  before, 
may  not  be  able  to  call  to  remem- 
brance all  the  facts  minutely  so  as 
to  be  able  to  state  them  distinctly 
and  positively,  yet  her  testimony  is 
not  to  be  disregarded.  Where  such 
a  subscribing  witness  swore  to  her 
belief  that  the  testator  signed  the 
will,  though  she  could  not  recollect 
the  particular  facts,  if  she  is  an  in- 
telligent and  respectable  witness,  the 
jury  should  have  found  in  favor  of 
the  execution  of  tlie  will.  Fetherly 
V.    Waggoner,     11     Wend.     ( N.    Y.) 

599- 

92.  Only     Reasonable     Diligence 

in  searching  for  witnesses  to  deed 
50  years  old.  McGennis  v.  Allison, 
10  Serg.  &  R.  (Pa.)  197;  Houston 
r.    Blythe,   60   Tex.    506. 

Accounting  for  One  Witness.  —  In 
Jackson  j'.  Burton.  11  Johns.  (N. 
Y.)  64,  a  deed  44  years  old  was  let 
in  on  proof  of  death  of  one  of  the 
subscribing  witnesses  and  his  hand- 
writing without  fully  accounting  for 
absence  of  the  other  witness ;  Ch. 
J.  Kent  holding  that,  considering  the 
lapse  of  time,  changes  in  population 
of  New  York  City  caused  Ijy  the 
revolution,  "  the  court  ought  not  to 
be  rigid  in  requiring  at  this  day 
some  further  account  of  (the  wit- 
ness). The  rules  and  practice  of 
the  courts  leave  this  point  with  some 
latitude  of  discretion."  See  also 
Boehm  -■.  Lugle.   i   Dall.    (Pa.)    14. 

93.  To  Papers  More  Than  Thirty 


Years  Old.  —  Willson  v.  Betts,  4 
Denio    ( N.    Y.)    201. 

A  Deed  Thirty-five  Years  Old. 
Hollis  V.   Dashiell,  52  Tex.   187. 

Contra. — But  in  Houston  f.  Blythe. 
60  Tex.  506,  the  signature  of 
die  officer  who  executed  the  in- 
strument was  duly  and  formally 
attested  by  two  assisting  witnesses. 
The  objection  was  specially  taken 
that  its  execution  should  in  some 
manner  be  proved  by  these  two  wit- 
nesses or  their  absence  satisfactorily 
explained.  It  was  held  that  after  so 
great  a  lapse  of  time  no  very  great 
deal  of  evidence  should  be  required 
as  to  the  death  or  non-production  of 
such  assisting  witnesses ;  still  when 
specially  demanded  the  best  evi- 
dence of  that  fact  the  nature  of  the 
case  would  admit  of  should  be  re- 
quired. Some  evidence  of  some  kind, 
at  least,  pertinent  to  that  matter 
should  be  produced  when  demanded. 
Their  existence,  age,  occupation, 
their  place  of  residence,  when  last 
known  to  be  alive,  some  evidence  as 
to  their  handwriting,  or  other  like 
matters,  it  would  seem  under  the 
facts  disclosed  in  this  case  could  be 
proved,  to  some  extent  at  least,  by 
some  of  their  old  neighbors  or  ac- 
quaintances. Houston  V.  Blythe,  60 
Tex.  506. 

94.  By  Persons  Who  Have  Seen 
Them  Write — While  after  30  years 
the  subscribing  witnesses  are  pre- 
sumed dead,  yet  there  is  not  after 
that  length  of  time  a  presumption 
that  the  handwriting  of  such  wit- 
nesses cannot  be  proved  by  persons 
who  have  seen  them  write.  Willson 
z:    Betts,  4   Denio    (N.   Y.)    201. 

95.  Jackson  v.  Brooks,  8  Wend. 
(N.  Y.)  426;  Smyth  v.  N.  O.  C.  B. 
Co.,  93  Fed.  899;  Doe  z'.  Sawer, 
R.  &  M.  141  ;  Roe  t.  Rawlings,  7 
East  279;  Carroll  r.  Norwood,  I 
Har.  &  J.  (Md.)  167;  Strother  v. 
Lucas.   9    Pet.    763. 

Vol.  I 


878 


ANCIENT  DOCUMISNTS. 


And  papers  may  be  introduced  simply  for  the  purpose  of  making 
sucli  comparison,  in  jurisdictions  where  such  evidence  is  not  gen- 
erally allowed."" 

IV.  EXECUTION  BY  AGENT. 

1.  Recitals  Prove  Authority.  —  A.  Gkni:k.\l  Rule.  —  If  an 
ancient  jjaper  shown  to  be  otherwise  competent  recites  an  authority 
under  which  it  purports  to  be  executed,""  or  recites  facts  equivalent 
to  a  power,"*  the  recital  is  prima  facie  evidence  of  the  authority."" 
provided  the  recital  shows  the  principal's  name,'  and  provided  also 
acts  of  ownership  have  been  done  under  the  instrument. - 

B.  Exception.  —  a.  Authority  Producible.  —  But  this  rule  does 


Comparison  With  Papers  Admit- 
tedly Genuine — "  Where  the  an- 
tiquity of  the  writing  makes  it  im- 
possitjle  for  any  Hving  witness  to 
swear  he  ever  saw  the  party  write, 
comparison  with  dociniients  known 
to  be  in  his  handwriting  may  be  ad- 
initted."  Clark  v.  Wyatt.  13  Ind. 
271,  yy  Am.   Dec.   go. 

Paper  One  Hundred  Years  Old. 
In  Lewis  v.  Lewis.  4  Watts  &  S. 
(Pa.)  378,  a  draft  of  survey  purport- 
ing to  have  been  made  by  .\  more 
than  one  hundred  years  before,  was 
admitted  on  evidence  that  it  was 
in  same  handwriting  with  other 
official  papers  drawn  by  A  and  on 
proof  of  his  handwriting  by  some 
descendants  of  A  who  liad  seen  much 
of   his   writing. 

96.  Smyth  v.  N.  O.  C.  B.  Co.,  93 
Fed.  899;  Morewood  ''.  Wood,  14 
East  328.  But  no  such  relaxation  of 
the  common  law  rule  was  suggested 
in  Williams  i'.  Conger,  125  U.  S. 
397,  8  Sup.  Ct.  933. 

97.  Johnson  t'.  Tunmoris,  50  Tex. 
521  ;  Harrison  v.  JNIcMurrav,  71  Tex. 
129,  8  S.  W.  612;  O'Donnell  v. 
Johns,  76  Tex.  362,  13  S.  W.  376; 
Baldwin  v.  Goldfrank,  9  Tex.  Civ. 
App.  269,  26  S.  W.  15s;  Davis  v. 
Pearson,  6  Tex.  Civ.  App.  593.  26  S. 
W.  241 ;  Rigsby  v.  Galceron,  15  Tex. 
Civ.  App.  377,  39  S.  W.  650;  Clinton 
V.  Phelps,  9  Johns.  (N.  Y.)  169; 
Doe  V.  Campbell,  10  Johns.  (N.  Y.) 
475 ;  Johnson  i'.  Shaw,  41  Tex.  428 ; 
Robinson  v.  Craig,  i  Hill  (S.  C.) 
251  ;  Watrous  v.  McGrew,  16  Tex. 
506 ;  Storey  v.  Flanagan,  57  Tex. 
649. 

98.  Carter  v.  Chaudron,  2\  .Ma. 
72. 

Vol.  I 


Analogously  if  an  old  survey  pur- 
ports to  have  been  made  by  royal 
commission,  the  commis.sion  need 
not  be  produced.  Smith  i\  Earl, 
L.  R.  9  Eq.  241.  18  W.  R.  271; 
Rowe  V.  Benton,  8  Barn.  &  C.  y^y; 
Vicar  of  Kellington  v.  Trinity  Col- 
lege,   I    Wils.    170. 

Contra.- — Evans  t'.  Tavlor.  7  Ad. 
&  E.  617,  3  N.  &  P.  174:  Jones  v. 
AEcMullen,  25  U.  C.  Q.  B.  (Can.) 
542.  And  see  Fell  v.  Young.  63  111. 
106. 

99.  In  Williams  v.  Hardie  (Tex. 
Civ.  App.),  21  S.  W.  263,  the  court 
said :  "  We  think  it  may  now  be 
considered  as  established  in  this 
state  that  the  recital  in  such  a  deed 
of  facts  equivalent  to  a  power  of 
attorney  will  be  given  like  effect." 

1.  In  Baldwin  v.  Goldfrank,  9 
Tex.  Civ.  App.  269.  26  S.  W.  155, 
the  deed  contained  a  recital  that  it 
was  executed  mider  a  power  of  at- 
torney signed  by  the  "  heirs  of  An- 
tonio Rivas  ■'  without  giving  their 
names.  It  was  held  that  the  power 
to  execute  the  deed  after  the  lapse 
of  30  years  would  be  presumed  ;  but 
not  that  the  persons  who  signed  the 
power  were  the  heirs  of  a  certain 
person.  (See  further  on  same  point, 
same  case  in  88  Tex.  249,  31  S.  W. 
1064.) 

2.  In  Baldwin  r.  Goldfrank,  88 
Tex.  249,  31  S.  W.  1064,  where  no 
claim  appeared  to  have  been  asserted 
under  the  deed  for  over  a  quarter 
of  a  century  the  court  said:  "The 
presumption  would  seem  to  be,  not 
that  the  power  did  in  fact  exist, 
but  rather  that  it  did  not  exist,  or 
that  for  some  other  reason  not  dis- 
closed  no   title   passed   by   tlie    deed." 


ANCIENT  DOCUMENTS. 


879 


not,  perhaps,  apply  where  it  appears  that  the  authority  can  be  pro- 
duced.' 

b.  Authority  Matter  of  Record.  —  The  rule  does  not  apply  where 
the  authority  is  matter  of  pubHc  record/  unless  it  appear  that  the 
record  is  lost.^ 

C.  Presumptions  in  Favor  of  Authority.  —  The  existence  of 
any  facts  necessary  to  make  valid  the  exercise  of  such  power  will 
be  presumed.''  The  presumption  has  been  extended  to  papers  less 
than  thirty  years  old.' 

2.  Where  There  Are  No  Recitals.  —  A.  Proof  Ricouirf.d.  —  If 
there  is  no  such  recital  and  the  paper  appears  to  have  been  signed 
bv  one  person  on  behalf  of  another,  some  evidence  of  authority  must 
be  produced.' 

B.  Presumptions  Indulged.  —  But  the  contrary  has  been  held 
as   to  deeds  executed  bv  attornevs   in   fact,"  deeds  of  community 


3.  Tolmaii  z'.  Emerson,  4  Pick. 
(Mass.)  160;  Jones  v.  McMiillen,  25 
U.  C.  Q.  B.   (Can.)   5-42- 

4.  Green  v.  Blake.  10  Me.  16; 
Ruby  V.  Von  Valkenberg,  72  Tex. 
450.   ID  S.  \V.  514. 

Reason    for    Rule "If   a    power 

be  recorded  so  tliat  the  evidence 
is  perpetuated  there  can  be  no  rea- 
son for  admitting  the  deed  without 
the  power  however  ancient  it  may 
be.  for  there  is  certain  proof  to  be 
obtained  for  which  a  mere  pre- 
sumption ought  not  to  be  sub- 
stituted." Tolman  ;■.  Emerson,  4 
Pick.  (Mass.)  160.  That  was  a  case 
where  the  authority  was  by  act  of 
legislature. 

Contra.  —  Confirmation  of  Probate 

Sale    Presumed But     in     King     i'. 

Merritt.  67  Mich,  194,  ,i4  N.  \V.  689, 
it  is  said  that  where  a  deed  more, 
than  40  years  old  purports  to  have 
been  executed  under  authority  of  a 
probate  court,  confirmation  of  the 
sale,   if   essential,   will   be   presumed. 

5.  Giddings  z\  Lea,  84  Tex.  605, 
19  S.  W.  682. 

If  Large  Part  of  the  Records  Are 
Lost  it  may  be  presumed  that  the 
power  referred  to  existed  and  was 
among  the  lost  records.  Willetts  v. 
Mandlcbaum,   28   Mich.    521. 

Non-Production   of   Records   To  Be 

Explained No     presumption     will 

be  indulged  in  of  the  existence  of  an 
execution  and  judgment  recited  in  a 
sheriff's  deed,  where  no  attempt  is 
made  to  account  for  their  non- 
production      by      showing      loss      or 


destruction.  French'  t'.  McGinnis,  69 
Tex.    19,   9   S.   W.   .^2,3. 

6.  Corporation  Grants  Presumed 
Uade  at  Duly  Called  Meeting. 
Pitts  V.  Temple,  2  :\Ia5s.  538; 
Ccdams  'e.   Stanyan.  24  X.  H.  405. 

Proceedings  Under  Probate  Pre- 
sumed Authorized.  —  Winkkv  "'. 
Kaine,  32  N.  11.  2fiS. 

Power    Given    by    Executor In 

Smith  V.  Swan,  2  Tex.  Civ.  App. 
563,  22  S.  W.  247,  a  deed  was  ex- 
ecuted under  power  of  attorney  from 
aiv  executor  who  had  no  right  to  del- 
egate the  discretiinary  power  rf  sale 
conferred  upon  him  by  the  will,  but 
as  he  might  delegate  the  mere  min- 
isterial act  of  executing  the  deed  it 
was  presumed  that  he  had  himself 
agreed  upon  and  arranged  the  sale 
and  settled  all  the  necessary  pre- 
liminaries. 

7.  Thirty    Years     Lacking    Five 

'Weeks Harrison  i'.  McMurrav,  71 

Tex,    129,  8   S.   W.  612. 

Tv?enty-five  Years  Old Black- 
burn %:  Xorman  C^Tcx.  Civ.  .\pp.), 
30  S.  W.  718. 

8.  Urket  v.  Coryell,  5  Watts  &  S. 
(Pa.)  60;  Kingston  v.  Lesley,  10 
Serg.  &  R.  (Pa.)  383;  Com.  v.  Al- 
binger,    i   Whart.    (Pa.)    469. 

9.  The  conveyance  appeared  to  be 
more  than  30  years  old,  and  no  ob- 
jection was  taken  to  its  admissibility 
as  an  ancient  instrument,  except  that 
the  instrument  in  such  cases  is  re- 
quired to  recite  or  purport,  in  the 
body  of  it,  that  it  is  made  for  and 
by  authority  of  the  owner.    We  think 


Vol.  I 


880 


.-iXCIENT  DOCUMENTS. 


property.'"  of  partnership  property-. "  and  deeds  executed  bv  persons 
unable  to  write. '- 

C.  Slight  I'rooi*  Sufficient.  —  And  whore  required  at  all  slight 
evidence  of  authority  will  suffice.'"' 


V.  ORIGINALS  LOST  OR  INACCESSIBLE. 

1.  Contents,  How  Proved.  —  A.  As  Recent  Documents. 


The 


contents  of  an  ancient  document  lost  or  inaccessible  may  be  proved 
as  in  case  of  other  documents.'* 

B.  By  Ancient  Accepted  Copy.  —  In  case  of  very  ancient  docu- 
ments what  purports  to  be  and  has  long  been  held  as  a  copy,  may 
be  accepted  as  such  without  further  proof.'"' 


this  not  indispensable,  and  that  it  is 
sufficient  if  such  expression  appear 
in  the  signature  to  the  instrument, 
whicli  is  an  essential  part  of  a  deed, 
and  indispensable  to  give  it  any 
effect.  That  a  deed  signed.  "  R.  W. 
B.  Martin,  by  His  Attorney,  John  S. 
Martin,"  is  sufficient  to  convey  R. 
W.  B.  Martin's  title,  if  John  S.  Mar- 
tin in  fact  held  a  power  of  attorney, 
although  there  be  nothing  in  the 
body  of  the  deed  on  the  subject,  is 
practically  held  in  Hill  r.  Conrad,  91 
Tex.  341,  43  S.  W.  789.  This  being 
so,  it  must  be  held  that  an  ancient 
instrument  thus  executed  will  au- 
thorize the  authority  to  be  presumed. 
Ferguson  v.  Ricketts  (Tex.  Civ. 
App.).  55  S.  W.  975. 

10.  On  a  question  whether  com- 
munity obligations  existed  sufficient 
to  autliorize  Col.  Bowie  to  sell  the 
community  property  of  himself  and 
wife,  held  that  after  the  lapse  of 
more  than  40  years  such  authority 
would  be  presumed,  as  in  the  case 
of  a  power  of  attorney.  Veramendi 
V.  Hutchins,  48  Tex.  531. 

11.  hi  Frost  V.  Wolf,  77  Tex.  455, 
14  S.  W.  440,  19  Am.  St.  Rep.  7(11. 
a  deed  was  offered  and  admitted  in 
evidence  signed  in  a  firm  name  and 
acknowledged  by  one  partner  for  the 
firm.  Held,  that  after  the  lapse  of 
more  than  30  years  the  authority  of 
the  partner  to  execute  the  deed  for 
the  firm  would  be  presumed  to  have 
existed.  The  court  saying :  "  The 
same  presumptions  arise  from  lapse 
of  time  as  to  power  of  a  partner  to 
bind  the  firm  by  a  deed,  which  he 
assumes  the  right  to  make  in  its 
name,  as  arises  in  other  cases  in 
which    one    person    has    assumed    to 

Vol.  I 


execute  a   deed   in  the   name   of  an- 
other." 

12.  In  Hogan  v.  Carruth,  19  Fla. 
84,  it  was  proved  that  some  of  the 
parties  to  an  ancient  deed  were  il- 
literate and  that  their  names  were 
in  the  handwriting  of  a  person  not 
a  party,  who  was  present  at  the 
time  of  the  execution  of  the  paper, 
and  it  was  presumed  that  such  sign- 
ing was  authorized  by  the  parties 
and  in  their  presence. 

13.  Urket  z:  Coryell,  5  Watts  & 
b.  (Pa.)  60.  hi  that  case  it  ap- 
peared that  a  receipt  was  signed  in 
the  name  of  an  official  by  his  son 
and  there  was  some  evidence  that 
the  son  occasionally  signed  papers 
for  his  father.  The  court  said  that 
after  so  great  a  lapse  of  time  (nearly 
40  years)  any  slight  evidence  would 
suffice  to  submit  the  paper  to  the 
jury. 

14.  Gitlings  V.  Hall,  1  liar.  &  J. 
(Md.)  14,  2  Am.  Dec.  502;  Smith 
V.  Cavitt.  20  Tex.  Civ.  App.  558.  50 
S.  W.  167;  Bcall  z:  Dearing,  7  Ala. 
124. 

Copy  of  Lodge  Minutes.  —  Howard 

V.    Russell.    75    Tex.    171,    12    S.    W. 

525- 

Oral  Evidence  of  Contents  of  Old 

Will Fetherly     Z'.     Waggoner,     11 

Wend.    (N.    Y.)    599. 

Oral  Testimony  as  to  Tax  Receipts. 
McReynolds  z\  Longenbergcr,  ^7  Pa. 
St.  13. 

Counterparts  of  Old  Leases,  found 
in  proper  custody,  are  admissible  in 
absence  of  the  original.  Hewlett  v. 
Cock.   7   Wend.    (N.    V.)    371. 

15.  Attv.  C.en.  z:  Roullbee,  2  Ve.s. 
Jr.  .3S0. 


ANCIENT  DOCUMENTS. 


881 


C.  Bv  Ri-xoKD  OR  Cektifiku  Copy. — a.  Commonly  Used.  —  In 
many  jurisdictions  in  case  of  recorded  instruments,  the  record  or  a 
certified  copy  thereof  is  achiiitted  without  proof  of  the  original. "^^ 

b.  Original  Entitled  to  Record. — The  original  must  have  been 
entitled  to  record, ''  except  in  Missouri"*  and  Alabama,'''  and  even 
there  the  instruments  must  be  of  a  kind  that  might  be  recorded:-" 

c.  JVhen  Affidavit  of  Forgery  Is  Filed.  —  In  Texas  if  a  statutory 


16.  N.  Y.  etc.  R.  Co.  v.  Bene- 
dict, 169  Mass.  262,  47  N.  E.  1027; 
Hall  V.  Giuings,  2  Har.  &  J.  (Md.) 
112. 

By  Statute,  record  or  copy  thereof 
admissible.  Holmes  Z'.  Coryell,  58 
Tex.   680. 

In  Georgia.  — If  an  affidavit  of 
forgery  is  filed,  the  record  or  copy 
thereof  is  not  equivalent  to  proof 
of  execution  of  the  deed.  JMcArthur 
V.  Morrison  (Ga.),  34  S.  E.  205; 
Civil    Code    §3628. 

In    Canada Records    more    than 

30  years  old  admitted  on  bare  pro- 
duction from  registrar's  office.  Doe 
7'.   Turnbull,  5  U.   C.  Q.  B.   129. 

Wanting  Clerk's  Certificate.  —  In 
Booge  ;'.  Parsons,  2  Vt.  456,  21  Am. 
Dec.  557,  it  was  held  that  the  record 
of  a  deed  in  the  office  of  the  town 
clerk,  such  record  being  more  than 
40  years  old  and  never  having  been 
expunged  or  discredited — the  deed 
itself  having  been  destroyed — sufficed 
to  prove  the  execution  of  the  deed 
and  its  contents,  although  there  was 
no  certificate  of  the  clerk  following 
the   record  of  the  deed. 

17.  Beall  v.  Dearing,  7  .A.la.  124; 
Cochran  f.  Linville  Imp.  Co.,  128 
N.  C.  616,  37  S.  E.  496. 

Acknowledged  With  Requisite 
Formalities.  _  Heinlz  v.  O'Donnell, 
17  Tex.  Civ.  App.  21,  42  S.  W.  797; 
Hill  V.  Tavlor,  77  Tex.  295,  14  S.  W. 
366. 

Must  Be  Proper  Certificate  of  Ac- 
knowledgment—  Hill  V.  Tavlor,  yy 
Tex.  205.  14  S.  W.  366. 

Presumed  to  Have  Been  Properly 
Attested.  —  After  the  lapse  of  30 
years  the  law  presumes  that  the  offi- 
cial who  made  the  record  is  dead, 
and  that  he  cannot  be  summoned  to 
explain  the  circumstances  under 
which  he  made  it,  and  it  presumes 
that     everything     was     done     which 

56 


ought  to  have  been  done.  If  the 
paper  appears  to  be  formally  a  deed, 
admitted  to  record  on  the  attestation 
of  one  witness,  where  two  witnesses 
were  required  by  law,  it  will  be  pre- 
sumed that  there  were  two  wit- 
nesses, and  that  the  clerk  omitted 
one.  This  rule  of  evidence  is  en- 
forced c.r  necessitate  rei.  As  in 
other  rules  of  evidence  it  is  made 
to  further  the  ascertainment  of  truth. 
Dodge  V.  Briggs,  27  Fed.  160. 

18.  Under  the  Statute  of  1867, 
the  record  of  a  deed  recorded  more 
than  30  years  before  Jan.  1st,  1867, 
may  be  read  in  evidence  without 
proof  of  the  execution  of  the  orig- 
inal and  whether  the  same  was 
properly  acknowdedged  or  not. 
Smith  V.  Madison,  67  Mo.  694; 
Plaster  <■.  Riguey,  97  Fed.  12; 
Riguey  -■.  Plaster,  88  Fed.  686.  But 
it  must  be  shown  that  the  original 
is  lost  or  cannot  be  produced. 
Crispen  v.  Hannovan,  72  Mo.  548. 

A  Subsequent  Statute  has  reduced 
the  time  from  ?o  to  10  years.  Hoge 
V.  Hubb,  94  -Mo.  489,  7  S.  W.  443- 

19.  In  Alabama  it  is  held  that 
ancient  deeds  may  be  proved  by 
record  thereof  in  the  proper  office, 
if  the  record  itself  is  more  than  20 
years  old,  although  it  appears  that 
the  deed  had  not  been  so  acknowl- 
edged or  proved  as  to  be  entitled 
to  record  and  had  not  been  recorded 
within  the  time  required  by  law. 
Bernestein  v.  Humes.  75  Ala.  241. 

Presumed  Original  Had  Certificate 
of  Acknowledgment.  —  Allison  v. 
Utile,  85  /ila.   512,  5   So.  221. 

20.  The  record  of  an  ancient  bill 
of  sale,  there  being  no  law  requiring 
or  providing  for  the  recording  of 
such  instruments,  is  not  proof  of 
the  contents,  but  is  admissible  to 
show  that  such  a  bill  of  sale  existed. 
Beall   V.    Dearing,   7   Ala.   124. 

Vol.  1 


882 


ANCIENT  DOCUMENTS. 


affidavit  of  forgery  is  filed,  the  record  will  not  i)rove  the  deed  unless 
the  record  itself  is  thirty  years  old.-^ 

D.  Where  Copy  Impekfect. — Where  the  copy  is  defective  it 
will  sometimes  be  presumed  that  the  original  was  perfect. -- 

E.  Where  Oricinal  in  Existence.  —  If  the  original  is  in  exist- 
ence the  testimony  of  the  person  holding  it  should  be  introduced.-'* 

2.  Proving  Loss.  —  A.  Slight  Proof  Required.  —  Less  proof  of 
loss  is  required  than  in  the  case  of  recent  documents,-''  especially 
if  the  paper  is  one  not  likely  to  have  been  so  long  preserved.'-^ 

B.  When  Xo  Proof  Required.  —  And  it  has  been  held  that  if 
the  grantee  is  dead  no  proof  of  loss  is  necessary.-" 


21.  If  an  "affidavit  of  forgery" 
is  filed  and  the  original  document 
cannot  be  produced,  the  record  or  a 
certified  copy  thereof  may  be  used, 
provided  it  appears  that  the  record 
was  made  more  than  30  years  before 
the  trial.  "  To  hold  that  a  recent 
record,  because  it  purports  to  be  of 
an  'instrument  more  than  30  years 
old,  is  evidence  of  the  execution  of 
a  deed,  the  genuineness  of  which  is 
impeached,  would  be  to  open  the 
door  to  fraud  and  forgery."  Brown 
t:  Simpson,  67  Tex.  225,  2  S.  W. 
644,  See  also  Davis  v.  Pearson,  6 
Tex.  Civ.  App.  593,  26  S.  W.  241  ; 
Amnion  r.  Dwyer,  78  Tex.  639,  15 
S.  W.  1049;  Mc'Whirter  r.  .Mien, 
I  Tex.  Civ.  .Apr>.  640.  20  S.  W.  1007; 
Ehrenbey  v.  Babee  (Tex.  Civ.  App.), 
54   S.   W.   435. 

22.  Copy  Lacking  Name  of  Witness. 
Dodge  '■.  Briggs,  27  Fed.  160,  where 
the  record  showed  only  one  witness 
where  the  law  required  two  as  a 
prerequisite  to  recordation. 

Although  the  Record  Shows  No 
Copy  of  a  Seal  or  memorandum 
thereof,  provided  possession  has  fol- 
lowed the  deed.  'Williams  v.  Rass, 
22   \'t.   352. 

Copy  Considered  With  Other  Facts. 
Standing  alone  the  record  of  a  deed 
apparently  not  entitled  to  record  is 
not  evidence  of  the  existence  or  ex- 
ecution of  the  deed.  But  such 
record  may  be  considered  in  con- 
nection with  other  facts  to  establish 
the  deed.  Townsend  v.  Downer,  32 
Vt.    183. 

23.  Schumer  z:  Russell,  8^  Tex. 
83,    18   S.    W.   4R4- 

24.  Patterson  ?•.  Winn,  5  Pet.  233; 

Vol.  I 


Kingston  ?■.  Lesley,  10  Serg.  &  R. 
(Pa.)   .AV 

Proof  Need  Not  Be  Strict  and 
Technical.  —  The  proof  of  the  loss 
being  addressed  exclusively  to  the 
court  and  for  the  satisfaction  of  the 
judge,  need  not  be  as  strict  and 
technical  as  is  required  by  the  gen- 
eral rules  of  evidence.  Fetherly  "'. 
Waggoner,  11  Wend.   (N.  Y.)   599. 

Showing  That  Place  of  Proper 
Custody  Was  Burned.  —  Isliam  f. 
Wallace,  4  Sim.  25. 

25.  In  Beall  ?:  Dearing.  7  .Ala. 
124,  it  is  held  that  where  a  bill  of 
sale  of  slaves  had  never  been  in 
possession  of  the  party  wishing  to 
introduce  it,  and  was  not  an  in- 
strument likely  to  be  preserved  so 
long  as  thirty  years,  only  a  slight 
showing  of  loss  or  inability  to  pro- 
duce it  was  necessary  to  let  in 
secondary  evidence.  In  that  case 
it  was  proved  that  inquiry  had  been 
made  of  persons  likely  to  have 
knowledge  of  the  deed  and  an  in- 
effectual attempt  made  to  take  dep- 
osition of  one  person  supposed  to 
be  able  to  say  that  the  deed  was 
lost.  This  was  held  sufficient  search 
and  that  secondary  evidence  of  con- 
tents could  be  given. 

26.  In  Allison  z:  Little,  85  Ala. 
512,  s  So.  221,  where  a  certified 
transcript  of  a  deed  over  thirty 
years  old  was  admitted,  it  was  held 
that  the  grantees  being  deceased 
there  was  no  presumption  that  their 
successors  in  trust  had  custody  of 
the  original  deed  and  hence  no  ne- 
cessity arose  for  accounting  for  the 
loss  of  such  original  before  in- 
troducing the  copy.  To  same  effect, 
Beard  i'.   Ryan,  78  .Ma.  37. 


ANCIENT  DOCUMENTS. 


SS3 


3.  Competency  of  Original.  —  A.  Mist  I'.i-:  Shown.  —  It  must 
first  be  shown  that  the  original  would  be  competent.-' 

B.  JMetiiod  of  Showing.  —  And  this  may  be  by  such  evidence 
as  would  suffice  if  the  original  were  produced.-'*  But  this  rule  has 
been  questioned,-"  and  it  has  been  suggested  that  more  evidence  of 
genuineness  will  be  required  in  the  case  of  ancient  papers  that  have 
been  lost  than  of  such  as  are  produced  in  court.'"' 

VI.  OBJECTIONS  TO  INTRODUCTION. 

Objections  to  the  introduction  of  documents  as  ancient  should 
be  specific.-'^ 


27.  Smith  v.  Cavitt,  20  Te.x.  Civ. 
App.  538.  50   S.   W.    167. 

28.  Showing    of    Authority    and 

Custody    of    Original McReynolds 

f.    Longeiilierger.    57    Pa.    St.    13. 

Circumstances  to  Prove  Original. 
It  Ijeiiig  out  of  the  power  of  the 
plaintiff  to  produce  the  original,  and 
the  instrument  being  so  old  as  to 
render  direct  evidence  of  its  ex- 
ecution improbable,  we  are  of  the 
opinion  that  he  should  be  permitted 
to  show  its  execution  by  circum- 
stances. Long  possession  under  it, 
the  payment  of  taxes  upon  the  land, 
the  marks  of  age  upon  the  paper  it- 
self, are  all  circumstances  which 
might  be  looked  to.  Schumer  v. 
Russell.  83   Tex.  83.    18   S.   W.  484- 

Mode  of  Proving  Lost  Paper. 
It  was  shown  that  search  had  been 
made  for  a  supposed  deed  and  that 
it  could  not  be  found.  A  former 
clerk  of  the  county  court  testified  that 
at  the  time  the  deed  was  supposed 
to  have  been  made  he  was  clerk  of 
the  court ;  that  he  knew  the  grantor 
in  the  deed  and  his  writing;  that  he 
knew  the  witness  subscribing  the 
deed.  Tliat  from  his  record  in  his 
own  hand  he  knew  that  he  had 
recorded  such  a  deed  on  proof  of 
the  subscribing  witness ;  he  testified 
he  would  not  have  done  so  had  not 
the  original  been  executed  in  the 
hand  of  the  grantor.  The  grantor 
and  witness  were  dead,  and  the 
grantee  also.  It  was  held  that  the 
record  showed  delivery  of  the  deed 
and  hence  tilled  the  requirement 
that  deeds  must  come  from  proper 
custody.  That  the  record  proved 
the  antiquity  of  the  deed  and  the 
deed  was  admitted  on  proof  of  taxes 


paid  and  claims  to  the  property  made 
bv  the  grantee.  Holmes  r.  Coryell, 
58  Tex.  680. 

29.  It  was  suggested  in  Jones  t. 
Morgan,  13  Ga.  515.  that  the  rules 
admitting  ancient  documents  without 
full  and  direct  evidence  of  execution 
might  not  apply  unless  the  original 
document  itself  was  before  the  court. 
But  in  that  case  there  was  not  only 
no  direct  proof  of  execution,  but  no 
evidence  of  possession  under  the 
deed  for  several  years  after  its  date. 

30.  "  Indeed,  we  think  it  possible 
to  make  a  case  under  which  the  copy 
would  be  admissible  as  the  copy  of 
an  ancient  instrument,  but,  certainly, 
it  should  require  much  stronger 
corroborating  proof  than  where  the 
original  is  produced  before  the 
court,  bearing  the  appearance  of  age 
and  autheulicitv  upon  its  face." 
Schumer  v.  Russell.  8?  Tex.  8^.  18 
S.   W.  484. 

31.  Sullivan  v.  Richardson,  33 
Fla.  I,  14  So.  692.  See  Houston  v. 
Blythe,  60   Tex.   506. 

Where  the  objection  was  that  one 
of  the  witnesses  to  the  will  was 
living  and  had  not  been  called,  but 
the  objection  did  not  point  out  the 
fact  that  the  attestation  clause  of  the 
will  failed  to  state  that  the  witnesses 
signed  in  the  testator's  presence,  the 
objection  was  held  insufficient,  be- 
cause independently  of  that  failure 
the  will  could  properly  be  read  as  an 
ancient  will  without  calling  the  wit- 
ness. Jackson  v.  Christman,  4  Wend. 
(N.    Y.)    277. 

Where  the  objection  was  that  "  ex- 
ecution has  not  been  proved "  the 
appellate  court  will  not  consider 
whether   or   not   the   deed   was   pro- 

Vol.  I 


884 


ANCIENT  DOCUMENTS. 


VII.  PROVINCE  OF  COURT  AND  JURY. 

1.  Competency.  —  A.  For  Court.  —  The  question  of  the  com- 
petency of  an  instrument  as  ancient  is  for  the  court. "- 

B.  What  Testimony  Heard  As  To.  —  The  court  usually  hears 
only  what  is  adduced  by  the  party  offering  the  paper."" 

C.  Discretion  of  Court.  —  And  it  has  been  said  to  be  in  the 
court's  discretion  to  admit  the  paper  on  less  proof  than  is  usually 
required.'* 

2.  Genuineness.  —  A.  Instructions  Th.\t  Paper  Is  Genuine. 
If  the  preliminary  showing  is  convincing  and  nothing  contrary 
appears  later  in  the  case,  the  court  may  instruct  that  the  paper  is 
geiuiine.^^ 


duced    from   proper   custody.      Ale.x- 
ander  '■.  Wheeler,  78  Ala.  167. 

32.  Harlan  v.  Howard,  79  Ky. 
373;  Stooksberry  v.  Swan  (Te.x.  Civ. 
App.),  22  S.  W.  963;  Chamberlain  v. 
Showalter,  5  Tex.  Civ.  App.  226,  23 
S.  \V.  1017;  Kellogg  T.  McCabe.  14 
Tex.  Civ.  App.  598.  38  S.  W.  542; 
Shaller  v.  Brand,  6  Binn.  (Pa.)  435; 
Kennard  v.  Withrow  (Tex.  Civ. 
App.),  28  S.  W.  226;  Wisdom  V. 
Reeves,  no  Ala.  418,   18  So.   13. 

"  The  True  Rule  for  Receiving 
Documents,  ancient  or  modern,  in 
evidence,  is  conceived  to  be  this : 
The  party  offering  the  paper  must 
make  out  a  prima  facie  case  for  its 
reception.  He  must  show  that  the 
paper  is  apparently  as  he  contends. 
If  he  wholly  fails  to  do  this,  the 
court  should  reject  the  paper;  but, 
if  there  be  a  reasonable  probability 
established  that  the  paper  is  what 
it  purports  to  be,  the  question  then 
becomes  one  for  the  jury,  and  the 
paper  ought  to  go  before  them  with 
proper  instructions."  Gibson  v. 
Poor,  21  N.  H.  446;  Laurence  v. 
Tennant,  64  N.  H.  532,  15  Atl.  543 ; 
Beaumont  Pasture  Co.  v.  Preston, 
65  Tex.  448. 

33.  In  Beaumont  Pasture  Co.  v. 
Preston,  65  Tex.  448,  the  court  said : 
"  In  making  the  proof  upon  which 
such  paper  gets  to  the  jury,  the 
party  offering  it  proceeds  ex  parte. 
If,  without  considering  any  other  evi- 
dence than  that  produced  by  him, 
there  is  enough  to  raise  an  issue  of 
fact  upon  the  genuineness  of  the 
document,  it  is  proper  for  the  court 
to  allow  the  paper  to  go  before  the 

Vol.  1. 


jury,  and  the  issue  of  fact  is  then 
determined  by  them,  after  hearing 
all  the  testimony  on  both  sides." 

34.  Pendleton  t.  Robertson  (Tex. 
Civ.    App.),   32    S.    W.   442. 

Deed  admitted  to  be  read  to  the 
jury  without  any  introduction,  when 
there  was  a  possibility  that  it  might 
be  proved  to  have  come  from  the 
proper  custody,  etc.,  being  over  thirty 
years  old.  Burgin  v.  Chenault,  9  B. 
Mon.  (Ky.)  285.  See  also  Jackson 
V.   Lamb,   7   Cow.    (N.   Y.)    431. 

35.  Stooksberry  v.  Swan  (Tex. 
Civ.  App.),  22  S.  W.  963,  where  the 
court  said :  "  If,  on  proper  and  un- 
controverted  testimony,  a  deed  be 
admitted  as  an  ancient  instrument, 
then,  in  the  absence  of  evidence, 
subsequently  admitted,  tending  to 
show  that  it  is  not  genuine,  a  court 
might,  without  violation  of  the  stat- 
ute, instruct  a  jury  to  consider  the 
execution  of  the  instrument  proved." 

Nothing  to  Rebut  Inference  of 
Genuineness.  —Where  the  instrument 
is  not  assailed  as  a  forgery  and 
there  is  no  evidence  tending  even 
to  rebut  the  inference  of  genuineness 
deducible  from  the  testimony  under 
which  it  was  admitted,  there  is  no 
controverted  issue  of  the  fact  on  the 
question  of  its  proper  execution  to  be 
submitted  to  the  jury,  the  court  being 
justified  in  assuming  that  its  ex- 
ecution had  been  established.  Pen- 
dleton V.  Robertson  (Tex.  Civ. 
App.),  32  S.  W.  442. 

Contra.  —  In  Pridgen  v.  Green,  80 
f^'S.  737,  7  S.  E.  97,  the  defendant 
sought  to  show  by  the  deed  itself 
that  it  was  a  forgery,  relying  on  the 


AN  CI  EN  r  D  O  L '  UMEN  TS. 


885 


B.  \\'iiE.\  Question  Is  for  Jukv.  —  Otherwise  the  question  of 
genuineness  of  a  document  admitted  as  ancient  is  for  the  jury,^* 
(especially  if  the  evidence  is  conflicting^,''")  ujion  all  the  evidence 
including  that  produced  after  such  admission."'*' 

C.  BuKDKx  OF  Proof.  —  The  burden  of  proof  is  on  him  who 
olTers   the  paper.-"'     But   some  cases   hold   the  contrary   as   to  the 


recitals  in  the  deed  and  its  general 
appearance  to  convince  the  jury.  The 
court,  by  its  charge,  did  not  allow 
the  jury  to  consider  the  tlieory  of 
the  defendant.  The  court  said :  "  It 
does  not  follow  that  because  the 
deed  was  thirty  years  old,  and  for 
that  reason  adniissiljle  as  evidence 
before  the  jury,  the  jury  could  not 
look  to  the  face  of  the  deed,  and 
the  entries  thereon,  and  determine 
that  it  was  a  forgery,  without  resort- 
ing to  aliunde  evidence." 

36.  Harlan  t'.  Howard,  79  Ky. 
i73 ;  Kellogg  v.  McCabe,  14  Te.K. 
Civ.  App.  598,  38  S.  W.  542;  Cham- 
berlain I'.  Showalter,  5  Tex.  Civ. 
App.  226,  2?  S.  W.  1017;  Shinn  v. 
Hicks,  68  Tex.  277.  4  S.  W.  486; 
Warren  f.  Frederichs,  76  Tex.  647, 
13  S.  W.  64,? ;  Beaumont  Pasture  Co. 
V.  Preston,  65  Tex.  448;  Amnion  v. 
Dwyer,  78  Tex.  639,  15  S.  W.  1049; 
JMcCelvey  v.  Cryer,  8  Tex.  Civ.  App. 
437,  28  S.  W.  691  ;  McWhirter  v. 
Allen,  I  Tex.  Civ.  App.  649,  20  S.  W. 
1007;  Stooksberry  f.  Swan  (Tex. 
Civ.  App.),  21  S.  W.  694,  where 
the  court  said  :  "  Whether  testimony 
is  admissible  is.  addressed  to,  and 
must  be  determined  by,  the  court ; 
but  the  weight  to  be  given  to  cor- 
roborative evidence  on  which  a  deed 
is  admitted  as  an  ancient  instrument, 
including  the  appearance  and  age  of 
the  paper  itself,  as  well  as  to  all 
evidence  introduced  and  tending  to 
show  that  the  paper  is  not  genuine, 
must  be  left  for  the  ultimate  decision 
of  the  jury,  under  all  the  relevant 
testimony  permitted  to  go  before 
them." 

37.  Holt  V.  Maverick,  86  Tex. 
457.    23    S.    W.    751- 

"  The  age  of  the  deed  rendered 
it  admissible  in  evidence.  It  placed 
it,  however,  in  no  better  attitude 
before  the  jury  than  if  an  attesting 
witness  had  appeared  before  them, 
and  testified  that  he  saw  the  grantor. 


Robert  W.  Hamilton,  execute  it. 
Holmes  v.  Coryell,  58  Tex.  689.  As 
the  effect  of  its  age,  which  would 
otherwise  have  l)een  conclusive  of 
its  gemiincness,  was  denied  by  the 
testimony  of  the  witness  Hamilton, 
we  think  that  this  litigated  fact 
should  have  been  left  to  the  deter- 
mination of  the  jurv."  Stooksberry 
V.  Swan  (Tex.  Civ.  App.),  21  S.  W. 
694. 

38.  Albright  -■.  Jones,  106  Ga. 
302,  31  S.  E.  761  ;  Patterson  r.  Col- 
lier, 75  Ga.  419;  Beaumont  Pasture 
Co.  I'.  Preston,  65  Tex.  448 ;  Pridgen 
v.  Green,  80  Ga.  737,  7  S.  E.  97; 
Sibley  z:  Haslam,  75  Ga.  490 ;  Hous- 
ton V.  Blythe,  60  Tex.  506:  Williams 
V.  Conger,  125  U.  S.  397,  8  Sup.  Ct. 
933 ;  Chamberlin  ?•.  Torrence,  14 
grant's  Ch.    (Can.)    181. 

Showing  Forgery To  prove  the 

deed  a  forgery  it  may  be  shown  that 
there  was  not  at  the  time  the  deed 
was  e-xecuted  any  justice  of  the 
peace  bearing  the  name  affixed  to 
the  certificate  on  the  deed.  Parker 
V.  R.  Co.,  8i  Ga.  387,  8  S.  E.  871. 

( For  rules  governing  the  intro- 
duction of  evidence  for  and  against 
the  genuineness  of  documents  sec 
the  article,  "  Private  Writings.") 

39.  The  genuineness  of  the  deed 
should  be  left  to  the  jury,  under  an 
instruction  requiring  them  to  look 
to  all  the  evidence  permitted  to  go 
before  them,  without  any  intimation 
that  the  admission  of  the  deed 
relieves  the  defendants  from  the  ne- 
cessity to  produce  a  preponderance 
of  evidence  in  favor  of  its  genuine- 
ness. Beaumont  Pasture  Co.  v. 
Preston,  65  Tex.  448.  The  rule 
under  which  ancient  instruments  are 
admitted  in  evidence  without  direct 
proof  of  their  execution  is  based 
on  the  usual  relation  of  ascertained 
facts  to  some  ulterior  fact,  not 
directly  proved,  which  the  common 
e.xperience  of  men  shows  usually  to 


Vol.  I 


886 


ANCIENT  DOCUMENTS. 


burden  of  proof,""'  and  one  case  seems  to  liokl  tliat  tlic  jurv  sliould 
not  be  told  that  the  Inirden  of  proof  is  on  one  side  or  the  other. *^ 

VIII.  KELEVANCY. 

1.  Rule.  —  It  lias  been  said  that  the  relevancy  of  a  ])aper  is  not 
affected  by  its  antiquity. ''- 

2.  Exceptions.  —  But  ancient  papers  have  often  been  held  to  be 
admissible  as  evidence  of  facts  not  provable  by  similar  recent  docu- 
ments :  for  example,  boundaries,'*''  ancient  possessions, ''■'  title,^''  pedi- 
gree,''" custom,''  reputation,''*  existence  and  location  of  highways,'" 
and  of  water  courses  ;■"'"  or  to  establish  the  citizenship^'  or  identity 
of  a  person  named  therein.''- 


exist.  The  fact  not  directly  proved 
is  said  to  be  presumed,  but  the  pre- 
sumption is  only  one  of  fact,  and 
when  the  fact  to  be  presumed  is  con- 
troverted by  direct  testimony  the 
jury  may  indulge  or  reject  the  pre- 
sumption, as  the  entire  evidence  may 
justify.  Stooksberry  v.  Swan  (Te.K. 
Civ.   App.),   21    S.    W.   694. 

*0.  'Wisdom  f.  Reeves,  110  Ala. 
418,   18   So.    13. 

Although  Affidavit  of  Forgery  Is 
Filed. —  In  Masterson  v.  Todd,  6 
Tex.  Civ.  App.  131.  24  S.  W.  682,  it 
was  said  that  the  party  attacking  an 
ancient  document  admitted  in  evi- 
dence has  the  burden  of  proof  and 
cannot  relieve  himself  of  it  by  filing 
an  afifidavit  of  forgery.  But  the 
ruling  in  the  case  was  that  a  charge 
requiring  the  jury  to  be  satisfied  of 
the  forgery  before  finding  against 
genuineness,  imposed  on  the  party 
attacking  the  deed  more  than  the 
mere  burden  of  proof  and  was  there- 
fore  error. 

41.  Stooksberry  r.  Swan  (Tex. 
Civ.    App.),   21    S.   W.   694. 

( The  apparent  conHict  in  the  cases 
is  probably  to  be  explained  by  the 
use  of  the  phrase  "  Burden  of 
Proof "   in   different   senses.) 

Sec  article,  "  Burden  of  Proof." 

42.  King  V.  Watkins,  98  Fed.  913 ; 
Jackson  v.  'Witters,  2  Johns.  (N.  Y.) 
180. 

An  ancient  pedigree,  dated  1733, 
with  a  certificate  of  its  correctness 
attached,  the  handwriting  and  sig- 
natures to  which  were  proved,  found 
in  a  locked  room  by  a  purchaser  of 
part  of  the  estate  of  an  ancestor 
under  whom  the  demandant  claimed. 

Vol.  I 


purporting  to  be  "  collected  from 
parish  registers,  wills,  monumental 
inscriptions,  family  records  and  his- 
tory," held  inadmissible  on  the 
ground  that  it  was  secondary  evi- 
dence, and  the  registers,  etc.,  should 
be  produced.  Per  Tindal,  C.  J.,  in 
Davies    ?'.    Lowndes,    5    Bing.    161. 

43.  Sec  article,  "  Boundaries." 

44.  ^cc  article,  "Possession." 

45.  See  article,  "  Title." 

46.  See  article,  "  Pedigree." 

47.  See  article.  "  Custom." 

48.  Reputation.  —  Sec  article, 
"  Reputation." 

49.  Almy  v.  Church,  18  R.  I.  182, 
26  Atl.  58;  Whitman  z:  Shaw,  166 
Mass.  451,  44  N.  E.  333- 

See  article,  "  Highways." 

50.  Lawrence  r.  Tennant,  64  N. 
H.  532,  15  Atl.  543;  Whitman  v. 
Shaw,  166  Mass.  451,  44  N.  E.  333- 

51.  The  question  was  whether 
"  A "  was  a  citizen  of  Mexico  in 
1837.  "  The  only  direct  statement 
as  to  his  citizenship  is  that  contained 
in  a  power  of  attorney  which  he 
executed  and  which  begins  as  fol- 
lows :  '  In  the  city  of  Mexico  on 
the  loth  day  of  Jamiary,  1837,  before 
me,  a  notary  public  and  witnesses, 
personally  appeared  "  A,"  a  citizen 
and  of  the  commerce  of  this  place, 
in  whom  I  have  faith  and  know ' 
etc;"  held,  that  this  recital  was  evi- 
dence of  the  citizenship  of  "  A." 
Williams  !■.  Conger.  125  U.  S.  397, 
8  Sup.  Ct.  933. 

52.  In  Howard  r.  Russell.  75  Tex. 
171,  12  S.  W.  525,  a  copy  of  minutes 
fifty  years  old  of  a  lodge  of  Masons, 
showing  that  on  a  certain  day  a 
certain    person    was    present    in    the 


ANCIENT  DOCUMENTS. 


887 


A  recital  in  sucli  a  document  may  lie  evidence  of  the  fact  recited, 
as  of  an  assignment.'"'  or  release,''*  or  that  a  certain  map  was 
accepted  as  correct,""  or  that  a  certain  document  existed ;""  and  such 
papers  are  used  to  prove  handwriting  by  comparison.''" 


lodge,  was  offered  in  evidence.  It 
was  shown  that  tlie  original  minutes 
could  not  be  had  and  it  was  proved 
by  the  testimony  of  the  secretary  of 
the  lodge  that  he  was  the  custodian 
of  the  minutes  and  the  writing  offered 
was  a  true  copy ;  held,  that  this 
evidence  tended  to  prove  identity  of 
person  and  was  relevant  and  admis- 
sible as  a  copj'  of  an  ancient  doc- 
ument ;  that  the  entry  being  more 
than  30  years  old  the  presumption 
should  be  that  the  entry  was  cor- 
rectly made ;  that  in  order  to  prove 
a  fact  occurring  fifty  years  ago,  the 
record  of  an  ancient  and  well  estab- 
lished society  may  be  resorted  to 
upon  a  question  of  pedigree 

53.     Chandle 
;6. 

54. 
Miss. 


55. 


Hughes      r. 
482. 
Whitman  v. 


Wilson,    "7 
Wilkinson, 


Me. 


37 


4-r.  44  N.  E.  333, 


Shaw,   166  Mass. 
and  to  show  that 


the  map  was  a  part  of  actual  trans- 
actions. 

56.  Havens  x:  Seashore  L.  Co.,  47 
N.  J.   Eq.   365.  20  Atl.  497. 

57.  A  deed  proved  to  be  thirty 
years  of  age,  purporting  to  be  signed 
by  the  alleged  grantor,  and  under 
which  he  surrendered  possession  to 
the  person  purporting  to  be  the 
grantee,  who,  by  himself  and  his 
privies  in  estate,  remained  in  pos- 
session, was  so  far  proved  to  be 
the  genuine  deed  of  the  alleged 
grantor,  and  so  far  established  the 
genuineness  of  his  signature  thereto, 
as  to  authorize  its  admission  in  evi- 
dence, for  the  purpose  of  a  com- 
parison of  handwriting,  upon  the 
trial  of  a  cause  involving  the  ques- 
tion of  the  genuineness  of  the  sig- 
nature of  such  grantor  to  another 
instrument.  Goza  v.  Browning,  96 
Ga.  421.  23  S.  E.  842.  See  also 
Strother  v.  Lucas,  6  Pet.  763. 


ANCIENT  LIGHTS.— See  Easements;  Prescription. 


Vol.  I 


ANIMALS. 

By  A.  B.  Young. 

I.  OWNERSHIP  OF  ANIMALS,  889 

I.  J\Iarks  and  Brands,  88y 

A.  //(  General,  889 

B.  Brands  Recorded  Under  Statutes,  890 

C.  Burden  of  Provin^i^  Record,  890 

D.  Certified  Copies  of  Recorded  Brands,  890 

E.  Distinction  Betu'een  "Brand"  and  "Mark."  891 

F.  Written  Transfers  As  Evidence,  891 

G.  Oral  Evidence  of  Transfer  of  Recorded  Brand.  891 

II.  IMPOUNDING  ANIMALS,  891 

1.  Memoranda  Kept  by  Found  Keeper,  891 

2.  Oral  Ei'idence  to  S'liozi'  Creation  of  Pound,  892 

III.   INJURIES  BY  ANIMALS,  892 

1.  'To  Properly,  892 

A.  Burden  of  Proof,  892 

2.  To  Persons,  892 

A.  In  General,  892 

a.  Character  of  the  Animal,  892 

(I.)   Presumption  of  Oiuner's  Knowledge,  892 
(A.)    Wild  Animals,  892 
(B.)   Domestic  Animals,  893 
(2.)   Former  Instances  of  Viciousncss,  894 
(3.)   Evidence  Other  Than  Conduct  of  Animal. 

894 
(4.)    Conduct  Subsequent  to  fnjurx,  89; 
(5.)   Habits,  895 

B.  Injuries  by  Dogs,  896 

a.  Matters  As  to  Liability,  896 
(I.)    The   Keeping,  896 

(A.)   Circumstances.  896 
(B.)   Sutfering      Dog's      Presence      About 
Premises,  896 
(2.)   Character  of  the  Dog,  897 

(A.)   Previous  Injury   to   Others,  897 
(B.)   Knoivledge  of  the  Oivner,  897 

(a.)   Express    Notice    Not    Necessary, 

897 
(h.)    Vicious  Acts,  897 
(c.)   Knowledge  of  Agent.  89S 

Vol.  I 


ANIMALS. 


889 


(d.)   Rcpiilalloii  of  Dog,  898 
(e.)    Conduct     Contrary      to      General 
Habits,  899 
(3.)   Daniai^cs,  899 

(A.)   Peculiar  Painfiilness  of  Injury,  899 
(B.)   Dread  of  Hydrol^hobia.  899 
(C.)    Expression  Indicative  of  Mental  Suf- 
fering, 899 
b.  Matters  of  Defense,  900 

( I.)    Contributory  Negligence.  900 

IV.  ANIMALS  INJURED  OR  KILLED,  900 

1.  Failure  to  Maintain  I'tsibte  Cattle  Guards,  900 

2.  Circumstances  to  fi.v  Prima  Facie  Liabilitx,  900 

3.  Footprints  of  Animals  Near  Place  of  Injury.  901 

4.  Proof  of  Value  of  Animals,  901 

A.  Special  Usefulness  of  Dog,  901 

B.  Pedigree,  901 

C.  Opinions  of  I'arniers  and  Others,  902 

D.  Matters  in  Mitigation,  902 

a.  Bad  Habits,  902 


I.  OWNERSHIP  OF  ANIMALS. 

1.  Marks  and  Brands.  —  A.  In  General.  —  It  has  been  held  that 
flesh  marks  on  animals  are  competent  evidence  on  an  issue  as  to 
the  ownership  of  the  animals.'  And  it  has  been  also  held  that 
brands  which  are  inadmissible  as  evidence  of  ownership  because 
not  recorded  as  required  by  statute  may  still  be  regarded  as  such 
flesh  marks,-  and  received  for  the  purpose  of  identifying  the 
animals.' 


1.  People  z:  Bollinger.  71  Cal.  117, 
II  Pac.  799;  Territory  v.  Chavez 
(N.  M.),  30  Pac.  903;  Tittle  ~e.  State, 
30  Tex.  App.  597,  17  S.  W.  II 18; 
Allen  V.   State,  42  Tex.  517. 

2.  Turner  '■.  State,  39  Tex.  Crim. 
App.  322,  45  S.  \V.  1020 ;  Chowning 
V.  State  (Tex.  Civ.  App.),  51  S.  W. 
946. 

In  every  case  where  it  is  question- 
able whether  the  proof  of  ownership 
depends  upon  flesh  marks  or  upon 
the  brand  which  is  unrecorded,  it  is 
the  duty  of  the  court  in  such  cases 
to  limit  the  testimony  of  such  unre- 
corded brand  that  the  same  can  be 
used  merely  as  a  flesh  mark  and 
not  as  evidence  of  ownership  as  in 
the     case     of     a     recorded     brand. 


Childers  v.  State,  ,37  Tex.  Crim. 
.App.  392.  35  S.  W.  654. 

3.  Tittle  V.  State,  30  Tex.  App. 
597.  17  S.  W.  1 1 18;  State  z:  Hanna, 
35  Or.  19s,  57  Pac.  629 ;  Chesnut 
Z'.  People,  21  Colo.  512,  42  Pac.  656; 
State  z:  King,  84  N.  C.  737. 

"  The  court  did  not  err  in  admit- 
ting evidence  showing  the  character 
and  description  of  the  brand  used 
by  Prather.  although  this  brand  had 
not  been  recorded.  The  evidence 
was  not  oft'ered  or  relied  upon  to 
prove  title,  but  for  the  purpose,  in 
connection  with  the  other  evidence 
before  the  jury,  of  identifying  the 
steer  referred  to  by  the  witnesses 
with  the  one  described  in  the  indict- 
ment."    Poag   r.   State,  43   Tex.    15T. 

Tol.  1 


890 


ANIMALS. 


B.  Brands  Recokdico  Under  Statutes.  —  Under  statutes  requir- 
ing brands  to  be  recorded  as  therein  provided  before  such  brands 
are  evidence  of  ownership  of  the  animals  branded,  a  brand  is  not 
admissible  as  evidence  of  such  ownership  unless  the  statute  has  been 
complied  with.* 

The  Purpose  of  Authorizing  the  Registration  of  Marks  and  Brands 
is  til  pcrjjetuate  and  su])ply  evidence  as  to  the  ownership  of  animals.^ 

Recorded  Brands  Not  Exclusive  Evidence.  —  It  has  been  held,  how- 
ever, that  recorilcd  brands  are  never  exclusive  evidence  of  owner- 
ship.^' 

C.  Burden  oE  Proving  Record.  —  It  has  been  held  that  it  is  only 
when  the  state  relies  solely  upon  proof  of  a  brand  to  show  the 
ownership  of  an  animal  that  the  state  has  the  burden  to  show  the 
brand  to  have  been  recorded." 

D.  Certified  Copies  oe  Recorded  Brands. — Under  the  statutes 
before  referred  to  requiring  the  registration  of  marks  and  brands, 
a  properly  certified  copy  of  such  registration  or  record  establishes 
prima  facie  that  the  animal  bearing  such  mark  or  brand  is  owned  bv 
the  person  in  whose  name  it  was  registered.''*     And  it  is  held  also 


4.  AIcKenzie  i:  Stale.  .32  Tex. 
Crim.  App.  568,  25  S.  W.  426,  40 
Am.  St.  Rep.  795 ;  Debord  r.  John- 
son, 10  Colo.  App.  402,  33  Pac.  255 ; 
l\hn"ray  v.  Trinidad  Nat.  Bank.  5 
Colo.   App.   359,   38  Pac,  615. 

"  No  brands  except  .snch  as  are 
recorded  by  the  officers  named  in 
this  act  shall  be  rccogni::cd  in  law 
as  any  evidence  of  the  ownership  of 
the  cattle,  horses  or  mnlcs  upon 
which   the   same   may  be   nsed." 

"  When  a  party  or  the  state  desires 
to  introduce  the  inark  and  brand  as 
evidence,  preliminary  proof  that  the 
same  is  recorded  is  absolutely  neces- 
sary."    Allen   V.   State.  42  Tex.   517. 

5.  Dickson  z:  Territory  (.^riz.), 
56  Pac.  971  ;  Walden  z\  Murdock.  23 
Cal.  540,  83  Am.  Dec.  135;  Chesnut 
7'.  People,  21  Colo.  512,  42  Pac.  656; 
Debord  v.  Johnson,  10  Colo.  App. 
402.  53  Pac.  255 :  Murray  f.  Trinidad 
Nat.  P>ank,  5  Colo.  App.  359.  38  Pac. 
615;  Territory  z:  Chavez  (N.  M.), 
30  Pac.  903;  Gale  z:  Salas  ( N.  M.), 
66  Pac.  520;  State  z:  Cardelli,  19 
Nev.  319,  10  Pac.  433;  ^IcKenzie  z'. 
State,  32  Tex.  Crim.  App.  568,  25 
S.  W.  426,  40  Am.  St.  Rep.  795; 
De  Garcia  v.  Galvan.  55  Tex.  53 ; 
Allen  z'.  State,  42  Tex.  517;  Beyman 
z:  Black,  47  Tex.  558. 

"  Nor  was  it  necessary  for  the  state 
to  show  a   recorded  brand   since  the 

Vol.  I 


ownership  was  cstalilishcd  positively 
and  emphatically  independently  of  the 
brand."  Wolf  z\  State.  4  Tex.  App. 
332. 

6.  Territory  z:  Chavez  (N.  M.). 
30  Pac.  903 ;  Fisher  z\  State,  4  Tex. 
.'\pp.  181  ;  Hutto  z:  State,  7  Tex. 
.\pp.  44;  Debord  z\  Johnson,  10  Colo. 
.A.pp.  402,  53  Pac.  255 ;  Cragin  v. 
Dickey.  113  Ala.  310,  21  So.  55; 
Gale  z:  Salas   (N.  U.).  66  Pac.  520. 

7.  Fisher  z:  State.  4  Tex.  App. 
181. 

And  in  every  case  where  the  fact 
of  ownership  depends  alone  upon 
an  unrecorded  brand  and  the  verdict 
is  procured  on  such  testimony  it  can- 
not be  permitted  to  stand ;  and  in 
every  case  where  it  is  questionable 
whether  the  proof  of  ownership  de- 
pends upon  flesh  marks  or  upon  the 
brand  which  is  unrecorded,  it  is  the 
duty  of  the  court  in  snch  cases  to 
limit  the  testimony  of  snch  unre- 
corded brand,  that  the  same  can  be 
used  merely  as  a  fiesh  mark  and 
not  as  evidence  of  ownership  as  in 
the  case  of  a  recorded  brand. 
Childers  z'.  State,  37  Tex.  Crim.  App. 
392,  35  S.  W.  654;  Poag  z:  State,  40 
Tex.  151 ;  Allen  z:  State,  42  Tex.  517; 
Hutto  z:  State,  7  Tex.  App.  44; 
State  z'.  Cardelli.  19  Nev.  319.  10  Pac. 
4.^3■ 

8.  Dickson    <■.    Territory    (Ariz.), 


ANIMALS. 


891 


that  such  copy  may  be  used  as  evidence  in  counties  other  than  that 
where  the  brand  was  registered." 

E.  Distinction  Between  "  Brand  '"  and  "  Mark."  —  It  has 
been  held  that  statutes  requiring  the  registration  of  marks  and 
brands,  but  providing  that  brands  only  shall  be  evidence  of  owner- 
ship, do  not  constitute  the  registration  the  best  evidence  of  a  mark.'" 

F.  W'ritten  Transfers  As  Evidence.  —  It  has  been  held  that 
bills  of  sale  and  other  written  transfers  of  live  stock  are  competent 
though  not  conforinable  to  the  statute.^' 

G.  t)RAL  E\'inENCE  OF  Transfer  of  Recorded  Brand.  —  Oral 
evidence  is  admissible  for  the  purpose  of  showing  the  transfer  of 
ownership  of  a  recorded  brand. '- 

II.  IMPOUNDING  ANIMALS. 

1.  Memoranda  Kept  by  Pound  Keeper.  —  Memoranda  and  certifi- 
cates required  b\-  law  to  lie  made  and  filed  with  pound  keepers  and 


56  Pae.  971;  Yale  i:  Salas  (N.  j\l.), 
66  Pac.  520;  McKenzie  v.  State,  32 
Tex.  Crim.  App.  568,  25  S.  W.  426, 
40  Am.   St.  Rep.  795. 

Purpose  of  Registration  of  Brand 

Notice     Prima     Facie     Proof The 

very  purpose  of  the  law  in  requiring 
the  registration  of  a  brand  is  that 
it  shall  be  f'liiiia  facie  proof  of  own- 
ership. De  Garcia  i'.  Galvan,  55 
Tex.  53. 

"  The  object  of  branding  and 
marking  cattle  is  for  the  purpose  of 
identification  that  their  ownership 
may  be  known  and  distinguished 
from  other  stock,  that  it  may  be 
known  to  whom  the  particular  cattle 
belong."  State  v.  Cardelli,  19  Nev. 
319,  ID  Pac.  433. 

9.  Atterberry  v.  State,  19  Tex. 
App.  401  ;  Chesnnt  f.  People.  21  Colo. 
512,  42  Pac.  656. 

10.  Johnson  v.  State,  i  Tex.  App. 
333 ;  Lawrence  z\  State.  20  Tex. 
App.  536. 

Mark  Unrecorded  May  Be  Proved. 
.\  mark  may  he  proved  without  show- 
ing it  to  have  been  recorded.  The 
rule  that  no  brands  except  such  as 
are  recorded  shall  be  recognized  in 
law  as  evidence  of  ownership  is  not 
applicable  to  marks.  Love  i'.  State. 
15    Tex.    App.    563. 

The  latter  article  provides  that  no 
brands  except,  etc.  If  this  latter 
article  applied  at  all  to  sheep,  which 


are  not  mentioned  in  it,  it  does  not 
apply  to  inarhs,  but  to  brands  only. 
Dreyer  z:  State.  1 1  Tex.  App.  631 ; 
Dixon  V.  State,  19  Tex.  134. 

11.  Brill  V.  Christy  (Ariz.),  63 
Pac.  757;  Gale  v.  Salas  (N.  ^L),  66 
Pac.  520;  Nance  t.  Barber  (Tex. 
Civ.  App.).  26  S.  W.  151. 

12.  Transfer   of   Recorded   Brand 

May   Be    Proved    Orally A    brand 

had  been  recorded  as  the  property 
of  two  brothers.  On  the  trial,  after 
introducing  the  recorded  brand  in 
evidence,  one  of  the  brothers  was 
permitted  to  testify  that  at  the  time 
of  the  larceny  he  owned  the  animal 
in  question  and  the  brand.  The  court 
held  it  was  not  error  to  permit  this 
testimony.  "  The  brand  was  recorded 
as  required  by  law,  and,  while  it 
was  prima  facie  evidence  that  L.  and 
H.  Huning  were  owners  of  the  brand 
at  the  time  of  record,  it  was  not 
conclusive  evidence  of  ownership  in 
them."  Territory  v.  Chavez  (N. 
M.),  30  Pac.  903. 

Exception.  —  But  where  statutes 
provide  fur  the  sale  of  stock  run- 
ning in  the  range  by  sale  and  de- 
livery of  the  brands  and  marks,  and 
requiring  that  instruments  evidencing 
such  sales  be  recorded  as  well  as 
noted  on  the  record  of  original 
brands,  oral  proof  is  not  admissible 
to  establish  ownership  of  such  re- 
corded brand.  Nance  v.  Barber 
(Tex.  Civ.  App.),  26  S.  W.  151. 

Vol.  I 


892 


ANIMALS. 


other  officials   charged   witli   ikuies   rcs]3ccting   impounded   animals 
are  achnissiblc  as  otlior  official  documents.'^ 

2.  Oral  Evidence  to  Show  Creation  of  Pound.  —  W  here  it  does  not 
appear  from  the  record  that  officials  of  distinct  localities  united  in 
providing  a  pound  for  their  common  use  it  is  competent  to  establish 
the   fact  of  such  joint  official  action  by  oral  testimony.'* 

III.  INJURIES  BY  ANIMALS. 

1.  To  Property.  —  A.  Burden  of  Proof. — The  burden  of  proof 
rests  upon  the  owner  of  animals  found  upon  another's  close  to 
excuse  or  justify  their  presence  there  except  as  it  may  otherwise  be 
provided  by  statute.'^ 

2.  To  Persons.  —  A.  Ix  Gener.^l. — a.  Character  of  the  Animal. 
(1.)  Presumption  of  Owner's  Knowledge — (A.)  Wild  Anim.^ls.  —  In  ac- 
tions to  recover  for  injuries  by  wild  beasts  or  animals  that  are  in 
their  nature  ferocious,  the  owner  is  conclusively  presumed  to  know 
them  to  be  mischievous."  And  negligence  will  be  presumed  from 
the  fact  that  he  has  permitted  them  to  be  at  large.'" 


13.  Bruce  f.  Holdcn.  _'i  Pick. 
(38   Mass.)    187. 

Records  of  awards  of  damages  for 
injuries  by  trespassing  animals  re- 
quired by  statute  to  be  made  by 
designated  officials  and  by  them  filed 
for  record  are  competent  evidence  of 
such  assessments  where  the  original 
award  cannot  be  found.  Lyons  v. 
Van  Gorder,  77  Iowa  600,  42  N.  W. 
500. 

14.  Albright  v.  Pavne,  43  Ohio 
St.   8,    I    N.   E.    16. 

15.  Wells  V.  Howell,  19  Johns. 
(N.  Y.)  385;  Lyman  v.  Gipson.  18 
Pick.  (Mass.)  422;  Lorance  v.  Hill- 
yer,  57  Neb.  266,  77  N.  W.  755 ; 
Story  V.  Robinson.  32  Cal.  205 ;  Pet- 
lit  V.  May.  34  Wis.  666. 

"  In  trespass  for  damage  done  by 
the  defendant's  sheep  to  the  plain- 
tifif's  close,  if  it  is  admitted  that  the 
sheep  were  upon  the  plaintff's  land, 
the  burden  is  upon  the  defendant  to 
show  some  justification  or  e-xcuse ; 
and  j^f  they  entered  from  the  high- 
way, and  no  justification  or  e.xcuse 
is  shown  for  their  being  in  the  high- 
way, the  plaintiff  is  entitled  to  dam- 
ages."     Hodson   V.    Kilgore,   77    Me. 

Actual  Knowledge  Not  Always 
Necessary  to  Be  Shown.  —  And  in 
connection  with  evidence  tending  to 
show    actual    knowledge,    it    is    com- 

Vol.  I 


petent  to  show  that  the  animals  in 
question  were  bought  from  a  locality 
known  by  the  person  complained  of 
to  be  infected  and  liable  to  communi- 
cate disease  as  tending  to  establish 
such  knowledge  by  implication. 
Lynch  v.  Grayson.  5  N.  M.  4S7.  25 
Pac.  992;  Grayson  j'.  Lynch.  163  V. 
S.  468;  Croff  V.  Crcsse,  7  Okla.  408, 
54  Pac.  558;  State  !■.  Turner  (Kan.), 
b5   Pac.  217. 

16.  Manger  i'.  Shipman.  30  Neb. 
352,  46  N.  W.  527;  Earl  i:  Van 
.-Clsline.  8  Barb.  (N.  Y.)  630;  Van 
Leuven  v.  Lyke,  i  N.  Y.  515.  49 
.\m.    Dec.    346. 

Animal's  'Viciousness  Presumed. 
"Though  the  owner  have  im  parti- 
cular notice  that  he  did  any  such 
thing  before,  yet  if  he  be  a  beast  that 
is  feme  naturae,  if  he  get  loose  and 
do  harm  to  any  person,  the  owner 
is  liable  to  an  action  for  the  dam- 
age."    I   Hale  P.  C.  4.^0. 

The  owner  of  beasts  that  are  ferae 
naturae  must  always  keep  them  up 
at  his  peril  and  an  action  lies  with- 
out notice  of  the  quality  of  the 
beasts.  Re.x.  7'.  Huggins.  2  Lord 
Raym.   1574. 

The  owner's  knowledge  of  the 
ferocity  of  a  tiger  will  be  presumed 
from  the  nature  of  the  aniirial. 
Laverone  Z'.  Mangianti.  41  Cal.  138, 
10  .^m.  Rep.  269. 

17.  England.  — y\:\y     r.     P.urdctt. 


ANIMALS. 


893 


(B.;  Domestic  Animals.  — The  owner  of  domestic  animals  is  not 
presumed  to  know  that  they  are  vicious."* 


58  Eng.   C.  L.   lOi  ;   May  v.   Burdett, 
9  Q.   B.  loi. 

L'liilcd  States.  —  Spring  Company 
v.  Edgar,  99  U.  S.  645. 

Co)i)iccticut.  —  Sellcck  ;■.  Selleck. 
19  Conn.  500. 

////)io/.j.  —  Ahlstrand  r.  Bishop,  88 
HI.  App.  424;  Hammond  r.  Melton, 
42  111.  App.  186;  Stumps  7:  Kelley, 
22  111.  140. 

Indiana.  —  Graham    v.    Payne,    122 
Ind.  403,  24  X.  E.  216. 
■    lozi'a.  —  Marsel     v.     Bowman,     62 
Iowa  57,  17  N.  W.  176. 

Kentucky.  —  Brooks  v.  Brooks,  21 
Ky.  Law  Rep.  940,  53  S.  W.  645; 
Pfaffinger  v.  Gilman,  18  Kv,  Law- 
Rep.  1071.  38  S.  W.  1088. 

Maine.  —  Decker  v.  Gammon,  44 
Me.  }22.  6g  Am.  Dec.  99. 

Massachusetts. — Linnehan  v.  Samp- 
son, 126  Mass.  506,  30  Am.  Rep.  692; 
Lyons  t:  Merrick,  105  iNIass.  71. 

Missouri.  —  Speckman  z\  Kreig,  79 
Mo.  App.  376. 

Xe7('  York.  —  Malone  v.  Knowlton, 
39  N.  Y,  St.  901,  15  N.  Y,  Supp. 
506;  Wheeler  z\  Brant,  23  Barlj. 
324;  Rider  v.  White,  65  N.  Y.  54. 
22  Am.  Rep.  600;  Earl  v.  Van  Al- 
stine,   8   Barb.    630. 

Pennsvlvania.  —  Dolph  ?'.  Ferris,  7 
Watts.  &  S.  367. 

Tc.vas.  —  Triolo  v.  Foster  (Tex. 
Civ.  App.),  57  S.  W.  698. 

I'ennont.  —  Oakes  %>.  Spaulding, 
40,  \'t.  347.  94  Am.  Dec.  404. 

Evidence  That  Vicious  Animal 
Was  Not  Restrained  Renders 
Owner  Liable — In  an  action  against 
the  proprietor  of  a  park  for  injuries 
sustained  by  the  plaintiff  from  an 
attack  by  a  male  deer,  which  with 
other  deer  was  permitted  to  roam 
in  the  park.  The  evidence  showed 
that  the  park  was  open  to  visitors : 
that  plaintiff  was  in  the  habit  of 
visiting  it.  and  when  lawfully  there 
was  attacked  by  the  deer  and  se- 
verely injured ;  that  she  had  often 
seen  the  deer,  about  nine  in  number, 
three  being  bucks,  the  oldest  four 
years  old — running  about  the  lawn 
and  persons  playing  with  them,  and 
had  there  seen  a  sign  "  Beware  of 
the  buck;"   that   the  park   contained 


about  eleven  acres ;  that  notices 
were  put  up  there  about  a  year  or 
two  before  cautioning  the  visitors 
not  to  tease  or  worry  the  deer ;  that 
plaintiff  had  no  knowledge  prior  to 
this  attack  that  the  deer  were  dan- 
gerous if  not  disturbed.  There  was 
expert  testimony  that  in  the  opinion 
of  such  witnesses  the  male  deer  was 
a  dangerous  animal  at  the  season  of 
the  injury.  There  was  no  evidence 
offered  by  defendant.  The  court  held 
that  the  verdict  in  favor  of  the  plain- 
tiff was  justified.  Spring  Company 
V.  Edgar,  99  U.  S.  645. 

Distinction  in  Case  of  Bees. 
Animals  classed  as  ferae  naturae 
may  become  practically  tame,  and  as 
in  the  cases  of  bees,  an  owner  will 
not  be  held  liable,  at  all  events  for 
their  accidental  injuries,  in  absence 
of  proof  of  knowledge  on  his  part 
that  it  is  dangerous  to  keep  them 
in  a  given  situation.  Earl  z'.  Van 
Alstine,  8  Barb.    (N.  Y.)    630. 

18.  Georgia.  —  Reed  v.  Southern 
Exp.  Co.,  95  Ga.  108,  22  S.  E.  133. 
SI   Am.   St.   Rep.  62. 

Minnesota.  —  Erickson  v.  Bronson, 
81   Minn.  258,  83  N.  W.  988. 

jV^tc  York.  —  Vrooman  v.  Lawyer, 
13  Johns.  339;  Van  Leuven  v.  Lyke, 
I  N.  Y.  515,  49  Am.  Dec.  346;  Law- 
lor  z'.  French,  12  App.  Div.  140.  37 
N.  Y.  Supp.  807 ;  Bennett  v.  Mallord, 
^T,  Misc.  112,  67  N.  Y.  Supp.  159; 
Dickson  v.  McCoy,  39  N.  Y.  400; 
Benoit  v.  Troy  &  L.  R.  Co.,  154  N.  Y. 
223,  48  N.  E.  5^4- 

Oregon.  —  Dufer    z\    Cully,    3    Or. 

Z77. 

"  In  an  action  for  the  death  of 
plaintiff's  intestate,  caused  by  a  kick 
from  a  horse,  used  by  defendant  on 
his  theatrical  stage,  evidence  that  the 
horse  at  one  time  pressed  a  witness 
against  another  horse  as  he  went 
into  his  manger,  and  that  he,  several 
months  before  the  accident,  when 
teased  by  those  around  him,  snapped 
at  them,  and  that  on  another  oc- 
casion had  kicked  another  man,  is 
insufficient  to  prove  that  the  manager 
of  the  theater  had  knowledge  that 
the  horse  was  vicious,  so  as  to  render 

Vol.  I 


894 


ANIMALS. 


(2.)  Former  Instances  of  Viciousness.  —  It  is  competent  to  give  evi- 
dence of  former  instances  of  viciousness  similar  to  that  in  question 
of  which  the  owner  had,  or  ma\-  lie  assumed  to  have  liad,  notice.'" 

(3.)  Evidence  Other  Than  Conduct  of  Animal.  —  Evidence  other  than 
that  furnished  by  the  con(hict  of  the  animal  at  the  time  of  the 
injury  complained  of  is  ordinarily  essential  to  fix  a  vicious  character 
upon  such  animal.-" 


the  owner  lialile.  Williams  and 
O  Brien.  J.  J.,  dissenting."  Lawlor 
T.  French,  I2  App.  Div.  140.  37  N.  Y. 
Supp.  807. 

"If  damage  is  done  by  any  domes- 
tic animal  kept  for  use  or  conven- 
ience, the  owner  is  not  liable  to  an 
action  on  the  ground  of  negligence 
without  proof  that  he  knew 'that  the 
animal  was  accustomed  to  do  mis- 
chief." Vrooman  v.  Lawyer,  13  Johns. 
(N.  Y.)   339- 

19.  Arnold  v.  Norton.  25  Conn. 
92;  Kittredge  v.  Elliott,  16  N.  H. 
77,  41  Am.  Dec.  717;  Looniis  v. 
Terry,  17  Wend.  (N.  Y. )  496; 
Cockerham  z\  Nixon,  11  Ired.  (N. 
C.)  269;  Johnson  v.  Eckberg,  94  111. 
.■\pp.    634. 

Animal's  Vicious  Propensity, 
What  Is  Evidence  Of.  —  ■  W  hen,  as 
here,  Lovelace  and  Trcece  had  been 
sent  upon  an  independent  mission, 
and  put  in  complete  charge  of  the 
animal,  they  stood  in  the  performance 
of  their  task  in  the  place  of  the  de- 
fendant, and  the  question  of  defend- 
ant's responsibility  will  be  answered 
as  may  be  answered  the  inquiry, 
what  would  have  been  the  master's 
responsibility  and  liability  had  he 
personally  been  in  charge  of  the 
animal  ?  To  this  there  can  be  but 
one  answer :  He  would  have  been 
liable.  Twice  before  on  that  very 
day  had  the  bull  evinced  its  ugly 
disposition  by  attacks  actual  and 
threatened.  Here  was  ample  proof 
of  the  fact  of  viciousness,  and  of  the 
knowledge  of  that  fact  brought 
home  to  the  master."  Clowdis  v. 
Fresno  Flume  &  Irrigation  Co.,  118 
Cal.  ,315,  50  Pac.  373,  62  .\m.  St. 
Rep,  238. 

"  It  is  not  necessary  tliat  the 
vicious  acts  of  a  domestic  animal, 
brought  to  the  notice  of  the  owner, 
should  be  precisely  similar  to  that 
upon    which    the    action    against    him 


is  founded.  If  it  were,  there  would 
be  no  actionable  redress  for  the  first 
injury  of  a  particular  kind  committed 
by  such  an  animaJ,  because  its  owner 
would  necessarily  be  exempt  from 
all  liability  until  it  should  commit 
another  injury  of  exactly  the  same 
kind.  It  is  enough  to  say  that  the 
law    sanctions    no    such    absurdity. 

"  Neither  is  it  necessary,  in  order 
to  fasten  a  liability  upon  the  owner, 
that  we  have  notice  of  a  previous 
injury  to  others."  Reynolds  v. 
Hussey,  64   N.   H.  64,   5   xA.tl.  458. 

To  prove  the  bad  habits  of  a  horse 
at  the  time  of  the  accident,  evidence 
of  particular  instances  of  vicious 
conduct  is  admissible.  "  \\'e  think 
also  that  the  court,  in  its  discretion, 
might  receive  evidence  of  particular 
acts  extending  as  far  back  as  the 
spring  before  the  accident."  Whit- 
tier  z'.  Town  of  Franklin,  46  K.  H. 
23.  88  Am.   Dec.   185. 

20.  Holliday  v.  Gardner  ( Ind. 
App.),  59  N.  E.  686;  Hammack  v. 
White,  II  C.  B.  (N.  S.)  588:  Renoit 
?■.  Troy  &  L.  R.  Co.,  154  N.  Y.  223. 
48  N.  E.  524- 

Horse's  Single  Act  of  'Viciousness 
Does  Not  Establish  Character.  — 'A 
cart  horse  becommg  suddenly  un- 
manageable, backed  off  the  dock  into 
the  water  and  was  lost.  It  was  held 
that  the  fact  that  the  horse  was  for 
the  moment  beyond  control  did  not 
show  that  he  was  vicious  and  un- 
safe, or  that  the  owner  was  care- 
less. Kennedy  v.  Mayor  etc.,  73 
N.  Y.  365,  29  Am.  Rep.   169. 

"  It  does  not  appear  that  the  injury 
resulted  from  the  negligence  of 
either  the  plaintiff  or  the  defend- 
ant. The  mere  fact  that  the  horse 
became  unmanageable  on  the  occasion 
of  the  injury  docs  not  show  that 
he  was  vicious  or  generally  unsafe, 
nor  does  it  prove  that  the  statement 
of   the   defendant    that   the  horse  was 


Vol.  I 


JNIMALS. 


895 


(4.)  Conduct  Subsequent  to  Injury.  —  It  has  been  held  that  evidence 
of  condnct  of  the  animal  subsequent  to  the  injur)-  complained  of  is 
not  admissible  upon  the  question  of  disposition  manifested  at  the 
time  of  the  injury.-'  But  when  the  time  intervening  is  so  short, 
and  the  circmnstances  such  as  to  render  it  iniprobalile  that  the  habit 
was  lately  formed  or  the  vice  newly  acquired,  evidence  of  such  after 
conduct  is  competent. -- 

(5.)  Habits.  — Evidence  is  admissible  which  tends  to  show  a  habit 
of  the  animal  in  question  to  commit  the  species  of  viciousness  dis- 
played when  an  injury  is  caused  by  it.'-"' 


gentle  was  untrue.  Kennedy  v. 
Mayor,  73  N.  Y.  365."  Finney  v. 
Curtis,  78  Cal.  498.  21    Pac.  120. 

Contra.  —  One  attempt  of  a  bull 
to  gore  a  human  being  sufficient. 
Cockerham  v.  Ni.xon,  11  Ired.  (N. 
C.)  269. 

21.  "  The  conduct  of  the  horse 
after  the  accident  was  not  material 
in  any  view  of  the  case.  Vicious  dis- 
position and  knowledge  thereof  by 
the  defendant  before  the  accident, 
must  concur  in  order  to  sustain  the 
action."  Knickerbocker  Ice  Co.  f. 
DeHaas.  iJ  111.  App.   195. 

In  an  action  to  recover  injuries 
from  the  kick  of  a  horse,  the  question, 
whether  he  was  vicious  to  the 
knowledge  of  the  [defendant,  being 
strongly  contested  at  the  trial,  it 
was  held  to  have  been  error  to  admit 
testimony  of  one  to  whom  the  horse 
was  sold  after  the  injury  that  he 
had  owned  him  some  months,  that 
he  was  a  good  dispositioned  horse 
in  his  judgment,  and  that  he  never 
.saw  him  kick  at  anythmg  unless  he 
was  playing  around.  Woodward  v. 
Looinis.  64  .^pp.  Div.  2y,  71  N.  Y. 
Supp.   6go. 

Contra.  —  When  the  question  is  as 
to  the  e.xistence  of  certain  vicious 
habits  in  a  horse  at  a  given  time 
the  fact  that  the  horse  exhibited  the 
same  vices  six  or  eight  months  after 
the  time  specified,  may  be  competent 
evidence,  in  the  discretion  of  the 
court,  if  accompanied  with  proper  in- 
structions as  to  application.  Cham- 
berlain V.  Enfield,  43  N.  H.  356. 

22.  Hine  v.  Wooding,  yj  Conn. 
123;  Kennon  t'.  Gilmer,  131  U.  S. 
22:  Chamberlain  v.  Enfield,  43  N.  H. 

In    an    action    to    recover    for    in- 


juries inflicted  by  a  vicious  mare, 
the  trial  court  rules  that  a  horse 
trainer,  in  whose  charge  she  was 
placed  two  days  after  the  injury, 
might  testify  as  to  the  condition  she 
was  then  in,  on  the  ground  that  the 
time  intervening  between  the  tiine 
of  the  accident  and  his  reception  of 
the  mare  was  not  of  such  duration 
as  to  effect  any  change  in  her  char- 
acter by  training  or  similar  means. 
Brown  %•.  Green,  i  Penn.  (Del.) 
.S3.S.  42  Atl.  991. 

23.  Tolmie  r.  Standard  Oil  Co., 
59  App.  Div.  3:>,2.  69  N.  Y.  Supp. 
841  ;  Lynch  v.  Moore,  154  Mass.  335, 
28  N.  E.  277;  Todd  V.  Inhabitants, 
8  Allen  (Ma.ss.)  51;  Maggi  v.  Cutts, 
123  Mass.  535. 

Habit  of  Acting  in  a  Given 
Vicious  Manner  May  Be  Shown. 
"The  basis  of  the  plaintiff's  cause  of 
action  was  the  negligence  of  the  de- 
fendant in  knowingly  permitting  a 
dangerous  horse,  a  track  bolter,  to 
run  in  a  race  controlled  by  it,  and 
in  which  the  plaintiff  rode  and  was 
injured,  without  informing  her  of 
the  vicious  character  of  the  horse, 
of  which  she  was  ignorant.  On  the 
trial  there  was  evidence  tending  to 
show  that  the  horse,  to  the  knowledge 
of  one  of  the  officers  of  the  defend- 
ant, would  bolt  in  practice;  also  that 
the  horse  came  upon  the  race  track 
wearing  blinkers.  Held,  that  it  was 
not  error  for  the  trial  court  to  receive 
evidence  to  show  that  a  race  horse 
which  bolts  in  practice  will  usually 
do  so  in  an  actual  race ;  and,  further, 
for  wdiat  purpose  blinkers  are  put 
on  race  horses."  Lane  r.  Minnesota 
State  Agricultural  Soc.  ( N.  D.),  69 
N.   W.   463. 

Habits  May  Be  Shown   As  Imply- 


Vol.  I 


896 


ANIMALS. 


B.  Injuries  by  Docs. — a.  Matters  .Is  to  Liability. —  (i.)  The 
Keeping.—  (A.)  Circumstancics.  ■ —  In  actions  based  upon  alleged  inju- 
ries from  vicious  dogs,  the  fact  that  the  defendant  owned  or  kept 
the  animal  in  question  may  be  shown  by  circumstances  as  well  as  by 
direct  proof.-"' 

(B.)  Suffering  Dog's  Presence  About  Premises. — But  mere  evidence 
that  a  defendant  sufifered  a  dog  owned  by  another  to  stay  about  his 
premises  will  not  necessarily  render  him  responsible  for  injuries 
committed  bv  such  doe."^ 


ing  Notice  to  Owner Evidence  of 

the  reputation  of  a  liorse  among 
those  employed  in  the  stable  where 
he  is  kept,  while  not  competent  to 
show  his  disposition,  is  so  for  the 
purpose  of  establishing  notice  to  the 
owner  of  such  disposition.  Short 
f.   Bohle.  64  ]\Io.   App.  242. 

24.  California.  —  Wilkinson  v. 
Parrott,  32  Cal.   102. 

Connecticut.  —  McCormack  v.  Mar- 
tin,  71    Conn.   748,  43   Atl.    194. 

/oti'o.  —  Shultz  V.  Griffith,  103 
Iowa  150,  72  N.  W.  445;  O'Harra  v. 
Miller,  64  Iowa  462,  20  N.  W.  760; 
Trumble  ''.  Happv  (Iowa),  87  N. 
\\.  678. 

Maine.  —  Mitchell  v.  Chase,  87  Me. 
172,  32  Atl.  867. 

Massachusetts.  —  Com.  v.  Gorman. 
16  Gray  (82  Mass.)  601  ;  Biiddington 
V.  Shearer.  22  Pick.  (39  Mass.)  427; 
Ingraham  z>.  Chapman.  177  Mass. 
123,  58  X.  E.  171 ;  Com.  V.  Coates, 
169  Mass.  354,  47  N.  E.  ion;  Bar- 
rett v.  Maiden  and  Melrose  R.  Co., 
3  Allen    (85   Mass.)    loi. 

Michigan.  —  Newton  v.  Gordon,  72 
Mich.  642,  40  N.  W.  921 ;  Jenkinson 
r.  Coggins,  123  Mich.  7,  81  N.  W. 
974;  Burnham  r.  Strother,  66  Mich. 
519.  3.1  N.  W.  410. 

New  York.  —  Kessler  v.  Lock- 
wood,  42  N.  Y.  St.  563,  16  N.  Y. 
Supp.  677;  Quiltv  I'.  Battle.  135 
N.  Y.  201,  S2  N.  E.  47,  17  L.  R.  A. 

I'ermont.  —  Plummer  v.  Ricker.  71 
Vt.  114,  41  Atl.  1045,  76  Am.  St. 
Rep.  757. 

In  an  action  for  injuries  by  a 
vicious  dog,  the  defendant  denying 
ownership  of  the  dog,  placing  it  in 
her  son,  twenty-eight  years  old, 
who  made  his  home  with  her  at 
Flint,   working  for  her  on  the  farm 

Vol.  I 


near  there,  the  evidence  showed  sub- 
stantially that  defendant  owned 
everything  else  about  the  premises, 
the  son  being  really  a  hired  man, 
getting  his  keep  and  one-third  of  the 
crops  for  his  services.  The  court 
saying  that  it  appeared  from  the 
testimony  that  the  home  of  Martin 
was  with  the  defendant,  andjthat  the 
only  home  the  dog  had  was  upon  the 
premises  owned  and  controlled  by 
the  defendant  and  that  the  trial 
court  very  properly  said  to  the  jury 
the  defendant  was  the  keeper  of  the 
dog.  Jenkinson  v.  Coggins.  123 
Mich.  7,  81   N.  W.  974- 

25.  McLaughlin  v.  Kemp,  152 
Mass.  7,  25  N.  E.  18;  Whittemore 
V.  Thomas,  153  Mass.  347,  26  N.  E. 
875 ;  CoUinghill  v.  City  of  Haverhill, 
128  Mass.  218;  Lynt  v.  Moore,  5 
App.  Div.  487.  38  N.  Y.  Supp.  1095. 

One  Merely  Suffering  Dog  of 
Another  to  Remain  on  His  Premises 
Is  Not  Keeping  It.  —  The  fact  that 
the  defendants  treated  a  dog  the 
same  as  anybody  would  that  had  a 
dog  at  their  home  would  not  show 
as  matter  of  law  that  they  were 
keepers  of  it,  notwithstanding  the 
fact  that  the  dog  belonged  to  their 
nephew  who  was  a  boarder  with 
them,  nor  because  defendants  ex- 
ercised some  control  over  and  cus- 
tody of  the  dog  could  they  be  held 
responsible  for  him  as  keepers.  Boy- 
Ian  V.  Everett,  172  Jilass.  453,  52 
N.  E.  S4I. 

■'  One  who  suffers  a  dog  to  remain 
temporarily  on  his  premises  is  not, 
as  matter  of  law,  its  keeper.  Nor 
do  we  think  is  one  who  harbors  one 
for  a  short  time  liable  under  all 
circumstances  as  a  keeper."  O'Don- 
nell  V.  Pollock,  170  Mass,  441.  49 
N.   E.  745- 


ANIMALS. 


897 


(2.)  Character  of  the  Dog-.  _(A.)  Previous  Injuriks  to  Others —  It 
has  been  held  in  case  of  injury  to  a  person  that  it  is  not  necessary 
to  show  that  the  clog  in  question  had  previously  bitten  any  human 
being.-" 

(P..)  Knowi.kix-.f.  ov  the  Owner.  —  (a.)  li.vl^ress  Noticr  Xnt  Necessary. 
It  is  not  necessary  that  express  notice  to  the  owner  of  the  vicious 
propensity  of  a  dog  be  shown.-' 

(b.)  I'icwus  Acts. — -It  has  been  held  that  one  single  vicious  act  of 
a  dog  may  be  of  such  character  and  attended  by  such  circumstances 
as  to  imply  the  owner's  knowledge  of  the  savage  propensity  thus 
displayed.-'^     Rut  in  order  to  justify  such  implication  the  facts  relied 


26.  Rider  v.  White,  65  N.  Y.  54, 
22  Am.  Rep.  600;  Warner  v.  Cham- 
berlain (Del.),  30  Atl.  6,^8;  Johnson 
V.  Eckberg.  94  111.  App.  634;  Mont- 
gomery J'.  Koester,  35  La.  Ann.  1091, 
48  Am.  Rep.  253 ;  Goode  v.  Martin, 
57  Md.  606,  40  Am.  Rep.  448;  Mar- 
sel  V.  Bowman,  62  Iowa  57,  17  N.  W. 
176. 

In  the  action  against  the  keeper 
of  a  dog  it  need  not  be  proved  that 
he  had  previously  bitten  mankind. 
It  is  sufficient  to  prove  that  the  dog 
was  of  a  ferocious  nature,  and  that 
its  keeper  from  his  knowledge 
thereof,  had  reason  to  apprehend 
that  under  some  circumstances  it 
would  bite  mankind.  Godeau  v. 
Blood,  52  Vt.  251,  36  Am.  Rep.  751. 

The  defendant  testified  that  while 
he  kept  always  "  half  a  dozen  clogs, 
they  were  always  chained  day  and 
night,  at  night  tied  out  to  the  Luild- 
ings,  in  the  daytime  in  the  house, 
never  unchained."  The  court  said : 
"  Again  if  the  dog  was  defendant's 
dog,  the  very  purpose  for  which  he 
kept  him  charges  him  with  knowl- 
edge of  his  character,  and  he  is 
therefore  chargeable  with  negligently 
keeping  him.  although  it  did  not 
appear  that  he  had  actually  bitten 
another  person  before  he  bit  the 
plaintiff."  Brice  i'.  Bauer.  108  N.  Y. 
426,    15   N.   E.   695,  2  Am.    St.    Rep. 

454- 

27.  Colorado. — Melsheimer  v.  Sul- 
livan,  I   Colo.  App.  22,  27  Pac.   17. 

Counecticut.  —  Sim  m  o  n  d  s  v. 
Holmes,  61  Conn,  i,  23  Atl.  702,  15 
L.  R.  A.  253. 

Delaware.  —  Barclay  j'.  Hartuian,  2 
Marv.  351,  43  Atl.  174;  Freidnian  ''. 
McGowan,  (Del.),  42  .^tl.  723;  War- 

57 


ner   f.    Chamljerlain.    (Del.),    50   Atl. 
638. 

Illinois.  —  Johnson  v.  Eckberg,  94 
III.  App.  634. 

/onw.  —  Cameron  ;■.  Bryan,  89 
Iowa  214,  56  N.  W.  434;  Sanders 
7'.  O'Callaghan.  in  Iowa  574,  82 
N.    W.   969. 

Louisiana.  —  Montgomery  v. 
Koester,  35  La.  Ann.  1091.  48  Am. 
Rep.   253. 

Michigan.  —  Knowles  v.  Mulder,  74 
Mich.  202,  41  N.  W.  896,  16  Am. 
St.  Rep.  627. 

New  York.  —  Earl  r.  Van  Alstine, 
8  Barb.  630;  Brice  v.  Bauer,  108  N. 
Y.  428,  15  N.  E.  69.i,  2  Am.  St.  Rep. 
454;  Hahnke  i'.  Friederich,  140  N.  Y. 
224,  35  N.  E.  487 ;  Lynch  v.  JIcNally, 
73  N.  Y.  347;  Rider  v.  White,  65 
N  Y.  54,  22  Am.  Rep.  600;  Jacoby 
z:  Ockerhousen,  59  Hun  619,  13  N. 
Y.   Supp.  499. 

I'erniont.  —  Worthen  i'.  Love,  60 
Vt.  285.  14  Atl.  461 ;  Godeau  v. 
Blood,  52  Vt.  251,  36  Am.  Rep.  751. 

IVashington. — Robinson  i'.  Marino, 
3  Wash.  434.  28  Pac.  752.  28  .\m.  St. 
Rep.   50. 

Express  Notice  of  Viciousaess 
Unnecessary. —  "  Proof  that  the  ani- 
mal is  of  a  savage  and  ferocious 
nature  is  equivalent  to  proof  of  ex- 
press notice."  Earl  i'.  Van  Alstine, 
8  Barb.   (N.  Y.)  630. 

The  defendant  testified  that  he 
kept  the  dog  chained  up  in  the  day- 
time so  that  it  would  not  bite  people. 
This  was  evidence  of  its  vicious 
character  and  of  defendant's  knowl- 
edge thereof.  Sanders  7'.  O'Calla- 
ghan, III  Iowa  574,  82  N.  W.  969. 

28.  Bauer  v.  Lyons,  22  App.  Div. 
204,    48    N.    Y.    Supp.    729:    Mont- 

Vol.  I 


898 


.IXJM.ILS. 


upon  must  point  to  the  particular  proi)cnsity  conducing  to  the  injury 
then  in  cjuestion.-" 

(c.)  Knozi-lcdgi'  of  .IgcnI. —  It  is  com]X'tent  to  give  evidence  tending 
to  show  that  an  agent  had  knowledge  of  the  vicious  propensity  of  a 
dog  owned  by  his  principal  when  the  circumstances  are  such  as  to 
render  such  knowledge  imputable  to  the  owner.'" 

(d.)  Reputation  of  Dog.  —  Evidence  of  a  general  neighborhood 
reputation  of  a  dog  for  viciousness  is  admissible,  not  to  show  the 
fact  of  his  dangerous  propensit\-,  but  the  public  notorietv,  and  as 
tending  to  support  the  inference  of  the  owner's  knowledge  of  such 
vicious  propensity.''^ 


gomery  f.  Koester,  35  La.  Ann.  logr, 
48  Am.  Rep.  253 ;  Goode  v.  Martin, 
57  Md.  606,  40  Am.  Rep.  448;  Mar- 
sel  V.  Bowman,  62  Iowa  57.  17  N.  W. 
176;  Smith  z\  Pelah,  2  Str.  1264; 
.■\rnold  V.  Norton,  25  Conn.  92 ; 
Loomis  ?'.  Terry,  17  Wend.  (N.  Y.) 
496. 

Evidence  of  a  single  instance  of 
killing  a  sheep  by  defendant's  dog 
coming  to  his  knowledge  is  suffi- 
cient to  render  him  liable  for  in- 
juries inflicted  by  the  dog.  Kitt- 
redge  v.  Elliott,  16  N.  H.  77.  4r  .\m. 
Dec.    717. 

The  plaintiff,  servant  of  defendant, 
stepped  out  of  the  house  in  the 
evening  to  get  a  pail  when  the  dog 
without  any  warning  sprang  upon 
and  bit  her.  "  This  act  is  sufficient 
to  stamp  the  character  of  the  dog  as 
vicious  and  dangerous  and  the 
master  was  bound  to  keep  him  in 
subjection  without  further  notice." 
Brice  v.  Bauer,  108  N.  Y.  428.  15 
N.  E.  695,  2  Am.  St.  Rep  454; 
Webber  v.  Hoag,  28  N.  Y.  St.  6^0, 
8  N.  Y.  Supp.  76. 

29.  Norris  v.  Warner,  59  111.  .\pp. 
300;  Wormley  v.  Gregg,  65  111.  251; 
Dearth  v.  Baker,  22  Wis.  70; 
Kcightlingcr   v.    Egan,   65    111.    235. 

Knowledge   Imputed  From   Habits 

of      Dog Evidence      is      competent 

which  tends  to  show  the  habit  of  a 
dog  to  act  in  a  manner  correspond- 
ing to  that  tiianifested  on  the  occa- 
sion of  a  particular  injury  in  ques- 
tion. Broderick  v.  Higginson,  i6g 
Mass.  482.  48  N.  E.  269.  61  .\m.  St. 
Rep.  296;  Kennett  i:  Engle,  105 
Mich.  693,  63  N.  W.  1009;  Dover  v. 
\\'inchester,  70  Vt.  418,  41  Atl.  445. 

30.  Corliss  T'.   Smith,  53  Vt.   532; 

Vol.  I 


Harris  v.  Fisher,  115  N.  C.  318,  20 
S.  E.  461,  44  Am.  St.  Rep.  452; 
Niland  z:  Greer,  46  .^pp.  Div.  194, 
61  N.  Y.  Supp.  696;  Turner  z\  Craig- 
head, 63  N.  Y.  St.  853.  31  N.  Y. 
Supp.  369;  The  I^ord  Derby,  17  Fed. 
265. 

A  servant's  kno\\  ledge  of  the 
vicious  character  of  a  dog  accus- 
tomed to  follow  him  about  in  the 
inaster's  business  but  not  put  in  his 
charge  by  the  master,  is  not  imputable 
to  the  latter.  Twigg  v.  Ryland.  62 
-Md.   380,   50   .\m.   Rep.   226. 

31.  Cuney  z:  Campbell.  76  Mimi. 
59,  78  N.  W.  878;  Murray  z:  Young, 
12  Bush  (Ky.)  337:  Freidman  f. 
McGowan  (Del.),  42  .\tl.  723; 
Chenny  z\  Russell,  44  Mich.  620,  7 
N.  W.  234:  Trinity  &  S.  R.  Co.  r. 
O'Brien,  18  Tex.  Civ.  .'Vpp.  6go.  46 
S.  W.  389:  Cameron  z\  Bryan,  89 
Iowa  214.  56  N.  W.  434:  Triolo  z\ 
Foster  (Te.x.  Civ.  App. ),  v  S.  \V. 
698. 

Knowledge  May  Be  Inferred  From 
Notorious  Reputation  of  Dog. —  If 
one  keeps  upon  his  premises  a  dog 
which  has  attacked  or  bitten  a  con- 
siderable number  of  persons  coming 
upon  or  passing  by  them,  and  is 
notoriously  cross  and  vicious,  it  may 
safely  be  assumed  that  the  owner 
has  some  knowledge  of  the  fact. 
The  evidence  of  general  repute  is,  in 
such  cases,  received  not  to  prove  the 
particular  fact  of  the  dangerous 
propensity  of  the  animal,  but  the 
public  notoriety,  and  as  tending  to 
support  the  inference  of  knowledge 
on  the  part  of  the  owner,  of  such 
propensity."  Fake  z:  .\ddicks.  45 
Minn.  37,  47  N.  W.  450,  22  .Am.  St. 
Rep.  716. 


ANIMALS. 


899 


(e.)  Conduct  Contrary  to  General  Habits.  —  It  is  not  competent  for 
the  owner  of  a  clog  to  give  evidence  tending  to  sliow  that  the  con- 
duct of  the  dog  on  a  given  occasion  was  contrary  to  his  general 
habits  for  peaceableness.-'- 

(3.)  Damages — (A.)  Pixti.iak  Paimulness  of  Injvrv.  —  It  is  com- 
petent to  show  by  medical  experts  that  wounds  from  dog  bites  are 
more  painful  and  more  difificult  to  heal  than  those  made  from  clean 
instruments  requiring  altogether  different  treatment/''' 

(B.)  Dreau  or  HviiRopHoiiiA. — Testimony  of  the  injured  person  as 
to  dread  of  hydrophobia  as  the  result  of  a  bite  of  a  dog  is  admissible 
upon  the  question  of  damages. ^■' 

(C.)  Expression  iNnicATivE  ok  Mental  Sufi-ering.  —  Testimony  of 
physicians  and  others  respecting  expressions  uttered  in  their  hearing 
by  persons  injured  by  dogs  as  indicative  of  mental  suffering  is  not 
admissible."^ 


32.  Buckley  v.  Leonard.  4  Dc-nio 
(N.  Y.)  500;  Linck  -■.  Scheffel.  32 
111.  App.   17. 

In  an  action  for  injuries  caused 
by  a  dog  jumping  at  the  head  of  a 
horse  plaintifif  was  driving  along  the 
highway  and  causing  it  to  run  away 
and  throw  plaintiff  out  of  the  vehicle, 
it  was  held  that  the  defendant  was 
not  entitled  to  show  that  the  actiors 
of  the  dog.  a  the  time  of  the  injury, 
as  claimed  liy  the  plaintiff,  were  con- 
trary to  his  habits  and  disposition. 
Willett  -'  Goetz,  12=;  Mich.  s8i,  84 
N.  W.  1071. 

At  the  trial,  it  appearing  the  dog 
had  bitten  the  plaintiff  while  he  was 
walking  in  the  highway.  It  was 
held  that  the  trial  court  properly 
e.xcluded  offered  proof  that  the  dog 
was  peaceable  and  had  not  been 
known  to  attack  anyone  but  the 
plaintifif.  Kelly  7'.  .\lderson,  ig  R.  I. 
544.  37  Atl.  12. 

Injury  From  Party's  Own  Wrong 
Not  Actionable.  —  "  The  supposed 
kicking  of  the  dog  did  not  appear 
to  have  been  done  for  a  justifiable 
purpose,  the  only  evidence  on  the 
subject  being  an  admission  of  the 
plaintifif,  which  was  testified  to,  that 
he  kicked  the  dog.  and  it  bit  him. 
If  the  plaintiff  wantonly  irritated 
and  aggravated  the  dog,  and  the 
dog  bit  him,  in  repelling  the  ag- 
gression, and  not  from  a  miscliievous 
propensity,  which  we  understand  to 
be  the  purport  of  the  instruction, 
then   the   plaintiff   should   not   be   al- 


lowed to  recover  for  damages  caused 
by  his  own  wrong."  Keightlinger  v. 
Egan.  65  III.  235. 

33.  Expert  Medical  Testimony  As 
to  Peculiar  Nature  of  the  Dog  Bite 
Wound.  —  In  an  action  to  recover 
damages  for  bite  of  a  vicious  dog  it 
was  held  competent  for  plaintiff  to 
show  by  expert  medical  testimony 
that  a  wound  made  by  a  dog  is 
more  painful  to  the  patient  than  one 
made  by  a  clean  instrument ;  and  that 
"  a  wound  of  this  kind — a  lacerated 
wound  by  a  dog  or  any  other  animal, 
is  considered  by  recent  surgeons  as 
being  altogether  different,  and  is 
treated  differently  from  wounds 
made  by  clean  instruments  or  from 
wounds  made  by  the  surgeon's  knife 
and  for  the  reason  that  there  is  more 
tearing  of  the  tissue."  Sanders  r. 
O'Callaghan.  in  Iowa  574,  82  N.  W. 
gfig. 

34.  Godcau  v.  Blood,  52  Vt. 
2SI,  36  Am.  Rep.  751  ;  Trinity  &  S. 
R'.  Co.  !■.  O'Brien.  18  Tex.  Civ.  App. 
600.  46   S.   \V.   380. 

Hydrophobia.  Evidence  of  Dread 
of,  Admissible It  was  held  com- 
petent to  put  to  the  plaintifif  in  an 
action  to  recover  damages  for  the 
bile  of  a  dog,  the  question  :  "  Have 
you  or  not  been  afraid  of  hydro- 
phobia ever  since  you  were  bitten 
by  this  dog?  "  Friedman  ,'.  AIc- 
Gov.-an    (  Del).  42  .\tl.  723. 

35.  Exclamations     Indicative     of 

Mental   Suffering   Inadmissible It 

is  not  competent  to  admit  statements 

Vol.  I 


900 


AXJM.ILS. 


b.  Matters  of  Defense. — -(I.)  Contributory  Negligence.  —  Evidence 
of  negligence  in  the  ordinary  sense  not  being  required  to  fasten 
liability  upon  the  owner  of  a  vicious  dog  for  his  acts,  neither  is 
evidence  of  contributory  negligence  in  the  ordinary  sense  admissi- 
lile  in  extenuation  or  defense  of  an  action  predicated  upon  such 
acts.^"  But  it  is  competent  to  prove  facts  tending  to  show  that  the 
person  injured  brought  the  injury  upon  himself  by  his  own  wrong  or 
received  it  while  in  the  commission  of  an  unlawful  act  directly 
contributing  thereto/'" 

IV.  ANIMALS  INJURED  OR  KILLED. 

1.  Failure  to  Maintain  Visible  Cattle  Guards.  —  In  actions  against 
railroad  companies  for  stock  killing  it  is  competent  to  show  as 
bearing  upon  the  charge  of  negligence  that  essential  cattle  guards 
were  suffered  to  fill  up  with  sand  and  become  obscure  from  the 
view  of  live  stock  by  the  growth  of  weeds,  grass  and  other  vegeta- 
tion."-'* 

2.  Circumstances  to  Fix  Prima  Facie  Liability.  —  Circumstances 
alone,  unsupported  by  testimony  of  any  eye  witnesses,  mav  be  suffi- 
cient to  establish  a  prima  facie  liability  upon  the  part  of  a  railroad 
company  for  injury  to  an  animal  from  one  of  its  trains.'"' 


01  a  physician  respecting  exhibitions 
of  anguish  made  by  a  patient  on 
being  informed  of  the  possible  re- 
suhs  from  the  bite  of  a  dog.  Trinity 
&  S.  R.  Co.  z:  O'Brien,  i8  Tex.  Civ. 
App.  690,  46  S.   W.  .?89. 

Words  Spoken  in  Sleep.  —  "  Take 
him  off  the  dog  was  biting  him  "  ut- 
tered by  a  boy  two  or  three  niglits 
after  being  assauhed  by  a  dog,  lield 
inadmissible.  Phinnner  v.  Ricker,  71 
Vt.  114,  41  Atl.  1045,  76  Am.  St. 
Rep.   757. 

36.  iMuUer  r.  McKesson,  73  N.  Y. 
195,  29  Am.  Rep.  123;  Van  Bergen 
-i'.  Eulberg,  III  Iowa  139.  82  N.  W. 
483 ;  Fake  r.  Addicks,  45  Minn.  37, 
47  N.  W.  450,  22  Am.  St.  Rep.  716; 
Lynch  V.  McNally,  73  N.  Y.  347 ; 
Linck  z'.  Scheffel,  32  111.  App.  17; 
Raymond  v.  Hodgson,  161  Mass.  184, 
36  N.  E.  791  ;  Wolff  f.  Lamann.  21 
Ky.  Law  1780.  56  S.  W.  408:  Plum- 
ley  7>.  Birge,  124  Mass.  57,  26  Am. 
Rep.  645. 

37.  Keightlinger  z'.  Egan,  65  111. 
235 ;  Stuber  v.  Gannon,  98  Iowa  228, 
67  N.  W.  105 ;  Chickering  r.  Lord, 
67  N.  H.  555,  32  All.  773 :  Bush  v. 
Wathen,  20  Ky.  Law  731,  47  S.  W. 
599;  Sanders  z'.  O'Callaghan.  iti 
Iowa  574,  82  N.  \y.  969. 

Vol.  I 


38.  Evidence  to  Show  Previous 
Bad     Condition     of     Cattle     Guards 

Competent Evidence    showing    the 

condition  of  cattle  guards  and  fences 
at  place  where  animals  killed  got  on 
right  of  way  a  year  before,  followed 
by  proof  of  their  continuous  bad 
condition  from  then  until  the  time 
of  the  injury,  is  competent.  Chicago 
&  E.  I.  R.  R.  Co.  V.  Chipman,  87 
111.  App.  292. 

39.  Burlington  &  M.  R.  R.  in  Neb. 
I'.  Campbell,  14  Colo.  App.  141,  59 
Pac.  424;  Louisville  &  N.  R.  Co.  v. 
Solomon,  127  Ala.  189,  30  So.  491 ; 
Louisville  &  N.  R.  Co.  v.  Lancaster, 
121   Ala.  471,  25  So.  733. 

"  There  was  evidence  from  which 
the  jury  might  have  inferred  that 
the  engineer  could  have  seen  the  ani- 
mals on  the  track  in  time  to  have 
stopped  short  of  striking  them.  If 
tliis  were  true,  it  was  his  duty  to 
see  them,  and  a  failure  to  perform 
that  duty  was  damnifying  negligence. 

"  There  was  no  burden  on  the 
plaintiff  to  prove  that  the  tracks  tes- 
tified to  by  one  witness  were  made 
by  the  mare  or  colt,  or  by  the  colt 
alone,  at  the  titne  of  the  killing. 
That  may  have  Ijeen  important  evi- 
dence   for    the    plaintiff,    but    to    say 


ANIMALS. 


901 


3.  Foot-Prints  of  Animals  Near  Place  of  Injury.  —  Evidence  of 
foot-])rint.s  of  animals  near  the  ]5lace  of  injnry  is  not  only  compe- 
tent, but  may  have  the  effect  to  outweigh  the  testimony  of  eye  wit- 
nesses upon  given  points  of  proof.'"' 

4.  Proof  of  Value  of  Animals.  —  A.  Special  L'si:i"llxess  of  Dog. 
In  actions  wherein  the  supposed  pecuniary  value  of  the  dog  may 
come  in  question,  and  there  be  no  statutory  guide  nor  attainable 
market  standard,  it  may  still  be  competent  to  introduce  evidence 
tending  to  show  that  by  his  usefulness  and  services  the  dog  has 
rendered  himself  of  some  special  pecuniary  value  to  his  owner.''^ 

B.  Pkdicrek.  —  As  respects  animals  of  certain  exceptional  quali- 
ties, l)red  and  maintained  for  especial  ijurposes,  evidence  of  pedigree 
is  admissible  as  affecting  the  estimate  of  value.''-     And  it  is  held 


that  the  burden  was  on  him  to  pro- 
duce it  is  inapt,  confusing  and  mis- 
leading. The  jury  might  well  have 
been  reasonably  satisfied  that  the 
tracks  were  made  by  the  animals 
killed,  or  one  of  them,  and  still  have 
had  a  doubt  on  that  point."  Louis- 
ville &  N.  R.  Co.  V.  Brickerhoff,  iig 
Ala.  6o6,  24  So.  892. 

Circumstances  Unsupported  by 
Eye  'Witnesses  Sufficient  Prima 
Facie. —  The  plaintiff  described  his 
animal  as  "a  four  year  old  half 
bred  polled  Angus  bull,  branded 
M.  K.  on  the  left  side,  and  a  piece 
cut  out  of  his  ear."  Two  other  wit- 
nesses .testified  that  the  bull  was 
plaintiff's:  the  evidence  further 
showed  that  it  was  snowing  up  to 
9  p.  M.  of  the  night  of  the  killing, 
that  tlie  tracks  at  the  place  of  killing 
were  straight  for  a  mile  or  more ; 
that  there  were  tracks  between  the 
rails  for  some  distance  to  where 
the  first  bull  was  knocked  ofif  the 
track,  and  some  twenty  steps  fur- 
ther to  where  the  second  bull  was 
struck.  There  was  snow  on  the 
ground ;  the  animals  were  black. 
The  court  said :  "  We  think  suffi- 
cient was  shown  by  plaintiff  to  put 
the  defendant  to  its  proof.  In  fact, 
we  do  not  well  see,  in  the  absence 
of  an  eye  witness,  how  more  could 
be  proved  by  plaintiff."  Kelly  v. 
Oregon  Short  Line  R.  Co.  (Idaho), 
38  Pac.  404. 

40.  Illinois  Cent.  R.  Co.  v.  Aber- 
nathey  (Tenn.'),  64  S.  W.  3;  Louis- 
ville &  N.  R.  Co.  V.  Brinkcrhoff,  119 
Ala.  606,  24  So.  892. 


41.  Spray  i'.  Ammerman,  66  111. 
309. 

Evidence  of  Either  Market  or 
Peculiar  'Value  to  Owner  Is  Compe- 
tent  The  value  of  a   dog  may  be 

either  a  market  value,  if  the  dog 
has  any,  or  some  special  or  pecuniary 
value  to  the  owner  that  may  be  as- 
certained by  reference  to  the  useful- 
ness and  services  of  the  dog. 
Heiligmann  7'.  Rose,  81  Tex.  222, 
16  S.  W.  931,  26  Am.  St.  Rep.  804. 

Farmers  who  know  the  value  of  a 
shepherd  dog,  which  is  chiefly 
valuable  for  its  ability  to  herd  cattle 
and  horses,  can  give  their  opinions 
as  to  the  value  without  showing  that 
the  dog  has  any  marketable  value 
on  account  of  his  breed  or  peculiar 
qualities  which  make  him  salable  at 
some  appro.ximately  regular  price. 
Bowers  v.  Horen.  93  ^lich.  420.  53 
S.  W.  535,  32  .Am.  St.  Rep.  573,  i7 
L.  R.  A.  773. 

42.  Pacific  Exp.  Co.  v.  Lothrop, 
20  Tex.  Civ.  App.  339,  49  S.  W.  888; 
Ohio  &  Miss.  R.  Co.  •:■.  Stribling.  38 
111.   App.   17. 

Evidence    of    Pedigree    Admissible 

on    ftuestion    of    Damages In    an 

action  for  alleged  negligent  killing 
of  a  race  horse  by  a  railroad,  it  was 
held  competent  to  show  the  pedigree 
of  the  animal  as  shown  by  the.  Amer- 
ican Stub  books ;  the  court  said : 
"  Undoubtedly  the  pedigree  of  a 
race  horse  constitutes  an  important 
element  in  determining  its  value,  as 
it  is  matter  of  common  knowledge 
that  a  much  larger  proportion  of 
thoroughbred    horses    are    successful 

Vol.  1 


')()2 


ANIMALS. 


also  that  evidence  of  pedigree  admissible  in  cases  involving-  animals 
more  purely  domestic  may  be  given  in  the  case  of  a  dog/'' 

C.  Opinions  of  Farmers  and  Others.  —  In  localities  where  the 
business  of  buying  and  selling  animals  is  not  carried  on  to  the 
extent  of  establishing  a  general  market  value,  farmers  and  others 
who  have  owned  and  used,  bought  and  sold  animals  of  similar 
character,  are  competent  witnesses  to  give  their  opinions  as  to 
value.*'' 

D.  Matters  in  Mitigation.  —  a.  Bad  Habits.  —  Evidence  of  the 
bad  habits  of  a  dog  may  be  given  in  evidence  in  an  action  to  recover 


racers  than  horses  not  so  bred." 
Louisville  &  N.  R.  Co.  v.  Kice,  22 
Ky.  Law  1462.  60  S.  W.  705. 

In  an  action  against  a  railroad  com- 
pany for  kilhng  and  injuring  horses 
il  was  held  competent,  as  effecting 
the  estimate  of  value,  to  give  evi- 
dence of  the  pedigree  of  a  certain 
mare,  showing  her  blood  relationship 
to  Jay  Eye  See,  and  other  noted 
trotting  horses;  and  that  for  the  pur- 
pose of  proving  the  speed  of  sucli 
trotters  it  was  held  competent  to 
introduce  records  of  the  American 
Trotting  Association  evincing  it,  but 
not  by  statements  of  one  who  pur- 
ported to  have  read  such  record. 
Pittsburgh  C.  C.  &  St.  L.  R.  Co. 
f.  Sheppard,  56  Ohio  St.  68,  46  N.  E. 
61,  60  Am.  St.  Rep.  732. 

Evidence  as  to  the  name  of  the 
sires  of  the  animal  and  unborn  foal 
is  admissible  as  an  element  of  market 
value.  Ohio  &  Miss.  R.  Co.  v. 
Slribling.  38  III.  App.   17. 

The  blood  and  excellence  of  th" 
sire  and  dam  of  the  animal  alleged 
to  have  been  killed  were  circum- 
stances merely  for  the  jury's  con- 
sideration in  passing  upon  the  evi- 
dence which  was  offered  to  prove 
the  market  value  of  the  bull  for 
whose  death  the  recovery  was 
sought.  Richmond  &  D.  R.  Co.  v. 
Chandler    (Miss.).   13  So.  267. 

43.  Hodges  z>.  Causey,  77  Miss. 
3.=;3,  26  So.  945,  78  Am,  St.  Rep.  525; 
Hamilton  &  Son  z:  Wabash,  St.  L. 
S:  P.  R.  Co.,  21   INIo.  .A.pp.  132. 

Pedigree,  When  Evidence  of,  Ad- 
missible  In  an  action  for  the  in- 
jury and  killing  of  a  dog  much 
evidence  was  given  on  the  trial  upon 


the  question  of  the  dog's  pedigree 
and  ancestry.  The  court  said :  "  It 
is  shown  that  certain  books  are  kept, 
and  in  them  there  is  a  registration 
of  pedigrees  kept  for  the  information 
of  the  public,  not  only  as  to  horses, 
but  also,  as  to  cattle  and  dogs.  Upon 
the  general  question  as  to  the  admis- 
sibility of  evidence  of  the  dog's 
pedigree,  and  the  qualities  and  per- 
formances of  his  ancestors,  we  think 
there  can  be  no  doubt  but  that  such 
evidence  is  competent.  The  question 
of  pedigree  is  really  important  so 
far  only  as  it  bears  upon  the  question 
of  value  of  the  animal  killed." 
Citizens  Rapid  Transit  Co.  i'.  Dew, 
100  Tenn.   317,  45   S.   W.   790. 

44.  Opinions  of  Farmers  Admis- 
sible as  to  Value —  "  The  witnesses 
who  testified  as  to  value  of  the  mare 
were  owners  of  similar  animals,  used 
them,  and  had  for  years,  in  their 
occupation  as  farmers ;  had  bought 
them.  and.  in  some  instances,  sold 
animals  of  this  character ;  and  we 
think  that  under  such  circumstances 
their  opinion  as  to  the  value  was  com- 
petent, and  of  weight  and  should  not 
be  rejected  because  there  did  not 
happen  to  be  an  established  and  gen- 
eral market  value  for  such  animals  in 
that  community,  there  being  no  [per- 
son in  that  neighborhood  engaged  ac- 
tively in  the  business  of  buying  and 
selling  horses,  so  as  to  establish  a 
market  value."  Burlington  &|M.  R. 
R.  in  Nebraska  v.  Campbell,  14  Colo. 
.\pp.   141.  59  Pac.  424. 

The  testimony  as  to  the  value  of 
the  horse  by  the  appellee  and  his 
neighbors  who  knew  it.  was  com- 
petent although  they  did  not  profess 


Vol.  I 


ANIMALS.  903 

damages  for  liis  killing-,  not  in  bar  of  the  action,  bnt  in  mitigation 
of  damages.^'* 

to   lie   experls.      Louisville   &    N.    R.  45.     Reynolds    ?■.    Phillips,    13    111. 

Co.    f.    Tones.    21    Kv.    Law    749.    c,2       App.  557;  Dunlap  i'.  Snvder,  17  Barb. 
S.   W.   938.  (N.  Y.)  561. 


ANNUITIES. — See    Insurance- Value  ;    Expectation  of 
Life  ;  Mortality  Tables. 

Vol.  I 


ANSWERS. 

By  John  D.  Works. 

I.   SCOPE  OF  THE  ARTICLE,  (joC 

II.  ANSWERS  IN  SUIT  IN  EQUITY,  .jor. 

1.  Coin[>ctc>it  lii-idcncc  for  Defendant,  906 

2.  Not  Competent,  Read  by  Opposing  Party,  Eridcnee  for  All 

Purposes,  907 

3.  Jl'/iat  AU'cessary  to  Overcome  Effect  of,  907 

A.  IVIien  by  Documentary  Evidence,  910 

B.  Where  Bill  Is  J'erified,  910 

C.  Rule  Has  Its  Exceptions,  912 

D.  Offered  iii  Action  at  La/rc,  Rule  Ahit  Applicable.  i)i2 

E.  Where  Plaintiff  Offers  in  Action  at  Laiv,  913 

4.  Cannot  Contradict  ll'ritten  Agreement,  913 

5.  Competency  of  Not  Dependent  on  Defendant's  Conipeleucy 

As  a  Witness,  913 

6.  Cannot  Be  Weakened  by  Impeachment  of  Defendant,  1^13 

7.  But  May  Be  by  Defects  or  Contradictions,  914 

8.  And  by  Defendant's  'I'estimony  at  Trial,  915 

9.  Contradicted  in  Material  Point    Effect  of,  916 

10.  Dismissal  of  Bill  Destroys  as  Evidence,  916 

11.  Not  Evidence  for  Defendant  in  Another  Action,  916 

A.   To  Bill  of  Disco-i'cry  Offered  in  Action  at  Lai^'.  ijif' 
1).   Jl'hen  Offered  on  an  Issue  of  Pact,  917 

12.  I'aken  To  Be  'True  Until  Disproved,  917 

A.  Complainant  May  Disprove,  917 

a.  Rule  Where  Bill  Is  for  Discovery  Only,  917 
JJ.  Must  Be  Direct,  Responsive  and  Without  Evasion.  91S 

a.  General  Denial,  Wlicn  Sufficient,  919 

b.  .Irgumentative,  Not  Competent,  920 

c.  What  Is  Responsive,  ()20 

(1.  /;(  .-ivoidance  Not  Evidence,  921 
e.  Is  .Answer  of  Payment  Responsive,  925 
f.   When  .-Idniission  and  Avoidance  One  Fact.  1)25 
g.  //  Responsive  Competent,  Whether  Affirmative  or 
Negatiir,  926 
Vol.  I 


ANSWERS.  <>(I5 

h.  Competent   Only   Where  Evideiiee  of  Juiet    Would 

Be,  926 
i.  Part  Dcfectk'e,  Balance  Competent.  i;2f) 
j.  Hearsay  Not  Evidence,  926 

13.  0;/  Heaving  on  Bill  and  Answer,  926 

A.  Ansu'er  Taken  To  Be  True,  926 
a.  Statutory  Modification,  928 
1).  Kule  Applies  Only  to  Pertinent  Facts,  928 
c.  Admission  in  Must  Be  Considered ,  928 
(1.   li'hen  Rule  .Ip plies,  928 

14.  On  Bill.  Ansii'cr  and  Replication,  928 

15.  Effect  of  Calling  For,  Modified  by  Statute.  982 

16.  Under  Oath   JFait'cd,  Inconifetent  for  Defendant,  929 

A.  JVaizrr  Must  Be  in  the  Bill,  929 

B.  Competent  in  Support  of  Motion  to  Dissokr  Injunction, 

932 

17.  Not  Verified  Not  Competent  for  Defendant,  932 

18.  J'erified  by  One  Not  Having  Knoivledge,  933 

19.  Must  Be  J'erified  by  Defendant,  934 

20.  Oil  Belief  or  Information  and  Belief,  934 

21.  Of  Corporation  Szcorn  to  by  Officer,  935 

22.  Of  Corporation  Under  Seal,  936 

2^.   Wlieii   Competent  in  Favor  of  Co-Defendant,  937 

24.  E.vecution  of  Instrument  A^ot  Proved,  939 

25.  When  Not  Evidence  011  Appeal,  939 


CROSS-REFERENCES. 

Admissions; 

Best  and  Secondary  Evidence; 

Corporations; 

Pleadings; 

Witnesses; 

Written  Instrnments. 

Vol.    I 


90f. 


ANSWERS. 


I.  SCOPE  OF  THE  ARTICLE. 

The  effect  of  answers  as  evidence  of  admissions  has  heen  con- 
sidered.^ Answers  under  the  common  law  and  code  systems  of 
pleading  need  no  special  treatment  under  this  head.  They  are  not 
competent  as  original  affirmative  evidence,  in  favor  of  the  party 
pleading  them  to  establish  any  fact  they  may  set  up.  Therefore  it 
is  as  admissions,  almost  entirely,  that  such  answers  are  competent 
as  evidence.  They,  like  other  pleadings,  may  be  received  to  show 
tliat  such  a  pleading  was  filed  in  a  given  case,  or  what  the  issues  in 
that  case  were  and  the  like,  but  no  farther. 

As  to  the  competency  of  evidence  under  the  issues  formed  liy  the 
pleadings,  depending  upon  whether  the  answer  is  sufficient  or  in 
proper  form  to  admit  proof,  it  will  be  taken  up  under  the  title 
"  Pleadings." 

II.  ANSWEES  IN  SUIT  IN  EQUITY. 

The  effect  of  the  answer  in  equity  as  evidence  constituting  ad- 
missions of  the  defendant  has  been  considered  in  another  place.-  In 
this  article  its  effect  as  original  evidence  in  favor  of  the  defendant 
will  be  treated. 

1.  Competent  Evidence  for  Defendant.  —  The  most  important  dif- 
ference between  answers  in  suits  in  equity  and  in  actions  at  common 
law,  and  under  the  codes,  is  that  they  are,  ivherc  called  for  undcv 
oath  by  the  bill,  ami  respoiisi7'e  thereto,  competent  and  material  evi- 
dence for  the  defendant. •'• 


1.  Sec  "  AiiMissioNs."  p.  452. 

2.  See  "  AiiMissiONs,"  p.  443. 

3.  When  Competent  Evidence  for 

the     Defendant Story's     Eq.     PI., 

§  849a  ;  Beach  Mod.  Eq.,  §  366. 

United  States' — Farley  i'.  Kitt- 
son, 120  U.  S.  303,  7  Sup.  Ct.  5.34; 
Morgan  v.  Tipton,  3  McLean  ag,  17 
Fed.  Cas.  No.  9809;  Slessinger  v. 
Buckingham,   17  Fed.  454. 

Alabama.  —  Hogan  v.  Smith,  16 
Ala.  (N.  S.)  600;  Walthall  v.  Rives, 
34  Ala.  91 ;  Marshall  v.  Croom,  52 
Ala.    554- 

Arkansas.  —  Morrison  v.  Peay,  21 
Ark.  no;  Magness  v.  Arnold,  31 
Ark.  103;  Scott  V.  Henry,  13  Ark. 
112;  Roberts  v.  Totten,  13  Ark.  609. 

Dehnvarc.  —  In  Wharton  v.  Clem- 
ents, 3  Del.  Ch.  209,  it  was  contended 
that  an  answer  should  not  be  al- 
lowed as  evidence  in  a  suit  charging 
the  defendant  with  fraud.  But  the 
court  held  that  the  answer  was  com- 
petent the  same  as  in  other  cases. 

Georgia.  —  Eastman  i'.  McAlpin,  i 
Kcllcy    157. 

Vol.  I 


Illinois.  —  Mev 


■  Achev 


GuUiman,     105 
■■.    Stephens,    8 


Indiana 
Ind.  411. 

.Maryland.  —  Stewart  v.  Duvall,  7 
Gill.  &  J,  179;  Dillv  1:  Barnard,  8 
Gill.    &   J.    170. 

Micltigan. — Schwarz  v.  \\'endell,  i 
Walk.  267 ;  Darling  v.  Hurst,  39 
Mich.   765. 

Mississij^t'i.  —  Petrie  v.  Wright,  6 
Smed.  &  M.  647. 

North  Carolina. — Hughes  v.  Black- 
well,  6  Jones  Eq.  7i\  Morrison  v. 
Meacham.  4  Ired.  Eq.  381. 

Pennsylvania.  —  Eberlv  v.  Groff,  21 
Pa.   St.  25I. 

South  Carolina.  —  President  etc.  of 
Branch  Bank  of  Columbia  v.  Black, 
2   McCord  Eq.  344. 

Tennessee.  —  Jones  v.  Perry,  lO 
Verg.  59:  McConnell  7'.  Com'rs.  etc., 
2  Humph.  53:  Shown  v.  McAIakin,  9 
Lea   601,   42   Am.   Rep.   680. 

Vermont.  —  Blaisdell  v.  Bowers,  40 
V't.   126. 

Virginia.  —  Chapman   f.   Turner,    i 


ANSWERS. 


907 


2.  Not  Competent,  Read  by  Opposing  Party,  Evidence  for  All  Pur- 
poses. —  And  where  the  answer,  not  being  competent  in  favor  of  a 
defendant,  is  read  in  evidence  by  the  opposing  party,  it  thereby 
becomes  evidence  for  all  ]nirposes,  and  so  much  tliereof  as  is  bene- 
ficial to  the  defendant  inures  to  his  benefit.^ 

3.  What  Necessary  to  Overcome  Effect  Of.  —  The  answer  is  gen- 
erally held  to  be  of  such  force  and  weight,  as  evidence  in  favor  of 
the  defendant,  that  it  must  be  overcoine  by  evidence  of  greater 
weight  than  that  of  one  witness.'' 


Call  280.  I  Am.  Dec.  514;  Major  i\ 
Ficklin.  85  Va.  732,  8  S.  E.  715. 

Ill  Ponieroy  i'.  Manin,  2  Paine  476, 
19  Fed.  Cas.  No.  11.260,  it  was  con- 
ceded tliat  in  the  slate  of  Connecti- 
cut an  answer  in  cliancery  is  not  evi- 
dence for  the  defendant  nnless  the 
complainant  seeks  a  disclosure,  by 
an  appeal  to  the  conscience  of  the 
defendant,  but,  that,  in  the  United 
States  courts,  a  diflferent  rule  obtains 
and  that,  upon  a  removal  to  the 
federal  court,  the  practice  in  the 
state  court  would  not  be  followed. 

In  Tracy  v.  Rogers,  69  111.  662, 
it  was  held  that  the  rule  in  chancery 
making  the  answer  of  the  defendant 
evidence  in  his  favor,  applied  to  an 
action  to  foreclose  a  mechanic's  lien. 

In  Chaffin  z'.  Chaffin,  2  Dev.  Eq. 
255.  the  question  was  as  to  the  effect 
of  answers  to  interrogatories,  by  the 
defendant,  the  suit  being  one  for  an 
accounting  and  it  was  held  that  the 
answer  to  interrogatories  stood  on 
the  same  footing,  as  evidence,  as  an 
answer  to  the  bill. 

4.  Roberts  v.  Tennell,  3  B.  Mon. 
(Ky.)  247. 

5.  'What  Degree  of  Proof  Neces- 
sary 10  Overcome  Answer i  Story 

Eq.  PI.,  §8493;  Beach  .Mod.  Eq., 
§366. 

England.  —  Evans  v.  Bicknell,  6 
Ves.  174,  5  Rev.  Rep.  245;  Cooth  v. 
Jackson.  6  Ves.  12;  lilortimer  v. 
Orchard,  2  Ves.  Jr.  243 ;  East  India 
Co.  V.  Donald,  9  Ves.  275 ;  Cooke  v. 
Clayworth,  18  Ves.  12,  II  Rev.  Rep. 
137;  Savage  v.  Brocksopp,  i8  Ves. 
336;  Walton  V.  Hobbs,  2  Atk.  19; 
Sanson  v.  Rany,  2  Atk.  140;  Only  v. 
Walker,  3   Atk.  407. 

United  Slates.  —  Hughes  t'.  Blake, 
6  Wheat.  453 ;  Southern  Develop- 
ment Co.  7'.  Silva,  125  U.  S.  247,  8 
Sup.  Ct.  881  ;   Union  Bank  v.  Geary, 


5  Pet.  99 ;  Voorhees  v.  Bonesteel,  16 
Wall.  16:  Carpenter  z:  Providence 
etc.  Ins.  Co.,  4  How.  185 ;  Morrison 
I'.  Durr,  122  U.  S.  518,  7  Sup,  Ct. 
1215;  Vigel  v.  Hopp,  104  U.  S.  441; 
Oilman  r.  Libbey.  4  Cliff.  447,  10 
Fed.  Cas.  No.  S44=i ;  Scammon  v. 
Cole,  3  Cliff.  472",  2"i  Fed.  Cas.  No. 
12,432;  Parker  v.  Phetteplace,  2 
Cliff.  70,  18  Fed.  Cas.  No.  10,746; 
Dadger  f.  Badger,  2  Cliff.  137.  2  Fed. 
Cas.  No.  718;  Delano  v.  Winson,  I 
Cliff.  501,  7  Fed.  Cas.  No.  3754: 
Cushing  z'.  Smith,  3  Story  556,  6 
Fed.  Cas.  No.  3511 ;  McNeil  v. 
Magee,  S  Mason  244,  16  Fed.  Cas. 
No.  8915;  Towne  z'.  Smith,  i  Woodb. 

6  M.  115,  24  Fed.  Cas.  No.  14,115; 
Slessinger    z\    Buckingham,    17    Fed. 

454- 

Alabunia.  —  Hogan  z:  Smith,  16 
.\la.  (N.  S.)  600;  Edmonson  i'.  Mon- 
tague, 14  Ala.  (N.  S.)  370;  May  v. 
Barnard,  20  Ala.  200;  McMekin  z'. 
Bobo,  12  Ala.  (N.  S.)  268;  Camp 
I'.  Simon.  34  .Ma.  126:  Beene  v. 
Randall.  23  Ala.  514;  Bryan  v. 
Cowart,  21  Ala.  92;  Marshall  v. 
Howell,  46  Ala.  318;  Marshall  v. 
Croom,  52  Ala.  554;  Turner  Z'.  Flinn, 
67  Ala.  529;  Tompkins  v.  Nichols, 
53  Ala.  197;  Smith  z\  Rogers,  i 
Stew.  &   P.  317. 

Arkansas.  —  Cummins  z:  Harrell, 
6  Ark.  308;  Wheat  z:  Moss,  16  Ark. 
243;  Jordon  z'.  Fenno,  13  .Ark.  593; 
.A.iken  z\  Harrington.  12  Ark.  391 ; 
Byrd  z\  Belding,  18  Ark.  118;  Dunn 
z'.  Graham,  17  Ark.  60;  Spence  v. 
Dodd,  19  Ark.  166. 

Dclazvare.  —  Pickering  -■.  Day,  2 
Del.  Ch.  333;  Davidson  v.  Wilson, 
3  Del.  Ch.  307 ;  McDowell  -'.  Bank  of 
Wilmington  etc.,  i  Harr.  369;  Small 
r.   Collins,  6  Houst.  273. 

Florida.  —  White  z:  Walker,  5  Fla. 
478;    Carr  z'.   Thomas,    18  Fla.   736; 

Vol.  I 


908 


ANSWERS. 


Some  of  the  cases  hold  that  the  answer  must  prevail  unless  over- 


Stephens  I'.  Ornian,  lO  Fla.  9;  Fos- 
ter V.  Ambler,  24  Fla.  519,  5  So.  263. 
Georgia.  —  Gait  v.  Jackson,  9  Ga. 
151 ;  Williams  v.  Pliilpot,  19  Ga. 
567;  Harris  v.  Collins,  75  Ga.  97; 
Durham  v.  Taylor,  29  Ga.  166; 
White  V.  Crew,  16  Ga.  416;  Robin- 
son V.  Hardin,  26  Ga.  344 ;  Low  v. 
Argrove,  30  Ga.   129. 

Illinois.  —  Mey  7'.  Gulliman,  105 
111.  272;  O'Brian  v.  Fry,  82  111.  274; 
Walton  r.  Walton,  70  111.  142;  Trout 
V.  Emmons.  29  111.  433,  81  Am.  Dec. 
326;  Marple  •:■.  Scott,  41  111.  50; 
Panton  v.  TefFt,  22  111.  367;  Stauffer 
V.  Machen,  16  111.  553;  Swift  v. 
Trustees  of  Schools,  14  111.  493 ; 
Martin  v.  Eversall.  36  111.  222;  Bar- 
ton V.  Moss,  32  111.  so;  Myers  v. 
Kenzie,  26  111.  yi ;  Wildey  v.  Web- 
ster, 42  111.  108;  Blow  V.  Gage,  44 
III.  208;  Fish  V.  Stubbings,  65  111. 
492;  Russell  V.  Russell,  54  111.  250; 
Martin  j'.  Dryden,  i  Gilni.  187 ; 
Richeson  r'.  Richeson,  8  111.  App. 
204. 

Indiana.  —  Green  z\  Vardiman,  2 
Blackf.  324;  Pierce  v.  Gates,  7 
Blackf.  162;  Nash  v.  Hall,  4  Ind. 
444;  Calkins  v.  Evans,  5  Ind.  441; 
McCormick  v.  Malin,  5  Blackf.  508; 
Jenison  z'.  Graves,  2  Blackf.  440. 

Koitucky.  —  Vance  v.  Vance,  5  T. 
B.  Mon.  521  ;  Hudson  v.  Cheatham, 
5  J.  J.  Marsh.  50;  McCrum  v.  Pres- 
ton, 5  J.  J.  Marsh.  332;  Patrick  v. 
Langston,  5  J.  J.  Marsh.  654 ;  Sulli- 
van V.  Bates,  l  Litt.  41 ;  Pringle  v. 
Samuel,  I  Litt.  43,  13  Am.  Dec.  214; 
Patterson  v.  Hobbs,  i  Litt.  275 ; 
Lee  V.  Vaughn,  i  Bibb.  235;  Bibb  v. 
Smith,   I   Dana  580. 

Maine.  —  Gould  v.  Williamson,  21 
Me.  273;  Appleton  v.  Horton,  12 
Me.  23. 

Maryland.  —  Hagthorp  v.  Hook,  I 
Gill.  &  J.  270;  Hopkins  v.  Strunip,  2 
Har.  &  J.  301  ;  Rider  r.  Reily,  22 
Md.  540;  Glenn  v.  Grover,  3'Md. 
212;  West  V.  Flannagan,  4  Md.  36; 
Brooks  V.  Thomas,  8  Md.  367; 
Turner  7'.  Knell,  24  Md.  55 ;  Gelston 
V.  Rullman,  15  Md.  260;  Ing  v. 
Brown,  3  Md.  Ch.  521  ;  Beatty  v. 
Davis,  9  Gill  211;  Roberts  v.  Salis- 
bury, 3  Gill  &  J.  42s;  Thompson  v. 

Vol.  I 


Diffenderfer.  i   Md.  Ch.  489;  Rich  v. 
Levy,  16  Md.  74. 

.Mississippi.  —  Johnson  v.  Crippen, 
62  Miss.  597;  McGehee  v.  White,  31 
Miss.  41 ;  Lee  v.  Montgomery,  I 
Miss.  109;  Nichols  v.  Daniels,  i 
Miss.   224. 

Missouri.  -^  Hcwes  v.  Musick,  13 
Mo.  395  ;  French  t'.  Campbell,  13  Mo. 
485 ;  Roundtreo  v.  Gordon,  8  IMo. 
19 ;  Bartlett  v.  Glascock,  4  Mo.  62. 

Ne-M  Hampshire.  —  Miles  v.  Miles, 
32  N.  H.  147,  64  Am.  Dec.  362: 
Moors  V.  Moors,  17  N.  H.  481;  Hol- 
lister  v.  Barkley,  11  N.  H.  501;  Page 
V.  Page,  8  N.  H.  187;  Lawton  v. 
Kittredge,  30  N.  H.  500;  Warren  v. 
Swett,    31    N.    H.    332. 

Neiv  Jersey.  —  De  Hart  j'.  Baird, 
19  N.  J.  Eq.  423 ;  Stearns  v.  Stearns. 
23  N.  J.  Eq.  167 ;  Chance  z\  Teeple, 
4  N.  J.  Eq.  173;  Neville  v.  Demeritt, 
2  N.  J.  Eq.  321  ;  Wilson  v.  Cobb,  28 
N.  J.  Eq.  177;  Calkins  z:  Landis, 
21  N.  J.  Eq.  133;  Bird  v.  Styles,  18 
N.  J.  Eq.  297 ;  Force  v.  Dutcher,  18 
N.  J.  Eq.  401  ;  Vandegrift  Z'.  Herbert, 
18  N.  J.  Eq.  466;  Brown  v.  Bulkley, 
14  N.  J.  Eq.  294 ;  Bent  7'.  Smith,  22 
N.  J.  Eq.  560;  Kinna  v.  Smith,  3  N. 

J.   Eq.    14 ;   Bent   j'.    Smith,  20  X.   J. 
Eq.   199;   Marlitt   v.   Warwick,   18  N. 

J.   Eq.    108;    Frink  7'.   Adams,  36   N. 

J.    Eq.   48s. 

Nezi'  Mexico.  —  Kcencv   7'.   Carillo, 

2   N.   M.  480. 
Nezi'    York.  —  Smith    i'.    Brush,    i 

Johns.  Ch.  459;  Dunham  v.  Jackson, 

6   Wend.   22 ;    Clason   7'.    Morris,    10 

Johns.    524,    4    N.    Y.    C.    L.    1137; 

Mason    7'.    Roosevelt.    3    Johns.    Ch. 

627 ;    Atkinson    z'.    Holroyd,    I    Cow. 

691,  7   N.  Y.   C.   L.  664:   Stafford  v. 

Bryan,    I    Paige    Ch.    239,    2    N.    Y. 

Ch.  631  ;  Johnson  7'.  Johnson,  i  Edw. 

Ch.  439,  6  N.  Y.  Ch.  201 ;  Cushman 

V.    Shepard,    4    Barb.    113;    Jacks    7'. 

Nichols,  s  N.  Y.  178. 
North   Carolina.  —  Bruce  v.   Child, 

4    Hawks.    372 ;    Lewis    7'.    Owen,    I 

Ired.  Eq.  290;  Averitt  Z'.  Foy,  2  Ired. 

Eq.  224;   Alley  7'.   Ledbctter,   I    Dev, 

Eq.   449;    Hill   7'.   Williams,   6  Jones 

Eq.  242. 
Ohio.  —  Washburn      v.      Holmes, 

Wright  67;   Miami   Importing  Co.  v. 

Bank   of   U.    S.,   Wright   249. 


ANSWERS. 


909 


cunie  b\'  the  satisfactorv  evidence  of  two  witnesses,  or  of  one  witness 


Pennsylvania.  —  Reed's  Appeal 
CPa.  St.),  7  Atl.  174;  Pusey  v. 
Wright,  31  Pa.  St.  387;  Galbraith  7: 
Galbraith,  190  Pa.  St.  225,  42  Atl. 
683 ;  Delaney  Z'.  Thompson,  187  Pa. 
St.  343,  40  Atl.  1023 :  Horton's  Ap- 
peal, 13  Pa.  St.  67;  Eberly  v.  Groff, 
21  Pa.  St.  251;  Campbell  i'.  "Patter- 
son, 95  Pa.  St.  447 ;  Nulton's  .\ppeal, 
103  Pa.  St.  286;  Rowley's  Appeal, 
115    Pa.    St.    150,   9   Atl.   329. 

South  Carolina.  —  Moffat  1:  Mc- 
Dowall,  I  McCord  Eq.  434;  Mc- 
Dowell I'.  Teasdale,  i  Des.  Eq.  457; 
Martin  z:  Sale,  Bailey  Eq.  i ;  John- 
son z'.  Slawson,  Bailey  Eq.  453; 
^IcCaw  z:  Blewit,  2  McCord  Eq.  90. 
Tennessee.  —  Spurlock  ?'.  Fulks.  i 
Swan  '289;  Searcy  f.  Pannell,  3 
Cooke  no;  Meek  v.  McCormick 
(Tenn.),  42  S.  W.  458;  Van  Wyck 
z'.  Norvell,  2  Humph.  192 ;  Baker  v. 
Barfield,  23  Tenn.  515 ;  Davis  v. 
Turner,  10  Heisk.  447 ;  Tansel  Z'. 
Pepin,  13  Tenn.  452;  Gray  Z'.  Faris, 
15  Tenn.  154;  Copeland  t'.  Murphey, 
2  Cold.  64;  Carrick  z\  Prater,  29 
Tenn.  270. 

i'crmont.  —  Pierson  v.  Catlin,  3 
\t.  272;  Field  V.  Wilbur,  49  Vt.  157; 
Veille  V.  Blodgett,  49  Vt.  270. 

Virginia.  —  Major  v.  Fincklin,  85 
Va.  732,  8  S.  E.  715;  Love  v.  Brax- 
ton, 5  Call  537;  Heffner  v.  Miller,  2 
Munf.  43 ;  Auditor  etc.  v.  Johnson,  i 
Hen.  &  Munf.  537 ;  Beatty  z:  Thomp- 
son, 2  Hen.  &  Munf.  395 ;  Wise  v. 
Lamb,  9  Gratt.  294;  Beatty  v.  Smith, 
2  Hen.  &  Munf.  395;  Beverley  v. 
Walden,   20   Gratt.    147. 

Wisconsin.  —  Smith  v.  Potter,  3 
Wis.  384;  Walton  v.  Cody,  i  Wis. 
364;   Parish  v.  Gear,  i   Finn.  261. 

"  The  general  rule  that  either  two 
witnesses  or  one  witness  with  prob- 
able circumstances  will  be  required 
to  outweigh  an  answer  asserting  a 
fact  responsively  to  a  bill,  is  admit- 
ted. The  reason  upon  which  the 
rule  stands,  is  thus :  The  plaintiff 
calls  upon  the  defendant  to  answer 
an  allegation  he  makes,  and  thereby 
admits  the  answer  to  be  evidence. 
li  it  is  testimony,  it  is  equal  to  the 
testimony  of  any  other  witness ;  and 
as  the  plaintiff  cannot  prevail  if  the 


balance  of  proof  be  not  in  his  favor, 
he  must  have  circumstances  in  ad- 
dition to  his  single  witness,  in  order 
to  turn  the  balance.  But  certainly 
there  may  be  evidence  arising  from 
circumstances  stronger  than  the 
testimony  of  any  single  witness." 
Clark's  Executors  v.  Van  Riemsdyk, 
Q  Cranch  153. 

"  It  has  long  been  the  settled  law 
of  this  state,  that  if  a  bill  charges 
fraud,  and  the  answer  denies  it,  the 
answer,  if  uncontradicted,  is  con- 
clusive evidence  for  the  defendant. 
Smith  V.  Rogers,  i  Stewart  &  Porter 
317:  Br.  Bank  HuntsviHe  v.  Mar- 
shall, 4  Ala.  60.  The  rule  announced 
in  these  decisions,  however,  is  not 
confined  in  its  operation  to  charges 
of  fraud  alone.  In  all  cases  in  our 
system  of  equity  jurisprudence  where 
the  answer  is  verified  m  obedience  to 
the  requirement  of  the  bill,  it  oper- 
ates, so  far  as  responsive,  as  evi- 
dence for  the  defendant,  and  must 
prevail  unless  disproved  by  two  wit- 
nesses, or  by  one  witness  with  cor- 
roborating circumstances,  i  Brickell's 
Dig.  738,  and  cases  cited  in  section 
1466.  In  the  language  of  Judge 
Story :  '  It  is  an  invariable  rule  in 
equity,  that  where  the  defendant  in 
express  terms  negatives  the  allega- 
tions of  the  bill,  and  the  evidence 
is  only  of  one  person  affirming  as  a 
witness  what  has  been  so  negatived, 
the  court  will  neither  make  a  decree 
nor  send  the  case  to  be  tried  at  law, 
but  will  simply  dismiss  the  bill.  The 
reason  upon  which  the  rule  stands  is 
this:  The  plaintiff  calls  upon  the 
defendant  to  answer  an  allegation  of 
fact,  which  he  makes ;  and  thereby 
he  admits  the  answer  to  be  evidence 
of  that  fact.  If  it  is  testimony,  it  is 
equal  to  the  testimony  of  any  other 
witness ;  and  as  the  plaintiff  cannot 
prevail  unless  the  balance  of  proof 
is  in  his  favor,  he  must  either  have 
two  witnesses,  or  some  circumstances 
in  addition  to  a  single  witness,  in 
order  to  turn  the  balance.'  2  Story's 
Eq.  Jur.  §  1528."  Marshall  v. 
Croom,  52  Ala.  554. 

"  In    this    case,    when    the    sworn 
answer  of  defendant  Mey  was  filed, 


Vol.  I 


910 


ANSWERS. 


corroborated  by  circumstances  which  are  equivalent  in  weight  to 
another  witness.''  \\'hile  in  others  the  contrary  is  held,  and  the 
rule  further  declared  that  the  answer  may  be  overcome  by  circum- 
stances alone  if  sufficiently  strong  to  give  sufficient  weight  to  the 
complainant's  case.' 

A.  When  by  Documentary  ExidencE.  —  While  the  rule  is  gen- 
erally so  stated,  the  testimony  of  a  witness  is  not  a  necessary  part 
of  the  evidence  required  to  overcome  a  s^worn  answer.  It  may  be 
overcome  by  documentary   evidence  alone." 

B.  Where    Bill   Is    \'erified.  —  A   distinction    has   been   made 


in  August,  187s,  it  became  evidence 
against  the  complainant  in  his  favor, 
of  such  force  that  complainant  could 
have  no  decree  against  him  until  the 
same  was  proven  false  by  evidence 
equal  to  that  of  one  witness,  and  in 
addition  thereto  a  preponderance  of 
proofs  sufficient  to  sustain  the  bill 
if  the  oath  to  the  answer  had  been 
waived.  If  it  be  conceded  that  com- 
plainant may  file  another  bill,  and 
litigate  the  matters  upon  their 
merits,  this  sworn  answer  remains 
proof  on  record  against  her,  and  she 
can  have  no  decree  until  this  is  over- 
come by  a  preponderance  of  other 
proofs."  Mey  -■.  Gulliman,  105  III. 
272. 

"  The  only  material  controverted 
fact  is,  whether  the  orators  have  es- 
tablished by  the  requisite  measure 
of  proof,  that  the  barn  was  built  by 
them  at  the  request  of  the  trustee, 
Mary  E.  Wilbur.  She  denies  in  her 
answer  making  any  such  request  in 
connection  with  her  husband,  or 
otherwise,  and  the  answer  is  in  this 
respect  responsive  to  the  bill.  The 
only  direct  witness  to  such  request 
is  the  orator,  S.  M.  Field.  Where  a 
material  fact  stated  in  the  bill  is 
denied  in  the  answer,  the  rule  is 
well  settled  that  something  more 
than  the  testimony  of  one  witness 
is  required  to  sustain  the  bill  and 
entitle  the  orator  to  a  decree.  The 
orator  must  overcome  the  denial  in 
the  answer  by  what  is  deemed  equal 
to  the  testnnony  of  two  witnesses. 
Shattuck  V.  Gay  ct  al,  45  Vt.  87. 
This  rule  does  not  require  that  the 
denial  in  the  answer  shall  be  over- 
come by  the  testimonv  of  two  living 
witnesses  who  were  present  and 
cognizant     ot     the     fact     m     contro- 


versy. Circumstantial  evidence  may, 
if  of  equal  weight  and  credibility, 
take  the  place  of  the  testimony  of  one 
or  both  of  such  witnesses.  The 
amount  of  testimony  or  evidence 
required  to  be  produced  by  the 
orator  in  such  cases,  though  ex- 
pressed numerically,  is  not  always 
the  same.  If  the  defendant,  by  his 
answer,  or  otherwise,  is  shown  to  be 
a  very  reliable  and  credible  witness, 
it  is  manifest  that  more  weighty  tes- 
timony should  be  required  to  over- 
come the  denial  in  the  answer,  and 
to  establish  the  averment  in  the  bill, 
than  there  should  be  if  the  defend- 
ant was  shown  to  be  unreliable  and 
entitled  to  but  little  credence.  So, 
too.  the  testimony  of  witnesses,  when 
to  the  same  facts,  is  not  always 
doubled  by  doubling  the  number. 
The  rule  must  be  construed  and 
applied  with  good  sense  and  reason, 
to  each  case,  having  reference  to 
other  well-established  rules  and 
principles  in  regard  to  weighing  tes- 
timony. It  requires  that  the  credence 
and  weight  to  be  given  to  the  answer, 
remembering  that  the  orator  has 
called  the  defendant  into  the  case  as 
a  witness,  is  to  be  fairly  overcome, 
and  the  averment  in  the  bill  is  to  be 
reasonably  established  by  a  prepon- 
derance which  the  law  has  denom- 
inated the  testimony  of  a  second 
witness."  Field  v.  Wilbur.  49  Vt. 
157- 

6.  Morrison  v.  Durr,  122  L'.  S-  518. 
7   Sup.   Ct.    1215. 

7.  May  Be  Overcome  by  Proof  of 
Circumstances  Alone.  —  White  v. 
Crew,  1(1  Ga.  410;  Jones  v.  Abraham, 
75  Va.  466. 

8.  Jones  v.  .Miraham,  75  \'a.  466. 


Vol.  I 


ANSIVERS. 


•JU 


between  cases  in  wliicli  the  bill  is  verified,  and  those  in  which  it  is 
not,  as  to  the  amount  or  weight  of  evidence  necessary  to  overcome 
the  answer,  the  court  in  weighing  the  evidence  taking  the  sworn  bill 
as  equal  to  the  sworn  answer,  leaving  it  necessary  only  for  the 
complainant  to  offer  such  additional  evidence  as  will  give  him  the 
preponderance."  But  not  where  the  bill  is  sworn  to  on  information 
and  belief.^" 


9.  Searcy  z\  Burton,  3  Cooke 
(Tenii.)  no;  McLard  ''.  Linnville, 
29  Teiin.   163. 

10.  Carrick  z'.  Prater,  10  Humph. 
(29  Tenn.)    270. 

Rule  Stated.  —  The  general  rule 
and  its  limitations  are  tlius  fully  and 
clearly  stated  in  Carpenter  i'.  Prov- 
idence etc.  Ins.  Co..  4  How.  (U.  S.) 
185: 

"  But  how  much  of  evidence  should 
he  required  to  prove  that  allegation, 
under  the  principles  applicaljle  to  the 
circumstances  of  this  case,  is  one  of 
some  difficuhy,  and  is  first  to  be  set- 
tled. Where  an  answer  is  responsive 
to  a  bill,  and,  like  this,  denies  a  fact 
unequivocally  and  under  oath,  it 
must  in  most  cases  be  proved  not 
only  by  the  testimony  of  one  witness, 
so  as  to  neutralize  that  denial  and 
oath,  but  by  some  additional  evi- 
dence, in  order  to  turn  the  scales  for 
the  plaintiff.  Daniel  f.  Mitchell,  i 
Story's  Rep.  188;  Higbie  i'.  Hop- 
kins, I  Wash.  C.  C.  R.  230;  The 
Union  Bank  of  Georgetown  v.  Geary, 

5  Peters  99.  The  additional  evidence 
must  be  a  second  witness,  or  very 
strong  circuinstaiiccs.  i  Wash.  C.  C. 
R.  230 ;  Hughes  v.  Blake,  i  Mason's 
C.  C.  R.  514;  3  Gill  &  Johns.  425; 
I  Paige  239;  3  Wend.  532;  2  Johns. 
Ch.  R.  92;  Clark's  E.x'rs  z:  Van 
Riemsdyk,  9  Cranch  153,  says,  '  with 
pregnant  circumstances.'  (Nealc  z'. 
Hagthrop,  3   Bland's  Ch.   S67 ;  2  Gill 

6  Johns.  208.) 

■■  But  a  part  of  the  cases  on  this 
subject  introduce  some  qualifications 
or  limitations  to  the  general  rule, 
which  are  urged  as  diminishing  the 
quantity  of  evidence  necessary  here, 
Thus,  in  9  Cranch  160,  the  grounds 
of  the  rule  are  explained;  and  it  is 
thought  proper  there,  that  something 
should  be  detracted  from  the  weight 
given  to  an  answer,  rf  from  the  nature 


of  things  the  respondent  could  not 
know  the  truth  of  the  matter  sworn 
to.  So,  if  the  answer  do  not  deny 
the  allegation,  but  only  express  ig- 
norance of  the  fact,  it  has  been  ad- 
judged that  one  positive  witness  to  it 
may  suffice.  I  J.  J.  jSIarshall,  178. 
So  if  the  answer  be  evasive  or  equiv- 
ocal. 4  J.  J.  Marshall  213;  I  Dana 
174;  4  Bibb  338.  Or  if  it  do  not  in 
some  way  deny  what  is  alleged. 
Knic'<erbocker  z:  Harris,  i  Faigc2i2. 
But  if  the  answer,  as  here,  explicitly 
denies  the  material  allegation,  and 
the  respondent,  though  not  personally 
conusant  to  all  the  particulars,  swears 
to  his  disbelief  in  the  allegations, 
and  assigns  reasons  for  it,  the  com- 
plainant has  in  several  instances  been 
required  to  sustain  his  allegation  by 
more  than  the  testimony  of  one  wit- 
ness. (3  Mason's  C.  C.  R.  294.) 
In  Coale  z\  Chase,  i  Bland  136,  such 
an  answer  and  oath  by  an  adminis- 
trator were  held  to  be  sufficient  to 
dissolve  an  injunction  for  matters 
alleged  against  his  testator.  So  is  it 
sufficient  for  that  purpose  if  a  cor- 
poration deny  the  allegation  under 
seal,  though  without  oath  (  Haight  v. 
Morris  Aqueduct,  4  Wash.  C.  C.  R. 
601)  ;  and  an  administrator  denying 
it  under  oath,  founded  on  his  belief, 
from  information  communicated  to 
him,  will  throw  the  burden  of  proof 
on  the  plaintiff  beyond  the  testimony 
of  one  witness,  though  not  so  much 
beyond  as  if  he  swore  to  matters 
within  his  personal  knowledge.  3 
Bland's  Ch.  567,  note;  l  Gill  &  Johns. 
270;  Pennington  Z'.  Gittings,  2  Gill  & 
Johns.  208.  But,  what  seems  to  go 
further  than  is  necessary  for  this 
case,  it  has  been  adjudged  in  Salmon 
z\  Clagett,  3  Bland  141,  165,  that  the 
answer  of  a  corporation,  if  called 
for  by  a  l)ill,  and  it  is  responsive 
to  the  call,  though  made  by  a  'cor- 
poration   aggregate    under    its    seal, 

Vol.  1 


yn2 


ANSWERS- 


C.  Rule  Has  Its  Exckptioxs. — The  rule  establishing;  the  weight 
to  be  given  to  the  answer  has  its  exceptions.  It  may  be  controlled 
by  written  evidence  referred  to  or  made  part  of  the  answer.'^  It 
cannot  be  modified  to  meet  the  case  where  the  evidence  necessary  to 
support  the  answer  is  within  the  reach  of  the  defendant  and  inacces- 
sible to  the  complainant.'-  It  does  not  extend  to  answers  on  infor- 
mation and  belief.'" 

D.  (~)FFERKD  IX  Action  at  Law,  Rui-U  Not  Applicable. — The 
rule  does  not  apply  where  the  answer  to  a  bill  of  discovery  is  ofifered 
as  evidence  in  an  action  at  law." 


witliout  oath,'  is  competent  evidence, 
and  '  cannot  be  overturned  by  the 
testimony  of  one  witness  alone.'  We 
do  not  go  to  this  extent,  but  see  no 
reason  why  such  an  answer,  by  a 
corporation,  under  its  seal  and  sworn 
to  by  the  proper  officer,  with  some 
means  of  knowledge  on  the  subject, 
should  not  generally  impose  an  ob- 
ligation on  the  complainant  to  prove 
the  fact  by  more'  than  one  witness. 
(S  Peters  in  ;  4  Wash.  C.  C.  R.  601.) 
Here  the  denial  by  the  corporation  is 
explicit  and  responsive  to  the  bill, 
and  its  truth  sworn  to  by  its  pres- 
ident, '  according  to  the  best  of  his 
knowledge  and  belief.'  The  only 
difficulty  is  in  respect  to  the  extent 
of  that  knowledge.  He  was  not  the 
president  of  the  company  at  the  time 
the  information  of  the  second  in- 
surance is  alleged  to  have  been  given. 
Nor  is  it  relied  on  in  argument,  that 
he  was  then  a  member  and  lived 
near,  or  was  for  any  reason  likely 
to  be  consulted  when  such  notices 
were  received.  But  he  has  since  had 
access  to  all  the  files  and  records, 
in  his  official  capacity,  so  as  to  know 
if  any  letter  on  this  subject  appears 
to  have  been  received,  and  therefore 
testifies  with  some  means  of  knowl- 
edge. And  though  it  is  admitted, 
that  the  certainty  is  not  so  great 
against  the  reception  of  the  notice 
as  if  Jackson  himself  was  alive  and 
testified  against  it,  yet,  in  the  nature 
of  the  case  and  by  the  precedents, 
the  denial  is  strongly  enough  made 
and  supported  to  impose  on  the  com- 
plainant the  proof  of  his  allegation 
by  something  more  than  the  testi- 
mony of  one  witness,  though  not  so 
much  more,  it  is  conceded,  as  the 
'pregnant  circumstances'  before  al- 
luded to." 

VoL  I 


11.  May  Be  Overcome  by  Writing 
Referred  to  Therein. —Thus,  in  Jones 
-•.  Bell,  2  Gill  (Md.)  106,  it  is  held 
that  the  rule  that  a  positive  denial 
in  the  answer  must  be  overcome  by 
two  witnesses,  etc.,  is  not  one  of  uni- 
versal application,  and  that  where  an 
agreement  was  admitted  in  the  de- 
fendant's answer,  and  held  by  the 
court  to  be  the  agreement  of  the 
parties,  the  written  instrument  was 
sufficient  to  control  the  answer  deny- 
ing the  agreement,  without  the  aid 
of  any  oral  testimony  in  its  support. 

12.  Thompson  j'.  Diffenderfer,  i 
Md.  Ch.  489. 

13.  Rogers  ■:■.   French,   IQ  t^'ia.  .316.  ' 

14.  Rule   Does  Not  Apply  'Where 

OfTered  in  Action  at  Law Hunter 

r.    Wallace,    i    Over.    (Tenn.)    239. 

In  Allen  :■.  McNew,  8  Humph. 
(Tenn.)  46,  an  action  of  assutupsit, 
an  answer  to  a  bill  of  discovery  was 
offered  in  evidence.  The  court  below 
ruled  that  it  required  the  testimony 
of  two  witnesses,  or  of  one  witness 
with  strong  corroborating  circum- 
stances, to  countervail  the  statements 
of  the  answer.  The  supreme  court 
held  this  to  be  error,  saying  that  the 
whole  of  the  answer  must  be  read 
but  that  its  truth,  before  the  jury, 
should  be  weighed  like  other  testi- 
mony, by  its  intrinsic  character,  sub- 
ject to  be  set  aside  by  what  might  be 
found  in  the  answer  itself,  by  the 
nature  of  the  statement  or  by  other 
proof. 

But  see  Stillwell  r.  Badgett,  22 
Ark.  22,  in  which  it  was  held  that 
under  the  statute  of  Arkansas,  the 
answer  to  a  petition  for  discovery 
is  evidence  as  an  answer  to  a  bill  of 
discovery  would  be   in  equity. 

And  Saltmarsh  ?'.  flower.  22  Ala. 
221,  in  which  it  was  held  that  where 


ANSWERS. 


913 


E.  W'liHkE  I'laixtiff  Offkrs  ix  Action  at  Law.  —  Where  the 
plaintiff  introduces  in  evidence  an  answer  to  a  bill  of  discovery  in 
aid  of  an  action  at  law,  the  answer  is  not  conclusive  upon  him,  but 
other  evidence  consistent  with  the  issue,  may  be  offered.'-' 

4.  Cannot  Contradict  Written  Agreement,  —  The  answer  cannot 
be  admitted  to  show  that  the  intent  and  meaning-  of  the  parties  to  a 
written  atjreenu'nt  were  contrary  to  what  appears  on  the  face  of  it.'" 

5.  Competency  of  Not  Dependent  on  Defendant's  Competency  As  a 
Witness.  —  If  the  jjlaintift"  calls  for  a  sworn  answer  from  a  defend- 
ant, he  makes  him  a  competent  witness  as  to  matters  contained  in 
the  answer  and  responsive  to  the  bill.  Therefore,  the  answer  is 
competent  for  him,  although  the  defendant  making  it  is  not  a  com- 
petent witness.'' 

6.  Cannot  Be  Weakened  by  Impeachment  of  Defendant.  —  The 
eft'ect  and  weight  of  an  answer  cannot  be  aff'ected  by  the  degree  of 
credit  to  which  the  defendant  is  entitled.  Therefore,  it  is  not  com- 
petent to  impeach  the  defendant  b}'  proof  of  his  general  bad  char- 
acter, as  a  means  of  weakening  the  effect   of  his  answer.'**     Ihit 


interrogatories  were  procured  in  an 
action  at  law,  under  a  statute  pro- 
viding tlierefor,  the  rules  applied  in 
chancery  to  answers  to  bills  of  dis- 
covery, must  be  applied  to  such  an- 
swers  wheji   offered   as   evidence. 

In  Glover  i\  Foote,  7  Blackf.  (Ind.) 
292,  where  an  issue  raised  was  sent 
to  be  tried  at  law,  it  was  held  that 
the  answer,  if  competent  at  all,  could 
not  be  given  the  same  weight  before 
■  the  jury  that  would  be  given  it  by  the 
chancellor,  but  that  the  jury  had  the 
right  to  view  it  with  the  same  sus- 
picion that  attends  the  testimony  of 
an  interested  witness  and  give  it 
such  credit  as  they  might  think  it 
deserved. 

For  a  discussion  of  the  difference 
in  courts  in  chancery  and  at  law, 
as  to  the  effect  given  to  the  answer 
as  evidence,  see  Humphreys  v. 
Blevins.   I   Over.    (Tenn.)    177. 

15.  Cox   V.    Co.x,   2    Port.    (Ala.) 

16.  Carter  v.   Bennett,  6  Fla.  214. 

17.  Saffold  V.  Home,  71  Miss.  762, 
15   So.  639. 

18.  Cannot  Impeach  Defendant  to 

Weaken    Answer Brown   i\    Bidk- 

ley.  14  X.  J.  Eq.  294;  Clark  r.  Bailey, 
2  Strob.  Eq.  (S.  C.)  14J ;  Chambers 
V.  Warren,  13  111.  319;  Butler  v.  Cat- 
ling,  I  Root   (Conn.)   310. 

"  But  there  is  a  question  of  prac- 
tice,  of   some    importance,    presented 

58 


in  this  case  which  it  is  proper  to 
notice.  The  complainant  was  per- 
mitted to  discredit  the  defendant  by 
impeaching  his  general  character,  as 
in  the  case  of  a  witness.  The  ar- 
gument is,  that  when  the  answer 
is  responsive  to  the  charges  or  in- 
terrogatories in  the  bill,  he  is  made 
a  witness  by  complainant,  and  his 
statements  are  to  be  regarded  ls 
true,  unless  disproved  by  two  wit- 
nesses, or  one  with  circumstances ; 
and,  therefore,  he  should  be  subject 
to  impeachment  in  all  the  modes  ap- 
plicable to  witnesses  proper.  It  is 
insisted  that  the  weight  to  be  given 
to  his  answer  depends  on  the  strength 
of  his  character.  But  that  is  not  so. 
The  rule  is  based  upon  the  con- 
sideration, that  the  complainant  had 
called  upon  hiin  to  answer  as  to  cer- 
tain facts,  and  thereby  puts  him  in 
the  place  of  a  witness  to  that  e.xtent. 
Having  thus  forced  him  into  the 
position  he  occupies,  and  compelled 
him  to  answer  on  oath  to  the  limited 
e.xtent  he  chooses  to  prescribe,  it  is 
but  reasonable  that  he  should  be 
bound  by  the  responses  he  has  ex- 
tracted, unless  he  can  disprove  them. 
He  may  weaken  them  by  circum- 
stances intrinsic  or  extrinsic,  but  he 
cannot  be  allowed  to  discredit  by 
attacking  the  general  character.  He 
could  not  do  this  as  to  a  witness 
called  by  himself,  much  less  a  party 

Vol.  I 


914 


ANSWERS. 


tliere  are  cases  to  tlie  contrary.''' 

7.  But  May  Be  by  Defects  or  Contradictions.  —  But  while  proof 
of  the  general  bad  character  of  the  defendant  is  not  allowed  to  affect 
the  weight  to  be  given  the  answer,  as  evidence,  the  answer  itself 
may  be  so  inconsistent,  defective  or  contradictory  in  its  dififerent 
parts  as  to  destroy  its  effect.-" 


made  by  his  bill.  It  is  easy  to  see 
how  such  a  practice  could  be  abused 
by  turning  every  contest  for  rights 
into  a  war  upon  character.  Such  a 
practice  would  be  intolerable,  and  is 
not  sustained  by  cither  reason  or 
authority."  Murray  v.  Johnson,  i 
Head    (Tenn.)    3S3. 

19.  Miller  v.  tollison.  Harper  Eq. 
(S.  C.)   119. 

20.  May  Be  Overcome  by  Its  Own 
Defects  or  Contradictions.  —  ,4la- 
bniiia.  —  Crawford  z'.  Kirksey,  50 
Ala.  590;  Cummings  v.  McCullough, 
S  Ala.  324. 

Arkansas.  —  Brittin  7'.  Crabtree,  20 
Ark.  309. 

Georgia.  —  Harris  v.  Collins,  75  Ga. 
97- 

Maine.  —  Gould  v.  Williamson,  21 
Me.  273. 

Maryland.  —  Jones  v.  Belt,  2  Gill 
106.. 

New  Jersey.- — Brown  z:  Bnlkley, 
14  N.  J.  Eq.  294;  Stevens  z'.  Post. 
12  N.  J.  Eq.  408;  Commercial  Bank 
V.  Reckless,  5  N.  J.  Eq.  650;  Sayre 
z'.  Fredericks.  16  N.  J.  E(|.  205 ; 
Hoboken  Bank  z'.  Beckman.  33  N.  J. 
Eq.  53- 

Nezc  York.  —  Dunham  Z'.  (lalcs,  i 
Hoff.  184. 

North  Carolina.  —  Moore  v.  Hyl- 
ton,  I   Dev.  429. 

Pennsylvania.  —  Baker  z'.  William- 
son, 4  Pa.   St.  456. 

Tennessee.  —  Brown  v.  Brown,  10 
Yerg.  84. 

IViseonsin.  —  Cooper  z'.  Tappan.  9 
Wis.  ii-^;  Hartley's  Appeal,  103  Pa. 
St.  23. 

As  to  the  weight  to  be  given  to 
the  answer  or  deposition  of  the  de- 
fendant called  for  by  the  complain- 
ant, see  Baker  zk  Williamson,  4  Pa. 
St.  456,  in  which  it  is  said :  "  It  is 
contended,  that  if  Adam's  testimony 
is  taken  as  to  the  amount  of  the 
notes,  it  ought  all  to  be  taken  to- 
gether, and  that  as  he  swears  to  the 

Vol.  I 


gift,  that  ought  to  be  taken  also. 
If  this  part  of  his  testimony  was 
connected  with,  and  in  the  same  para- 
graph or  sentence  of  the  admission, 
perhaps  the  one  ought  not  to  be 
taken  without  the  other.  But  in  one 
part  of  his  deposition  he  states  the 
amount  of  the  notes,  and  in  another 
part  he  swears  to  the  gift.  The  rule, 
as  established  under  such  circum- 
stances, is,  that  the  one  part  of  the 
deposition  may  be  relied  on  without 
admitting  the  other.  In  Blount  z\ 
Burrow,  4  Bro.  Ch.  75,  Lord  Chan- 
cellor Hardwickc,  after  stating  the 
rule  at  law,  says,  '  but  what  is  sworn 
by  a  man's  answer  admits  of  a  dif- 
ferent construction,  as  if  a  man  admit 
by  his  answer  that  he  received  sc\  end 
sums  at  dififerent  times,  and  in  the 
same  answer  swears  that  he  paid 
away  those  sums  at  different  times  in 
discharge  of  himself;  otherwise,  it 
would  be  to  allow  a  man  to  swear 
for  himself,  and  be  his  own  witness.' 
We  can  readily  perceive  the  reason 
of  the  distinction  taken  by  his  lord- 
ship ;  for  alleging  a  new  and  inde- 
pendent defense  is  not  directly 
responsive  to  the  bill,  and  ought  to 
be  established  by  disinterested  tes- 
timony ;  and  even  at  law  the  rule 
is  not  much  variant.  Thus,  in  the 
case  of  Bermon  z\  Woodljridge,  I.ord 
Mansfield  says  :  '  Though  the  whole 
of  an  affidavit  or  answer  must  be 
read,  if  any  part  is,  you  need  not 
believe  all  equally ;  you  may  believe 
what  makes  against  his  point  who 
swears  without  believing  what  makes 
for  it.'  Doug.  7S8.  .\nd  the  rule  es- 
tablished in  Davis  v.  Spurling,  i 
Russ.  &  Mylne,  68.  is  to  the  same 
effect;  and  also  in  Partcrich  v.  Pow- 
let,  2  Atkins  383.  .-Vdam  was  made  a 
witness,  it  is  true,  by  the  complain- 
ants, and  therefore  they  cannot  allege 
that  his  testimony  is  incompetent  on 
account  of  his  interest.  But  that 
cannot  enforce  the  conscience  of  this 


ANSWERS. 


415 


8.  And  by  Defendant's  Testimony  at  Trial.  —  So  the  testimony  of 
the  defendant  at  the  trial  may  be  such  as  to  destroy  the  effect  of 
the  answer  as  evidence  in  his   favor.-' 


court,  or  any  other  court,  to  believe 
all  he  says,  even  if  contrary  to  the 
laws  of  nature,  of  mathematics,  of 
moral  science,  or  of  facts  satisfac- 
torily established  in  tlie  cause  by  dis- 
interested testimony,  and  legal  in- 
ference and  presumption.  The  same 
may  be  said  in  regard  to  another 
allegation  of  the  respondents,  that  is, 
that  Adam's  whole  testimony  must 
be  taken  as  true,  unless  contradicted 
by  two  witnesses.  In  early  chancery 
practice,  the  rule  was  perhaps  so 
held ;  the  court  adopting  the  rule  of 
the  Roman  law,  rcst>onsio  uiiius  )wn 
omniiio  audiatus,  when  the  main  fact 
alleged  in  the  bill  was  directly  denied 
by  the  answer.  But  this  rule  has  been 
gradually  yielding  to  the  experience, 
judgment,  and  enlightened  juris- 
prudence of  later  times,  when  the 
matter  is  resolved  into  the  credibility 
to  be  attached  to  the  answer  of  the 
respondent  under  all  the  circum- 
stances. And  where  his  answer  is 
precise,  clear,  and  positive,  to  the 
main  facts  alleged  in  the  bill,  he  is 
to  be  considered  as  any  other  wit- 
ness, and  when  it  is  witness  against 
witness,  the  chancellor  will  not 
decree,  but  dismiss  the  bill.  Small 
and  slight  circumstances,  however, 
will  turn  the  scale,  so  sinall  and 
slight,  that  it  is  impossible  not  to 
perceive  that  equity  considers  and 
appreciates  the  anoiualous  position  of 
the  respondent.  2  Story's  Equity, 
§  1528;  I  Brown's  Ch.  Rep.  52; 
9  Cranch  160 ;  Clark  z'.  Van  Reims- 
dyk,  Greenl.  Ev.  297 ;  Gresley's  Eq. 
Ev.  p.  4,  and  the  numerous  cases 
there  cited.  The  whole  of  the  evi- 
dence brings  us  irresistibly  to  the 
belief  that  Adam,  in  good  faith  and 
conscience,  ought  to  be  charged  with 
the  notes,  and  we  perceive  nothing 
in  the  rules  of  law  and  equity  which 
prevents  our  deciding  the  case  on 
that  conviction." 

21.     Effect     of     Defendant's     Tes- 
timony    at     the     Trial Spencer's 

Appeal,   80   Pa.    St.   317;    Roberts   v. 
Miles,   12  Mich.  297, 

In    Michigan,    the    supreme    court 


has  slated  the  rule  as  follows : 
"  In  other  words,  the  rule  amounts 
simply  to  this,  that  a  decree  can  never 
be  made  in  favor  of  a  complainant 
unless  the  evidence  preponderates  in 
his  favor ;  and  that  where  answer 
and  opposing  witness  are  equally  full, 
fair  and  explicit,  there  can  be  no  such 
preponderance.  See  2  Dan.  Ch.  Pr. 
985.  If,  therefore,  a  defendant  on 
the  stand  furnishes  the  means  of 
destroying  his  own  answer,  and  cor- 
roborating complainant's  case,  his  tes- 
timony is  preferable  to  his  answer, 
for  the  same  reason  which  makes 
any  oral  examination  and  cross  ex- 
amination more  favorable  for  elicit- 
ing the  truth  than  a  statement  where 
the  affiant  is  not  pressed  to  answer 
questions  too  rapidly  to  enable  him 
.  to  deliberate  how  he  can  best  shape 
his  response  to  secure  his  own  ends. 
No  one  who  desires  to  sift  a  witness 
would  ordinarily  prefer  a  discovery 
to  an  examination  on  the  stand ;  but 
under  our  present  system,  where  both 
may  be  resorted  to,  the  choice  is  not 
very  important.  Mr.  Headlam  is  of 
opinion  that  now  the  whole  force  of 
the  old  rule  is  done  away :  2  Head- 
lam's  Dan.  Ch.  Pr.  3d  ed.  p.  676. 
He  remarks  :  '  The  defendant  is  now, 
as  we  have  seen,  enabled  to  obtain 
the  benefit  of  his  own  testimony,  and 
the  court  will  probably  not  be  bound 
by  any  previous  decisions  in  bal- 
ancing his  testimony  against  that  of  a 
witness.'  This  old  practice  has  often 
been  misunderstood  and  misapplied, 
and  since  the  statute  has  removed 
the  only  reason  which  ever  made  a 
discovery  bj'  answer  necessary,  we 
think  there  is  no  longer  any  occasion 
for  giving  to  the  evidence  of  a  wit- 
ness in  one  shape  any  more  force 
than  it  would  have  in  another. 
Strictly  speaking,  the  old  rule,  when 
fairly  carried  out,  may  not  have  done 
so;  but  it  is  not  to  be  denied  that  its 
existence  has  led  practically,  in  many 
cases,  to  arbitrary  and  improper  con- 
clusions. We  are  therefore  of  opin- 
ion that  an  answer  in  chancery 
responsive    to .  a    bill    is    now    to    be 

Vol.  I 


916 


ANSWERS. 


9.  Contradicted  in  Material  Point,  Effect  Of. —  It  is  held  that 
where  an  answer  is  disproved  in  a  material  point,  it  loses  all  weight 
as  evidence  and  stands  only  as  a  pleading  necessary  to  fonn  the 
issue. -- 

10.  Dismissal  of  Bill  Destroys  As  Evidence.  — The  answer  is  given 
eiifect  as  c\idence  only  because  it  is  called  for  and  is  responsive  to 
the  bill  or  cross-bill,  as  the  case  may  be.  Therefore,  if  tlie  bill,  or 
cross-bill,  to  which  it  is  an  answer,  is  dismissed,  the  answer  cannot 
be  read  in  evidence  in  favor  of  the  defendant.-^  But  where  the 
original  bill  is  dismissed,  and  an  amended  bill  filed,  the  sworn 
answers  to  the  original  are  coinpetent  in  favor  of  the  defendant, 
although  answer  under  oath  to  the  amended  bill  is  waived."* 

11.  Not  Evidence  for  Defendant  in  Another  Action.  —  The  answer 
is  evidence  for  the  defendant  only  as  against  the  bill  to  which  it  is 
opposed,  and  not  in  another  action,  or  in  support,  in  his  favor,  of 
another  and  different  issue. ^^ 

A.  To  Bill  of  Discovery  Offered  ix  Actio.v  .\t  Law. — It  is 


regarded  as  of  the  same  force  which 
it  would  have  were  it  the  defendant's 
deposition   as   a   witness." 

22.  Contradicted   in   Material 

Point Pharis     i'.      Leaclnnan.     20 

Ala.  662;  Giinn  v.  Brantley,  21  Ala. 
633;  Prout  Z'.  Roberts,  32  Ah.  427; 
Fay  V.  Oatley,  6  Wis.  45 ;  Forsvth  v. 
Glark,  3  Wend.  (N.  Y.)  637,  'lo  N. 
Y.  C.  L.  495 ;  Countz  t'.  Geiger,  i 
Call    (Va.)    190. 

23.  Dismissal  of  Bill  Destroys. 
In  Saffold  z\  Home,  71  Miss.  762,  15 
So.  639,  the  cross  bill  had  been  dis- 
missed and  the  answer  thereto  was 
held  not  to  be  competent  thereafter 
as  evidence  in  favor  of  the  defend- 
ant. 

84.     Aley  v.  Gulliman.  105  111.  272. 

25.  Not  Evidence  in  Another 
Action.  —  Pliillips  r.  Thompson,  i 
Johns.  Ch.  (N.  Y.)  131,  i  N.  Y.  Ch. 
87;  Thompson  z'.  French.  10  Ycrg. 
(Tenn.)  452. 

"  .\n  answer  responsive  to  a  bill 
avails  the  respondent  in  the  hearing 
of  the  case  in  which  it  is  part, 
but  it  is  not  evidence,  for  the  party 
who  makes  it,  in  any  other  issue. 
It  performs  its  office  as  a  response 
to  the  bill  it  answers.  Away  from 
that,  it  has  no  function,  and  can  serve 
no  purpose  of  its  author  as  evidence 
for  him.  It  serves  him  only  against 
the  bill  it  answers.  All  tliat  is  found 
in   the  books   as   to  the   effect   of  an 

Vol.  I 


answer  has  reference  to  its  effect  or 
influence  as  to  the  bill  answered,  and 
not  to  other  and  different  issues. 
After  the  dismissal  of  the  ill-advised 
cross  bill  in  this  case,  the  cause  stood 
on  bill  and  answer,  and  no  evidence 
was  admissible,  except  such  as  would 
have  been  if  a  cross  bill  had  not  been 
thought  of.  The  idea  seems  to  have 
obtained  that  a  defendant  to  a  bill 
for  relief,  called  on  to  answer  under 
oath,  is  entitled  ever  afterwards  to 
use  as  evidence  in  his  behalf  his 
answer  thus  made.  Such  an  idea  is 
without  any  support  whatever  in 
principle  or  authority,  as  may  be 
discovered  by  any  one  who  will 
diligently  examine  the  subject."  Saf- 
fold f.  Home.  71  Miss.  762,  15  So. 
639. 

In  Branch  Bank  v.  Parker,  5  Ala. 
(N.  S.)  731.  the  question  arose  under 
a  statute  of  .■\labania  providing  for 
the  propounding  of  interrogatories  in 
actions  at  common  law,  the  statute 
providing  that  answers  to  such  inter- 
rogatories should  be  evidence  at  the 
trial  of  the  cause,  in  the  same  man- 
ner, and  to  the  same  purpose  and 
extent,  and  upon  the  same  condition 
in  all  respects  as  if  they  had  been 
procured  upon  a  bill  in  chancery  for 
discovery,  but  no  further  or  other- 
wise. It  was  held  that  the  answers 
could  not  be  used  as  evidence  unless 
they  were  offered  by  the  opposite 
party  by  whom  they  were  procured. 


ANSWERS. 


'117 


held  that  in  case  of  an  answer  to  a  pure  l)ill  of  discovery  used  on  a 
trial  at  law,  it  is  used  as  a  matter  of  evidence  to  he  read  as  the 
testimony  of  a  witness,  and  to  have  like  weight.-" 

B.  When  Offered  on  an  Issue  of  Fact.  —  When  offered  upon 
the  trial  of  an  issue  of  fact,  the  answer  of  a  defendant  is  properly 
excluded  when  offered  by  the  defendant,  if  it  has  been  disproved 
by  more  than  one  witness.-^  And  it  is  held  not  to  be  competent 
at  all  on  the  trial  of  such  issue  unless  it  is  directed  to  be  read  as  a 
part  of  the  evidence  in  the  order  for  the  trial  of  such  issue."* 

12,  Taken  to  Be  True  Until  Disproved.  —  If  the  answer  denies  a 
fact  under  oath,  and  no  proof  is  offered  in  sujiport  of  the  fact  In-  the 
complainant,  the  answer  must  be  taken  to  be  true.-" 

A.  CoMTLAiNANT  May  DISPROVE.  —  If  the  complainant  calls  for 
relief  as  well  as  a  discovery,  he  is  not  bound  by  the  answer,  but 
may  resort  to  other  evidence  to  prove  his  case,  leaving  the  defendant 
to  use  his  answer  in  his  own  behalf."" 

a.  Rule  iriicrc  Bill  Is  for  Disan'cry  Only.  —  A  distinction  has 


26.  Fain  <■.  Miller,  i;  Gralt.  (Va.) 
187. 

27.  Cartwriglit  7'.  Godfrey,  I 
Murph.  Law   (N.  C.)  422. 

28.  Jackson  f.  Spivey,  63  N.  C. 
261. 

29.  Taken  To  Be  True  Until  Dis- 
proved. —  [")ii7<-rf  States.  — McCoy  v. 
Rhodes,  11  How.  131;  Gettings  z'. 
Rurcli.  9  Cranch  372. 

Alabama.  —  Edniondson  v.  Mon- 
tague, 14  Ala.  (N.  S.)  370;  Panlling 
I'.  Sturgus,  3  Stew.  95;  Henderson 
V.  McVay,  32  Ala.  471  ;  Lucas  v. 
Bank  of  Darien,  2  Stew.  280;  Branch 
of  the  Bank  v.  Marshall,  4  Ala.  60. 

Arkansas.  —  Cummins  v.  Harrell,  6 
Ark.  308. 

Georgia.  —  Imlioden  v.  Etowah  etc. 
Min.  Co.,  70  Ga.  86. 

Illinois.  —  Cassell  v.  Ross,  :ii  111. 
245 ;  Duncan  v.  Wickliffe,  5  111.  (4 
Scam.)  452;  O'Brian  v.  Fry,  82  111. 
274. 

Maine.  —  .\lford  t'.  McNarrin,  44 
Me.  90. 

Maryland.  —  Cowman  i'.  Hall,  3 
Gill  &  J.  398;  Nealc  z:  Hagthrop,  3 
Bland   551. 

Mississi/^fi.  —  Fulton  v.  Woodman, 
=;4  Miss.  158;  Petrie  v.  Wright,  6 
Smed.  &  M.  647. 

Missonri.  —  Prior  v.  Mathews,  9 
Mo.  267 ;  Gamble  r'.  Johnson,  9  Mo. 
605 ;  Laberge  v.  Chauvin,  2  Mo.  145. 


iVt'tc  Hampshire. — Dodge  v.  Dodge, 
33  N.  H.  487. 

Neit.1  Jersey.  —  Graham  i'.  Berry- 
man,  19  N.  J.  Eq.  29;  Allen  v.  Cole, 
9  N.  J.  Eq.  286,  59  Am.  Dec.  416; 
Morris  etc.  R.  Co.  v.  Blair,  9  N.  J. 
Eq.  63s;  Central  R.  Co.  v.  Hetfield, 
18  N.  J.  Eq.  323- 

Nezv  York.  — ■  Miller  -■.  Avery,  2 
Barb.  Ch.  582;  Murray  v.  Blatch- 
ford,  I  Wend.  583,   19  Am.  Dec.  537. 

Pennsylvania.  —  Paul  v.  Carver.  24 
Pa.  St.  207,  64  Am.  Dec.  649;  Pea- 
cock z'.  Chambers,  3  Grant  Cas.  398. 

South  Carolina.  — ■  President  etc. 
Branch  Bank  of  Columbia  v.  Black, 
2    McCord   Eq.   344. 

H'iseonsin.  —  Coulsoii  v.  Coulson. 
5  Wis.  79. 

30.  Complainant  Not  Bound  By. 
.-ilabania.—'Dunn  v.  Dunn,  8  Ala. 
(N.  S.)  784;  Fenno  v.  Sayre,  3  Ala. 
458. 

Illinois.  —  Chambers  f.  Warren,  n 
111.   319. 

Mississififi-  —  Carson  r.  Flowers.  7 
Smed.  &  M.  99;  Greenleaf  v.  High- 
land, I  Miss.  37S. 

.Vi'Xf  York'.  —  Jackson  r.  Hart.  11 
Wend.   343. 

North  Carolina. — Harrison  v.  Brad- 
ley. 5  Ired.  Eq.  136. 

South  Carolina.  —  Boyd  v.  Boyd, 
Harper  Eq.   144. 

I'irgiiiia.  —  Maupin  i'.  Whiting,  I 
Call  224;  Tliornton  z:  Gordon,  2  Rob. 
750;  Blanton  z:  Brackett,  5  Call  232. 

Vol.  I 


'118 


ANSIVBRS. 


Ix'en  made  in  some  of  the  cases  between  an  answer  as  a  iileading 
and  as  evidence,  it  beino;  hdd  that  so  mnch  of  the  answer  as  is  in 
response  to  interrogatories  seeking  discovery,  by  the  defendant,  is 
evidence  called  for  by  the  plaintiff,  but  that  part  of  the  answer 
which  goes  to  the  allegations  of  the  bill,  as  a  cause  for  relief,  is  a 
pleading  and  not  evidence;  and  that,  therefore,  if  the  bill  is  for  a 
discovery  only,  the  answer  is  evidence,  wdiolly,  and  not  a  pleading, 
and  the  answer  made  is  conclusive  on  the  complainant.'^  But  other 
cases  declare  the  rule  that  an  answer  to  a  bill  of  discovery,  or  that 
part  of  the  bill  calling  for  discovery,  where  the  bill  is  for  relief  and 
discovery,  is  of  no  greater  weight,  as  evidence,  than  a  responsive 
answer  to  the  charging  part  of  the  bill  for  relief,  and  may  be  dis- 
proved by  the  complainant  in  the  same  way  and  by  the  same  kind 
and  degree  of  evidence  in  the  one  case  as  in  the  other. ^- 

I!.  ^lusT  Be  Direct,  Responsive  and  Without  Evasion. — This 


31.  Where  Bill  is  for  Discovery 
Only. —  Miller  z:  ToUison,  Harper 
Eq.  (,S.  C.)  119;  Jackson  i'.  Hart,  ii 
Wend.    (N.  Y.)   343- 

"  An  affirmative  in  the  answer  need 
not  however  be  proved,  if  it  be 
responsive  to  the  stating  or  charging 
part  of  the  bill,  or  an  interrogatory 
anthorized  by  either  of  them  (Fenno 
(■/  al.  T'.  Sayre  &  Converse,  3  .\la. 
478)  ;  for  in  snch  case  the  complain- 
ant has,  by  the  frame  of  his  bill, 
engaged  to  prove  the  negative.  He 
has  voluntarily  assumed  the  onus,  and 
cannot  complain  of  the  difficulty  of 
the  task  he  has  undertaken.  The 
complainant,  in  the  formation  of  his 
liill,  may  at  his  election  make  as 
much  or  as  little  use  of  the  defend- 
ant as  he  pleases,  except  that,  ac- 
cording to  the  established  course  of 
chancery,  he  must  receive  a  direct 
denial  of  his  allegations  ^y  the  de- 
fendant as  evidence,  as  well  as  plead- 
ing. Responsive  affirmations  by  the 
defendant,  are  most  usually  invited 
by  the  charging  part  of  the  bill,  which 
is  a  negation  of  what  are  supposed 
to  be  the  defendant's  pretenses,  or  by 
the  e.xtended  scope  of  the  interroga- 
tories. Neither  of  these  it  is  said 
are  essential  parts  of  the  bill,  but  are 
usually  inserted,  if  with  any  definite 
object,  to  obtain  a  iiiore  particular 
disclosure  from  the  defendants.  If 
the  bill  contains  the  stating  part, 
with  a  prayer  that  the  defendant  may 
answer,  omitting  all  charges  and  in- 
terrogations, the  complainant  will  not 


be  compelled  to  receive  the  defend- 
ant's oath  beyond  a  mere  denial  of 
the  equity  of  his  bill.  (See  2  Mad. 
Ch.  Prac.  137;  Partridge  v.  Haycroft, 
I  Ves.  574;  Wakeman  v.  Grover,  4 
Paige's  Rep.  23.)"  Branch  of  the 
Bank  v.   Marshall,  4  Ala.  60. 

See,   also,   for  a   discussion   of  the 


twofold    character 

chancery.  Smith  i 

Co.,   2   Tenn.    Ch. 

In  Thompson 


of    an    answer   in 
St.  Louis  L.  Ins. 

599- 

Clark,  81  Va.  422, 


it  is  directly  held  that  where  upon  a 
pure  bill  of  discovery  the  court  re- 
tains and  decides  the  cause,  plaintiff 
cannot  contradict  the  answer  by  other 
I  vidence,  because  the  plaintiff  would 
thereby  prove  himself  out  of  court. 
See,  also,  to  the  same  effect,  Fant  v. 
.Miller,   17  Graft.    (Va.)    187. 

32.  Rule  the  Same  Whether  Bill 
for  Discovery  or  Not.  —  Chambers  z\ 
Warren,  13  111.  319;  Nourse  v. 
Gregory,  3  Litt.  (Ky.)  378;  Williains 
:■.  Waim,  8  Blackf.  (Ind.)  477; 
.March  v.  Davison,  9  Paige  Ch.  (N. 
\.)    580;    Curtiss   Z'.    Martin,   20    111. 

.-.V- 

In  Greenleaf  v.  Highland,  i  Miss. 
375,  it  is  held  that  answers  in  chan- 
cery, whether  to  bills  purely  of  dis- 
covery or  those  seeking  relief  also, 
are  considered  as  the  written  con- 
.essions  of  the  party  making  them, 
that  they  may  be  used  as  evidence 
;i!;ainst  him  and  that  iriatters  in  avoid- 
ance therein  are  subject  to  be  sup- 
ported or  disproved  by  evidence 
oliuiidc  on  both  sides. 


Vol.  I 


ANSWERS. 


919 


rule  of  evidence  giving  such  effect  to  the  defenilant's  answer,  grew 
out  of  the  practice  of  submitting,  as  part  of  the  bill,  interrogatories 
to  be  answered  by  the  defendant  under  oath ;  under  this  practice  the 
evidence  took  the  form  of  interrogatories  and  answers  thereto, 
enforced  at  the  instance  of  the  plaintiff.  And  it  is  well  settled  that 
in  order  to  give  effect  to  the  answer,  as  evidence  for  the  defendant, 
it  must  be  full,  direct,  responsive  to  the  bill,  and  positive  and  with- 
out evasion.""  It  is  not  enough  that  the  bill  be  answered  literally. 
The  answer  must  confess  or  traverse  each  charge  in  the  bill.''* 

a.  General  Denial,  When  Sufficient.  —  But  if  a  general  denial  is 
filed,  the  remedy  of  the  complainant  is  to  except  to  the  answer,  and 
if  he  does  not,  the  answer  will  be  held  sufficient  at  the  trial. ■'''' 


33.  Must  Be  Direct  and  Respon- 
sive. —  United  Slali-s.  —  Seitz  v. 
Mitchell.  94  U.  S.  580;  Slater  v. 
Maxwell,  6  Wall,  268. 

Alabama.  —  Grady  v.  Robinson,  28 
Ala.  289;  Smilie  v.  Siler,  35  Ala.  88; 
Cunimings  v.  McCuUough,  5  .-Ma.  (N. 
S.)  324;  Lucas  v.  Bank  of  Darien, 
2  Stew.  280. 

.-i;-/ca;iji!.s.  —  Pelham  v.  Moreland, 
II   Ark.  442. 

I'lorida.  —  While  v.  Walker,  5  Fla. 
478. 

Illinois.  —  Derby  v.  Gage,  38  III. 
27 ;  Gregg  v.  Renfrews,  24  111.  621 ; 
Deimel  v.  Brown,  35  111.  App.  303 ; 
Atkinson  v.  Foster,  134  111.  472,  25 
N.  E.  528. 

Indiana.  —  Green  v.  Vardinian,  2 
Blackf.   324. 

Kentucky.  —  Price  v.  Boswell,  3  B. 
Mon.  13 ;  Lewis  v.  Ontton,  3  B.  Mon. 
453 ;  Phillips  t'.  Richardson,  4  J.  J. 
Marsh.  212. 

Maine.  —  Buck  v.  Swazey,  35  Me. 
41- 

Massachusetts.  —  New  England 
Bank  i'.  Lewis,  8  Pick.  113;  Leach 
V.  Fobes,  II  Gray  506. 

Michigan.  —  Schwarz  z'.  Wendell,  I 
Walk.  267 ;  Newlove  v.  Callaghan,  86 
Mich.  301,  49  N.  W.  214. 

.Mississippi.  —  Rodd  v.  Durbridge, 
53  Miss.  694;  Toulnic  v.  Clark,  64 
Miss.  471. 

Missouri.  —  Martin  v.  Greene,  10 
j\Io.  652. 

AVtc  Jersey.  —  Stevens  v.  Post,  12 
N.  J.  Ecj.  408;  Allen  v.  Cole,  9  N.  J. 
Eq.  286,  59  Am.  Dec.  416. 

New  York.  —  Dunham  v.  Gates,  I 
Hoff.  184. 


Pennsylvania.  —  Coleman  v.  Ross, 
46  Pa.  St.  180;  Com.  V.  Cullen,  13 
Pa.  St.  133,  S3  Am.  Dec.  450;  Eberly 
V.   Groff,  21   Pa.   St.  251. 

Tennessee.  —  Spurlock  v.  Fulks,  I 
Swan  289;  Sims  t'.  Sims,  5  Humph. 
369- 

■Vermont.  —  Blaisdell  v.  Bowers,  40 
Vt.  126;  Veile  v.  Blodgett,  49  Vt. 
270;  Rich  V.  Austin,  40  Vt.  416. 

I'lrginia.  —  Wilkins  v.  Woodfin,  5 
Munf.    183. 

"  The  general  rule  of  equity  prac- 
tice is,  that  when  a  defendant  has, 
by  his  answer  under  oath,  expressly 
negatived  the  allegations  of  the  bill, 
and  the  testimony  of  one  person  only 
has  affirmed  what  has  been  negatived, 
the  court  will  not  decree  in  favor 
of  the  complainant.  There  is  then 
I  ath  against  oath.  In  such  cases 
there  must  be  two  witnesses,  or  one 
with  corroborating  circumstances,  to 
overbear  the  defendant's  sworn  an- 
swer. The  reason  for  this  is,  that 
the  complainant  generally  calls  upon 
the  defendant  to  answer  on  oath ; 
and  he  is,  therefore,  bound  to  admit 
the  answer,  so  far  as  he  has  called 
for  it,  to  be  prima  facie  true,  and 
as  worthy  of  credit  as  the  testimony 
of  any  other  witness.  This  rule, 
however,  does  not  extend  to  aver- 
ments in  the  answer  not  directly 
responsive  to  the  allegations  of  the 
liill,  for  the  complainant  has  not 
called  for  them."     Seitz  v.  Mitchell, 


04  U.  S.  580. 

34.  Savage    v. 
119;    Parkman    :■. 
(Mass.)   231. 

35.  Parkman   v.    Welch,    19    Pick. 


Benham,    17    Ala. 
Welch,    19    Pick. 


Vol.  I 


920 


ANSWERS. 


h.  Arginiiciitatiz'c  Not  Coiiipi'tciit.  —  Under  the  rule  that  the 
answer  must  be  direct  and  positive,  matter  of  argument  or  infer- 
ence is  not  competent  as  evidence.'"' 

c.  What  Is  Rcsponsiz'c.  —  It  is  not  always  easy  to  determine 
when  an  answer  is  sufificiently  responsive  to  admit  it  as  evidence 
for  the  defendant,  and  upon  this  the  authorities  are,  not  unnaturally, 
in  conflict.  Each  case  depends  materially  upon  its  own  facts,  and 
the  best  that  can  be  done  is  to  cite  the  cases  bearing  on  the  ques- 
tion." 


(Mass.)   231  ;   Smith  v.   St.  Louis  L. 
Ins.    Co.,   2   Tenn.    Ch.   599. 

In  White  v.  Wiggins,  32  Ala.  424, 
it  is  said :  "  The  defendant  has  not 
here  contented  himself  with  a  denial, 
based  upon,  and  referring  to  certain 
facts;  but,  in  responding  to  a  specific 
interrogatory,  has  taken  up  the  sub- 
ject a  second  time,  and  given  a  flat 
denial,  not  dependent  upon  any 
statement  of  facts.  This  general 
denial,  that  the  defendant  was  in- 
solvent as  alleged  in  the  bill,  would, 
on  exceptions  to  the  answer,  have 
been  held  insufficient,  but  for  the 
rule  of  practice  which  prohibits  ex- 
ceptions to  answers  where  a  verifica- 
tion by  oath  is  waived,  because  a 
literal  denial,  not  meeting  the  charge, 
is  insufficient.  Woods  r.  JNIorrell,  I 
John.  Ch.  103;  2  Dan.  Ch.  PI.  and 
Pr.  835.  But  it  is  not  the  case  of  an 
omission  to  answer,  because  there 
is  a  plain  denial  of  the  allegation  in 
the  manner  and  form  in  which  it  is 
made.  An  admission  of  an  allega- 
tion in  a  bill  cannot  be  implied  from 
the  insufficiency  of  the  answer  to  it. 
Savage  v.  Benham,  sul^ra ;  Parkman 
?'.  Welch,  19  Pick.  231." 

36.  Toulme  v.  Clark,  64  Miss.  471  ; 
Atkinson  !■.  Foster,  134  III.  472,  25- 
N.  E.  528;  Copeland  v.  Crane,  g 
Pick.    (Mass.)    73. 

37.  What  is  Responsive  Matter. 
United  States.  — R^-ul  ?•.  McAllister, 
49  Fed.   16. 

Alabama.  —  Ware  v.  Jordan,  21 
Ala.  837 ;  Manning  v.  \Ianning,  8 
Ala.  (N.  S.)  138;  Hanson  ;■.  Pat- 
terson, 17  Ala.  738;  Wellborn  v.  Til- 
ler, 10  Ala.  (N.  S.)  305;  Buc'^anaii 
V.  Buclianan,  72  Ala.  55 ;  Fenno  v. 
Sayre,  3  .Ma.  458;  Powell  v.  Powell. 
7  Ala.  (N.  S.)  582;  May  v.  Barn- 
ird,  20  Ala.  200;  Green  v.  Casey, 
70  Ala.  417. 

Vol.  I 


Arkansas.  —  Pelham  v.  Moreland, 
II  .\rk.  442;  Wheat  v.  !Moss,  16  Ark. 

243- 

Delaware.  —  Merriken  f.  Godwin,  2 
Del.  Ch.  236. 

Georgia.  —  Smith  v.  .Atwoorl,  14  Ga. 
402;  Laughlin  v.  Greene,  13  Ga.  359; 
Eastman  v.  Mc.\lpin,  i  Kelley  157. 

Illinois.  —  Gregg  i'.  Renfrews.  24 
111.  621. 

.Maryland.  —  Neale  v.  Hagthrop,  3 
Bland  551  ;  Glenn  v.  Grover,  3  Md. 
212;  Turner  v.  Knell,  24  Md.  55; 
Philadelphia  Trust  etc.  Co.  z:  Scott, 
45   Md.  451. 

Michigan.  —  Schwarz  v.  Wendell,  i 
Walk.  267. 

Mississippi.  —  Rodd  f.  Durbridge, 
53  Miss.  694;  Lockman  f.  Miller 
"(Miss.),  22  So.  822;  Rossell  v. 
Moffitt,  6  How.  303- 

Nni'  Hampshire.  —  Bellows  v. 
Stone,   18  N.  H.  465. 

Neiv  Jersey.  —  Cammack  v.  John- 
son, 2  N.  J.  Eq.  163:  Merritt  v. 
Brown,   19  N.  J.   Eq.  286. 

AVt£'  York.  —  Dunham  v.  Gates,  i 
Hoff.  184 :  Dunham  v.  Jackson.  6 
Wend.  22 :  Hart  z'.  Ten  Eyck,  2  Johns. 
Ch.  62;   Jackson  ?■.   Hart,   11    Wend. 

343. 

Pennsylvania.  —  Eaton's  Appeal,  66 
Pa.  St.  483;  Appeal  of  Kenney  (Pa. 
St.),  12  .\tl.  589;  Pusey  7'.  Wright, 
31  Pa.  St.  387;  Cresson's  .Appeal,  91 
Pa.  St.  168;  Appeal  of  Gleghornc, 
118  Pa.  St.  383,  II  Atl.  797:  Bell  r. 
Farmers'  Dep.  Nat.  Bank,  131  Pa. 
St.  318,  18  -Atl.  1079;  Appeal  of  Row- 
ley, lis  Pa.  St.  150,  9  Atl.  329:  Hand 
V.  Weidner,  i=;i  Pa.  St.  362,  2;  .\tl. 
38. 

Rhode  Island.  —  Ives  v.  Hazard,  4 
R.  I.  14,  67  .\m.  Dec.  500:  Parkes 
V.  Gorton,  3  R.  I.  27. 

Tennessee.  —  Walter  r.  JNIcNabb,  I 
Heisk.     703 ;     Meek     z:     McCormick 


AXSU'IiRS. 


921 


d.  /;(  .li'oiiiaiiCi'  Xot  H^idciicc.  —  It  is  only  such  matter  as  is 
responsive  to  the  hill  that  is  competent  evidence  for  the  defendant. 
Therefore,  where  matter  in  avoidance  is  pleaded,  the  answer  is  not 
competent  evidence  for  the  defendant,  but  the  matter  alleged  must 
be  proved  by  extrinsic  evidence.-'*^     But  some  of  the  cases  allow  the 


(Teim.).  42  S.  W.  458;  Alexander 
j'.  Wallace,  10  Yerg.  105;  Gass  v. 
Simpson,  4  Cold.  288 ;  Hopkins  7'. 
Spiirlock,  2  Heisk.  152. 

rcnnoiit.  —  Mann  ?■.  Betterly.  2i 
Vt.  326;  Rich  V.  Austin,  40  Vt.  416. 

In  Laughlin  i'.  Greene,  13  Ga.  359, 
it  is  held  that  if  the  answer  springs 
out  of  the  allegations  in  the  hill  and 
its  statements  stand  connected  with 
the  allegations  although  not  literally 
and  directly  responsive,  they  are  to 
go  to  the  jury  as  evidence  for  tlie 
defendant  for  as  much  as  they  are 
worth. 

The  general  rule  on  the  suhject  is 
thus  stated  in  Schwarz  v.  Wendell, 
1  Walk.  267 :  "  The  general  rule  is, 
that  whatever  is  responsive  to  the 
bill  is  evidence  for,  as  well  as 
against,  the  defendant.  But  there  is 
frequently  much  difficulty  in  apply- 
ing the  rule,  and  regard  must  always 
be  had  to  the  case  made  by  the 
bill,  in  determining  what  is,  and 
what  is  not  responsive.  Is  the  fact 
stated  in  the  bill,  and  answered  by 
defendant,  material  to  complainant's 
case,  that  is,  must  it  be  proved  to 
entitle  him  to  relief;  or  is  it  a  cir- 
cumstance from  which  such  material 
fact  may  he  inferred? — for  the  com- 
plainant may  prove  his  case,  by  either 
positive  or  presumptive  evidence.  If 
it  is,  the  answer,  as  it  regards  such 
fact,  is  responsive  to  the  bill,  and  is 
evidence  in  the  cause.  It  may  also, 
sometimes,  be  evidence  of  a  fact 
not  stated  in  the  bill;  as  where  llie 
bill  sets  forth  part  of  complainants 
case,  only,  instead  of  the  whole,  and 
the  part  admitted  and  stated  in  the 
answer  shows  a  different  case  from 
that  made  by  the  bill,  and  is  not 
matter  in  avoidance  merely.  As 
where  a  bill,  filed  to  redeem  stock, 
alleged  it  had  been  pledged  for  five 
hundred  dollars,  and  the  answer 
stated  it  was  pledged  for  eight  hun- 
dred dollars,  in  addition  to  the  five 
hundred  dollars  stated  in  the  bill,  the 


answer  was  held  to  be  responsive. 
Dunham  v.  Jackson,  6  Wend.  R.  22. 
Here  the  answer,  instead  of  being 
responsive  to  a  particular  fact  stated 
in  the  bill,  was  responsive  to  com- 
plainant's case,  which  tlie  answer 
denied,  by  showing  a  different  case. 
I'ut  where  the  answer  does  not  show 
a  different  case,  l)ut,  admitting  the 
case  made  by  the  bill,  sets  up  new 
matter  in  avoidance  of  it,  the  answer 
is  not  evidence  of  such  new  matter. 
.•\s  where  the  defendant  sets  up  usury, 
in  his  answer  to  a  bill  filed  to  fore- 
close a  mortgage.  Green  z;  Hart,  I 
J.  R.  850.  Such  arc  the  general  prin- 
ciples, to  be  adduced  from  the  cases, 
for  our  guide  in  determining  what 
•>  parts  of  an  answer  are  responsive  to 
the  bill." 

In  Merritt  r.  Brown,  19  N.  J.  Eq. 
286,  the  interrogatory  in  the  bill  asked 
"  for  what  purpose  and  consideration 
the  said  stock  was  assigned?  "  and 
it  was  held  that  an  affirmative  state- 
ment, in  the  answer,  of  tlie  particulars 
of  the  transaction  inquired  about, 
was  responsive. 

So  it  was  held  in  Reid  ■;•.  McAl- 
lister, 49  Fed.  16,  that  in  a  suit  to 
foreclose  a  mortgage  against  a  hus- 
band and  wife,  an  answer  by  the 
wife  that  her  signature  to  the  mort- 
gage was  procured  by  the  fraudulent 
representations  of  the  complainant, 
was   responsive. 

And  the  same  conclusion  w^as 
.  reached  in  Appeal  of  Rowley,  115 
Pa.  St.  150,  9  Atl.  329,  where  the  suit 
was  by  one  claiming  to  have  sub- 
scribed to  the  stock  of  a  corporation 
seeking  to  enforce  his  rights  as  a 
stockholder,  and  the  answer  admitted 
that  the  plaintiff  subscribed  to  the 
stock  but  alleged  that  it  was  with 
the  understanding  that  his  subscrip- 
tion  was   for  the  benefit   of  another. 

38.  Matter  in  Avoidance  Must  Be 
Proved     by     Defendant.  —  2     Story's 

Eq.    PI..   849a. 
United  Stales.  — Keid  7:   McAllis- 

Vol.  I 


922  ANSWERS. 

answer  to  be  evidence  for  tlie  defendant  whether  the  matter  therein 


ter,  49  Fed.  i6;  Lake  Shore  etc.  R. 
Co.  V.  Felton,  103  Fed.  227,  43  C.  C. 
A.  189;  Carpenter  v.  Providence  Ins. 
Co..  4  How.  185 ;  McCoy  v.  Rhodes, 
II  How.  131;  Tilghman  v.  Tilghman, 

1  Baldw.  464,  2T,  Fed.  Cas.  No. 
14,045 ;  Morgan  v.  Tipton,  3  McLean 
339.   17  Fed.  Cas.  No.  9809. 

Alabama.  —  Goodloe  v.  Dean,  81 
Ala.  479,  8  So.  197;  Ware  v.  Jordan, 
21  Ala.  837;  Forrest  v.  Robinson,  2 
Ala.  (N.  S.)  215;  Hanson  v.  Pat- 
terson, 17  Ala.  738;  Wellborn  v.  Til- 
ler, 10  Ala.  (N.  S.)  305;  Buchanan 
I'.  Buchanan,  72  Ala.  55 ;  Lucas  v. 
Bank  of  Darien,  2  Stew.  280;  Gordon 
V.  Bell,  50  Ala.  213;  Webb  v.  Webb, 
29  Ala.  588;  Branch  of  the  Bank  v. 
Marshall,  4  Ala.  60;  McGowan  v. 
Young,  2  Stew.  276;  Marks  v.  Cow- 
les,  61  Ala.  299;  Green  v.  Casey,  70 
Ala.  417;  Holmes  v.  State,  100  Ala. 
291,   14   So.   51. 

Arkansas.  —  Pelham  v.  Moreland, 
II  Ark.  442;  Stillwell  v.  Badgett,  22 
Ark.  164;  Magness  v.  Arnold,  31 
Ark.  103 ;  Byers  v.  Fowler,  12  Ark. 
218,  54  Am.  Dec.  271 ;  Whiting  v. 
Beebe,  12  Ark.  421 ;  Scott  v.  Henry, 
13  Ark.  112;  Roberts  v.  Totten,  13 
Ark.  609;  Walker  v.  Scott,  13  Ark. 
644;  Wheat  z\  Moss,  16  Ark.  243; 
Fatten  v.  Ashley,  3  Eng.  290;  Cum- 
mins V.  Harrell,  6  Ark.  308. 

Delaware.  —  Merriken    v.    Godwin, 

2  Del.    Ch.   236. 

Georgia.  —  Lee  i'.  Baldwin,  10  Ga. 
208;  Cartledge  v.  Cutliff,  29  Ga.  758; 
Neal  V.  Patten,  40  Ga.  363 ;  Daniel 
V.  Johnson,  29  Ga.  207. 

Illinois.  —  O'Brian  z'.  Fry,  82  111. 
274;  Roberts  v.  Stigleman,  78  111.  120; 
Mahoney  v.  }iIahoney,  65  111.  406; 
Cooper  V.  Tiler,  46  III.  462,  95  Am. 
Dec.  442 ;  Brown  z'.  Welch,  18  111. 
343.  68  Am.  Dec.  549;  Cummins  v. 
Cummins,  15  111.  34;  Lynn  z'.  Lynn, 
10  111.  602;  Walton  z'.  Walton,  70 
111.  142;  Harding  z\  Hawkins,  141 
111.    572,   31    N.    E.    307. 

Indiana.  —  Green  z\  Vardiman,  2 
Blackf.  324;  Wasson  v.  Gould,  3 
Blackf.  18;  Pierce  z:  Gates,  7  Blackf. 
162. 

Iozkv.  ■ —  SchafFer  "■.  Grutzmacher, 
6  Iowa  137. 

Vol.  I 


Kentucky.  —  Lampton  Z'.  Lampton, 
6  T.  B.  Men.  616;   Vance  z:  Vance, 

5  T.  B.  Mon.  521 ;  Atwood  v.  Har- 
rison, 5  J.  J.  Marsh.  329;  Todd  v. 
Sterrell,  6  J.  J.  Marsh.  425 ;  Prior  v. 
Richards,  4  Bibb  356;  Ballinger  v. 
Worley,  i  Bibb  195. 

Maine.  —  Buck  v.  Swazey,  35  Me. 
41  ;  Gilmore  z:  Patterson,  36  Me.  544; 
O'Brien  -'.  Eliott,  15  Me.  125;  Warren 
z:  Levis,  53  ;\Ie.  463 ;  Peaks  z:  Mc- 
.'\vey   (Me.),  7  Atl.  270. 

Maryland.  —  Ringgold  v.  Ringgold, 
I  Har.  &  G.  11,  8  Am.  Dec.  250; 
Cecil  V.  Cecil,  19  Md.  72,  81  Am.  Dec. 
626;  Jones  -■.  Belt,  2  Gill  106;  McNeal 
z:  Glenn,  4  Md.  87 ;  Salmon  v. 
Clagett,  3  Bland  125 ;  Neale  v.  Hag- 
throp,  3  Bland  551  ;  Gardiner  v.  Har- 
dey,  12  G.  &  J.  365 ;  Fitzhugh  z'.  Mc- 
Pherson,  3  Gill  408;  Hagthorp  v. 
Hook,   I   Gill  &  J.  270. 

Massachusetts.  —  New  England 
Bank  Z'.  Lewis,  8  Pick.  113;  Leach 
z\  Fobes,  II  Gray  506,  "i  .Am.  Dec. 
732. 

Michigan.  —  Schwarz    v.    Wendell, 

1  Walk.   267 ;    Van   Dyke   z:    Davis, 

2  Mich.  144;  Hunt  v.  Thorn,  2  Mich. 
213;  Hart  I'.  Carpenter,  36  Mich. 
402;    Millerd  z:   Ramsdell,    Har.   Ch. 

373- 

Mississippi.  —  Dease  v.  Moody,  31 
Miss.  617;  Brooks  v.  Gillis.  12  Smed. 

6  M.  538;  Wofford  V.  Ashcraft,  47 
Miss.  641;  Miller  z\  Lamar,  43  Miss. 
383;  Greenleaf  v.  Highland,  I  Miss. 
375 ;    Planters'    Bank    v.    Stockman, 

1  Frcem.  Ch.  502. 

Nezv     Hampshire.    —    Bellows     v. 
Stone,   18  N.   H.  465. 
Nezv  Jersey.  —  Neville  z'.  Demeritt, 

2  N.  J.  Eq.  321  ;  Fisler  Z'.  Porch,  10 
N.  J.  Eq.  243;  Stevens  v.  Post,  12 
N.  J.  Eci.  408;  Roberts  v.  Birgess,  20 
N.  J.  Eq.  139;  Dickey  v.  Allen,  2 
N.  J.  Eq.  40;  Winans  Z'.  Winans, 
19  N.  J.  Eq.  220;  Miller  v.  Wack, 
I  N.  J.  Eq.  204;  Vanderhorf  v.  Clay- 
ton, 6  N.  J.  Eq.  192;  Fey  v.  Fey,  27 
N.  J.  Eq.  213 ;  Brown  v.  Kahnweiler, 
28  N.  J.  Eq.  311;  Van  Dyke  v.  Van 
Dyke,  26  N.  J.  Eq.  180;  Wilkinson 
z:  Bauerle  (N.  J.  Eq.),  7  Atl.  514; 
Vorhees  v.  Vorhees,  18  N.  J.  Eq.  223. 

Nczi'   York.  —  Hart   v.    Ten   Eyck, 


ANSWERS. 


923 


is  set  up  by  way  of  denial,  or  as  affirmative  matter  responsive  to 
the  bill.'''-'     But  the  correctness  of  this  rule,  so  far  as  it  relates  to  the 


2  Johns.  Cli.  62 ;  Dunham  t.  Gates, 
I  Hoff.  184;  Jackson  v.  Hart,  11 
Wend.  343;  Wakeman  v.  Grover,  4 
Paige  Ch.  23 ;  Atwater  v.  Fowler,  I 
Edw.  Ch.  417;  Sinison  1'.  Hart.  14 
Johns.  63:  Dunham  v.  Jackson,  6 
Wend.  22 ;  Green  f.  Hart,  i  Johns. 
58o._ 

North  Carolina,  —  Lyerly  v. 
Wheeler.  3  Ired.  Eq.  599;  Jones  v. 
Jones,  I  Ired.  Eq.  2>i--  Woodall  v. 
Prevatt.  Busb.  Eq.  199;  Fleming  z>. 
Murph,  6  Jones  Eq.  59;  Johnson  v. 
Person.   I    Dev.   Eq.  364. 

O/iio.  — Methodist  E.  Church  v. 
Wood.  T  Ohio  285;  Brown  r'.  Cutler, 
8  Ohio '142. 

Pennsylvania.  —  Eaton's  Appeal,  66 
Pa.  St.  483;  Appeal  of  Kenney  (Pa. 
St.),  12  Atl.  589;  Pusey  v.  Wright, 
31  1-a.  St.  387 ;  Volhner's  Appeal,  61 
Pa.  St.  118;  Appeal  of  Luburg  (Pa. 
St.),  17  Atl.  245;  Appeal  of  Gleg- 
horne.  118  Pa.  St.  383,  11  Atl.  797; 
Bell  V.  Farmers'  Dep.  Nat.  Bank 
(Pa.   St.),   18  Atl.   1079. 

Rhode  Island.  —  Ives  v.  Hazard,  4 
R.  I.  14,  67  Am.  Dec.  500;  Parkes 
V.  Gorton,  3  R.  I.  27. 

South  Carolina.  —  Gordon  v.  Saun- 
ders, 2  McCord  Eq.  151 ;  Reeves  v. 
Tucker,  5  Rich.  Eq.  150. 
■  Tennessee. — -Alexander  1'.  Wallace, 
10  Yerg.  105 ;  Cocke  r.  Trotter,  10 
Ycrg.  212;  Wolfe  v.  Cawood,  i 
Heisk.  597 ;  Davis  v.  Clayton,  5 
Humph.  445 ;  State  v.  McAuJey,  4 
Heisk.  424;  Gass  v.  Arnold,  6  Ba.xt. 
329 ;  Beech  v.  Haynes,  I  Tenn.  Ch. 
569. 

Te.ras.  —  Thouvenin  j'.  Helzle,  3 
Tex.  57;  Jouett  V.  Jouett,  3  Tex. 
150. 

I'erntont.  —  Mott  v.  Harrington,  12 
Vt.  199;  Spaulding  i'.  Holmes,  25 
Vt.  491 ;  Adams  v.  Adains,  22  "Vt. 
so;  Cannon  z\  Norton,  14  Vt.  178; 
Lane  v.  Marshall,  15  Vt.  85 ;  Pier- 
son  1:  Clayes,  15  Vt.  93 ;  McDonald 
I'.  McDonald,  16  Vt.  630 ;  Sanborn 
V.  Kittredge,  20  Vt.  632 ;  McDaniels 
V.    Barnum.   5   Vt.   279. 

Virginia.  —  Paynes  v.  Coles.  I 
Alunf.  373 ;  Leas  v.  Eidson,  9  Gratt. 
277 ;    Vathir   f.    Zane,   6   Gratt.    246 ; 


Purcell  c'.  Purcell,  4  Hon.  &  Munf. 
507- _. 

ll'iseunsin.  —  Farmers'  &  Mechan- 
ics' Bank  i\  Griffith,  2  Wis.  324; 
Smith  r.  Potter,  3  Wis.  384;  Walton 
!■.  Cody,  I  Wis.  364 ;  Parish  v.  Gear, 
I  Pinn.  261  ;  Cooper  v.  Tappan.  9 
Wis.    333. 

39.  Georgia.  —  Smith  v.  .\twood, 
14  Ga.  402;  Shields  r.  Stark,  14  Ga. 
429. 

Michigan.  —  Schwarz  v.  Wendell, 
I   Walk.  267. 

Nezi'  Hampshire.  —  Bellows  v. 
Stone,   18  N.  H.  465. 

Neii.'  Jersev.  —  Merritt  v.  Brown, 
19   N.   J.    Eq"   286. 

Neiv  York.  —  Woodcock  v.  Bennet, 
I  Cow.  711. 

Pennsylvania.  —  ,\ppeal  of  Rowley, 
115   Pa.   St.    150,  9  Atl.   329. 

I'ermont.  —  Adams  v.  Adams,  22 
Vt.   50. 

Rule  the  Same  Whether  Matter 
Affirmative  or  Negative.  —  lu  Smith 
1'.  Atwood,  14  Ga.  402.  it  was  held 
that  where  an  interrogatory  in  the 
bill  calls  upon  a  defendant  to  show 
by  what  pretended  claim  he  refuses 
to  deliver  possession  of  property, 
and  the  defendant,  in  his  answer 
sets  up  an  assignment  from  the  hus- 
band of  the  complainant  (who  had 
the  right  to  execute  the  same)  as 
such  evidence  of  claim,  the  matter 
set  up,  though  in  discharge,  is  yet 
responsive  because  directly  called  for 
by  the  complainant,  and  may  be  ad- 
mitted as  proof  of  such  assignment. 

So  it  i-s  held  that  when  the  answer 
is  necessarily  connected  with  or  ex- 
planatory of  the  responsive  matter 
it   will  be  competent  evidence. 

In  Bellows  v.  Stone,  18  N.  H,  465, 
the  rule  is  declared  in  general  terms 
that  the  doctrine  that  if  the  plaintiff 
seeks  to  impeach  the  answer  he  must 
overcome  it  by  more  than  the  tes- 
timony of  a  single  witness,  is  not 
limited  to  matters  in  the  answer 
which  deny  what  is  stated  in  the 
bill,  but  extends  to  matter  of  affirm- 
ance, if  the  latter  be  in  relation  to 
a  particular  upon  which  the  bill  re- 
quires the  defendant  to  make  answer. 

Vol.  I 


924 


ANSirERS. 


admission  in  evidence  nt  affirmative  matter,  although  responsive  to 
the  bill,  has  been  doubted.^" 


"  It  is  indeed  questionable,  whether, 
when  the  plaintilT's  claim  rests  npon 
a  written  contract,  or  admission,  and 
the  defendant  is  called  upon  in  the 
bill  to  admit,  or  deny,  its  existence, 
and  does  admit  it.  which  makes  a  full 
case  for  the  plaintiff,  the  defendant 
can  go  farther,  and  show  that  it  is 
not  now  of  binding  obligation  upon 
him.  The  opinion  of  Chancellor 
Kent,  in  Hart  v.  Ten  Eyck,  2  Johns. 
Ch.  R.  62,  restricts  the  rule,  as  to 
defendant's  right  to  discharge  him- 
self, when  he  is  only  charged  by  his 
admission  in  the  answer,  to  the  very 
same  sentence,  and  to  the  same  trans- 
action. This  case  was.  indeed,  re- 
versed in  the  court  of  error  upon  this 
point,  as  stated  in  a  note  to  Wood- 
cock V.  Bennet,  i  Cow.  744,  where 
the  rule  is  laid  down,  which  is  sub- 
stantially followed  in  the  later  cases 
in  that  state,  that  whatever  is  fairly 
a  reply  to  the  general  scope  of  the 
claim  set  up  in  the  bill,  whether  in 
the  stating  or  charging  part,  and 
whether  by  way  of  denial,  or  excuse, 
or  avoidance,  is  to  be  treated  as  evi- 
dence for  the  defendant.  This  is 
far  more  rational,  and  just,  and  easy 
of  application,  than  the  restricted 
rules  contained  in  the  case  of  Hart 
V.  Ten  Eyck ;  but  I  am  not  sure  that 
it  is  yet  fully  established."  Adams 
V.  Adams,  22  Vt.  50. 

"  But  it  is  claimed  by  the  com- 
plainant that  affirmative  matter  in 
avoidance,  though  responsive  to  the 
bill,  is  not  evidence.  Such,  however, 
is  not  the  rule.  All  matter  strictly 
responsive,  whether  affirmative  or 
negative,  is  evidence.  But  when  the 
answer  is  direct  to  the  allegation  or 
interrogatory,  either  affirmative  or 
negative,  and  in  explanation  or  qual- 
ification, the  defendant  goes  on  to 
set  up  new  matter  to  avoid  the  effect 
of  his  admission  or  denial,  such  new 
matter  is  not  evidence;  as  if  the  bill 
alleged  that  the  defendant,  at  a  cer- 
tain time  and  place  executed  a  prom- 
issory note,  and  the  defendant  in 
answer  admits  the  execution  of  the 
note,  but  sets  up  a  want  of  con- 
sideration, or,  when  the  complainant 

Vol.  I 


calls  for  an  account,  and  charges 
receipt  of  money  or  property,  and  the 
defendant  admits  the  receipt  of  the 
money  or  property  and  sets  up  (nat- 
ters in  discharge,  in  such  and  similar 
cases,  the  matter  of  avoidance  or 
discharge  is  not  strictly  responsive, 
and  must  be  proved."  Farmers'  and 
Mechanics'   Bank  r.   Griffith.   2   Wis. 

324. 

40.  But  Correctness  of  This  Doc- 
trine Doubtful. —  "  The  general  rule 
undoubtedly  is  that  an  answer  which, 
while  admitting  or  denying  the  facts 
in  the  bill,  sets  up  other  facts  in 
defense  or  avoidance,  is  not  evidence 
of  the  facts  so  stated.  Sto.  Eo..  § 
1529;  Gresley's  Eq.  Ev..  13.  This 
rule,  upon  a  careful  review  of  the 
authorities,  was  considered  as  well 
settled  by  Ch.  Kent  in  Hart  v.  Ten 
Eyck,  2  J.  Ch.  88;  and,  although 
its  application  to  the  facts  of  that 
case  was  held  erroneous  by  the  court 
of  errors,  it  has  been  approved  by 
the  supreme  court  of  the  United 
States  in  Clements  v.  Moore,  6  Wall. 
,315,  and  by  our  supreme  court  in 
Napier  v.  Elam,  6  Yer.  ii,v  The 
qualification  of  the  rule,  or  of  its 
application,  established  by  the  court 
of  errors  of  New  York  npon  appeal 
in  the  case  of  Hart  7'.  Ten  Eyck. 
is  stated  to  have  been,  for  the  decision 
was  never  reported,  that  if  the  facts 
in  discharge  or  avoidance  are  a  direct 
and  proper  reph-  to  an  express  charge 
or  interrogatory  of  the  bill,  then  the 
answer  is  evidence  of  those  facts. 
Woodcock  V.  Bennet,  i  Cow.  "44, 
note.  And  this  distinction  has  also 
been  adopted  by  our  supretne  court. 
Alexander  z:  Williams.  10  Yer.  109; 
Goss  V.  Simpson.  4  Cold.  288 :  Walter 
r.  McNabb.  i  Heisk.  703.  And  this 
whether  the  response  be  by  a  direct 
denial  or  by  a  statement  of  facts  by 
way  of  avoidance.  Hopkins  7:  Spur- 
lock.  2  Heisk.  152.  Some  authorities 
arc  quoted  as  holding  that  where  a 
defendant,  in  response  to  the  bill, 
once  admits  liability,  there  is  no  es- 
cape except  by  proof  of  the  matters 
of  discharge  or  avoidance.  Dyre  '•. 
Sturgess.  3  Dcs.  553 ;  Paynes  v.  Coles, 


ANSU'ERS. 


')2c 


e.  Is  Anszccr  of  Payment  Kcspoiisk'c.  —  So  it  is  held  that  an 
answer  of  payment  is  responsive  and  competent  as  evidence  for  the 
defendant/'  But  an  answer  of  payment  is  certainly  an  affirmative 
defense  in  avoidance,  and  not  a  denial  of  any  allegation  in  the  bill. 
Therefore,  the  better  rule  would  seem  to  be  that  such  an  answer 
is  not  competent  evidence  for  the  defendant. ■*- 

f.  When  Admission  and  Avoidance  One  fact.  —  And  it  is  held 
that  where  the  admission  and  avoidance  constitute  one  single  fact  or 
transaction,  the  answer  is  evidence  of  both.^'' 


I  :Miiiif.  395;  Fisler  z\  Porch,  2  Stock. 
248.  It  is  probable,  however,  that  a 
careful  analysis  of  the  cases  would 
show  that  the  rule  is  substantially  the 
same  everywhere,  but  its  application 
is  varied  by  the  particular  facts  of 
the  several  cases. 

"  A  qualification  of  the  general  rule 
is,  that  where  the  transaction  is  a 
continuous  one,  and  the  matters  of 
charge  and  discharge  occur  at  the 
same  time,  the  whole  statement  must 
be  taken  together.  Robinson  ■;■.  Scot- 
ney,  19  \'es.  582;  Lady  Ormond  !■. 
Hutchinson,  13  Ves.  50;  Thompson 
i\  Lambe,  7  Ves.  588.  The  qualifica- 
tion is  more  broadly  stated  under  the 
English  practice  in  2  Dan.  Ch.  Pr. 
835,  thus  :  '  Where  a  plaintiff  chooses 
to  read  a  passage  from  the  defend- 
ant's answer,  he  reads  all  the  cir- 
cumstances stated  in  the  passage.  If 
the  passage  so  read  contains  a  refer- 
ence to  any  other  passage,  that 
other  passage  must  be  read  also.' 
Bartlett  v.  Gillard,  3  Russ.  157; 
Nurse  :■.  Bunn,  5  Sim.  225.  The  old 
decisions  went  so  far  as  to  hold  that 
a  discharge  in  the  same  sentence  with 
tjie  charge  would  be  evidence  (be- 
cause the  whole  context  must  be 
read),  when  it  would  not  have  been 
if  stated  separately.  Ridgeway  i'. 
Darwin,  7  Ves.  404 ;  Thompson  z'. 
Lambe,  7  Ves.  588.  The  consequences 
of  which  was,  as  stated  by  Mr. 
Gresley  in  his  work  on  Evidence  in 
Equity,  p.  15.  that  formerly  much  of 
the  skill  required  in  drawing  an  an- 
swer consisted  in  uniting  by  connect- 
ing particles  miportant  points  of  the 
defendant's  case  with  admissions  that 
could  not  be  withheld.  The  answer 
in  the  case  now  before  me  seems 
framed  on  these  old  cases.  But  the 
modern    decisions    are    governed    bv 


the  sounder  rule  of  being  controlled 
by  the  sense  instead  of  the  contiguity 
or  grammatical  structure  of  the  sen- 
tences. Passages  connected  in  mean- 
ing may  be  read  together  from  dis- 
tinct parts  of  the  answer.  Rude  v. 
Whitechurch,  3  Sim.  562.  And,  on 
the  other  hand,  if  the  matter  in  avoid- 
ance has  been  skillfully  interwoven 
into  the  sentences  containing  respon- 
sive admissions,  the  complainant  will 
be  entitled  to  have  the  matter  of 
avoidance  considered  as  struck  out. 
McCoy  !■.  Rhodes,  11  How.  U.  S. 
131  ;  Baker  v.  Williamson,  4  Penn. 
St.  467,  3  Greenl.  Ev.,  §  281." 
Beech  z:  Haynes,  i  Tenn.  Ch.  569. 

41.  Is  Answer  of  Payment  Res- 
ponsive. —  Grafton  Bank  z:  Doe,  19 
Vt.  463;  King  z:  Payan,  18  Ark.  583; 
Britt  -'.  Bradshaw,  i8  Ark.  530; 
Stevens  z'.  Post,  12  N.  J.  Eq.  408; 
McCaw  V.  Blewett,  2  McCord  Eq. 
(S.   C.)    90. 

42.  Of  Payment  Not  Evidence  for 
Defendant.  —  Json  z:  Ison,  5  Rich. 
Hq.  (S.  C.)  15;  Walker  z:  Berry, 
8  Rich.  (S.  C.)  33;  Adams  v.  Adams, 
22  Vt.  so;  Hickman  z'.  Painter,  11 
W.  Va.  386. 

43.  Appeal  of  Rowley,  115  Pa.  St. 
150,  9  Atl.  329;  Cummins  v.  Cum- 
mins.   IS    111.    34. 

Thus  it  is  held  that  where  the 
defendant  admits  the  signing  of  an 
instrument,  but  alleges  that  his  sig- 
nature was  procured  by  fraud,  the 
answer  is  evidence  of  both  the  sign- 
ing and  that  the  signature  was  so 
procured.  Reid  z\  McAllister,  49 
Fed.   16. 

"  It  would  seem  from  these,  that 
where  the  answer  admits  facts  which 
charge  the  defendant,  and  sets  up, 
also,  matter  which  discharges  him, 
the    latter   is   not    evidence    for   him. 


Vol.  I 


926 


ANSWERS. 


g.  If  Rcspoiisii'C.  Competent  Jl'ltether  Affinnative  or  Negathw 
And  again  the  general  rule  is  laid  down  that  all  matter  strictly 
responsive  to  the  bill,  whether  affirmative  or  negative,  is  evidence 
for  the  defendant.** 

h.  Competent  Only  Where  Evidence  of  Fact  Would  Be.  —  The 
answer  cannot  be  taken  to  establish  anything  in  bar  of  the  relief 
prayed  for  which  parol  testimony  would  not  be  admitted  to  prove, 
as  it  is  as  evidence  only  that  it  is  received." 

i.  Part  Defcctii'c,  Balance  Competent.  —  If  the  answer  called  for 
is  insufficient  in  some  of  its  parts,  such  defect  does  not  render  the 
balance  of  the  answer,  if  sufficient,  incomjjetent.  The  remedy  of  the 
complainant  is  to  except  and  compel  a  full  answer,  and  if  he  does 
not,  he  cannot  object  to  the  answer  as  evidence.*^ 

g.  Hearsay  Not  Evidence.  —  The  answer  to  be  competent  as  evi- 
dence for  the  defendant  must  state  matters  within  his  knowledge, 
and  not  mere  hearsay.*' 

13.  On  Hearing  on  Bill  and  Answer.  —  A.  Answer  Taki-.x  to  Be 
True.  —  If  instead  of  filing  a  replication,  which  puts  in  issue  the 
allegations  of  the  answer,  the  complainant  sets  the  case  down  for 
hearing  on  the  bill  and  answer,  the  answer  must  be  taken  to  be 
true  and  cannot  be  controverted,  and  the  allegations  in  the  bill 
denied  by  the  answer  are  taken  as  disproved.**     And  this  is  held 


unless  the  charge  and  discharge  arise 
out  of  one  transaction,  in  which  case 
the  defendant  may  state  the  whole 
transaction  and  it  is  all  held  respon- 
sive, and  evidence  in  his  favor.  But 
perhaps  this  answer  should  he  distin- 
guished from  those  which  are  held 
to  charge  and  discharge  the  defend- 
ant, and  that  the  latter  are  tnose 
only  which,  while  admitting  that  the 
defendant  was  once  liable  to  the 
charge  set  up  in  the  bill,  go  to 
discharge  him  by  some  matter  in 
avoidance.  But  here,  although  we 
think  the  answer  admits  facts  enough, 
which,  unexplained,  prove  the  usury 
alleged,  yet,  if  it  avoids  it  at  all,  it 
does  not  do  it  on  the  hypothesis  that 
the  usury  really  once  e.xisted,  and  is 
admitted  and  avoided,  but  by  show- 
ing that  it  never  did  exist.  And  per- 
haps the  phrase  '  matter  in  avoid- 
ance,' as  applied  to  an  answer,  relates 
only  to  such  matter  as  avoids  a  con- 
ceded liability,  and  not  to  such  as 
avoids  the  effect  of  facts  admitted, 
which,  if  unexplained,  might  show 
the  liability,  but  whicli,  if  explained, 
show  that  the  liability  never  existed 
at  all.  So  that  a  defendant,  when 
answering  a  bill     rliarging    a    Irans- 


action  to  havj  been  of  a  certain 
character,  although  compelled  to  ad- 
mit facts  which  would,  alone,  go  lo 
show  the  charge  true,  may,  neverthe- 
less, state  other  facts,  which  go  to 
show  that  it  really  was  of  a  different 
character,  and  be  entitled  to  have 
the  whole  statement  considered  evi- 
dence for  him."  Cooper  r.  Tappen, 
9  Wis.   3,«. 

44.  Responsive  Evidence, 
Whether  Negative  or  Affirmative. 
Farmers'  &  Meclianics'  Bank  ;•.  Grif- 
fith, 2  Wis.  324;  Canunack  v.  John- 
son, 2  N.  J.  Exj.  163 ;  Hannah  v.  Car- 
rington.  18  Ark.  8^. 

45.  But  Only  Where  Parol  Evi- 
dence Competent.  —  Winn  v.  Albert, 

2  Md.   Cli.    169;   Neale  v.  Hagthrop, 

3  Bland  (Md.)  551;  Kent  v.  Car- 
caud,  17  Md.  291  ;  Jones  v.  Slubey,  5 
Har.  &  J.  (Md.)  372;  Carter  v.  Ben- 
nett, 6  Fla.  214;   Forrest  -•.   Frazier, 

2  Md.   Ch.    14-;   Trump   r.   Baltzell, 

3  .M<1.  295. 

46.  Whitney 
Eq.   360. 

47.  Stevens  ' 
408;  Brown 

2Q4. 

48.  On    Bill    and    Answer    Latter 


.  Robbins.  17  X.  J. 

Post.  12  K.   T.   Eq. 
Bulklcy.  14  X.  J.  Eq. 


Vol.  I 


ANSJVERS. 


927 


to  be  so  where  the  answer  is  defective  and  not  responsive  to  the 
bill.'*''     And  where  the  answer  is  not  jjositive,  but  on  beHef.^"     And 


Taken  To  Be  True. —£)ig/(i»rf.— Bar- 
ker I'.  Wyld,  I   Veni.  Ch.  140. 

United  States.  —  Leeds  v.  Marine 
Ins.  Co.  2  Wheat.  380;  In  re.  San- 
ford  Fork  &  Tool  Co.,  160  U.  S.  247, 
16  Sup.  Ct.  291;  U.  S.  V.  Scott,  3 
Woods  334,  27  Fed.  Cas.  No.  16,242 ; 
U.  S.  V.  Trans-Missouri  F.  ,\ss'n, 
58   Fed.   58,   7   C.   C.   A.    15. 

Alabama.  —  Forrest  t'.  Robinson,  2 
Ala.  (N.  S.)  215;  Frazer  v.  Lee, 
42  Ala.  25 ;  White  v.  President  etc. 
Florence  Bridge  Co.,  4  Ala.  (N.  S.) 
464. 

Illinois.  —  Kitchell  v.  Burgwin,  21 
111.  40;  Knapp  z'.  Gass,  63  111.  492; 
Mason  v.   McGirr,  28  111.  322. 

Io7i.'a.  —  State  v.  Jolly,  7  Iowa  15; 
Childs  V.  Horr,  I  Clarke  432. 

Maryland.  —  Ware  v.  Richardson, 
3  Md.  505,  56  Am.  Dec.  762 ;  Mason 
V.  Martin,  4  Md.  124;  McKim  7'. 
Odom,  3  Bland  407 ;  Coutee  v.  Daw- 
son, 2  Bland  264;  Estep  v.  Watkins, 

1  Bland  486 ;  Eversole  v.  Maull,  50 
Md.  95  ;   Warren  v.  Twilley,   10  Md. 

39- 

Massachusetts.  —  Taintcr  i'.  Clark, 
5  Allen  66. 

Michigan. — Riihlig  v.  Wilgert,  49 
Mich.  399.  13  N.  W.  791. 

Mississifpi.  —  Russell  v.  Moffitt,  6 
How.  303. 

Nc-M  Jersey.  —  Hoff  v.  Burd,  17  N. 
J.    Eq.    201. 

Nezi'  York. — Brinkerhoff  i'.  Brown, 
7  Johns.  Ch.  217;   Dale  z'.   McEvers, 

2  Cow.  118. 

Ohio.  —  Gwin  V.  Sedlcy,  5  Ohio  St. 

97- 

Pennsylvania.  —  Russell's  Appeal, 
34  Pa.  St.  258;  Randolph's  Appeal, 
66  Pa.  St.  178;  Goodyear  v.  Peck 
(Pa.  St.),  20  Atl.  693. 

Tennessee.  —  Martin  v.  Reese 
(Tenn.),  57   S.  W.  419. 

I'cnnont.  —  Doolittle  v.  Gookin,  10 

•Virginia.  —  Kennedy  v.  Baylor,  i 
Wash.   162. 

West  Virginia. — Copeland  j'.  Mc- 
Cue,  5  W.  Va.  264. 


Wisconsin.  —  Walton  v.  Cody,  I 
Wis.   364. 

"  It  is  true,  that  when  a  cause 
proceeds  to  a  hearing  upon  a  bill  and 
answer,  the  answer  must  be  taken  to 
be  true  in  every  particular.  The 
reason  for  this  rule  is,  that  the  com- 
plainant, failing  to  take  issue  by  a 
replication,  deprives  the  defendant  of 
the  opportunity  to  prove  the  matters 
set  up  in  his  answer.  It  is  an  admis- 
sion on  his  part,  that  he  is  content 
with  the  case  as  the  bill  and  answer 
present  it,  and  that  he  cannot  deny, 
or  does  not  seek  to  question  or  deny, 
any  of  the  matters  set  up.  But  when 
the  complainant  puts  in  a  replication, 
he  thereby  controverts  all  the  facts 
contained  in  the  answer.  He  com- 
pletes the  issue  between  the  parties. 
Then,  as  to  all  such  matters  as  the 
complainant  has  addressed  to  the 
conscience  of  the  defendant,  the  an- 
swer is  evidence.  It  is  evidence,  as 
to  such  matters,  because,  and  only 
because,  the  complainant  has  called 
the  defendant  as  a  witness  to  them. 
They  are  propounded  by  his  bill. 
The  answer  responds  to  the  bill,  and 
so  far  is  taken  to  be  true."  Walton 
V.   Cody.    I    Wis.   364. 

49.  Even  'Where  Not  Responsive. 
De  Wolf  V.  Long,  2  Gilm.  (111.)  679; 
Perkins  v.  Nichols,  II  Allen  (Mass.) 
542 ;  Doremus  v.  Cameron,  49  N.  J. 
Eq.  I,  22  Atl.  802;  Huyck  v.  Bailey, 
100   Mich.   223,   58   N.   W.    1002. 

"  If  an  answer  is  defective — if  it  is 
not  responsive  to  the  allegations  of 
the  bill,  it  should  be  excepted  to.  and 
on  e.xception  being  allowed  and  the 
defendant  ruled  to  put  in  a  sufficient 
answer,  on  failing  to  comply,  the  bill 
is  taken  for  confessed.  If  an  answer 
is  put  in,  no  matter  how  defective, 
and  there  be  no  exceptions  to  it,  and 
no  replication,  the  cause  is  set  down 
for  hearing  on  hill  and  answer  and 
exhibits,  if  any,  and  the  answer  is 
taken  to  be  true,  whether  responsive 
to  the  bill  or  not."  Kitchell  v.  Burg- 
win, 21   III.   40. 

50.  And  on  Belief — "Brinckcr- 
hoff  V.  Brown,  7  Johns.  Ch.  217; 
Gates  V.  Adams,  24  'Vt.  70, 

Vol.  I 


928  ANSWERS. 

whether  the  answer  is  in  denial  or  avoidance. ''     And  although  it 
may  be  entirely  improbable. '^- 

a.  Statutory  Moditjcatioii.  —  But  a  different  rule  prevails  under 
statutory  modifications  in  some  of  the  states,  it  being  held  that  the 
answer  is  taken  to  be  true  only  so  far  as  it  is  responsive  to  the  bill.'*' 

b.  Rule  Applies  Only  to  Pertinent  Facts.  —  The  rule  that  the 
answer  is  conclusive  applies  only  to  the  facts  alleged,  and  not  to 
alleged  intentions  or  motives,^*  and  to  such  matters  only  as  are 
pertinent  to  the  bill." 

c.  Admission  in  Must  Be  Considered.  —  The  admissions  con- 
tained in  the  answer  must  also  be  considered,  and  they  mav  sustain 
the  bill.''" 

d.  ]Vhen  Rule  Applies.  —  The  rule  that  the  answer  must  be  taken 
to  be  true  applies  only  where  the  cause  is  set  down  for  hearing,  by 
order  of  the  court,  or  by  counsel,  on  the  bill  and  answer,  and  not  to 
a  hearing  on  bill,  answer  and  proofs.^"  Therefore,  if  the  defendant 
waives  the  filing  of  a  replication,  either  expressly  or  by  conduct 
amounting  to  such  waiver,  and  the  proof  is  taken,  the  rule  does  not 
apply."* 

14.  On  Bill,  Answer  and  Replication.  —  \\  here  the  case  is  submit- 
ted on  the  bill,  answer  and  replication,  the  allegations  of  the  bill,  not 
controverted  by  the  answer,  and  the  allegations  of  the  answer 
responsive  to  the  bill,  must  be  taken  to  be  true,  and  all  allegations 
of  the  answer  not  responsive  to  the  bill,  but  in  avoidance  of  it,  tnust 
be  taken  as  untrue."" 

15.  Effect  of  Calling  for,  Modified  by  Statute.  —  The  rule  that  the 

51.     And    Whether    in    Denial    or  517;   Keiffer  v.   Barney,  31   Ala.    (N. 

Avoidance.  — Atkinson    v.    Manks.    i  S.)    192. 

Cow.    (N.   Y.)   691.  54.     Applies      to      Facts      Alleged 

The  reason  given  for  holding  that  Only.  —  Belford   v.    Crane,    16    N.   J. 

matters   in  avoidance  must  be  taken  Eq.  265.  84  Am.  Dec.  155. 

to  be  true,  is  that  by  setting  the  case  55.     And  Matters  Pertinent  to  the 

down   on   bill   and   answer   the   com-  Bill.  —  Gunnell  v.  Bird,  10  Wall.  304. 

plainant    deprives    the    defendant    of  56.     Admissions     Must     Be     Con- 

the  right  to  prove  such  matter,  and  S'dered.  _  Lampley  v.  Weed,  27  Ala. 

he  cannot,  for  that  reason,  be  heard  621  ;    Crawford   v.    Kirksey,    50   Ala. 

to   sav   that   it   is   not   true.      Salmon       590-       ...  „ 

7.  Clageu,  3  Bland  (Md.)   125;  Bald-  "•     ^li*"    ^^^^    Applies.  -  Cor- 

win  V.  Lee,  7  Ga.  186.  bus   ''■    Teed,   69   111.    205;    Hengst  s 

T     -c          1          AT     II          TM  1      _  Appeal,   24   Pa.    St.   413;    Carman  v. 

In   Eversole  v.    Maull,    so   Md.   95,  ,,r  ,           ,   tt          /m:,^\    ,,,.   \\i^\ 

.1.         ,     ■       »  »  J  .     u     lu  1  »i,  Watson.   I   How.    ( AJ  ss. )    333     Wal- 

the  rule  is  stated  to  be  that  the  an-  ;            A    .          ,,,•      ,^/    Vj"''.^.  -. 

,     ,               J      J         .         •  ton  V.  Cody,  i  Wis.  364     Forrest  v. 

swer   is  to  be  considered  as  true   in  r>  i,-            ^  ai      /-m    c\  -,,.-.  a,\;v,;.. 

J  .,       ,,        ..         ■     ■.      1  ■  1  Robinson.  2  Ala.  (N.  b.)  215     White 

regard  to  al    matters  in  it  which  are  t-,        j     »      .       ci     „    n-u™. 

susceptible    of    proof    bv     legitimate       il'     ^'T,^'"  m^  ^^     «f  ^ 

evidence.  '  Co.._  4  Ala.   (N.  S.).  464. 


To    the    same    effect,    Warren 


58.     Marple    v.    Scott,    41    111.    50; 


10     me     same     eneci,     warren     v.  Jordan  7'.  Brunough,  II  Ark.  702. 

fwilley,   10   Md.   39-  59.     Submitted    on    Bill,    Answer 

52.  And     Although     Improbable.  ^nd     Replication,     What     Admitted. 
Booream  v.  Wells,  19  N.  J.  Eq.  87.  u.  S,  v.  Ferguson,  54  Fed.  28;  Hop- 

53.  Under  Statutes  Must   Be   Re-  kins  v.  McLaren,  4  Cow.  667,  8  N.  Y. 
gponsive — Wynn  v.   Rosette,  66  Ala.  C.  L.  524. 

Vol.  I 


ANSJFERS: 


929 


complainant,  by  requiring  an  answer  inidcr  oath,  makes  the  answer 
evidence  against  him.  whether  he  offers  it  in  evidence  or  not,  has 
been  mocHfied  bv  statute  in  some  of  the  states,  where  the  doctrine 
has  not  lieen  wholly  overturned  b\'  enactment  of  the  codes."" 

16.  Under  Oath  Waived,  Incompetent  for  Defendant.  —  The 
answer,  as  we  have  seen,  is  made  competent  when  made  under  oath, 
because  such  an  answer  is  called  for  by  the  complainant,  whereby 
he,  in  effect,  makes  the  defendant  a  witness  in  the  case.  Therefore, 
if  the  coiuplainant,  in  his  bill,  waives  an  answer  under  oath,  the 
reason  for  admitting  the  answer  as  evidence  does  not  exist,  and  it 
is  not  competent  evidence  for  the  defendant  even  if  made  under 
oath."' 

A.  W.MVKu  Must  1!i;  ix  tiik  Bill.  —  The  waiver  of  the  oath  to 
be  effectual,  must  be  in  the  bill  Ijefore  answer,  and  cannot  be  made 
afterwaj'ds."-  And  must  be  unc|ualified.''"'  But  where  a  sworn 
answer  has  been  interposed  to  the  original  ImII,  the  complainant  mav, 
in  an  amended  bill,  waive  an  answer  under  oath  to  any  new  matter 
set  up  in  the  amended  bill.''*     But  it  has  been  held  that  the  com- 


60.  Effect  of  Calling:  for  Answer 
on  Oath  Modified — Davis  r.  Crockett. 
88  Md.  249.  41  Atl.  66;  Manlev  ■:: 
Mickle,  55  N,  J.  Eq.  563.  37  Atl.  738: 
Harrington  i'.  Harrington.  15  R.  I. 
341.  .s  Atl.  502;  Brown  z\  Knapp.  7 
W.  V^a.  678;  Lowry  v.  BufSngton,  6 
VV.  Va.  24g ;  Warren  1:  Twillej-.  10 
Md.  39:  Taggart  v.  Boldin.  10"  Md. 
104;  Mickle  V.'  Cross,  10  Md.  352. 

61.  Under  Oath  Waiver  Not  Com- 
petent for  Defendant.  —  United 
Slates.  —  Hinitington  i:  Saunders, 
120  U.  S.  78.  7  Snp.  Cl.  .3.16;  National 
etc.  Co.  J'.  Interchangeable  etc.  Co.. 
83  Fed.  26. 

Alabama.  —  Ooodloe  7'.  Dean,  81 
Ala.  470,  8  So.  197 ;  Ladd  f.  Smith. 
107  .\la.  506.  18  So.  19s :  .Marks  v. 
Cowles,  61  Ala.  299:  Watts  7'. 
Eufania  Nat.  Bank,  76  Ala.  474; 
Rainey  v.  Rainey,  35  Ala.  282 ;  Mos- 
ser  V.  Mosser,  29  Ala.  313. 

Georgia. — Iniboden  i'.  Etowah  etc. 
Min.  Co.,  70  Ga.  86;  Sims  v.  Ferrill. 
45  Ga.  585 ;  Woodward  '■.  Gates,  38 
Ga.  205. 

Illinois. — James  T.  Hare  Co.  j'. 
Daily.  161  111.  379,  43  N.  E.  1096; 
Wallwork  f.  Derby,  40  111.  527;  Hop- 
kins V.  Granger,  52  111.  504 ;  Cham- 
bers V.  Rowe.  36  111.  171 ;  Willcn- 
borg  V.  Murphy,  36  111.  344;  Adlard 
z:  Adlard.  65  111.  212;  Moore  v. 
Hunter,  i  Gilm.  317;  Patterson  v. 
Scott,   142   111,    1,38,  31    N.   E.  433- 

59 


Indiana.  —  Moore  r.  McClintock,  6 
Ind.  209;  Peck  v.  Hunter,  7  Ind.  295; 
Larsh  V.   Brown,  3   Ind.  234. 

Maine.  —  Peaks  f.  McAvey  (Me.), 
7  Atl.  270. 

Massaehnsetts. — Gcrrish 
3   Gray  82. 

Ne'w  Hamtishire. — Ayer 
59  N.  H.  279. 

Neiv  Jersey.  —  Symmes 
28  N.  J.  Eq.   131  ;  Hyer  z: 
N.   J.    Eq.   443 ;   Walker   Z' 


.  Towne, 

.  Mcsscr. 

.  Strong. 
Little,  20 
Hill.  21 
N.  J.  Eq.  191  ;  Sweet  v.  Parker,  22 
N.  J.  Eq.  453- 

Nezv  yor*.  —  Bartlett  v.  Gale,  4 
Paige  503,  3  N.  Y.  Ch.  502 ;  Lowry 
I'.  Chautauqua  Co.  Bank,  Clarke  Ch. 
67,  7   N.  Y.   Ch.  53. 

Rhode  Island. — Harrington  v.  Har- 
rington, IS  R.  I.  341,  5  Atl.  502. 

Tennessee.  —  Lindsley  ?■.  James,  3 
Cold.   477. 

Wiseonsin.  —  Flint  v.  Jones,  5  Wis. 
424. 

62.  Waiver  of  Oath  Must  Be  in 
the  Bill.  —  Bingham  v.  Yoenians.  10 
Cush.    (Mass.)  "58. 

63.  Must  Be  Unqualified — Wood- 
ward V.  Gates.  38  Ga.  205. 

64.  Waiver  as  to  New  Matter  in 

Amended    Bill Jefferson    v.    Ken- 

nard,    77   111.   246. 

General     Rule     as    to     Effect     of 

Waiver    of    Oath In    Lindsley    v. 

James,    3    Cold.     (Tenn.)     477,    the 
question  was  as  to  the  effect  of  an 

Vol.  I 


930  AN  SI  VERS. 

plainant  cannot,  by  waiving  an  answer  under  oath,  take  away  tlie 


answer  under  oath  where  the  oath 
was  waived  in  the  bill.  It  was  there 
said:  "Ordinarily,  if  the  bill  is  for 
discovery  of  evidence,  and  the  an- 
swer is  directly  responsive  to  the  bill, 
the  complainant  is  boimd  by  it,  and 
no  proof  to  sustain  it  is  either  req- 
uisite or  necessary.  Napier  t.  Elam, 
6  Yer.  108-116.  And  this  for  the 
reason  that  the  complainant,  by  seek- 
ing a  discovery  of  the  defendant, 
makes  him  a  witness  as  to  the  facts 
sought  to  be  disclosed,  and  cannot, 
because  it  is  against  him,  object  to 
the  testimony.  James  v.  Perry,  10 
Yen  81 ;  2  Story's  Eq.  Jur.,  1528. 

"  This  is  the  rule  as  established 
by  repeated  decisions  in  this  state, 
when  the  answer  is  under  oath ;  but 
how  is  it  when  the  oath  is  waived, 
and  thereby  loses  its  character  as 
evidence?  The  Code,  §  4317,  de- 
clares: 'The  plaintiff  may,  in  his 
bill,  waive  an  answer  from  the  de- 
fendant, under  oath ;  in  which  case, 
the  answer  will  be  entitled  to  no 
more  weight  than  the  bill,  as  evi- 
dence.' 

"  Language,  it  would  seem,  could 
not  be  clearer  than  the  words  of  the 
statute;  and  all  the  difficulty  that 
arises  on  the  construction,  grows  out 
of  the  conflict  of  authorities,  found  in 
the  books,  in  relation  to  the  weight 
of  an  answer  not  under  oatli.  with- 
out reference  to  any  existing  statute. 
The  answer  of  an  individual  not 
under  oath,  as  the  answer  of  a  cor- 
poration under  its  common  seal, 
seems,  in  our  practice,  only  to  create 
an  issue  in  pleading,  between  the 
parties;  and  no  decree  without  more, 
can  be  rendered,  as  to  the  issue  thus 
created.  Van  Wyck  v.  Norvell,  2 
Hum.,  192-196;  2  Story's  Eq.  Jur., 
1528. 

"  True,  the  answer  not  under  oath, 
as  well  as  an  answer  regularly  sworn 
to,  either  in  a  bill  for  discovery,  or 
for  general  relief,  may  contain  such 
admissions  as  would  entitle  the  com- 
plainant to  a  decree;  but  if  the  oath 
is  expressly  waived  by  the  bill,  it 
cannot,  even  in  a  bill  for  discovery, 
and  when  the  answer  is  directly  re- 
sponsive tn  the  allegations  in  the  bill, 
so  far  be  treated  as   evidence,  as   to 


enable  the  defendant,  without  more, 
to  a  decree  in  his  favor.  Bartlett  Z'. 
Green,  4  Page's  R.,  503 ;  Fisher  v. 
^filler,  5  Page's  R.,  25." 

In  Morris  z'.  Hoyt,  11  Mich.  9,  the 
rule  is  thus  stated :  "  The  merits  of 
the  case  depend  mainly  upon  the 
facts  admitted  by  the  pleadings,  no 
proofs  having  been  taken  except 
upon  the  reference  after  preliminary 
decree.  The  answer,  being  without 
oath,  is  but  a  pleading,  and  of  no 
effect  as  mere  evidence.  So  far  as 
it  admits  the  case  made  by  the  bill, 
as  an  admission  in  pleading,  it  re- 
lieves the  complainant  from  proof; 
so  far  as  it  denies  the  facts,  or  con- 
troverts the  case  made  by  the  bill,  it 
puts  the  complainant  to  his  proof. 
But  so  far  as  it  alleges  any  new 
matter  of  avoidance,  or  any  fact  the 
burden  of  proving  which  would 
naturally  rest  upon  the  defendants, 
it  is  of  no  effect  without  proof. 

"  It  will  be  observed,  the  bill 
waives  the  oath  of  the  defendant  to 
his  answer,  yet  notwithslanding,  the 
defendant  puts  in  a  sworn  answer, 
and  claims  the  benefit  of  it,  insisting 
that  it  must  be  overcome  by  the 
testimony  of  two  witnesses.  This 
is  absurd,  and  it  is  very  improper 
practice  for  the  solicitor  of  a  defend- 
ant, in  a  case  where  the  oath  is 
waived,  to  put  in  an  answer  under 
oath,  a  practice  that  ought  to  be 
rebuked.  Waiving  the  oath,  the  an- 
swer becomes  mere  pleading,  if  put 
in  under  oath.  However  '  sharp  '  the 
practice  might  have  been  supposed  to 
be,  by  no  possibility  can  the  defend- 
ant derive  any  advantage  from  it; 
the  answer  still  remains  mere  plead- 
ing. The  testimony  of  the  complain- 
ant was  quite  sufficient  to  establish 
the  claim  set  up,  and  fully  makes  out 
the  case  stated  in  the  bill."  \Villen- 
borg  V.  Murphy,  36  111.  344. 

"  In  the  present  case  the  answer 
is  not  evidence,  though  sworn  to, 
because,  first,  its  denials,  or  the  facts 
it  alleges,  are  not  within  the  knowl- 
edge, and  are  not  averred  so  to  be. 
of  the  parties  who  answer ;  and  be- 
cause, secondly,  the  bill  prays  an 
answer  without  oath.  When  this  is 
done,    the    answer    if    sworn    to    is 


Vol.  I 


ANSWERS. 


<)31 


right  of  tlie  defendant  to  verify  his  answer  and  tlnis  make  it  evi- 
dence for  himself."^ 


treated  as  if  it  were  not.  Stevens  v. 
Post,  I  Beasley  408;  Hyer  z\  Little, 
5  C.  E.  Green  443.  The  testimony 
of  the  complainant  must  be  there- 
fore overruled."  Sweet  t'.  Parker,  22 
N.  J.  Eq.  453- 

65.  Authorities  That  Waiver 
Does   Not   Destroy   Effective   Answer 

as    Evidence Armstrong    r'.    Scott, 

3  G.  Greene  (Iowa)  433;  Woodruff 
-'.  Dubuque  &  S.  C.  R.  Co..  30  Fed. 
91;  White  v.  Hampton,  10  Iowa  238; 
Wliite  V.  Hampton,  9  Iowa  181  ; 
Amory  v.  Lawrence,  3  Cliff.  523,  I 
Fed.  Cas.  No.  336 ;  Clements  v. 
Moore,  6  Wall.  (U.  S.)  299;  Heath 
V.  Erie  Ry.  Co.,  8  Blatchf.  347,  11 
Fed.  Cas.  No.  6306 ;  Jones  v.  Ab- 
raham. 75  Va.  466 ;  Thornton  i'.  Gor- 
don, 2  Rob.  (Va.)  750;  Fant  v.  Mil- 
ler, 17  Graft.  (Va.)  187;  Vanderzer 
V.  McMillan,  28  Ga.  339. 

"The  remaining  question  is  as  to 
the  right  of  the  orator  to  have  the 
defendants  Drexel,  Morgan  &  Co., 
or  the  directors,  prevented  from 
voting  upon  the  stock  of  others  de- 
posited. It  is  urged  for  the  orator 
that  the  transaction  creates  a  trust 
for  the  corporation  itself.  Whether 
it  does  or  not  depends  upon  whether 
what  is  done  in  this  behalf  is  done 
with  corporate  funds,  for  the  cor- 
poration. The  bill  charges  that  it  is 
so  done.  The  answer  denies  this, 
and  in  this  respect  it  is  directly  re- 
sponsive to  the  bill.  By  the  law  an 
answer  so  responsive  is  evidence 
which  must  be  overcome  by  other 
evidence  or  stand.  It  is  said  that 
the  orator  waived  an  answer  under 
oath,  as  the  rules  in  equity  provide 
may  be  done.  This  is  not  understood 
to  take  away  the  right  to  answer 
under  oath,  and,  when  a  defendant 
does  so  answer,  the  effect  of  the  an- 
swer as  evidence  would  appear  to 
rest  upon  the  law  of  the  subject, 
which  the  rules  of  court  do  not  ap- 
pear to  attempt  to  change.  The  an- 
swer must  therefore,  in  this  respect, 
for  the  purposes  of  this  motion,  be 
taken  to  be  true."  Woodruff  v.  Du- 
buque &  S.  C.  R.  Co.,  30  Fed.  91. 

"  Armstrong  files  a  sworn  answer, 
and   it    is   now   contended   that    inas- 


much as  such  answer  was  waived  by 
the  complainants,  that  it  cannot  be 
received  as  evidence.  We  do  not  so 
understand  the  law.  The  practice  of 
waiving  an  answer  under  oath  orig- 
inated in  the  state  of  New  York^ 
l)y  virtue  of  an  express  provision  in 
the  statute— wi'rf<7  N.  Y.  R.  S.,  p.  175, 
§  44.  This  provision,  Chancellor 
Walworth  says,  was  incorporated  in 
the  revised  statutes  at  his  suggestion, 
and  it  introduced  a  new  principle 
into  the  system  of  equitj-  pleading. 
It  was  intended  to  leave  it  optional 
with  the  complainant  to  compel  a 
discovery  in  aid  of  the  suit,  or  to 
waive  the  oath  of  the  defendant  if  the 
complainant  was  unwilling  to  rely 
upon  his  honesty,  and  chose  to  estab- 
lish his  claim  by  other  evidence. 
Burrus  t.  Looker,  4  Paige  227.  Here 
is  the  origin  of  that  practice  whicli, 
we  believe,  has  to  some  extent  been 
adopted  in  our  own  state.  It  is  purely 
statutory — an  innovation  upon  long 
established  chancery  pleadings,  and 
must  be  exclusively  confined  to  those 
states  that  have  adopted  it  by  legis- 
lative enactment.  It  is  not  necessary, 
at  this  late  period,  to  adduce  reasons 
in  support  of  the  practice  permitting 
the  defendant  to  answer  under  oath, 
and  such  answer  to  be  taken  as  tes- 
timony. We  consider  it  a  valuable 
feature  in  equity  proceeding,  and 
one  that  cannot  be  dispensed  with 
without  operating  oppressively  upon 
chancery  defendants.  Its  antiquily, 
constituting  as  it  does,  one  of  the 
distinctive  features  between  common 
law  and  chancery  practice ;  the  pro- 
tection which  it  affords  to  those 
from  whom  discovery  is  sought;  the 
only  opportunity  which  it  gives  to 
purge  the  conscience;  the  continued 
acquiescence  in  such  a  practice,  only 
interrupted  by  statute,  are  strong 
arguments  in  favor  of  its  observance. 
We  then  lay  down,  as  the  settled 
doctrine,  that  a  complainant  cannot 
deprive  a  respondent  from  answering 
under  oath.  That  notwithstanding 
such  oath  may  be  waived  in  the  bill, 
yet  he  has  a  right  to  file  a  sworn 
answer,  and  such  answer  will  be  en- 
titled   to    the    same    weight    as    evi- 


Vol.  I 


932 


AX  SI  VERS. 


B.  Competent  ix  Stpport  of  Motion  to  Dissot.\'e  Injunction. 
And  the  answer,  if  verified,  is  competent  evidence  in  support  of  a 
motion  to  dissolve  an  injunction,  althouoh  answer  tuider  oath  is 
waived.'^" 

17.  Not  Verified.  Not  Competent  for  Defendant.  —  Tlie  answer  to 
be  competent  as  evidence  for  llie  defendant,  must  be  verified.  If 
not,  it  serves  only  to  put  the  allegations  of  the  bill  in  issue."' 


dence.  as  though  the  complainant 
called  for  an  answer  nnder  oath. 
But  admitting  the  answer  of  Arm- 
strong as  testimony,  there  is  still 
sufficient  evidence  to  justify  the 
decree."  Armstrong  v.  Scott,  3  G. 
Greene    (Iowa)    433. 

66.  Although  Oath  Waived  Com- 
petent to  Support  Motion  to  Dissolve. 
Walker  r.  Hill,  Ji  X.  J.  Kc|.  191  ; 
Woodruff  7'.  Dubuque  etc.  R.  Co., 
30  Fed.  91  ;  Lockhart  v.  City  of  Troy, 
48  Ala.  579;  Gelston  v.  Rullman,  15 
l\Id.  260;  Dorsey  v.  Hagerstown 
Bank,  17  ?ild.  408:  Ilubliard  z: 
Mobray,  20  i\ld.   165. 

67.  Incompetent  When  Not  Under 
Oath.  —  United  Slates.  —  Union  Bank 
V.  Geary,  5  Pet.  99 ;  Whittemorc  -•. 
Patten,  81  Fed.  527. 

Alabama.  —  Buchanan  v.  Buchanan, 
72  Ala.  55 ;  Guthrie  v.  Quinn,  43  Ala. 
(N.  S.)  561;  Zelnicker  v.  Brigham, 
74  Ala.  598. 

Illinois.  —  Hopkins  '•.  Granger,  52 
111.  504;  Jones  ?■.  Neely,  72  III.  449; 
\\'illis  f.  Henderson,  4  Scam.  13,  38 
Am.  Dec.  120:  Harris  z\  Rcece,  5 
Gilm.  212. 

Marvland.  —  Dorn  j'.  Bayer,  16 
!\Id.    144. 

Michigan.  —  Morris  v.  Hoyt,  11 
Mich.  9;  Adair  v.  Cummin,  48  Mich. 
375,    12   N.   W.  495. 

Neiv  Hampshire.  —  Wilson  v. 
Tovvle,   36   N.   H.    129. 

Neu'  York.  —  Miller  v.  Avery,  2 
Barb.  Ch.  582. 

Tennessee.  —  Dunlap  v.  Haynes,  4 
Heisk.  476. 

Wisconsin.  —  Smitli  ?'.  Potter,  3 
Wis.  384;  Flint  r.  Jones,  5  Wis.  424. 

In  Harris  v.  Reece,  5  Gilm.  (Ill) 
212,  and  in  Willis  f.  Henderson,  4 
Scam.  (111.)  13,  38  .^m.  Doc.  120, 
the  rule  is  thus  staled : 
"  An  answer  put  in  without  oath  is 
not  for  any  purpose  evidence  in  the 
cause  but  performs  the  office  of  a 
pleading  only." 

Vol.  I 


Under  the  revised  code  of  ."Mabama 
it  was  said  by  the  supreme  court  of 
that  state,  in  Guthrie  v.  Quinn,  43 
Ala.  562 :  "  The  answer  of  the  de- 
fendant Lewis  in  the  court  below,  is 
put  in  without  oath.  This  takes  from 
it  the  force  that  it  otherwise  would 
have  been  entitled  to  as  evidence 
in  the  cause  on  behalf  of  the  de- 
fendant. In  such  case  it  merely  puts 
the  cause  at  issue  and  is  of  no  more 
weight  as  evidence  than  the  bill.  Rev. 
Code,  §  3328:  Rainey  7:  Rainey, 
35  Ala.  282.  Then  it  did  not  require 
the  testimony  of  two  witnesses  to 
overturn  the  answer  and  deposition 
of  Lewis." 

Again,  in  Lockhart  v.  City  of 
Troy,  48  Ala.  579,  the  court  say: 
"  The  statements  of  the  bill,  upon 
which  its  equity  is  presumed  to  rest, 
are  directly  denied  by  the  answers. 
But  it  is  contended,  that  as  these 
denials  are  made  in  answers  made 
without  the  support  of  a  verification 
by  oath,  they  ought  not  to  be  per- 
mitted to  overturn  the  allegations 
of  the  bill,  which  is  a  sworn  bill, 
tjut  the  complainants  waive  any  oath 
to  the  answers,  yet  require  them  to 
be  made  and  put  in.  upon  the  penalty 
of  admitting  the  bill  to  be  true,  upon 
decree  pro  confcsso.  Tliis  is  a  priv- 
ilege in  favor  of  the  complainants, 
which  they  can  avail  themselves  of 
or  not,  as  they  choose.  It  takes 
from  the  answers  their  potency  as 
evidence,  and  dispenses  with  the  ne- 
cessity, which  would  otherwise  existj 
of  requiring  two  witnesses  to  over- 
turn them.  Rev.  Code,  5  3328.  If, 
then,  the  complainants  elect  to  waive 
the  answers  being  made  upon  oath, 
it  should  not  prejudice  the  defend- 
ant's rights  beyond  the  limitation  of 
the  statute;  that  is,  it  leaves  the 
answers  in  every  other  respect  suffi- 
cient, except  as  testimony.  Such  un- 
sworn answers  are  '  entitled  to  no 
more    weight    as    evidence    tlian    the 


ANSIJ-ERS. 


933 


18.  Verified  by  One  Not  Having-  Knowledge.  —  The  answer  must 
not  unly  be  positive,  but  it  nuist  be  verified  h\-  one  bavins-  knowledge 
of  tbe  facts  to  render  it  competent  as  evidence  for  the  defendant."' 


bill.'  It  does  not  destroy  its  effect 
as  a  denial  of  tiie  complainant's  case. 
To  treat  them  otherwise,  would  be  to 
go  beyond  the  purpose  of  the  statute, 
and  put  it  in  the  power  of  the  com- 
plainants to  use  a  privilege  granted 
to  them  as  a  serious  injury  to  the 
defendant  beyond  the  purpose  of  the 
law.  This  would  be  neither  equity 
nor  justice,  which  is  su))posed  to 
prevail  in  all  the  proceedings  in  a 
court  of  chancery.  1  therefore  think 
that  answers,  the  oath  to  which  is 
waived  by  the  complainants,  must  be 
treated  as  answers  on  oatli,  on  motion 
to    dissolve    an    injunction." 

See  also  Zelnicker  r.  Brigham,  74 
Ala.  598 :  "  We  encounter  a  fatal 
objection  to  this  decree  at  the  very 
threshold  to  the  case.  The  right  of 
the  complainants  to  invoke  the  inter- 
ference of  a  court  of  equity  depends 
on  the  truth  of  the  allegations  in  the 
bill,  that  they  are  the  heirs  at  law 
of  Thomas  Botkin,  deceased.  This 
averment  is  denied  by  the  answer. 
There  is  not  a  particle  of  proof  to 
sustain  it.  Any  further  investigation 
of  the  cause  would  be  profitless.  It 
will  be  in  time  to  do  that  when  the 
complainants  show  a  right  to  demand 
it.  The  fact  that  the  bill  dispenses 
with  the  oaths  of  the  defendants  to 
their  answers  does  not  relieve  the 
complainants.  It  was  still  incum- 
bent on  them  to  sustain  by  proof  the 
allegations  of  the  bill  put  in  issue 
by  the  answer.  The  answer  in  such 
case  only  ceases  to  be  evidence  for 
the  defendants,  it  still  puts  in  issue 
the  averments  of  the  bill,  and  throws 
on  the  complainants  the  burden  of 
proving  them  to  be  true.  The  only 
difference  is  as  to  the  amount  of  the 
proof  necessary  to  do  this.  The  same 
amount  of  evidence,  which  would 
sustain  the  material  averments  of  a 
declaration  when  denied  by  a  plea, 
would  be  sufficient." 

68.  Answer  Without  Knowledge 
Not  Evidence — i'uilcd  Slates.— Car- 
penter  v.  Providence  etc.  Ins.  Co., 
4  How.  185;  Dutilh  I'.  Coursault,  5 
Cranch  C.  C.  349,  8  Fed.  Cas.  No. 
4206;  Brown  r.   Pierce,  7  Wall.  205. 


.Ilabanui.  —  Waters  v.  Creagh,  4 
Stew.  &  P.  410;  Garrow  v.  Carpen- 
ter, I  Port.  359;  Gibbs  r.  Frost,  4 
.\\a.  720 ;  Godwin  '<■.  Young.  22  Ala. 
553- 

Arkansas.  —  Fairhurst  7\  Lewis,  23 
Ark.  435;  Biscoe  v.  Coulter.  18  Ark. 
+23. 

Delaware.  —  Lattomus  i'.  Garman, 
3  Del.  Ch.  232. 

Illinois.  —  Fryrear  v.  Lawrence.  5 
Gilm.  325. 

Indiana.  —  State  v.  Holloway,  8 
Blackf.  45 ;  Townsend  v.  Mcintosh, 
14  Ind.  57. 

Kentucky.  —  Young  z'.  Hopkins,  6 
T.  B.  Mon.  19;  Combs  i'.  Boswell, 
I  Dana  473 ;  Harlan  r.  Wingate,  2 
J.  J.  Marsh.  139;  Williamson  v.  Mc- 
Connell,  4  Dana  454. 

Maryland.  —  Dugan  z'.  Gittings,  3 
Gill  138,  43  Am.  Dec.  306;  Perming- 
ton  z:  Gittings,  2  Gill  &  J.  208. 

Nezv  Jersey.  —  Lawrence  z'.  Law- 
rence, 21  N.  J.  Eq.  317;  Sweet  z: 
Parker,  22  N.  J.   Eq.  453. 

rerniont.  —  Loomis  v.  Fay,  24  Vt. 
240 ;  Wooley  z'.  Chamberlain,  24 
\'t.  270. 

I'irginia.  —  Tabbs  z'.  Cabell,  17 
Gratt.  160 ;  Jones  %•.  .A.braham,  75 
\'a.    466. 

"  While  we  are  not  disposed  to 
controvert  the  existence  of  the  gen- 
eral rule,  that  one  witness  alone, 
however  positive,  cannot  overturn  the 
denial  of  a  defendant,  as  to  a  fact 
resting  within  his  knowledge,  we  are 
not  disposed  to  admit  that  it  can,  in 
this  case,  bring  out  the  appellees. 
The  answers,  of  the  assignee  on  this 
point,  cannot  be  relied  on  for  that 
purpose.  They  have  no  knowledge 
of  the  facts,  and  therefore  their 
answ-ers  cannot  be  taken  as  doing 
more  than  putting  the  fact  in  issue ; 
than  asserting  their  ignorance,  and 
requiring  proof.  Any  satisfactory 
testimony,  therefore,  must  be  held 
sufficient  to  establish  the  fact  against 
such  answers.  The  answer  of  Hop- 
kms  must,  therefore,  contain  the 
denial  relied  on,  and  the  rule  will 
not  support  it."  Young  z:  Hopkins, 
6  T.  B.  Mon.   (Ky.)   19. 

Vol.  I 


934 


ANSIFURS. 


19.  Must  Be  Verified  by  Defendant.  —  If  the  answer  is  called  for 
under  oalh  liy  the  bill,  necessaril}-  it  must  be  sworn  to  by  the  defend- 
ant to  bring-  it  within  the  rule  that  the  answer  must  be  true  unless 
overcome  by  the  required  evidence  to  the  contrary."" 

20.  On  Belief,  or  Information  and  Belief.  —  An  answer  on  mere 
belief,  or  on  information  and  belief,  is  not  such  an  answer  as  will 
stand  as  evidence  for  the  defendant,  but  merely  raises  an  issue  that 
casts  the  burden  of  proof  on  the  complainant,  and  the  rule  that  the 
answer  must  be  disproved  by  more  than  one  witness  does  not  apply.^" 
In  some  of  the  cases  the  fact  that  the  answer  is  made  on  belief,  or 
without  knowledge,  is  treated  as  going  to  the  weight  and  not  to  the 
competency  of  the  answer." 


69.  McGuffic  r.  Planters'  Rank,  i 
Freem.   Ch.    (Miss.)    383. 

70.  On  Information  and  Belief, 
Not  Evidence.  —  United  States. 
Lake  Shore  etc.  R.  Co.  v.  Felton, 
103  Fed.  227,  43  C.  C.  A.  189;  Han- 
chett  V.  Blair,  100  Fed.  817,  41  C. 
C.  A.  76;  Brown  v.  Pierce,  7  Wall. 
205 ;  Berry  v.  Sawyer,  19  Fed.  286 ; 
Slater  v.  Ma.xwell,  6  Wall.  268; 
Robinson  i'.  MandcU,  3  Cliff.  169, 
20  Fed.  Cas.  No.  11,959;  Holladay 
Case,  27  Fed.  830. 

Alabama.  —  Newman  v.  Newman, 
12  Ala.  29;  Paulding  ?'.  Watson,  21 
.\la.  279;  Pearcc  t.  Nix,  34  Ala. 
183. 

Arkansas.  —  ^^  atson  t".  Palmer.  5 
Ark.  SOI. 

Georgia.  —  Arlinc  v.  Aliller,  22  Ga. 
330. 

Illinois.  —  Deimel  t'.  Brown,  35  111. 
App.  303 ;  Cunningham  %'.  Ferry,  74 
111.   426. 

Kentucky.  —  Price  ?'.  Boswell,  3 
B.  Mon.  13 ;  Whittington  v.  Roberts, 
4  T.  B.  Mon.  173. 

Maryland. — Philadelphia  Trust  etc. 
Co.  z'.  Scott,  45  Md.  451 ;  Dorsey  v. 
Gassaway,  2  Har.  &  J.  402,  3  Am. 
Dec.  557;  Doub  ?■.  Barnes,  i  Md. 
Ch.  127. 

Massachusetts. — Copeland  v.  Cran.-, 
9  Pick.  73 ;  Buttrick  v.  Holden,  13 
Mete.  355- 

Mississippi.  —  McGuffie  v.  Planters' 
Bank,  I  Freem.  Ch.  383 ;  Toulmc  ;•. 
Clark,  64  Miss.  471 ;  Carpenter  r. 
Edwards,  64  Miss.  595 ;  Snell  v. 
Fewell,   64   Miss.   655. 

New  York.  —  Town  v.  Needham, 
3  Paige  Ch.  54S>  3  N.  Y.  Ch.  268, 
24  Am.  Dec.  246;  Dunham  i:  Gales, 
I  Hoff.  184,  6  N.  Y.  Ch.  mo;  Knic- 

Vol.  I 


kerbacker  f.  Harris,  I  Paige  Ch.  209. 
2  N.  Y.  Ch.  207. 

Rhode  Island.  — Athnuc  F.  &  ^I. 
Ins.  Co.  V.  Wilson,  5  R.  I.  479. 

Tennessee.  —  McLard  f.  Linnvillc, 
29  Tenn.  163;  McKissick  v.  Martin, 
12  Heisk.  311;  Wilkins  v.  May,  3 
Head   173. 

Vermont.  —  Wooley  v.  Chamber- 
lain,  24  Vt.   270. 

71.  In  Some  Cases  Treated  as 
Going  to  Weight  of  Answer. 
Clark  V.  Van  Riemsdyk,  9  Cranch 
153;  Purvis  V.  Woodward  (ISIiss.) 
29  So.  917;  Copeland  v.  Crane,  9 
Pick.  (Mass.)  73;  Gamble  v.  John- 
son, 9  Mo.  60s ;  Allan  v.  O'Donald, 
28  Fed.  17 ;  Givens  v.  Tidmore,  8 
Ala.  JN.   S.)    745- 

"  The  weight  of  an  answer  must 
also,  from  the  nature  of  evidence, 
depend,  in  some  degree,  on  the  fact 
stated.  If  a  defendant  asserts  a  fact 
which  is  not  and  cannot  be  within 
his  own  knowledge,  the  nature  of  his 
testimony  cannot  be  changed  by  the 
positiveness  of  his  assertion.  The 
strength  of  his  belief  may  have  be- 
trayed him  into  a  mode  of  expression 
of  which  he  was  not  fully  apprised. 
When  he  intended  to  utter  only  a 
strong  conviction  of  the  existence  of 
a  particular  fact,  or  what  he  deemed 
an  infallible  deduction  from  facts 
which  were  known  to  him,  he  may 
assert  that  belief  or  that  deduction 
in  terms  which  convey  the  idea  of 
his  knowing  the  fact  itself.  Thus, 
when  the  executors  say  that  John 
Inncs  Clark  never  gave  Benjamin 
Munro  authority  to  take  up  money 
or  to  draw  bills,  when  they  assert 
that  Riemsdyk,  who  was  in  Batavia, 
did   not   take   this  bill   on   the   credit 


ANSIVEKS. 


935 


21.  Of  Corporation  Sworn  to  by  Oificer.  —  The  rule  thai  a  sworn 
answer  must  be  overcome  by  evidence  greater  in  weight  than  that 
of  one  witness,  apphes  to  the  answer  of  a  corporation  sworn  to  by 
one  of  its  officers  on   his  personal  knowledge.'-     Hut  it  has  been 


of  the  owners  of  the  Patterson,  but 
(in  the  sole  credit  of  Benjamin 
Munro,  they  assert  facts  which  can- 
not be  within  their  own  "knowledge. 
In  the  first  instance  they  speak  from 
hehef:  in  the  last  they  swear  to  a 
deduction  which  they  make  from  the 
admitted  fact  that  IS'hmro  could  show 
no  written  authority.  These  traits  in 
the  character  of  testimony  must  be 
perceived  by  the  court,  and  must  be 
allowed  their  due  weight,  whether 
the  evidence  be  given  in  the  form  of 
an  answer  or  a  deposition.  The 
respondents  could  found  their  as- 
sertions only  on  belief ;  they  ought 
so  to  have  expressed  themselves ; 
and  their  having,  perhaps  in- 
cautiously, used  terms  indicating  a 
knowledge  of  what  in  the  nature  of 
things  they  could  not  know,  cannot 
give  to  their  answer  more  effect  than 
it  would  have  been  entitled  to,  had 
they  been  more  circumspect  in  their 
language."  Clark's  E-xecutors  .'. 
\'an  Riemsdyk,  9  Cranch   15,^ 

72.  Effect  of  Verification  by 
Officer  of  Corporation.  —  Kane  v. 
Scluiylkill  Fire  Ins.  Co.  (Pa.  St.), 
48  Atl.  989;  Lindsley  Z'.  James,  3 
Cold.   (Tenn.)  477. 

"  The  important  question  in  this 
case,  by  which  all  the  others  are 
more  or  less  affected,  is  whether  an 
a;iswer  in  equity  of  a  corporation, 
sworn  to  by  an  officer  on  his  per- 
sonal knowdedge,  is  entitled  to  the 
benefit  of  the  equity  rule  that  a 
responsiv'e  answer  is  evidence  only 
to  be  overcome  by  the  testimon}'  of 
two  witnesses,  or  of  one  witness 
with  corroborating  circumstances,  or 
whether  it  is  to  be  regarded  as  mere 
pleading.  The  precise  origin  of  the 
rule  has  been  the  subject  of  differ- 
ence of  opinion  among  text  writers, 
as  is  shown  by  the  learned  referee  in 
this  case.  But  the  reason  for  it  is 
fairly  apparent.  Cases  in  equity  are 
those  in  which  the  law  affords  no 
adequate  remedy.  They  are  therefore 
exceptional,  and.  before  a  party 
should  be  granted  exceptional  and 
extralegal   relief,   his  case   should  be 


estabhshed  clearly.  In  issues  at  law 
all  cases  are  clear  in  theory.  If 
there  is  witness  against  witness  and 
oath  against  oath,  the  jury  decides 
which  to  believe,  and  finds  a  verdict 
for  one  party  or  the  other.  There 
is  no  room  for  doubt.  But  in  equity, 
if  there  is  oath  against  oath,  or- 
dinarily on  paper,  by  depositions  or 
testimony  before  an  examiner,  the 
matter  as  the  early  expression  was, 
is  in  equilibrio,  and  there  is  no  clear 
case  for  the  chancellor  to  act  upon. 
The  complainant,  having  the  burden 
of  proof,  must  fail.  But,  whatever 
its  origin,  the  rule  is  settled,  and  is 
a  part  of  universal  equity  practice. 
The  respondent  is  brought  into  court 
without  his  consent,  and  put  to  com- 
pulsory answer  and  disclosure  of  his 
knowledge  on  the  subject  of  the  suit 
for  the  benefit  of  his  adversary.  By 
the  action  of  the  plaintiff  the  tes- 
timony of  defendant  is  thus  made 
evidence,  and  it  is  only  proper  and 
just  that,  if  the  plaintiff  does  not 
find  it  all  in  his  favor,  he  should  be 
required  to  overcome  it  by  a  prepon- 
derance of  evidence  to  the  contrary. 
No  sufScient  reason  has  been  pre- 
sented ■why  a  corporation  should  not 
be  entitled  to  the  protection  of  the 
rule.  It  is  said  that  a  corporation 
cannot  answer  under  oath,  but  only 
under  seal.  This  is  conceded,  but  it 
is  purely  technical.  A  corporation 
can  only  act  through  the  persons  of 
its  officers  or  other  agents.  Its  cor- 
porate seal  is  not  action,  but  only 
evidence  of  action  by  the  proper  offi- 
cers. When,  therefore,  to  the  answer 
under  seal  there  is  added  the  oath  of 
an  officer  on  his  own  knowledge,  the 
wdiole  becomes  a  corporate  act,  with 
all  the  advantages  to  the  plaintiff  of 
compulsory  disclosure  of  the  truth 
which  he  would  have  had  in  a  suit 
against  an  individual,  and  he  should 
take  such  advantages  in  the  same 
manner  cton  oncrc.  The  point  has 
not  been  much  discussed  in  Penn- 
sylvania, but  the  opinion  of  this  court 
was  indicated  by  the  late  Chief  Jus- 
tice  Sterrctt   in    Riegel   v.   Insurance 


Vol.  I 


936 


ANSJJ'ERS. 


held  tliat  a  verification  by  an  officer  does  not  meet  the  requirements 
of  the  rule  for  the  reason  that  such  officer  is  not  a  party  defendant.'-' 
And  that  the  proper  officer  may  be  made  a  party  for  the  purpose  of 
enforcinj^  discovery  1iy  him  imder  oath.''' 

22.  Of  Corporation  Under  Seal.  —  The  use  of  its  seal  by  a  corpora- 
tion will  not  take  the  place  of  an  oath,  and  an  answer  under  seal, 
without  verification,  is  not  competent  evidence  for  the  defendant.'^ 


Co.,  153  Pa.  134,  143,  25  Atl.  1070; 
and  in  Waller  f.  Coal  Co.,  191  Pa. 
193,  202,  203,  43  .Vll.  235,  an  express 
ruling  in  accordance  with  our  pres- 
ent views  was  made  by  the  court 
below,  and  necessarily  by  this  court 
in  affirming  the  decree  on  his  opin- 
ion. The  learned  referee  was  of 
opinion  that  '  the  very  great  weight 
of  American  authority  is  contrary  to 
the  view  '  of  appellant,  but  the  au- 
thorities do  not  sustain  him.  If  we 
take  out  of  the  list  of  citations  those 
which  deal  with  answers  under  cor- 
porate seal  only,  there  is  no  unifor- 
mity shown ;  and  in  the  weightiest 
authority,  the  supreme  court  of  the 
United  States,  the  practice  is  settled 
in  accordance  with  our  views.  Car- 
penter V.  Insurance  Co.,  4  How.  219, 
II  L.  Ed.  931.  We  are  therefore  of 
opinion  that  the  ruling  of  the  referee 
was  erroneous,  and  the  tenth  assign- 
ment must  be  sustained."  Kane  v. 
SchuylUill  Fire  Ins.  Co.  (Pa.).  48 
All.  980. 

73.  Officer  Not  Party,  Oath  In- 
sufficient. —  Van  Wyck  z:  Norvell,  2 
Humph.    (Tenn.)    192. 

"  It  is  insisted,  however,  that  the 
facts  hereinbefore  stated,  are  proved 
only  by  one  witness ;  and  that  as  the 
answer  contains  a  direct  denial  of 
them,  there  should  be  two  witnesses, 
or  corroborating  circumstances,  in  ad- 
dition to  Norvell's  testimony.  This 
rule,  has  no  application  to  a  case 
like  the  present.  The  defendant  here 
is  a  corporation.  It  answers  by  its 
corporate  seal.  It  cannot  swear  to 
the  answer,  so  as  to  oppose  the  oath 
of  the  defendant,  to  the  oath  of  one 
witness,  and  thereby  create  the  rea- 
son for  two  witnesses.  Its  answer 
does  no  more,  therefore,  than  to 
create  an  issue  in  pleading  between 
the  parties.  6  Paige's  Rep.  54.  But 
it  is  said,  the  cashier  of  the  bank 
has  sworn  to  the  answer.  It  may 
be  replied,  the  cashier  is  no  party  to 

Vol.  I 


this  suit.  He  is  an  entire  stranger 
to  the  proceeding;  as  much  so  as  he 
would  be  to  a  suit  between  two  of  his 
neighbors,  the  facts  in  relation  to 
which  he  might  happen  to  know.  His 
affidavit  in  such  a  case,  would  have 
just  as  much  efficacy  as  it  can  have 
in  this  case."  Van  Wyck  v.  Norvell, 
2   Humph.    (Tenn.)    192. 

74.  Officer  May  Be  Made  Party 
to  Enforce  Answer  Under  Oath. 
Lindsley  v.  James,  3  Cold.  (Tenn.) 
477;  Smith  V.  St.  Louis  L.  Ins.  Co., 
2  Tenn.   Ch.   599. 

"  Admitting  that  the  bill  had  been 
properly  framed  as  a  bill  of  discovery, 
were  the  defendants,  John  D.  James 
and  the  bank,  bound  to  answer?  The 
discovery  is  sought,  and  the  answer 
of  the  defendants,  under  oath,  ex- 
pressly waived.  The  bank,  as  a  cor- 
poration, cannot  answer,  e.^ccept  under 
its  corporation  seal ;  and  a  disclosure, 
under  the  common  seal  of  the  cor- 
poration, however  false,  would  sub- 
ject the  corporation  to  no  punish- 
ment ;  and  it  would,  therefore,  of 
course,  answer  nothing  to  its  prej- 
udice. To  av(  id  this  difficulty,  when 
it  is  necessary  to  obtain  a  disclosure 
from  a  corporation,  it  seems  to  be 
allowable  to  make  a  principal  officer 
or  agent  of  the  corporation,  a  party, 
so  far  as  the  bill  seeks  for  dis- 
covery ;  and  that  may  be  done,  al- 
though such  officer  or  agent,  has  no 
individual  interest  in  the  suit,  and  no 
relief  can  be  had  against  him.  I 
Dan.  Ch.  Pr.,  180,  181.  note  i; 
Story's  Eq.  PL.  §  235:  2  Story's 
Eq.  Jur.,  §§  1500.  1501."  Lindsley 
T.  James.  3  Cold.   (Tenn.)  477. 

75.  Answer  of  Corporation  Under 
Seal  Not  Competent  Evidence. 
England.  — Wych  z:  Meal,  3  P.  Wms. 
310. 

United  States.  —  Union  Bank  i'. 
Geary,    5    Pet.   99. 

.Alabama.  —  Griffin  ;■.  State  Bank. 
17  Ala.  258. 


ANSJJ'ERS. 


937 


But   it   is   sufficient   to   raise  an   issue  and  put   the  plaintiff   to  the 
proof.'" 

23.  When  Competent  in  Favor  of  Co-Defendant.  —  Tlie  answer  of 
one  defendant  is  siinietinies  held  eonii)etent  evidence  for  a  co- 
defendant  where  it  is  responsive  to  the  interrogatories  in  the  bill, 
but  not  otherwise.' '  Uut  it  is  declared  to  be  the  general  rule  that 
the  answer  of  one  defendant  is  not  competent  evidence  for  his  co- 
defendant.'"     If,  however,  the  defendants  are  jointlv  liable  and  the 


Marylaiul.  —  Maryland  etc.  Co.  i'. 
Wingert,  8  Q\\\  170;  Bouldin  v. 
Mayor  etc.  of  Baltimore,  15  Md.  18; 
Farmers'  and  M.  Bank  '■.  Nelson,  12 
ild.  35.  , 

Ncii<  y  ork.  —  Lovett  r.  Steam  Saw 
Mill  Ass'n.  6  Paige  54,  3  N.  Y.  Ch. 
896. 

Tennessee.  —  Lindsley  z'.  James,  3 
Cold.  477 ;  Van  Wyck  v.  Norvell,  2 
Humph.  192 ;  Smith  %■.  St.  Louis  Mut. 
L.   Ins.   Co.,  2  Tenn.   Ch.  599. 

Virginia.  —  Baltimore  &  O.  R.  Co. 
V.  City  of  Wheeling,  13  Graft.  40. 
But  see  to  the  contrary,  Hogan  v. 
Branch  Bank,  10  Ala.  485 ;  Haight  v. 
Morris  Aqueduct,  4  Wash.  C.  C. 
601,    II    Fed.   Cas.   No.   5902. 

76.  But  Sufficient  to  Raise  an 
Issue. —  Smith  v.  St.  Louis  j\Iul. 
Ins.  Co..  2  Tenn.  Ch.  599 ;  Fulton 
Bank  v.  New  York  etc.  Canal  Co.,  i 
Paige  Ch.  311,  2  N.  Y.  Ch.  659. 

'■  There  are  other  circumstances 
which  go  very  far  to  take  this  case 
out  of  the  application  of  the  rule 
which  requires  corroborating  evi- 
dence to  support  the  testimony  of  a 
single  witness  against  the  answer. 
This  is  an  injunction  bill,  filed  upon 
the  oath  of  the  complainant.  An  an- 
swer in  all  cases,  according  to  the 
course  and  practice  of  courts  of 
chancery,  must  be  sworn  to  unless 
dispensed  with  by  order  of  the  court 
under  special  circumstances.  In  the 
present  case,  the  answer  being  by  a 
corporation,  it  is  put  in  under  their 
common  seal,  unaccompanied  by  an 
oath.  And  although  the  reason  of 
the  rule,  which  requires  two  wit- 
nesses, or  circumstances  to  cor- 
roborate the  testimony  of  one,  to  out- 
weigh the  answer,  may  be  founded 
in  a  great  measure  upon  the  con- 
sideration that  the  complainant  makes 
the  answer  evidence  by  calling  for 
it :  yet  this  is  in  reference  to  the 
ordinary    practice    of   the    court,    re- 


quiring the  answer  to  be  on  oath, 
but  the  weight  of  such  answer  is  very 
much  lessened,  if  not  entirely  de- 
stroyed as  matter  of  evidence,  when 
unaccompanied  by  an  oath  ;  and  in- 
deed we  are  inclined  to  adopt  it  as 
a  general  rule,  that  an  answer  not 
under  oath  is  to  be  considered  merely 
as  a  denial  of  the  allegations  in  the 
bill,  analogous  to  the  general  issue 
at  law,  so  as  to  put  the  complainant 
to  the  proof  of  such  allegations." 
L'nion  Bank  z\  Geary,  5  Pet.  99. 

77.  When  Competent  in  Favor  of 
Co-Defendant.  —  Pclaz.-are.  —  Pleas- 
anton  v.  Raughley,  3  Del.  Ch.  124. 

Georgia.  —  Ligon  z\  Rogers,  12  Ga. 
281. 

Marxland.  —  Powles  v.  Dillev,  g 
Gill  222. 

Massachusetts.  —  Mills  r.  Gore,  20 
Pick.  28. 

Mississipj'i.  —  Salmon  -■.  Smith,  58 
Miss.   399. 

iVfti.'  Jersey.  —  Hoff  v.  Burd,  17  N. 
J.  Eq.  201. 

Tennessee.  —  Davis  v.  Clayton.  5 
Humph.  44^;  McDaniel  v.  Goodall,  2 
Cold.  3pi.  ' 

■Vennont.  —  Cannon  v.  Norton,  14 
Vt.    17S. 

78.  General  Rule  Against  Com- 
petency. —  Gilmore  v.  Patterson,  36 
Me.  544;  Cannon  !■.  Norton,  14  Vt. 
178;  Blodgett  v.  Hobart,  18  Vt.  414: 
Lenox  V.  Notrebe,  Hempst.  2^1,  15 
Fed.  Cas.  No.  8246c;  Carr  v.  Weld, 
19  N.  J.  Eq.  319;  Morris  7'.  Ni.xon, 
I   How.    (U.  S.)    118. 

.-Vs  to  the  general  question  whether 
an  answer  of  one  defendant  is  com- 
petent evidence  in  favor  of  another 
defendant,  see  Dunn  v.  Graham,  17 
.^rk.  60.  in  which  it  is  said:  "It  is 
perfectly  clear,  that  had  Varn's  an- 
swer been  the  opposite  of  what  it 
was,  it  could  never  have  been  read 
by  the  complainants  against  Graham, 
unless,  in  connection  with  other  tes- 


Vol.  I 


938 


ANSIVERS. 


answer  of  one  defendant  defeats  the  action  as  to  liim.  it  necessarily 
has  the  effect  to  defeat  it  as  to  his  co-defendant,  wlio  can  only  be 


timony  establishing — not  a  com- 
munity of  interest  merely,  like  that 
of  tenants  in  common — but  such  an 
absolute  unity  and  identity  of  in- 
terest and  design  between  Graham 
and  Yarn,  by  means  of  the  fraud 
charged  against  them  in  the  bill,  as, 
under  the  ordinary  rules  of  law, 
would  have  made  the  acts  or  admis- 
sions of  either  the  acts  or  admissions 
of  the  other — like  the  acts  or  admis- 
sions of  co-partners,  or  joint 
tenants,  having  a  complete  unity  of 
title  and  interest,  or  of  co-con- 
spirators identified  in  common  design. 
!And  this,  because  of  the  establislied 
xule,  no  longer  open  to  question, 
Jthat  the  answer  of  one  defendant  can- 
iiot  be  read  in  evidence  against  his 
co-defendant,  unless  he  refers  to  such 
answer  as  correct,  or  is  so  combined 
and  identified  with  the  answering 
defendant,  as  to  be  bound,  under  the 
ordinary  rules  of  law,  by  his  con- 
fessions, declarations  and  admissions. 
Blakeny  v.  Ferguson  ct  al,  14  Ark. 
641,   and   cases   there   cited. 

"  But  although  that  proposition  is 
perfectly  clear,  it  is  equally  clear, 
that  Graham  could  not,  nevertheless, 
insist  that  that  answer  should  enure 
to  his  benefit  by  way  of  a  legitimate 
operation,    against    the    complainants. 

"  The  adjudged  cases,  favoring  the 
aflirmative  of  the  proposition,  so  far 
as  they  have  come  under  our  ob- 
servation, do  not  go  the  length  of 
holding  that  in  every  case,  where  the 
responsive  answer  of  the  responding 
defendant  goes  to  destroy  the  foun- 
dation of  the  case  made  in  the  bill, 
it  shall  enure  to  the  benefit  of  the 
co-defendant,  by  operating  as  evi- 
dence against  the  complainant  in  the 
whole  case;  but  the  reasoning,  upon 
which  these  adjudged  cases  are 
based,  and  by  which  they  are  sup- 
ported, does  seem  to  go  that  far. 
They  are,  so  far  as  we  have  seen 
case's,  where  the  defendant,  protected 
in  this  wise,  was  either  claiming 
under  the  responding  defendant,  as  in 
the  case  of  Field  ct  al.  v.  Holland 
ct  al.  6  Cranch  Rep.  8-24:  and  sec, 
also.  Judge  Baldwin's  exposition  of 
that  case'  in  Pettit  v.  Jennings,  2 
Robinson's    (Va.  Rep.  581)  ;  or  else- 


where lie  occupied  the  attitude  of  a 
stake-holder  for  the  complainant  and 
his  co-defendant,  as  in  the  case  of 
Mills  V.  Gore,  20  Pick.  Rep.  35.  See, 
also,  Greenl.  Ev..  vol.  3.  §  28.3. 
p.  269. 

"  The  reasoning,  in  support  of  the 
ruling  in  both  of  these  classes  of 
cases,  is  to  the  effect,  that  the  com- 
plainant, having  called  upon  the 
responding  defendant  for  discovery, 
as  to  the  whole  case  made  in  his  bill, 
has  thereby  made  him  a  credible 
witness  against  himself,  as  to  his 
whole  case;  having  interrogated  him 
only  as  he  desired ;  upon  allegations 
framed  in  the  manner  most  favorable 
to  his  own  interest,  and  obtained  the 
discovery  sought,  by  searching  and 
leading  questions,  the  response  has 
been  obtained  under  the  most  favor- 
able auspices  for  the  complainant; 
and  that  the  response,  thus  obtained, 
is  not,  as  against  the  complainant, 
obnoxious  to  the  objection  for  want 
of  cross-examination,  as  it  would 
be,  if  allowed  to  be  used  against  a 
co-defendant.  Hence  it  was  sup- 
posed not  unfair  to  hold  in  these 
cases,  that  it  should  not  lay  in  the 
mouth  of  the  complainant — when  the 
response  thus  obtained  went  to  de- 
stroy the  foundation  of  the  case  made 
in  his  bill,  to  say  it  was  not  evi- 
dence against  himself  on  the  whole 
case  made  by  his  bill;  in  imperfect 
analogy  to  the  rule,  which  holds  a 
party  to  the  answer  of  his  own  wit- 
ness, who  unexpectedly  testifies  the 
very  opposite  of  what  he  anticipated. 

"  The  argument  to  the  contrary  is, 
that  the  answer  to  a  petition  for 
discovery,  stands  as  a  deposition,  and 
is  not  evidence,  for  any  purpose, 
vmtil  read  by  the  party  obtaining  it, 
who  may  read  it.  or  not.  at  his 
election.  '  Comvay  &  Reyburn  v. 
Turner  &  Woodruff.  3  Eng.  Rep. 
362,  and  cases  there  cited.  But  con- 
ceding this  to  be  so,  do  the  reasons, 
which  sustain  the  rule,  apply  with 
full  force,  when  the  bill  is  not  only 
for  discovery,  but  also  for  relief 
consequent  thereon  ;  and  that,  too,  in 
some  one  aspect  of  the  bill,  against 
all   the   defendants  therein?" 


Vol.  I 


ANSJVERS. 


939 


liable  with  the  defendant  answering.  So,  in  such  case,  the  answer 
of  one  defendant  goes  to  the  relief  of  the  other,  and  in  that  sense  is 
evidence  in  his  favor. ''■' 

24.  Execution  of  Instrument  Not  Proved.  —  A  written  instrument 
ma}-  be  referred  to  and  attached  to  the  answer,  but  this  does  not 
amount  to  proof  of  its  execution.*" 

25.  When  Not  Evidence  on  Appeal.  —  If  the  court  below  finds  the 
answer  to  be  untrue,  it  is  no  evidence  of  the  facts  relied  upon  on 
behalf  of  the  defendant  in  the  appellate  court  on  the  hearing  on 
appeal.*^ 


79.  When  Answer  of  One  Defeats 
Joint  Cause  of  Action.  —  McDaniel 
V.  Goodall,  2  told.  (Tenn.)  391; 
Clierry  v.  Clements,  29  Humph. 
(Tenn.)  551  ;  Hartley  v.  Mathews,  96 
.\la.  224,  II    So.  452. 


80.  Execution  of  Instrument  Not 
Proved  By.  _  Shcpard  v.  Shepard,  36 
Mich.    173. 

81.  Callender  z:  Colegrove,  17 
Conn.  I. 


APPEAL.— See  Appeal  Bonds. 


Vol.  I 


APPEAL  BONDS. 


I.  THE  BOND,  940 

I.  E.YCciition,  940 

II.  PRESUMPTIONS,  940 

1.  Authority  to  Execute,  940 

2.  Delivery,  941 

3.  Filing  and  Approivl,  941 

4.  Justification,  941  * 

5.  Jl'aiz'cr  of  Objection,  941 

III.  THE  APPEAL,  942 

1.  Taking  of  Appeal,  942 

2.  Affirmance  of  Appeal,  942 

3.  Remittitur.  942 

IV.  COSTS  AND  DAMAGES,  942 

CROSS-REFERENCES. 
I'onds ; 
Estoppel ; 
Judgments ; 
Principal  and  Surety; 
Records. 

I.  THE  BOND. 

1.  Execution.  —  A  recital  in  the  liill  of  exceptions  is  incompetent 
to  prove  the  execution,^  but  in  case  of  loss  of  the  bond,  the  obligor's 
signature  thereto  may  be  proved  by  secondary  evidence,  either 
written  or  oral.- 

II.  PRESUMPTIONS. 

1.  Authority  to  Execute.  —  Authority  to  execute  an  appeal  bond 
regular  on  its  face  will  be  presumed  from  its  acceptance  and 
approval,  whether  executed  by  an  agent.''  or  by  an  attorney.*  or  a 
suretyship  corporation.^ 

1.  Hydraulic  Co.  z'.  ZepiK-nfcld,  g  40  Miss.  500;  Belew  -'.  Jones,  56 
Mo.  App.  595.  Miss.    592;    Union    Co.    v.    Bank,    2 

2.  Cincinnati  Ins.  Co.  v.  Harrison,       p^j^    ^^^^ 

25  La.  Ann.  i;  Commercial  Bank  v.  '     '     ~',              ^  ,,.              ,,,      , 

Harrison,  24  La.   Ann.   361.  *•     Sullivan   r.   Dolhns,    11    111.    16. 

3.  Lindner  v.  Aaron.  5  How.  5.  Gutzeil  v.  Pcnnie,  95  Cal.  598, 
(Miss.)    581;   Robertson  v.  Johnson,  30  Pac.  836. 

Vol.  I 


APPEAL  BONDS. 


941 


2.  Delivery.  —  The  filing  of  an  appeal  bond  with  the  clerk  of  the 
court,"  or  his  ol^cial  indorsement  thereon,  when  authorized  to 
receive  the  same,  is  competent  evidence  of  its  delivery.' 

Bond  As  Evidence.  — The  jjroduction  of  the  ajjpeal  bond  itself  in 
an  action  thereon  is  prima  facie  evidence  of  proper  delivery.'* 

3.  Filing  and  Approval.  —  That  an  appeal  bond  was  filed  within 
time,  is  presumed  from  evidence  of  its  acceptance  and  api)roval." 
though  the  date  of  approval  is  shown  onlv  b\-  that  of  filing,'"  or 
by  that  of  tlie  bond.'' 

Due  Filing.  —  Due  filing  of  the  bond  will  be  presumed  from  evi- 
dence of  its  presence   in  the  transcript.'-  if  it   it  also  approved.^'' 

Oral  evidence  is  admissible  to  prove  the  filing  and  approval  of  an 
appeal  bond,'*  and  the  records  in  the  case  are  also  proper  evidence.'^ 

Approval.  —  The  approval  of  an  aj^peal  bond  is  established  as  a 
prima  facii;  presumption  by  evidence  of  its  filing,"'  or  of  its  accept- 
ance," or  of  both,"*  or  of  its  presence  in  and  as  a  part  of  the 
transcript,^"  or  of  affirmation  of  judgment  on  appeal,-"  or  bv  signing 
the  citation  and  witnessing  the  bond  by  the  court  o  i/i/o.-' 

4.  Justification.  —  Justification  of  sureties  on  an  appeal  bond  ma\- 
be  presumed   from   evidence  of  the  filing. -'- 

5.  Waiver  of  Objection.  —  Waiver  of  objection  to  an  appeal  bond 
on  the  grountl  of  its  insufficiency  will  be  ]3resumed,  in  absence  of 
proof  to  the  contrary,  where  it  is  shown  to  be  filed  and  approved,-^ 
as  will  the  objection  to  its  filing  beyond  the  time  limit. -^ 


Giimore  (Colo.  App.), 


6.  Dore  z\  Covey,  13  Cal.  502; 
Holmes  v.  Ohm,  23  Cal.  268. 

7.  Byers  f.  Gilmore  (Colo.  App.), 
50  Pac.  370. 

8.  Byers  i 
50  Pac.  370. 

9.  Carroll  v.  City  of  Jacksonville, 
2  111.  App.  481  ;  McLanc  v.  Russell. 
29  Tex,   127. 

10.  Robinson  t'.  Chadwick,  22 
Ohio   527. 

11.  Evans  -■.  Pigg,  28  Tex.  586. 

12.  Evans  v.  Pigg.  28  Tex.  586. 

13.  McLanc  v.  Russell,  29  Tex. 
127. 

14.  Woodliurn  7'.  Fleming.  i 
Blackf.  (Ind.)  4;  Miller  f.  O'Reilly. 
84  Ind.  168;  McCrory  v.  Anderson. 
103  Ind.  12.  2  N.  E.  211  ;  Carothers 
I'.    Wheeler,    i    Or.   94. 

15.  Hartley  i'.  Cole,  120  Ind.  247. 
22  N.  E.  130. 

16.  Robinson  7'.  Cnadwick.  22 
Ohio  527 ;  Rawson  ■:■.  Dofncr.  143 
Mass.  '76,  8  N.  E.  892 ;  Keene  r. 
Whittington,  40  Md.  489 :  Clapp  i'. 
Freeman.  16  R.  T.  344,  t6  .^tl.  207. 

17.  Marshall    ?•.    Crooni.    =;o    .Ma. 


479;   Williams  f.   iMcConico,  25  Ala. 
538. 

18.  Hanaw  v.  Bailey.  83  Mich. 
24.  46  N.  W.  1039;  McCloskey  v. 
Indianapolis  Union,  87  Ind.  20;  Asch 
f.  Wiley.  16  Neb.  41,  20  N.  W.  21. 

19.  Ohio  R.  Co.  r.  Hardy,  64  Ind. 
454:  Evans  r.  Pigg.  28  Tex.  586; 
i\IcLane  v.  Russell.  29  Tex.  127; 
Rogers  ?■.  Ferguson.  32  Tex.  533; 
Lacy  7'.  Fairman,  7  Blackf.  (Ind.) 
558;  Jenkins  r.  Emery,  2  Wyo.  58. 

20.  Courson  z-.  Browning,  78  111. 
208. 

21.  Davidson    t.    Lanier,   4   Wall. 

447- 

22.  Keene  7'.  Whittington,  40 
Md.  489. 

Waiver  of  justification  of  sureties 
may  be  presumed  from  evidence  of 
the  bond  being  found  in  the  case 
prepared  and  adopted  by  the  court 
a  quo.  Gruber  7'.  Washington  R. 
Co.,  92  N.  C.  I  ;  Moring  7-.  Little.  95 
N.  C.  87. 

23.  Hancock  7'.  Bramlett.  85  N. 
C.  303 :  Dore  7'.  Covey,  13  Cal.  502. 

24.  Taliaferro      7'.      Herring,      29 

Vol.  I 


942 


APPEAL  BONDS. 


III.  THE  APPEAL. 

1.  Taking  of  Appeal.  —  In  establishing  the  fact  of  an  appeal 
taken,  the  bond  itself  is  not  competent  evidence,  except  so  far  as 
its  recitals  may  explain  an  ambiguity  in  the  record,  such  as  deter- 
mining which  of  the  parties  appealed,-^  or  the  omission  to  enter 
the  prayer  and  grant  of  appeal,-"  or  to  what  court  the  appeal  was 
prayed.-' 

2.  Affirmance  of  Appeal.  —  A  properly  certified  transcript  of  the 
record  or  order  affirming  the  judgment  from  which  an  appeal  is 
taken,  or  the  record  itself,  is  competent  evidence  of  affirmance,  in 
an  action  on  the  appeal  bond.-* 

3.  Remittitur.  —  The  order  of  the  appellate  court  aflirming  the 
decree  or  judgment  from  which  the  appeal  was  taken  is  conclusive 
evidence  to  establish  the  regularity  of  the  appeal,-"  and  is  held 
prima  facie  evidence  that  the  decree  affirmed  was  the  one  appealed 
from.^" 

IV.  COSTS  AND  DAMAGES. 

Appeal  bonds  being  intended  to  secure  the  appellee  from  all  costs 
and  damages  consequent  on  the  failure  to  sustain  appellant's  plea, 
the  nature  and  extent  of  such  costs  and  damages  must  be  proved. ^"^ 


Julin,    13    Tenn.    (5 
Howard,    10  Tenii. 


Tenn.   (10  Humph.)  271;  Singer  Co, 
I'.   Barrett,  94   N.   C.  219. 

25.  Cooly 
Yerg.)    439. 

26.  Lawler 
(Meigs)    IS. 

27.  Rogers  v.  Cochran,  11  Tenn. 
(3  Yerg.)  311. 

But  in  Hydraulic  Co.  i'.  Neumeis- 
ter,  15  Mo.  App.  592,  it  was  held  that 
the  fihng  of  the  bond  and  the  clerk's 
indorsement  thereon  were  evidence 
of  the  talcing  of  an  appeal. 

28.  Grashaw  v.  Wilson  (Mich.), 
82  N.  W.  73;  Miller  v.  Vaughan,  78 
Ala.  323;  Robert  v.  Good,  36  N.  Y. 
408;  Pierce  v.  Banta,  9  Ind.  App. 
376,  31  N.  E.  812;  Pray  v.  Wasdell, 
146  Mass.  324,  16  N.  E.  266;  Harding 
f.  Kuessner,  172  111.  125,  49  N.  E. 
looi  ;  Gille  z'.  Emmons  (Kan.),  59 
Pac.  338;  Jenkins  v.  Hay,  28  Md.  547. 

29.  In  Hill  z:  Burke,  62  N.  Y.  1 11, 
in  an  action  on  an  appeal  bond,  the 
remittitur  of  the  court  of  appeals 
was  in  evidence,  showing  appeal  and 
affirmation  of  judgment,  and  the 
court  said  :  "  This  was,  I  think,  con- 
clusive evidence  that  an  appeal  had 
been  duly  taken  by  the  filing  of  the 
notice  with  the  undertaking,  the  ser- 

Vol.  I 


vice  of  the  same,  and  of  a  copy  of 
the  undertaking  as  the  code  requires, 
and  it  was  not  necessary  to  estab- 
lish, by  other  and  independent  evi- 
dence, that  these  preliminary  steps, 
which  are  required  to  perfect  the  ap- 
peal,  had   been   taken." 

30.  Pearl  v.  Wellmans,  11  111.  352; 
McDonald  z:  Allen,  12S  111.  S21,  21 
N.  E.  5.37- 

In  an  action  on  an  appeal  bond 
alleging  failure  to  prosecute  with 
effect,  it  being  shown  that  the  judg- 
ment was  affirmed  more  than  ten 
years  before,  it  was  held  that  the 
due  filing  of  a  certified  copy  of  the 
opinion  of  the  court  affirming  judg- 
ment would  be  presumed.  Buchanan 
v.    Milligan,    125   Ind.   332,   25    N.   E. 

349- 

31.  Proving     Rental     Value     of 

Realty. —  Gilliam  t'.  Coon.  10  111. 
App.  43 ;  Shunnick  Z'.  Thompson,  25 
Ili.  .i^pp.  619;  Higgins  V.  Parker,  48 
111.  44.S. 

Judgments  in  Foreclosure Scott 

V.  Marchand,  88  Ind.  349;  Willson  v. 
Glenn,    77    Ind.    585. 

In  General.  _  Sanger  z:  Nadle- 
hoffer,  34  111.  App.  252;  Bank  v. 
Swann,  4  Cranch    C.   C.  139,  2  Fed. 


APPEAL  BONDS. 


<i4o 


Cas.  No.  902;  Tucker  7\  Lee,  3 
Cranch  C.  C.  684,  24  Fed.  Cas.  No. 
4221  ;  Thalheimer  i'.  Crow,  13  Colo. 
•?97,  22  Pac.  779;  Jenkins  v.  Hay, 
28  Aid.  547. 

Record     Evidence.  —  A     certified 
statement   of  the   clerk  of  the  court 


who  is  authorized  to  tax  costs  is 
competent  evidence  of  the  amount 
of  such  costs,  in  an  action  on  an 
appeal  bond  covering  the  same. 
Thalheimer  i'.  Crow,  13  Colo.  397, 
22  Pac.  779;  Parisher  v.  Waldo,  72 
111.   71. 


APPLICATION. — See  Payments  ;    Insurance. 


APPOINTMENT— See  Principal  and  Agent ;   Officers, 
Executors  and  Administrators ;  Guardian  and  Ward; 

Receivers. 


APPRAISAL.— See  Value. 


Vol.  I 


APPRENTICES. 

By  George  W.   Lewis. 

I.   PROVING  APPRENTICESHIP.  944 

1.  By  Indcntui-c.  >;44 

A.  Approi'iil  uf  Imtcntiirc,  944 

B.  Staiiipiiii;  of  Indenture,  944 

2.  Unsealed  Contract,  945 

II.  PROVING  THE  INDENTURE,  945 

1.  Indenture  from  Sister  State.  945 

2.  Foreign  Indenture,  945 

3.  Proof  by  Subscribi)ig  Witness,  943 

4.  Counterparts,  945 

5.  Record,  946 

6.  Secondary  Evidence  (iCncraUv.  (;4(i 

III   CONSENT  OF  PARTIES,  946 

1.  To  the  Contract.  94O 

J.  To  Assignment,  946 

3.  7'o  Remoi'al,  c)47 

4.  7"f)  Discharge,  947 

IV.  AGE  OF  APPRENTICE,  947 
V.  BREACH  OF  .COVENANTS,  947 

I.  PROVING  APPRENTICESHIP. 

1.  By  Indenture.  —  Apprenticeship  is  proved  by  producing  in 
evidence  the  indenture  liy  whicli  the  relation  of  ma.ster  and  appren- 
tice is  created.^ 

.\.  ArPRONAL  OF  Indenture.  —  An  indenture  of  apprenticeship 
is  admissible  in  evidence,  if  the  approval  of  the  justices  of  the  peace 
appears  anywhere  in,  or  upon,  the  indenture. - 

15.  St.nmi'inc,  01-'  iNDEXTrKE. — An  unstamped  indenture  of 
apprenticeship,  which  by  law  should  be  stamped,  is  inadmissible  in 
evidence.'' 

1.     Proof      of      Apprenticeship.  Si.   Clair  r.  Jones,  .•'ickl.    (Pa.)    343; 

William.^  ;'.   Voiinglnisband,   i    Stark.  Skillnian  v.  Quick,  4  N.  J.  Law  102; 

139;  Williams  !•.   Morgan.   15  .\d.  &  PoUer  t'.   Hyndman.   i    Llarr.    (Del.) 

K.   7ST.                                         '  123;  Owen  7'.  State,  48  Ala.  328. 

An    Indenture    of    Apprenticeship  2.     Indenture — U'Jirii  Admissible. 

Regarded   as  a   Deed,   and   when   of-  State  !•.  llooinr.  i  Houst.  Crini.  Cas. 

fired  in  evidence  its  e.xecntion  must  (Del.)   17. 

l)e  proved  as  other  deeds  are  proved.  3.     Sec  article   "  Stamp   Acts." 

Vol.  I 


APPRENTICES. 


945 


2.  Unsealed  Contract.  —  A  contract  of  apprenticeship  must  com- 
ply with  all  the  requirements  of  the  statute.  It  must  be  in  writing/ 
and  signecP  and  sealed"  by  the  parties ;"  and  lacking  any  of  these 
requisites  it  is  void  and  inadmissible  in  evidence  to  jirove  a  binding 
contract.' 

II.  PROVING  THE  INDENTURE. 

1.  Indenture  From  Sister  State.  —  A  copy  of  the  record  of  an 
indenture  made  in  one  state,  authenticated  under  the  acts  of  Con- 
gress of  1790,  14,  or  1804,  15,  without  proof  of  being  entitled  to 
registry  or  entitled  to  full  faith  and  credit  in  the  courts  of  such 
state  is  inadmissible  in  evidence  in  another  state.'-' 

2.  Foreign  Indenture.  — An  indenture  of  apprenticeship,  executed 
by  the  orphan's  court  of  a  foreign  state,  is  binding  under  a  pecu- 
liar jurisdiction,  given  by  statute,  and  the  statute  of  such  state 
should  be  given  in  evidence  in  connection  w'ith  the  indenture.'" 

3.  Proof  by  Subscribing  Witness.  —  An  indenture  is  admissible 
in  evidence,  on  proof  of  its  execution  by  one,  only,  of  the  subscrib- 
ing witnesses. '' 

4.  Counterparts.  —  ^\"hen  an  indenture  is  executed   in  counter- 


4.  Owtn  V.  Slate,  48  Ala.  328; 
St.  Clair  v.  Jones,  Add.  (Pa.) 
343;  Phelps  V.  Pittsburg  etc.  R. 
Co.,  99  Pa.  St.  108;  Overseers  of 
Poor  V.  Overseers  of  Poor,  2  Cow. 
(N.  Y.)   537. 

5.  The  Contract  of  Apprenticeship 
Must  Be  Signed.  —  Phelps  r.  Pitts- 
burgh etc.  R.  Co.,  99  Pa.  St.  108; 
Tague  z'.  Hayward,  25  Ind.  427 ;  Rex 
z'.  Newton,  i  Ad.  &  E.  238 ;  Cora.  v. 
Atkinson,  S  Phila.  (.Pa.)  375;  Parish 
of  Castor  and  Accles,  1  Salk.  68; 
Overseer  of  Poor  v.  Overseer  of 
Poor,  2  Cow.  (N.  Y.)  537;  Lally  v. 
Cantwell.  40  Mo.  Api).  44 ;  Owen  v. 
State.   40  Ala.   328. 

Signature  of  Counterpart  by  Mas- 
ter is  not  essential  to  the  validity  oi 
an  indenture.  Rex  v.  Fleet,  Cald.  31  ; 
Rex  V.  St.  Peter's  on  the  Hill,  2 
Bolt.  P.  L.  367. 

G.  The  Contract  Must  Be  Sealed. 
Com.  V.  Wilbank,  10  Serg.  &  R. 
(Pa.)  416;  Overseers  of  Poor  v. 
Overseers  of  Poor,  6  N.  J.  Law  169; 
Hopwell  V.  Aniwell,  3  N.  J.  Law  ib. 

An  Instrument  Not  Having  Af- 
fixed Thereto  a  Seal  of  Wax  or 
Wafer  Susceptible  of  Receiving  An 
Impression  Ikis  been  held  in  Xew 
Jersey  to  be  void  as  a  contract  of 
apprenticeship.     .\   scroll   or  scribble 

60 


of  ink  is  insufficient  for  the  purpose 
of  a  seal.  Hopwell  v.  Amwell,  3 
N.  J.  Law  169;  Perrine  v.  Cheese- 
inan,  II  N.  J.  Law  174;  Flanigan  v. 
The  C.  M.  Ins.  Co..  25  N-  J-  Law  506. 

7.  The  Contract  Must  Be  in 
Writing  and   Signed   and   Sealed   by 

the  Parties Rex  v.  White  Church. 

Burr.  Sel.  Cas.  540;  i  Botl.  P.  L.  532; 
Phelps  V.  Pittsburgh  etc.  R.  Co.,  99 
Pa.  St.  108;  Rex  V.  Strallon,  Burr. 
Sel.  Cas.  272;  Rex.  v.  All  Saints  in 
Hereford,  Burr.  Sel.  Cas.  656. 

8.  When  Void  and  Inadmissible 
in  Evidence.  —  Tague  v.  Hayward, 
25  Ind.  427 ;  Respublica  v.  Keppele, 
2  Dall.  (U.  S.)  197;  Overseers  of 
Poor  V.  Overseers  of  Poor,  2  Cow. 
(N.  Y.)  537;  Reg.  ■;■.  Callingwood, 
2  Ld.  Rayin.  1116;  Phelps  r.  Pius- 
burgh  etc.  R.   Co.,  99   Pa.   St.    108. 

9.  See  "  Best  and  SiccoNn.vKV 
Evidence  ;  "  "  Recokds." 

10.  Indenture,      Under      Peculiar 

Statute,    When   Admissible Potter 

V.  Hyndman.  i  llarr.  (Del.)  123; 
.Moore  v.  Ann.  9  B.  Mon.    (  Ky. )   36. 

11.  Admissible  on  Testimony  of 
One  of  the  Subscribing  Witnesses. 
Mc.\dams  Exrs  -■.  Stilwell.  13  Pa. 
St.  90;  Belbin  v.  Skeats,  i  Sw.  & 
Tr.  148:  Wright  v.  Doe  d'Talham, 
I  .\A.  &  E.  3;  Melcher  v.  Flanders, 
40  N.   H.    1.^9- 

Vol.  I 


946 


APriiENTICES. 


parts,  each  part  is  the  best  evidence  against  the  jjarty  executing  it, 
and  those  in  privity  with  him.'" 

When  Secondary  Evidence.  —  When  an  indenture  is  executed  in 
counterparts,  each  j^art  is  secondary  evidence  against  the  party 
executing  the  other  part,  and  those  in  privity  with  him.' ' 

5,  Record. — On  an  inihctment  for  harboring  an  apprentice,  the 
record  of  the  indenture  is  admissible  in  evidence,  aUhough  the 
original  was  not  delivered  by  the  justices  to  the  recorder  of  deeds 
for  the  county,  within  the  statutory  time.^* 

6.  Secondary  Evidence  Generally.  —  If  an  indenture  has  been  lost 
or  destroyed,  secondary  evidence  of  its  existence  and  contents  may 
be  given,  when  it  appears  that  a  faithful  but  inelifectual  effort  has 
been  made  to  produce  it.'' 

III.  CONSENT  OF  PARTIES. 

1.  To  the  Contract.  —  An  infant's  consent  to  be  bound  as  an 
apprentice  may  be  proved  by  the  fact  of  his  executing  the  indenture, 
the  circumstances  attending  it,  or  by  evidence  aliunde."' 

Proof  by  Parol.  — ( Jral  e\idence  is  admissible  to  prove  the  consent 
of  the  father  and  minor  to  the  execution  of  an  indenture  with  the 
master.'" 

2.  To  Assignment.  —  The  consent  of  the  original  master  that  his 
apprentice  serve  with  another  master  may  be  proved  by  direct  or 
circumstantial  evidence."* 


12.  Counterpart,  When  Primary 
Evidence —  Roe  r.  Davis,  7  It.-ist 
'^63;  Mayor  of  Carlisle  v.  Blamirc, 
8  East  487:  Paul  v.  Meek,  2  Y.  &  J. 
116;  Houghton  V.  Koenig.  18  C.  H. 
235.  25  L.  J.  C.  P.  218;  C.  &•  T.  R. 
Co.  V.  Perkins.  17  Alich.  296;  Pearse 
I'.  Morice,  3  Barn,  &  A,  396,  4  L. 
J.  K.  B,  21  ;  Philipson  ?■.  Cliasc.  2 
Camp,  no;  Burleigh  ?■.  Slibbs,  5  T. 
R.  465. , 

13.  Garnons  i'.  Swift,  i  Taunt. 
507 ;  Munn  z:  Godbold,  2  Bing.  292 ; 
Waller  z'.  Horsfall,  i  Camp.  501  ; 
Doe  V.  Trapaud.  i  Stark.  281 ;  St. 
Clair  V.   Jones.  Add.    (Pa.)    343. 

Original  lost  or  Destroyed. 
If  the  original  instrument  cannot  be 
produced,  the  next  best  evidence  is, 
first,  a  counterpart,  if  no  counter- 
part, a  copy,  and  if  no  counterpart 
or  copy  can  be  produced,  then  oral 
testimony.  Villiers  z:  Villiers,  2 
Atk.  71;  BuUer's  Nisi  Prius,  254; 
Rex.  V.  Castleton,  6  T.  R.  236; 
Kerns  r.   Swope,  2  Watts   (Pa.)   75. 

14.  Record    of   Indenture,    When 

Admissible State     f.      Hooper,      i 

Houst.    Crim.    Cas.    (Del.)     17. 

15.  Drew    v.    Peckwell,    i     E.    D. 


Smith  (N.  Y.)  408:  Bonnell  v. 
Brotzman,  3  Watts  &  S.  (Pa.l  17S; 
hteinecke  z\  Rawlings.  4  Cranch 
699,  II  Fed.  Cas.  No.  6326.  But  see 
Hooks  V.  Perkins,  Busbee  Law  ( N. 
C.)  21.  For  methods  of  proving  age 
see  article  "  Age." 

16.  Consent     of     Infant Fisher 

7'.  Lunger.  ,},^  N.  J.  Law  100:  Rex.  v. 
.Arundel,  5  M.  &  S.  257;  Keane  v. 
Boycott,  2  H.  Bl.  511. 

When  the  infant's  consent  is  re- 
quired to  be  expressed  in  the  inden- 
ture, the  instrument  itself  is  the  best 
■  evidence  of  such  consent.  The 
Queen's  Case,  2  B.  &  B.  286;  Harper 
z'.  Gilbert,  5  Cush.  (59  Mass.)  417; 
Dodge  z'.  Hills,  13  ^le.  151. 

17.  Olncy    z:    .Meyers.    3    HI     .^n. 

18.  Consent  to  Assignment,  How 

Proved Kingwood    z\     Bethlehem. 

13  N.  J.  Law  221  ;  Graham  z\ 
Graham,  i  Serg.  &  R.  (Pa.)  330. 
See  Rex.  Z'.  The  Holv  Tririlv,  3 
T.   R.  605. 

Consent  Required  by  Statate 
to  be  given  before  justices  of  the 
peace  must  be  certified  at  the  time 
in  writing,  and  thereafter  oral  proof 
of     such     consent     is     inadmissible. 


Vol.  X 


APPRENTICES. 


•147 


3.  To  Removal.  —  The  consent  of  jiarties  to  the  removal  of  an 
apprentice  fri^mi  the  jurisdiction  may  be  proved  by  parol.'" 

4.  To  Discharge.  —  The  discharge  of  an  apprentice  with  his  con- 
sent can  onl\-  be  sustained  by  evidence  that  it  would  be  to  his 
advantage.-" 

IV.  AGE  OF  APPRENTICE. 

The  recitals  of  age  stated  in  an  indenture  do  not  conclude  tiie 
apprentice :  his  true  age  ma\-  lie  proved  by  parol.-' 

Recitals  Of  —  Master  Concluded  By  —  Evidence  to  Contradict  Recitals 
Inadmissible.  —  The  master  is  concluded  by  the  recitals  in  the 
indenture  of  the  age  of  the  apprentice,  and  evidence  on  his  part  to 
contradict  such  recitals  is  inadmissible. "- 

V.  BREACH  OF  COVENANTS. 

In  an  action  against  a  master  for  failure  to  instruct  his  appren- 
tice in  an  art  or  liusiness,  evidence  is  admissible  in  defense,  to  prove 
that  the  apprentice  is  a  good  workman  in  such  business,  or  in  some 
specific  branch  thereof.-" 

Acts  and  Declarations  As  Evidence.  —  The  acts  and  declarations  of 
an  apprentice  are  admissil)le  in  evidence  on  the  part  of  the  master 
to  show  the  temper  and  dis]iosition  of  the  apprentice.-"' 


Com.  V.  Jones,  3  Serg.  &  R.  (  Pa.) 
158.  See  Com.  v.  Leeds,  i  Ashm. 
(Pa.)    405. 

19.  Consent  to  Removal Proof 

bn  Parol.  —  Lobdell  v.  Allen,  9 
Gray  (Mass.)  377;  Com.  v.  Hamil- 
ton, 6  Mass.  272.  As  to  removal 
from  jurisdiction,  see  Com.  v.  Ed- 
wards, 6  Binn.  (Pa.)  202;  Randall 
V.  Rotch,  12  Pick.  (.Mass.)  107; 
liaton  V.  Western,  9  Q.  B.  D.  636, 
52  L.  J.  Q.  B.  41,  ovcrrulins.  Royce 
V.  Charlton,  8  Q.  B.  D.  i,  45  L.  T. 
712. 

20.  Rex.  V.  Great  Wigslon,  3 
Barn.  &  C.  484;  Rex.  v.  Mountscir- 
rell,  3   AI.  &  S.  497. 

A  Discharge  by  Consent  of  All  the 
Parties  is  presumptivL'  evidence  that 
it  is  for  the  benefit  of  the  infant 
and  is  therefore  valid.  Re.x.  7'. 
Weddington,  Burr.  Sel.  Cas.  765; 
Rex.  V.  Spanrstown,  Burr.  Sel.  Cas. 
801 ;  Crombie  "'.  McGrath,  139  Mass. 
550,  2  N.  E.  100;  Kingwood  V.  Beth- 
lehem, 13  N.  J.  Law  221  ;  Graliam 
V.  Graham,   i    Serg.  &  R.   (Pa.)   330. 

21.  Recitals  of  Age Apl^rciiticc 


Not  Concluded  by  Parol.  —  Proof  of 
True  Age.  —  Banks  v.  Metcalfe,  I 
Wheeler's  Crini.  Cas.  (N.  Y.)  381; 
In  re  Brcnnan,  i  Sandf.  (N.  Y.) 
711;  Drew  V.  Peckwell.  i  E.  -D. 
Smith  (N.  Y.)  408;  Hooks  r.  Per- 
kins, Busbee  Law  ( N.  C.)  21;  E.r 
t^arle  Davis.  5  T.   R.  715. 

22.  McCutchin  z\  Jamison,  i 
Cranch  348,  16  Fed.  Cas.  Xo.  8743; 
Hooks  V.  Perkins,  Busbee  Law  (N. 
C.)  21;  Glidden  z:  Unity.  30  N.  H. 
104. 

23.  Failure  to  Teach.  — Evidence 
in  LK'fense. —  liarger  v.  Cashman,  4 
Bibb.    (Ky.)   278:   Wriglit  ■:■.   Brown, 

5  Md.  ^7 ;  Hughes  z\  Humphreys,  6 
Barn.  &  C.  680;  Barger  r.  Caldwell, 
2   Dana    (Ky.)    129. 

In  actions  for  breach  of  contract 
for  failure  to  teach,  evidence  is  in- 
admissible to  show  that  the  appren- 
tice was  kept  at  work  with  others 
of  the  same  experience.  Bell  v.  Her- 
rington,  3  Jones  Law  (N.  C.)   320. 

24.  Acts  and  Declarations  As  Evi- 
dence  Clancy  v.  Overman,   I   Dev. 

6  B.  Law   (N.  C.)   402. 

Vol.  I 


APPROPRIATION    OF    PAYMENTS.— See    Pay- 
ments. 


APPROVAL. — See   Appeal    Bonds  ;    Bond  Certificates  ; 

Records. 


APPROVER.— See  Accomplice. 


ARBITRATION  AND  AWARD. 

Bv  Clark  Ross  Mahan. 


PRODUCTION    OF    WITNESSES    AND    EVIDENCE    BEFOKE 
THE  ARBITRATORS,  (J50 

1.  Procuring  tlic  Attendance  of  IVitncsscs,  950 

A.  Power  of  the  Arbitrators,  950 

B.  Right  of  the  Parties.  950 

C.  Assistance  of  Court  in  Proenring  U'itiiesses,  951 

2.  Szveariug  the  JVitnesses.  951 

A.  Pozvcr  of  the  Arbitrators,  951 

B.  Necessity  of  Siccaring  JVitnesses,  931 

3.  Admission  and  Rejection  of  Evidence,  953 

A.  Recei-i'ing  Illegal  Evidence,  953 

a.  General  Rule,  953 

b.  Waiver  of  Objection,  954 

c.  Arbitrators  as  Witnesses,  955 
(1.  Attorneys  as  Witnesses,  955 

B.  Rejecting  Pertinent   Evidence,  955 

a.  General  Rule,  955 

b.  Offer  of  Evidence  Necessary,  957 

C.  Referring  Admissibility  to  Court,  957 

D.  Reopening  Case  for  Additional  Evidence,  957 

E.  Adducing  Evidence   Before  Third  Arbitrator  or  Um- 

pire, c)^7 

F.  Rehearing  on  l\'eiOinniitmcnt,  958 

Vol.  I 


ARBITRATION  AND  AWARD.  949 

II.  ACTIONS  AND  DEFENSES  FOUNDED  ON  AWARDS,  958 

1.  Tlic  Fact  of  Submission,  g58 

A.  N'cccssity  for  Proof,  958 

Pi.  Competency  of  Evidence,  959 

2.  Publication  and  Delivery  of  the  Award,  960 

3.  Tender  and  Demand  of  Performance,  960 

4.  Illegality  of  Award  as  Affecting  Its  Admissibility,  961 

5.  Best  and  Secondary  Evidence   962 

6.  Pleading  and  Proof,  962 

A.   Variance,  962 

7.  Awards  as  Ei'idence  .Igainst  Strangers,  963 

III.  MATTERS  IN  DEFENSE  OR  AVOIDANCE  OF  AWARDS,  964 

1.  Contradiction  or  Explanation  by  Extrinsic  Evidence,  964 

A.  General  Rule,  964 

B.  Controlling  Intent  and  Meaning,  965 

C.  Ambiguity,  965 

D.  Testimony  of  Arbitrators,  965 

E.  Admissions  and  Declarations,  967 

2.  Authority  of  tlie  Arbitrators,  967 

A.  The  Appointment  of  the  Umpire,  967 

B.  Improper  Appointment  of  Umpire,  968 

C.  Termination  of  Submission,  968 

D.  Resignation  of  Arbitrators,  969 

E.  Substitution  of  Arbitrators,  969 

3.  The  Oath  of  the  Arbitrators,  969 

4.  Time  of  Meeting,  969 

5.  Number  of  Arbitrators  Present  and  Acting,  969 

6.  Matters  Submitted  to,  and  Decided  by    the  Arbitrators,  969 

A.  //(  General,  969 

B.  As  Shozcing  Excess  of  Authority  by  Arbitrators,  971 

C.  Testimony  of  the  Arbitrators,  972 

7.  Mistake,  973 

A.  In  General,  973 

B.  Testimony  of  the  Arbitrators,  974 

C.  Admissions  of  Arbitrator,  975 

D.  Affidavits,  975 

8.  Misconduct,  Fraud.  Corruption,  Partiality,  Etc.,  976 

A.  In  General,  976 

B.  Testimony  of  the  Arbitrators,  976 

C.  Declarations  in  Pais,  977 

D.  Affidavits,  977 

9.  Performance  of  the  Award    cyjj 

10.  Pleading  and  Proof,  978 

A.   Variance.  978 

11.  Burden  and  Requisite  Cogency  of  Proof,  978 

Vol.  I 


950 


ARBITRATION  AND  AWARD. 


For  matters  of  evidence  ,y;eiierallv  jjertaininc;-  to  Fraud.  AFistake, 
see  tho^e  titles. 

I.  PRODUCTION  OF  WITNESSES  AND  EVIDENCE  BEFORE  THE 

ARBITRATORS. 

1.  Procuring  the  Attendance  of  Witnesses. — A.  Power  of  the 
Akbitr.vtors.  —  The  power  of  the  arbitrators  as  relates  to  the  wit- 
nesses is  not  great.  They  have  no  authority  of  themselves  to  com- 
pel the  witnesses  to  appear  before  them.'  unless  they  are  so  expressly 
authorized  by  statute. - 

B.  Right  of  thf  P.\rties.  —  Without  doubt,  however,  the  par- 
ties are  entitled  to  a  reasonable  opportunity  to  procure  the  attend- 
ance of  their  witnesses. ■'' 

Documentary  Evidence.  —  And  the  rule  applies  with  equal  force  to 
documentarv  evidence.^ 


1.  Power  of  Arbitrators  to 
Compel  Attendance  of  Witnesses. 
Bryant  v.  Levy.  52  La.  Ann.  1649,  28 
So.  191  ;  Tobey  v.  Bristol  County.  3 
Story  800,  23  Fed.  Cas.  No.  14.065 
{dictum). 

2.  Statutes  Authorizing  Arbi- 
trators   to    Compel    Attendance    of 

Witnesses Wolfe  v.  Hyatt,  7O  Alo. 

156;  Thomasson  v.  Risk,  11  Busli. 
(.Ky.)  619.  And  see  the  various 
local  codes  and  statutes. 

3.  Party  Entitled  to  Reasonable 
Opportunity  to  Procure  Witnesses. 
Hollingsworth  v.  Lciper,  1  Uall. 
(Pa.)  161.  And  see  Morewood  v. 
Jewett.  2  Rob.  (N,  Y.)  496.  But 
the  objection  that  opportunity  was 
not  given  is  without  merit  where  it 
appears  that  the  arbitrators  offered 
to  hold  the  case  open  for  such  time 
as  was  required.  Madison  Ins.  Co 
V.  Griffin,  3  Ind.  277.  And  see 
Homes  v.  Aery,  12  Mass.  134. 

Where  the  Arbitrator  Promises  to 
Hear  Witnesses,  and  then  makes  up 
his  award  without  doing  so.  the 
award  is  invalid.  Earl  v.  Stocker, 
2   Vern.   251. 

Depositions So,  where  the  arbi- 
trators refuse  a  party  time  to  obtain 
the  deposition  of  a  foreign  witness, 
and  there  is  no  reason  to  suppose 
that  the  object  of  the  request  is 
mere  delay,  their  award  will  be  in- 
valid. Passmore  v.  Pcltit,  4  Dall. 
(Pa.)   271. 

Vol.  I 


Surprise  at  Trial —  And  where  a 
party  is  surprised  at  evidence  ad- 
duced by  his  adversary,  and  because 
of  the  unexpected  absence  of  the 
witness  by  whom  he  can  meet  that 
evidence,  it  is  fatal  to  the  award 
if  the  arbitrators  refuse  time  to  pro- 
cure the  witness,  on  the  party's 
making  the  necessary  showing.  Tor- 
rance zi.  Amsden,  3  AIcLean  509,  24 
Fed.    Cas.    No.    14.103. 

To  Entitle  a  Party  to  Further 
Time  to  Produce  Testimony,  he 
must  show  the  arbitrators  what  the 
exidence  is,  why  he  is  unable  to 
produce  it,  and  that  he  expects  to  be 
able  to  produce  it  in  a  reasonable 
lime.  A  naked  allegation  that  he  de- 
sires further  time  is  not  enough. 
Latimer  v.  Ridge,  i  Binn.   (Pa.)  458. 

Waiver  of  Right The  objection 

tliat  the  arbitrators  tried  and  decided 
|]ie  cause  in  the  absence  of  a  wit- 
mss  will  not  be  sustained  where  it 
.•i]>pears  that  the  party  objecting  an- 
nuunced  ready  for  trial,  and  it  is 
net  pretended  that  the  witness  was 
ever  subpoenaed,  or  that  any  effort 
was  made  to  procure  his  attendance, 
or  to  take  his  deposition,  or  that  anv 
motion  for  a  postponement  was 
asked  on  account  of  the  witness' 
absence.  Canada  v.  Barksdale,  84 
V'a.  742,  6  S.  E.  10. 

4.  Green  v.  Franklin,  i  Tex.  497. 
The  objection  in  this  case  was  over- 
ruled, however,  under  the  facts 
shown,   as   being   without   merit. 


ARBITR.ITIOX  AND  AWARD. 


951 


C.  Assistance  of  Court  in  Procikixc,  Witnesses.  —  And 
there  are  cases  in  which  the  courts  have  aided  the  parties  in  securing 
the  attendance  of  witnesses  before  the  arbitrators.'' 

2.  Swearing  the  Witnesses.  —  A.  Pow  ek  of  the  .Aui!itk.\tors. 
Arbitrators,  at  common  law,  possess  no  power  to  administer  oaths 
to  the  witnesses."  In  England,'  however,  and  in  some  at  least  of 
the  United  States,'*  this  power  is  expressly  conferred  upon  them  by 
statutes. 

B.  Necessity  of  Swearing  Witnesses.  —  An  award  which  is 
otherwise  unobjectionable  will  not  be  invalidated  by  the  mere  fact 
that  the  arbitrators  permitted  the  examination  of  the  witnesses 
without  their  being  first  sworn,"  unless  the  arbitration  agreement 


5.  Habeas    Corpus    ad    Testifican- 
dum  In  Marsden  v.   Overbiiry,   i8 

C.  B.  30,  the  court  granted  a  habeas 
corpus  ad  tcsliUcanduin  to  bring  np 
a  prisoner  in  criminal  custody,  for  the 
purpose  of  testifying  before  an  arbi- 
trator. .\nA  in  Graham  v.  Glover, 
5  El.  &  Bl.  591.  to  bring  up  a  witness 
who  was  in  prison  under  e.xecution 
for  debt. 

Hearing  Before   Arbitrator  Not  a 
Trial.  — In   Hall  r.   Brand,   12  Q.   B. 

D.  39,  an  action  and  "  all  matters  in 
difference  "  between  the  parties  were 
referred  by  consent  to  an  arbitrator ; 
and  it  was  held  that  no  subpoena 
would  be  granted  under  17  &  18 
\'ict.  c.  34,  S.  1.  to  compel  the  at- 
tendance of  a  witness  residing  in 
the  United  Kingdom  but  out  of  the 
jurisdiction  of  the  Queen's  Bench 
Division,  as  a  hearing  before  the  ar- 
bitrator was  not  a  "  trial  "  within  tiie 
meaning  of  that  statute. 

6.  Arbitrators    Are    Witnout 

Power  to  Swear  Witnesses Tobey 

V.  Bristol  County,  3  Story  800,  23 
Fed.  Cas.  No.  14,065 ;  People  v. 
Townsend,  5  How.  Pr.  (N.  Y.)  315; 
State  I'.  Jackson.  36  Ohio  St.  281  ; 
Street  v.  Rigby,  6  Ves.  822 ;  Welling- 
ton V.  Alclntosh.  2  .^tk.  569;  Half- 
hide  T'.  Penning,  2  Bro.  C.  C.  336; 
Bonner  7'.  McPhail,  31  Barb.  (N.'Y.) 
106 ;  Large  v.  Passinore,  5  Serg.  & 
R.  (Pa.)  51.  Comfarc  Inlay  f. 
Wikoff,  4  N.  J.  Law  132.  But  the 
fact  that  the  arbitrator  who  is  a 
justice  of  the  peace  and  as  such  has 
power  under  the  statute  to  swear 
witnesses  before  any  other  person 
acting  as  arbitrator,  swears  the  wit- 
nesses himself,  is  no  objection  to  the 


award.  Rice  v.  Hasscnptlug,  45  Ohio 
St.  377.   13  N.  E.  655. 

7.  Tinder  the  English  Statute, 
according  to  Hodson  v.  Wilde,  4  M. 
&  W.  536,  2  Jur.  992,  if  the  submis- 
sion provides  that  the  witnesses  shall 
be  examined  under  oath,  the  arbi- 
trators have  power  to  administer  the 
oath. 

8.  Tlius  in  California.  See  In  re 
Connor.  128  Cal.  279,  60  Pac.  862. 
And  see  the  local  codes  and  statutes 
of  the  various  states  on  this  ques- 
tion. 

9.  Examination  of  Witnesses  Not 

Sworn  Not  Fatal  to  Award Thorn- 

ti-in  i:  McCorniick,  75  Iowa  285,  39 
N.  W.  502;  Jenkins  v.  Meagher,  46 
Miss.  84  {dictum).  And  according 
to  Tomlinson  v.  Hammond.  8  Iowa 
40,  it  is  not  necessary  that  tlie  award 
show  affirmatively  that  the  witnesses 
were  sworn.  The  presumption  is 
that  the  arbitrators  discharged  their 
duty  in  this  respect.  See  also  Older 
z\  Quinn.  89  Iowa  445,  56  N.  W.  660. 
Compare  Knowlton  z\  Mickles,  29 
Barb.  (.N.  Y.)  465,  where  the  award 
was  held  invalid  because  the  ar- 
liitrators  heard  statements  of  wit- 
nesses in  the  absence  of  the  opposite 
party,  and  without  their  being  sworn, 
and  awarded  in  accordance  with 
those  statements,  although  tliere  was 
no  evidence  showing  corruption  or 
ir.tentional    violation    of    duty. 

Affirmative  Showing  Necessary. 
In  Dolph  V.  Clemens,  4  Wis.  204, 
it  was  held  that  the  objection  that 
the  witnesses  were  not  sworn  was 
vsithout  merit,  in  the  absence  of  an 
affirmative  showing  by  the  party 
raising  the  objection. 

Vol.  I 


952 


ARBITRATION  AND  AWARD. 


expressly  requires  that  the  witnesses  shall  be  sworn,'"  or  unless  it  is 
done  against  the  express  request"  and  objection  of  one  of  the 
parties  interposed  at  the  time.'"  And  even  when  required  by  an 
express  statute'"  the  parties  may  either  expressly  or  impliedly  waive 
such  requirement.''' 


10.  Submission       May       Require 

Witnesses  To  Be  Sworn Ridout  v. 

Pve,  I  Bos.  &  P.  91  ;  Biggs  v.  Han- 
sell,  16  C.  B.  562;  Banks  '•.  Banks, 
I  Gale  46;  Kane  v.  Fond  du  Lac,  40 
Wis.  495;  Sanborn  v.  Paul.  60  Mo. 
32s;  State  V.  Jackson.  36  Ohio  Si. 
281.  Compare  Dater  v.  Wellington, 
I  Hill  {N.  Y.)  319,  where  the  cmirl 
held  that  the  omission  to  swear  tin- 
witnesses,  whether  the  parties  had 
agreed  that  they  should  be  sworn 
or  not.  and  whether  the  parties  had 
waived  their  being  sworn  or  not, 
was,  at  most,  mere  matter  of  error 
or  mistake  which  could  not  be  cor- 
rected in  an  action   on   the  award. 

11.  Necessity  for  Request  That 
Witnesses  Be  Sworn [n  re  Mc- 
Gregor, 59  Hun  617,  13  N.  Y.  Supp. 
191.  And  according  to  Pierce  v. 
Perkins,  2  Dev.  Eq.  (N.  C.)  250, 
hearing  the  witnesses  without  swear- 
ing them,  cannot  be  complained  of 
when  so  done  by  the  express  con- 
sent of  the  counsel. 

In  Canada,  when  the  arbitration 
is  not  under  a  rule  of  court,  the 
witnesses  need  not  be  sworn  unless 
required  by  the  parties.  See  Wood- 
row  V.   O'Conner,  28  Vt.  776. 

12.  Necessity     for     Proper     and 

Timely    Objection /»    re    Connor. 

128  Cal.  279.  60  Pac.  862;  Bryant  f. 
Levy,  52  La.  Ann.  1649,  28  So.  191  ; 
Maynard  v.  Frederick,  7  Cush. 
(Mass.)  247;  Greer  v.  Canfield.  38 
Neb.  169,  s6  N.  W.  883;  Newcoml) 
7\  Wood,  97  U.  S.  581  {dictum )  ; 
Rounds  V.  Aiken  Mfg.  Co.,  58  S.  C. 
299,  36  S.  E.  714 ;  Britten  v.  Hooper. 
25  Misc.  388,  55  N.  Y.  Supp.  493; 
Biggs  V.  Hansell,  7  J.  Scott,  81  Eng. 
C.  L.  562;  Cochran  v.  Bartle,  91 
Mo.  636,  3  S.  W.  854;  Bergh  v. 
Pfeiffer,  Hill  &  D.  Supp.  no;  Wake- 
field V.  Llanelly  R.  &  D.  Co..  34 
Beav.  245.  And  there  are  cases 
which  hold  that  even  when  a  party 
objects,  and  his  objection  is  over- 
ruled, he  camiot  afterwards  com- 
plain   if    his    own    witnesses    are    al- 

Vol.  I 


lowed  to  give  their  evidence  without 
being  sworn.  Allen  v.  Francis,  9  Jur. 
691  ;  Smith  v.  Sparrow,  16  L.  J.  Q.  B. 
139. 

In  Smith  v.  Goff,  14  ^L  &  W.  264, 
where  the  submission  provided  that 
the  arbitrators  might,  if  they  saw  fit, 
examine  the  witnesses  on  oath,  it 
was  held  discretionary  with  the  arbi- 
trators to  swear  the  witnesses,  and 
their  not  doing  so  was  not  fatal 
even  as  against  the  express  request 
of  one  of  the  parties. 

13.  Statute  Requiring  Witnesses 
To  Be  Sworn. —  Wolfe  r.  Hyatt,  76 
Mo.  156;  In  re  Grening,  26  \.  Y. 
Supp.    117. 

A  Recital  in  the  Award  That  the 
Arbitrators  Heard  the  Testimony 
respecting  the  matters  submitted 
sufficiently  shows  that  the  witnesses 
were  in  fact  sworn  as  required  by 
statute.  Testimony,  as  understood 
in  judicial  proceedings,  means  the 
statements  of  a  witness  made  under 
oath.     Reeves  v.  McGlochlan.  (15  Mo. 

App.  537- 

That  the  Record  of  a  Statutory 
Arbitration  Does  not  Show  that  the 
witnesses  were  subpoenaed  or  sworn 
does  not  avoid  the  arbitration ;  lliat 
fact  can  be  taken  advantage  of  only 
on  review.  Weir  -■.  ^^'est.  27  Kan. 
650. 

14.  Express  or  Implied  Waiver 
of  Statutory  Requirement.  —  Rus- 
sell V.  Seery,  52  Kan.  736.  35  Pac. 
812 ;  Grafton  Quarry  Co.  v.  Mc- 
CuUy,  7  Mo.  App.  580;  Cochran  v. 
Bartle.  91  Mo.  636,  3  S.  W.  854; 
Woodrow  V.  O'Connor,  28  \'t.  776. 
.\nd  see  Large  r.  Passmore.  ^  Scrg. 
&  R.    (Pa.)    51. 

In  California  tlie  code  does  not 
expressly  require  the  witnesses  to  be 
sworn  by  the  arbitrators,  although 
the  arbitrators  are  empowered  to 
administer  oaths  to  them ;  and 
although  it  might  be  improper  for 
the  arbitrators  to  refuse  a  request 
to  swear  them,  still  an  award  cannot 
be  invalidated  because  they  were  not 


ARBITKJTIOX  AXD  AWARD. 


95.? 


3.  Admission  and  Rejection  of  Evidence. — A.  Reckiving  Iij.kcal 
EviDENCK.  —  a.  Cicncral  Kulc.  —  Courts  of  justice  have  long  mani- 
fested a  strong  inclination  to  sujiport  the  decisions  of  arbitrators, 
who  are  judges  of  the  parties'  own  choosing,  and  have  repeatedly 
declared  that  these  voluntarily  chosen  tribunals  are  not  to  be  held 
to  the  same  strictness  in  their  |)roceedings  as  has  been  most  wisely 
required  in  other  cases.'"  Ancl  accordingly  it  has  been  held  that  it 
is  not  fatal  to  the  award  that  tiie  arbitrators  have  received  imperti- 
nent and  incompetent  testimony,'"  unless  its  admission  constituted 
corruption,   partiality  or   undue  means  to  produce  the  award,''   or 


sworn  when  all  the  parties  agreeil 
either  expressly  or  hy  failure  in 
object.  In  re  Connor,  ij8  Cal.  271). 
60  Pac.  862. 

15.  Arbitrators  Not  Usually  Held 
to  Strict  Rules  of  Evidence.  —  Fon- 
nimore  i'.  ChiUls,  0  X.  J.  Law  ,386; 
Livingston  v.  Combs,  i  N.  J.  Law 
42:  Sabin  v.  Angell,  +4.  Vt.  523; 
TurnbuU  v.  Martin,  37  How.  Pr. 
(N.  Y.)  20.  But  when  a  cause  is 
actnally  pending  in  court,  and  is 
referred  by  rule  of  court  to  arbi- 
trators, the  latter  have  no  authority 
to  dispense  with  the  rules  of  evi- 
dence, and  substitute  therefor  their 
own  capricious  notions.  Eyre  f. 
Fenimore,  3  N.  J.  Law  Q32. 

In  England  the  Cases  are  Con- 
flicting—  Thus  .Attorney  General  ?■. 
Davison,  i  McClel.  &  V.  160,  29  Rev. 
Rep.  774,  holds  that  the  arbitrators 
must  follow  the  rules  of  evidence 
strictly.  While  Hagger  v.  Baker,  14 
^L  &  W.  9,  holds  that  they  need 
not   do   so. 

16.  Admission  of  Illegal  Evidence 
Not  Fatal  to  Award.  —  Eastern 
Counties  R.  7'.  Robertson,  i  D.  &  L. 
498,  6  Man.  &  G.  .^8;  Symes  r.  Good- 
fellow.  2  Bing.  (N.  C.)  532;  Perry- 
man  f.  Steggall,  9  Bing.  679 ; 
Chestly  V.  Chestiv,  10  N.  H.  ^27 ; 
Johnson  7:  Noble,  13  N.  H.  285,  .^8 
.\m.  Dec.  485;  Smith  v.  Gorman,  41 
Me.  405;  Vaughn  z\  Graham,  11  AIo. 
575 ;  Maynard  z:  Frederick,  7  Cush. 
CMass.)  247;  Lillard  7'.  Casev,  2 
Bibb,   (Ky.)  459. 

Contra.  —  Parker  v.  ."Vvery,  Kirby 
(Conn.)   353. 

Evidence  Not  Considered  by  Ar- 
bitrators. —  In  Offut  J'.  Proctor.  4 
Bibb  (Ky.)  252,  it  was  held  that 
where  the  objectionable  evidence  was 
not  considered  by  the  arbitrators  in 
making  up  their  aw-ard.  the  award  is 


not  invalidated.  So  also,  in  Bassett 
r.  Cunningham,  9  Gratt.  (Va.)  684, 
where  the  award  docs  not  show  upon 
what    evidence    the   arbitrator^    acted. 

Evidence  Not  Affecting  Result. 
Nor  is  the  reception  of  illegal  evi- 
dence fatal  to  the  award  where  the 
evidence  did  not  materially  affect  the 
arbitrators'  decision.  Hartshorne  v. 
Cuttrell,  2  N.  J.  Eq.  297.  See  also 
Learned  !■.  Bellows,  8  Vt.  79:  King- 
well  V.  Elliott,  7  O.  P.  C.  4^3.  49 
Rev.   Rep.  485. 

Parties  and  Interested  Persons  as 

Witnesses Formerly    it    was    held 

that  parties  and  other  persons  in- 
terested in  the  event  of  the  suit  could 
not  be  used  as  witnesses  on  the  hear- 
ing before  the  arbitrators.  Fenni- 
more  v.  Childs,  6  N.  J.  Law  386; 
Fowler  !■.  Thayer,  4  Cush.  (Mass.) 
Ill  ;  Mc.Mistcr  j'.  Mc.\lister,  i  Wash. 
(Va.)  192.  But  there  were  cases 
holding  to  the  contrary,  .^skew  v. 
Kennedy,  I  Bailey  (S.  C.)  46; 
Mulder  v.  Cravat.  2  Bay  (S.  C.) 
370;  Fuller  V.  Wheelock,  10  Pick. 
(Mass.)  13s:  Hollingsworth  v. 
Leiper,  I  Dall.  (Pa.)  173;  McCrae 
z:  Robeson,  2  Murph,  (N.  C.)  127; 
Golden  v.  Fowler,  26  Ga.  451  (Ga. 
Stat.  1856.  §,*  p.  223);  Wade  z: 
Powell,  31  Ga.  i.  And  see  Harts- 
horn z:  'Cuttrell.  2  N.  J.  Eq.  297. 
And  others  held  that  it  could  be  done 
if  the  submission  expressly  au- 
thorized it.  Warne  7'.  Bryant,  3 
Barn.  &  C.  590.  And  see  Lloyd  v. 
.•\rchbowle.  2  Taunt.  324.  1 1  Rev. 
Rep.  595.  But  under  the  present 
statutes  and  practice,  this  objection 
would  hardly  be  raised;  at  all 
events,  there  do  not  seem  to  be  any 
recent    cpses    involving   the   question. 

17.  Harding  7'.  Wallace,  8  B.  Mon. 
(Kv.)   -^^6. 

Receiving    the    Statement    of    One 

Vol.  I 


954 


ARBITRATIOX  AXD  AWARD. 


unless  it  is  otherwise  expressly  stipulated  or  agreed  in  the  arbitra- 
tion agreement.''* 

Excess  of  Power  can  not  be  inferred  from  the  mere  fact  that  the 
arbitrators  may  have  admitted  illegal  evidence  about  the  subject- 
matter  of  the  submission.'"  Otherwise,  however,  where  they  have 
received  evidence  as  to  matters  which  were  not  submitted  to  them.-" 

b.  Waiver  of  Objection.  —  Some  of  the  courts,  while  holding 
that  the  reception  of  illegal  eviderce  is  not  fatal  to  the  award,  base 
their  decision  on  tlie  fact  that  the  party  has  waived  his  right  to 


of  the  Parties,  Without  Proof,  and 
against  the  objection  of  the  opposite 
party,  was  held  to  constitute  such 
a  gross  impropriety  as  would  vitiate 
the  award,  in  Hartshorne  v.  Cuttrell, 
2  N.  J.  Eq.  297.  So  held,  also,  of 
receiving  e.v  parte  statements  and 
testimony  of  one  of  the  parties  and 
without  the  knowledge  of  the  other, 
and  contrary  to  the  express  provision 
of  the  submission,  in  Speer  i:  Bid- 
well,  44  Pa.   St.  23. 

18.  Unless  Restricted  by  the  Sub- 
mission, tlie  arbitrators  may  disre- 
gard the  strict  rules  of  evidence,  and 
decide  according  to  their  own  sense 
of  equity.  ^IcGregor  v.  Sprott.  59 
Hun  617.  13  N.  Y.  Supp.   191. 

Viewing  the  Premises Under  an 

agreement  that  the  arbitrators  may 
"  proceed  informally,  according  to 
their  own  sense  of  propriety,  witli  or 
without  witnesses,  and  with  or  with- 
out notice  as  they  might  prefer,"  it 
was  held  in  Bridgeport  v.  Eisenman, 
47  Conn.  34.  that  "  the  arbitrators 
had  great  latitude  within  which  to 
exercise  their  discretion.  They  were 
limited  by  no  rules  of  law  or  equity, 
by  no  precedents  of  form  or  prac- 
tice, in  hearing  and  deciding  the 
case.  Their  only  rule  of  procedure 
was  their  own  sense  of  propriety. 
They  were  not  obliged  to  call  wit- 
nesses, and  if  they  saw  fit  to  call 
them  were  not  bound  to  have  them 
sworn.  They  were  not  required  to 
hold  any  formal  meetings  for  hear- 
ing the  case,  and  if  they  held  such 
meetings  were  not  Ijound  to  give 
the  parties  notice  of  the  time  and 
place,  unless  their  own  sense  of 
propriety  led  them  to  do  it.  They 
might  view  the  premises  and  decide 
upon  such  view,  might  examine  them 
by  tliemselves  or  in  the  presence  of 
both    parties,    fir    in    that    of    either 

Vol.  I 


party  alone.  The  agreement  covered 
all  irregularities  and  informalities, 
unless  they  were  of  so  gross  a  char- 
;LCter  as  to  show  that  they  were 
acting  fraudulently  and  corruptly." 

Reading  From  Another  Case. 
!n  re  Union  El.  R.  Co.,  55  Hun  611, 
S  N.  Y.  Supp.  813,  the  submission 
provided  that  "  the  arbitrators  by  a 
majority  vote,  ma\'  exercise  their  dis- 
cretion as  to  the  manner  and  way  in 
which  to  inform  themselves  of  the 
matters  and  things  in  dispute.  They 
may  refuse  to  hear  witnesses  and 
counsel,  and  proceed  to  a  final  de- 
termination in  whatever  manner  they 
may  by  a  majority  vote  decide :"  and 
it  was  held  that  it  was  proper  for 
one  of  them,  in  support  of  his  con- 
tention as  to  the  award  to  be  made, 
10  read  from  the  report  of  another 
case  involving  a  question  identical 
with    that    submitted   to   them. 

Not    Bound    by    Agreement    as    to 

Effect    of    Evidence In    .\dams    v. 

.XFcFarlane.  65  Me.  143,  it  was  held 
that  an  agreement  in  the  submission 
of  mutual  accounts  between  the  par- 
ties, that  an  annexed  statement  of 
disbursements  and  collections  should 
be  taken  to  be  correct  by  the  arbi- 
trators, did  not  preclude  them  from 
hearing  evidence  as  to  items  not 
included  in  the   statement. 

19.  Burchell  v.  JNlarsh.  17  How. 
(U.  S.)  .344.  To  the  same  effect 
where  the  arbitrators,  under  a  sub- 
mission to  settle  the  affairs  of  a 
partnership,  heard  evidence,  although 
against  the  objection  of  one  of  the 
parties,  as  to  an  account  which  Iiad 
been  settled  on  an  account  stated 
long  previous  to  the  arliitrament. 
Emmet  -■.  Hoyt.  17  \^■end.  (N.  Y.) 
410. 

20.  .Austin  V.  Clark.  8  W.  Va.  2,^6, 
citing  Swann  v.  Deem.  4  W.  Va.  368. 


ARBITRATION  AND  AWARD. 


9S5 


interpose  this  ground  of  objection  by  his   failure  to  object  to  the 
reception  of  the  evidence  at  the  time.'-' 

c.  Arbitrators  As  Witnesses.  —  And  it  has  l)een  held  that  the  fact 
that  the  arbitrators  were  used  as  witnesses  on  the  hearing-  before 
themselves,  is  not  fatal  to  the  award. -" 

d.  Attorneys  As  Jl'itnesses.  —  And  the  appearance,  as  a  witness, 
of  counsel  for  one  of  the  parties,  is  a  mere  irregularity  which  can- 
not be  complained  of  for  the  first  time  after  the  case  has  been 
finally  submitted  to  the  arbitrators,-^ 

B.  Rejectixg  Pertinent  Evidence.  —  a.  General  Rule.  —  On 
the  other  hand,  an  award,  although  it  may  be  valid  in  all  other 
respects,  will  be  invalidated  by  the  action  of  the  arbitrators  in 
rejecting    evidence    pertinent    and    material     to    the    submission,-* 


21.  Waiver   of   Objection Fen- 

iiiniore  z\  Childs,  6  N.  J.  Law  ^Ho; 
Eollmann  i\  Bollinann,  6  S.  C.  29; 
Patten   7\   Hunnewell,  8   Me.    19. 

22.  Bollmann  z'.  Bollinann.  6  S.  C. 
29;  Graham  v.  Graham,  9  Pa.  St.  254, 
49  Am.  Dec.  557. 

23.  Counsel  Testifying  as  Wit- 
ness    Mere     Irregularity Britton 

r.  Hooper,  25  .Misc.  388,  55  N.  Y. 
Supp.   493. 

24.  The  Parties  Have  a  Right  to 
Be  Heard  by  Their  Proofs,  —  Their 
right  in  this  respect  is  a  primary 
right.  It  is  founded  in  natural  jus- 
tice. 

England. —  Phipps  z:  Ingram,  3  D. 
P.  C.  669;  Johnston  v.  Cheape,  5 
Dow  247,  16  Rev.  Rep.  114. 

Indiana.  —  Indiana  Cent.  R.  Co.  Z'. 
Bradley,  7  Ind.  49;  Milner  z'.  Noel, 
43  Ind.  324. 

/oica.  —  Thompson  z:  Blanchard.  2 
Iowa  44. 

Louisiana.  —  Dreyfons  z\  Hart,  36 
La.  Ann.  929. 

Maryland.  —  And  see  Cromwell  z: 
Owings,  6  Har.  &  J.  10. 

Mississift''-  —  Jenkins  z:  Meagher, 
46   Miss.  84. 

Missouri.  —  Xewman  i'.  Lebeaume, 
9  Mo.  30. 

Xezi'  Jersey.  —  Hart  Z'.  Kennedy,  47 
X.  J.  Eq.  SI,  20  Atl.  29;  Burroughs 
V.  Thorn,  5  N.  J.  Law  777. 

Neiv  York.  —  Moran  v.  Bogart,  16 
Abb.  Pr.  (N.  S.)  .303;  Fudickar  v. 
Guardian  M.  L.  In.  Co.,  62  N.  Y. 
,S92;  Halstead  z:  Seaman.  82  N.  Y. 
27.  3,7  Am.  Rep.  536 ;  Van  Cortland  v. 
Underbill,  17  Johns.  405  (dis- 
tinguished in  McKinney  Z'.  Newcoinb, 


5  Cow.  425,  where  a  motion  to  set 
aside  an  award  for  the  rejection  of 
a  material  witness  was  denied). 

Oregon.  —  Stemmer  i'.  Scottish 
L'nion  Etc.  Ins.  Co..  33  Or.  65,  53 
Pac.  498. 

I'irginia.  —  Ligon  z:  Ford.  5  Munf. 
10. 

Washington. — McDonald  z\  Lewis, 
18  Wash.  300,  51  Pac.  387. 

II' est  I'irginia.  —  Fluharty  v. 
Beatty,  22  W.  Va.  698. 

And  in  Severance  ZK  Hilton,  32 
N.  H.  289,  rejection  of  proper  evi- 
dence was  held  to  be  especially  fatal 
where  the  arbitrators  undertake  to 
decide  as  to  its  admissibility  ac- 
cording to  the  principles  of  law. 

Compare  Com.  v.  La  Fitte,  2  Serg. 

6  R.  (Pa.)  106.  This  case,  however, 
seems  to  have  turned  on  the  fact 
that  a  statute  gave  the  arbitrators 
power  to  decide  on  the  competency 
of  evidence,  as  well  as  its  credibility, 
and  to  determine  all  questions  in  the 
case,  as  well  of  law  as  of  fact ;  that 
the  award  when  filed  was  to  be  con- 
sidered as  a  judgment  until  reversed, 
and  that  the  exceptant's  remedy  was 
by  appeal. 

Statement  of  the  Rule In  Can- 
field  V.  Watertown  F.  Ins.  Co.,  55 
Wis.  419,  13  N.  W.  252,  the  court,  in 
speaking  of  this  question  say: 
"  Whether  the  submission  and 
award  are  ruled  by  the  statute,  or 
whether  they  constituted  merely  a 
common  law  arbitration,  (the  par- 
ties are)  erititled  to  introduce  evi- 
dence to  the  arbitrators.  If  the  pro- 
ceeding was  ruled  by  the  statute, 
the  exclusion  of  evidence   violates  a 

Vol.  I 


956 


ARBITRATION  AND  AWARD. 


unless  the  parties  have  waived  their  rights  in  this  respect,"^  either 
expressly  or  impliedly."'' 

An  Exception  to  This  Rule  Exists,  however,  where  the  persons 
selected  as  arbitrators  possess  peculiar  skill  and  knowledge  con- 
cerning the  subject-matter  submitted  to  them,  and  it  appears  that 
the  parties  to  the  submission  intend  to  rely  upon  that  skill  and 
knowledge.-^ 


plain  provision  Clhercofj  that  'all 
of  the  arbitrators  must  meet  together 
and  hear  all  the  proofs  and 
allegations  of  the  parties.'  If  this 
was  mere!}'  a  common  law  arbi- 
tration, the  right  of  the  plaintiff  to 
introduce  evidence  pertinent  and  ma- 
terial to  the  issne  is  equally  clear. 
Whether  it  be  a  statutory  or  common 
law  arbitration,  the  exclusion  of 
proper  testimony  is  fatal  to  the 
award."  And  in  Hurdle  v.  Stallings. 
109  N.  C.  6,  13  S.  E.  720,  it  was  held 
that,  although,  without  doubt,  arbi- 
trators have  some  discretionary 
power  to  determine  how  much  evi- 
dence they  shall  hear,  they  have  no 
power  to  arbitrarily  decline  to  re- 
ceive or  examine  any  testimony 
whatever. 

In  California,  in  recognition  of  this 
principle,  by  express  statute,  one  of 
the  grounds  which  will  invalidate  an 
award  is  the  refusal  of  the  arbi- 
trators to  hear  pertinent  evidence. 
See  In  re  Connor,  128  Cal.  279,  60 
Pac.  862. 

So  Also  in  Indiana.  —  Indiana 
Central  R.  Co.  v.  Bradley.  7  Ind.  49; 
Deford  v.  Deford.  116  Ind.  523,  19 
N.   E.    S30. 

And  in  New  York.  —  Locke  v. 
tilley,    14    Hun    139. 

Affirmative  Showing  Necessary. 
In  Dolph  V.  Clemens.  4  Wis.  204,  it 
was  held  that  the  objection  that  ar- 
bitrators refused  to  hear  testiinony 
is  without  merit  when  the  award  does 
not  show  upon  what  evidence  it  is 
based,  and  in  the  absence  of  an 
affirmative  showing  by  the  party  ob- 
jecting. 

Excluding  Witness  of  Doubtful 
Competency —  In  Campbell  v.  Wes- 
ten,  3  Paige  (N.  Y.)  124,  it  was 
held  that  a  mistake  of  judgment  of 
the  arbitrators  in  rejecting  a  wit- 
ness, as  to  whose  inadmissibility 
there  is  some  doubt,  will  not  be  suffi- 
cient   evidence    of    improper    conduct 

Vol.  I 


in  the  arbitrators  to  set  aside  the 
award  in  equity. 

25.  Rector  v.  Hunter.  15  Tex. 
380;  Bridgeport  %•.  Eisenman.  47 
Conn.  ^4.  And  see  Morewood  v. 
Jewett,   2   Rob.    (N.   Y.)    496. 

Oral    Waiver The    rejection    of 

testimony  is  not  fatal  where,  although 
the  written  submission  is  silent  in 
relation  thereto,  it  was  verbally 
agreed  between  the  parties  that  no 
evidence  should  be  adduced,  and  that 
agreement  was  fonually  stated  to  the 
arbitrators  at  the  commencement  of 
the  hearing  to  be  the  rule  governing 
the  parties  and  the  arbitrators,  and 
it  was  in  fact  observed  during  a 
material  part  of  the  hearing.  Ben- 
nett V.   Bennett.   25   Conn.   66. 

View  of  Premises  by  Arbitrator. 
The  fact  that  the  arbitrator  did  not 
view  the  premises  under  dispute  is 
not  fatal  to  his  award,  where  it  does 
not  appear  that  he  was  asked  to  do 
so,  and  it  is  clearly  shown  that  he 
had  previously  on  several  occasions 
been  upon  them  and  was  familiar 
with  them.  Hewitt  v.  Lehigh  &  H. 
R.  Co..  57  N.  J.  Hq.  511.  42  Atl.  32s. 

26.  Implied  Waiver  Must  Be 
Clearly  Intended.  —  In  Hart  ;■.  Ken- 
nedy, 47  N.  J.  Eq.  51-  20  Atl.  29. 
the  subtnission  permitted  the  arbi- 
trators to  "  survey  the  ground,  take 
levels,  and  determine."  and  it  was 
contended  that  thereby  the  parties 
had  expressly  relinquished  their 
right  to  produce  testimony  before 
the  arliitrators ;  but  it  was  held  that 
neither  expressly  nor  by  implication 
could  this  be  taken  to  be  the  meaning 
of  the  language  used ;  that  "  nothing 
short  of  plain  and  clear  words  should 
be  considered  sufficient  for  this  pur- 
pose." See  also  Alexander  j'.  Cun- 
ningham,   III    111.    511. 

27.  Arbitrators  Possessing  Special 
Knowledge. —  Stemnu-r  ;■.  Scniti'-h 
etc.  Ins.  Co..  ii  Or.  65,  53  Pac.  498; 
Hall    V.    Norwalk    F.    Ins.    Co..    57 


ARBITRATION  AND  AWARD. 


957 


I).  Offer  of  Ez'idcucc  Necessary.  —  E'.iit  testinionv  must  be  offered 
before  it  can  be  rejected;  and  a  party  cannot  convict  the  arbitrators 
of  error  in  refusing  to  hear  pertinent  evidence  unless  he  has  first 
offered  to  introduce  the  evidence.-* 

C.  Referring  Admissibility  to  Coi-kt.  —  It  seems  that  it  is 
proper  for  the  arbitrator  acting-  under  a  submission  under  rule  of 
court,  to  receive  evidence  as  to  the  admissibiHty  of  which  he  is  in 
doubt,  and  to  award  in  the  alternative  for  the  one  party,  if  the 
evidence  be  admissible,  otherwise  for  the  other  party. -^ 

D.  Reopening  Case  For  Additional  Evidence.  —  The  arbitra- 
tors undoubtedly  have  the  power  to  reopen  a  case  after  it  has  been 
once  finally  submitted  to  them,  for  the  introduction  of  further  evi- 
dence :^"  but  whether  or  no  they  shall  do  so  is  a  matter  resting  in 
their  discretion,  and  their  refusal  so  to  do  will  not  be  revised 
except  for  a  plain  case  of  abuse  of  that  discretion."'' 

E.  Adducing  Evidence  LSkfoke  Third  Arbitrator  or  Umpire. 
Where  two  or  more  arbitrators,  after  hearing  the  evidence,  are 
unable  to  agree,  and  in  accordance  with  the  submission  they  select 
a  third  person,  it  is  the  duty  of  such  third  person,  sitting  either  as 
third  arbitrator,"'-  or  as  umpire, "'■  to  hear  the  whole  case  and  evi- 


Conn.  105,  \y  All.  356;  WilxTly  ■;■. 
JNIatthews,  91  N.  Y.  648;  Johnston 
V.  Cheape,  5  Dow  247.  id  Rev.  Rep. 
114. 

28.  Necessity  for  Offer  of  Evi- 
dence.—  Ormsby  ?'.  liakewell,  7  Ohio 
88;   Russell  v.   Smith,  S7   Ind.  457. 

A  Mere  Statement  of  Willingness 
to  Bring  in  Witnesses  i-,  not  a  pro- 
duction of  testimony.  Stcmnier  v. 
Scottish  etc.  Ins.  Co.,  ,33  Or.  63,  53 
Pac.  498.  Nor  can  a  party  complain 
when  he  mereh'  said  he  desired  to 
introduce  testimony,  but  does  not 
even  intimate  that  he  expressed  his 
desire  or  that  it  was  refused.  Turn- 
bull  V.  Martin,  2  Daly  428,  37  How. 
Pr.  20.  Nor  where  he  does  not  show 
what  evidence  it  was  which  he  claims 
the  arbitrators  rejected.  Newman  v. 
Lebeaume,  9  Wo.  30.  Cnml>arc  Hal- 
stead  V.  SeaiTian.  82  N.  Y.  27,  37 
Am.  Rep.  536,  where  the  submission 
required  the  arbitrament  "  to  be  con- 
ducted and  decided  upon  the  prin- 
ciple of  fair  and  'honorable  dealing 
between  man  and  man :  "  and  the 
arbitrators  based  their  refusal  to 
hear  testimony  on  the  assumptio.i, 
though  erroneous,  that  by  the  sub- 
mission their  powers  were  liinited 
to  hearing  the  parties'  statements. 
It  was  held  that  it  was  not  neces- 
sary for  the  objecting  party,  in  order 


to  preserve  his  rights,  to  actually 
prociuce,  or  to  name  his  witnesses, 
or  to  state  what  facts  he  intends  to 
prove  by  them. 

29.  See  Byani  v.  Robbins,  6  Allen 
(Mass.)  63,  where  this  was  done 
without    objection    being    raised. 

30.  Power  of  Arbitrators  to  Re- 
open Case  for  Additional  Evidence, 
bweency  v.  Vaudry,  2  Mo.  App.  352. 

31.  Reopening  Case  Discretionary 
With  Arbitrators.  —  Blodgctt  v. 
Prince,  109  Mass.  44;  Tennant  v. 
Divine,  24  W.  Va.  7,9,7. 

32.  Duty  of  Third  Arbitrator  to 
Rehear  Evidence.  —  West  Jersey  R. 
Co.  V.  Thomas,  23  N.  J.  Eq.  43'. 
afHrmcd  24  N.  J.  Eq.  567 :  .'Me.xander 
r.  Cunningham,  in  III.  511;  Day  v. 
Hammond.  57  N.  Y.  479,  15  Am.  Rep. 
522;  Wheaton  v.  Crane,  27  N.  J.  Eq. 
368.  Comt'arc  Ranney  '•.  Edwards, 
17  Conn.  ,309,  where  it  was  held  dis- 
cretionary, in  the  absence  of  an 
express  request  for  such  rehearing. 
Knowlton  7'.  Homer,  30  Me.  552, 
where  it  was  held  that  failure  to  so 
rehear  was  not  fatal  to  the  award 
in  the  absence  of  an  express  request 
by  either  such  third  arbitrator  or 
the  parties,  or  a  stipulation  in  the 
submission    requiring   it. 

33.  Duty  of  Umpire  to  Rehear 
Evidence.    —    Gaffy       v.       Hartford 

Vol.  I 


958 


ARBITRATION  AND  AWARD. 


dence,  in  the  absence  of  any  agreement  or  consent  b_\-  the  parties 
dispensing  with  such  full  hearing.^*  And  according  to  some  of  the 
decisions  this  duty  is  equally  imperative  whether  such  third  person 
be  a  third  arbitrator  or  an  umpire  with  sole  power  to  decide  the 
award. ^'^ 

F.  Rehearing  on  Recommitmicnt.  —  Where  the  court,  in  pur- 
suance of  the  submission,  recommits  the  matters  to  the  arbitrator 
for  his  reconsideration,  it  is  the  dut_\'  of  the  arbitrator  to  hear  the 
evidence  anew.^" 

II.  ACTIONS  AND  DEFENSES  FOUNDED  ON  AWARDS. 

1.  The  Fact  of  Submission.  —  A.  NiiCicssiTY  foi^  Proof.  —  Where 
an  award  is  sought  to  be  used  and  introduced  in  evidence  as  the 
basis  for  recovery,  the  fact  of  submission  must  be  proved."'      But 


Bridge  Co..  42  Conn.  143 ;  Ingraham 
V.  Whitmore,  75  111.  24;  Falconer  7'. 
Montgomery  (Pa.),  4  Dall.  232; 
Passmore  v.  Pcttit  (Pa.),  4  Dall. 
271  ;  Taber  v.  Jenny,  i  Spr.  315.  23 
Fed.  Cas.  No.  13.720;  Byrne  v.  Usry. 
85  Ga.  219,  II  S.  E.  561;  Daniel  v. 
Daniel.  6  Dana  (Ky.)  93;  Frissell 
z'.  Fickes,  27  Mo.  557.  Compare 
Jenkins  v.  Meagher,  46  Miss.  84. 
where  it  was  held  that  failure  to  do 
so  was  not  fatal  to  the  award,  in 
the  absence  of  a  request  for  rehear- 
ing; Sharp  V.  Lipsey,  2  Bailey  (S. 
C.)  113,  so  holding  in  the  absence 
of  such  request  or  a  stipulation  in 
the  submission,  referring  it  to  sim- 
ilar effect ;  Blood  v.  Shine,  2  Fla. 
127.  See  also  Graham  v.  Graham,  9 
Pa.  St.  254,  49  Am.  Dec.  557. 

In  Texas,  such  a  rehearing  is  re- 
quired under  the  statute  governing 
arbitration  proceedings.  Warren  ;■. 
Tinsley.   53   Fed.   689. 

34.  The  Burden  of  Proving 
Waiver  of  the  Right  to  Adduce 
Evidence  Before  a  Third  Arbitrator 
is  upon  the  parly  asserting  that  fact, 
and  it  must  be  proved,  noi  beyond 
doubt,  but  beyond  reasonable  doubt, 
so  that  the  court  shall  feel  convinced 
that  such  was  the  fact.  West  Jersey 
R.  Co.  V.  Thomas.  2?.  N.  J.  Eq.  431, 
affirmed  24   X.  J.   Eq.  567. 

35.  No  Distinction  Between 
Third  Arbitrator  and  Umpire. 
.■Me.xander  ;■.  Cunningham.  11 1  111. 
511;  Day  V.  Hammond.  57  N.  Y. 
479.   IS  Am.  Rep.  522. 

36.  Nickalls  ?■.  Warren,  si  Eng. 
C.   L.  615. 

Recommitment     for     Specific     Al- 


teration  But   on    a    recommitment 

merely  for  the  purpose  of  asking  a 
specific  alteration  in  or  addition  10 
the  award,  further  evidence  on  the 
events  discovered  since  the  making 
of  the  original  award,  need  not  be 
heard  by  the  arbitrators.  In  re 
Huntley.'i  El.  &  B.  787.  12  Jur.  571. 

37.  Proof  of  Submission  Neces- 
sary—  Andrain  v.  Chace,  15  East 
209 ;  Ferrer  v.  Oven,  7  B.  &  C.  427, 
31  Rev.  Rep.  239;  Milner  !■.  Turner. 
4  T.  B.  Mon.  (Ky.)  240;  Hand  v. 
Columbus,  4  Smed.  &  M.  (Miss.) 
203;  Chicago  &  C.  S.  R.  Co.  r. 
Peters,  4.^  Mich.  636,  8  N.  W.  584; 
Burghardt  x:  Turner,  12  Pick. 
(Mass.)  534;  Perit  ?■.  Cohen.  4 
Whar.  (Pa.)  181;  Boots  v.  Canine. 
58  Ind.  450.  And  plaintiff  in  assump- 
sit on  an  award  must  show  that  the 
agreement  to  abide  by  the  award 
was  mutual  and  concurrent.  Keep  "'. 
Goodrich,  12  Johns.  (N.  Y.)  397. 
And  so  must  a  defendant  who  sets 
up  an  award  under  a  parol  submis- 
sion in  bar  of  the  plaintiff's  cause  of 
action.  Houghton  v.  Houghton.  37 
Me.  72. 

Where  a  Pending  Suit  Is  Referred 
under  an  agreement  that  the  award 
shall  be  made  a  rule  of  court,  tlie 
defendant  should  file  and  prove  the 
submission  and  award  as  a  paper  in 
the  case  on  which  the  court  may 
render  judgment  according  to  the 
terms  of  the  award ;  but  he  cannot 
plead  the  award  by  way  of  answer 
to  the  suit.  Grayson  ■•.  Meredith. 
17   Ind,   357. 

Inadvertent  Reference  in  Award 
to    Bond    as    Submission.  —  The    tact 


Vol.  I 


ARBITRATIOX  AXD  AWARD. 


959 


where  the  party  a.^ainst  whum  the  award  is  sousjht  to  he  used, 
admits  the  award  in  his  ])lea<hngs,  he  also  admits  the  submission, 
and  further  proof  thereof  is  unnecessary.^* 

B.  Competency  of  ExumcncE.  —  And  it  must  be  proved  liy  evi- 
dence competent  for  that  inn-iiose.^" 

The  Recital  in  the  Award  is  not  proof  of  the  submission,  and 
without  other  evidence  thereof,  tlie  court  is  witliout  aiuhority  to 
enter  judgment  on  tlie  award/" 

The  Testimony  of  the  Subscribing  Witness  to  the  submission  and 
award  has  been  held  to  be  the  highest  and  best  evidence  to  ]irove 
their  execution;  and  if  he  can  be  produced  and  can  be  examined  he 
must  be  produced."" 

The   Testimony   of   the    Arbitrator  is  competent  to  prove  a  parol  sub- 


that  an  award,  in  speaking  of  a  sub- 
mission, inadvertently  calls  it  a  cer- 
tain bond  of  arbitration,  will  not 
sustain  an  objection  to  the  admission 
of  the  award  as  evidence  on  the 
ground  that  no  such  bond  was  given 
in  evidence,  the  submission  being 
fully  proved  by  competent  evidence. 
Robertson  v.  McNeil.  12  Wend.  (N. 
Y.)    578. 

38.  Sadler  v.  Olnistead.  79  Iowa 
\2\.  44  X.  W.  292. 

Admission  of  Submission  by  Prom- 
ise   to    Pay    Award In    Williams 

V.  Williams.  11  Smed.  &  M.  (Miss.) 
393.  an  action  on  an  award,  the  court 
excluded  the  submission,  but  ad- 
mitted the  award  in  evidence,  and 
in  the  course  of  the  trial  one  of  the 
arbitrators  proved  that  after  the 
award  was  made  and  delivered  to 
the  plaintiff  he  presented  it  to  the 
defendant,  who  said  he  would  settle 
the  matter  and  pay  the  amount 
awarded;  and  it  was  held  that  the 
defendant  thereby  admitted  the  au- 
thority of  the  arbitrators  ;uid 
afforded  sufficient  evidence  of  the 
submission  tn   sustain  the  award. 

39.  Statute  Requiring  Written 
Submission Where  the  statiUe  au- 
thorizes a  submission  of  a  pending 
suit  by  agreement  in  writing  only, 
proof  of  a  parol  submission  is  inad- 
missible. Manhattan  L.  Ins.  Co.  t>. 
McLaughlin,  80  Pa.  St.  53.  See  also 
Wayte  v.  Wayte.  40  Krk.  16,^ 

Parol  Evidence  of  Parol  Submis- 
sion.—  But  where  the  award  derives 
its  validity  and  effect  wholly  from  a 
parol      submission,      no      other     than 


parol  evidence  can  e.xist  as  to  the 
extent  of  the  submission  and  what  it 
contains.  Hall  v.  Mott,  Brayt.  (Vt.) 
81.  And  see  infra  this  title.  III.  6. 
for  the  rule  as  to  the  parol  evidence 
to  show  that  the  arbitrators  exceeded 
their  authority  by  considering  and 
passing  upon  matters  not  sulimitted 
to  them. 

The  Certificate  of  a  County  Cl^rk 
That  a  Controversy  Was  Submitted 
to  Him  by  agreement  of  the  parties, 
and  that  he  made  the  award,  is  not 
evidence  that  the  parties  did  so 
agree.  Howard  v.  Sherwood,  i 
Colo.  117. 

Rule  of  Court.  —  .\  submission  to 
arbitration  by  agreement  written  and 
attested  is  not  sufficiently  proved  by 
evidence  of  a  rule  making  such 
agreement  a  rule  of  court  in  accord- 
ance with  the  statute.  Beverlev  v. 
Read,  7  Ad.  &  El.  N.  S.  79.  53  Eng. 
C.  L.  79.  The  court  said,  however, 
that  a  judge's  order  for  referri'ig  the 
cause  might  be  proved  by  such  rule 
of  court.  See  also  Tankersley  v. 
Richardson.  2  Stewt.  (Ala.')  1,^0; 
Shriver  v.  State.  9  Gill.  &  J.  (Md.)  t. 

40.  Stokelv  V.  Robinson.  .^4  Pa. 
St.  3i,s;  Collins  v.  Freas.  77  Pa.  St. 
493.  And  see  Houghton  v.  Bur- 
roughs. 18  N.  H.  499- 

41.  Tyler  v.  Stephens.  "  Ga.  27S. 
so  holditig  as  against  the  objection 
that  the  best  evidence  was  the  arbi- 
trators themselves.  See  also  Spooncr 
J'.  Payne.  56  Eng.  C.  L.  328.  where 
the  indenture  was  received  upon 
proof  of  the  subscribine  witi'-ss' 
handwriting,  and  of  a  diligent  but 
unavailing  search  made  for  him. 

Vol.  I 


'MM 


ARBirRATION  AND  AWARD. 


mission,''-  but  not  to  prove  a  submission  made  under  rule  of  court/" 

2.  Publication  and  Delivery  of  the  Award.  —  Proof  of  publication 
of  the  award  is  necessary  only  when  the  submission  requires  it.'*'' 
And  possession  of  an  award,  apparently  complete,  by  one  of  the 
parties  is,  in  the  absence  of  any  proof  as  to  how  he  obtained  it, 
prima  facie  evidence  that  the  arbitrators  delivered  it  to  him  as  their 
award. ''^  But  when  a  party  introduces  in  evidence,  as  a  basis  for 
the  award,  a  submission  to  arbitration,  which  discloses  that  the 
arbitrators  were  required  to  make  an  award  in  writing,  under  their 
hands,  and  to  deliver  to  the  parties  thereto  a  copy  within  a  certain 
time,  he  must  show  not  only  that  the  award  has  been  made,  but  that 
a  copy  thereof  has  been  delivered  to  the  other  party  within  the  time 
prescribed,  unless  it  appears  that  the  stipulation  has  been  waived.'"' 

3.  Tender  and  Demand  of  Performance.  —  One  seeking-  to  avail 
himself  of  an  agreement  to  arbitrate  the  matters  in  suit,  as  a 
defense  in  bar  of  the  suit,  must  prove  an  ofifer  on  his  part,  and 
a  refusal  on  the  part  of  his  adversary,  to  comply  with  the  agree- 


42.  Cady  v.  Walker,  62  Mich. 
IS7,  28  N.  'W.  80s,  4  Am.  St.  Rep. 
834.  And  the  fact  that  he  is  an 
attorney  at  law  will  not  justify  the 
exclusion  of  his  testimony  upon  the 
ground  that  the  communications 
made  to  him  were  privileged. 

43.  Lloyd  V.  Seal,  5  Harr.  (Del.) 
250. 

44.  Parsons  v.  Aldricli,  6  N.  H. 
264. 

45.  Possession    of    Award    Prima 

Facie  Evidence  of  Delivery LaiT;- 

dale  T'.  Kendall,  4  Dana  (  Ky. )  613. 

46.  Necessity  of  Proof  of  Deliv- 
ery of  Award.  — Anderson  v.  Miller, 
108  .\la.  171,  19  So.  302.  "  The  right 
of  the  parties,"  said  the  court  in  this 
case,  "  and  the  duty  and  authority 
of  the  arbitrators  are  to  be  meas- 
ured by  the  terms  of  the  submission. 
Pratt  V.  Hackett,  6  Johns.  14.  'When 
actual  delivery  of  the  award,  or  a 
copy,  is  required,  an  informal  notice 
to  one  of  the  parties,  by  one  of  the 
arbitrators,  that  an  award  has  been 
made,  even  when  accompanied  by  a 
statement  of  the  contents  thereof, 
would  not  be  a  sufficient  compliance, 
as  to  such  party,  with  the  terms  of 
the  submission,  to  constitute  a  \alid 
award.  Buck  v.  Wadsworlh,  1  Hill 
321.  Even  after  an  award  is  drawn 
up,  it  is,  until  delivery,  under  the 
control  of  the  arbitrators,  who  may, 
in  their  discretion,  within  the  time 
limited,    reopen    the    case    and    hear 

Vol.  I 


other  evidence.  So  that,  until  the 
award  is  delivered,  there  is  lacking 
one  element  of  completeness  and 
finality  of  decision ;  and  informal 
information  to  a  party  that  the  arbi- 
trators had  then  made  a  decision, 
which  was  still  within  their  control 
and  subject  to  alteration,  would  fall 
short  of  showing  an  irrevocable 
award,  binding  as  their  last  judg- 
ment." But  it  is  not  necessary  for 
him  to  show  that  he  had  himself  re- 
ceived   a    copy   of    the   award.     Ibid. 

Acquiescence  as  Amounting  to  De- 
livery.—In  Perkins  v.  Wing.  10 
Johns.  (N.  Y.)  143,  an  action  on  an 
arbitration  bond,  evidence  of  part 
payment  of  the  award  was  held  ad- 
missible to  show  acquiescence  in  the 
production  and  reading  of  the  award, 
as  amounting  to  a  delivery  of  the 
award,  and  as  being  the  delivery 
required. 

Declarations  of  Administrator 
Admitting  Award —  In  Lobb  v. 
Lobb,  26  Pa.  St.  327,  an  action 
against  an  administrator  on  an  award 
against  the  estate  made  subsequent 
to  his  appointment,  it  was  held  that 
declarations  by  him  that  the  money 
awarded  was  unpaid  and  still  in  his 
hands  were  admissible  to  prove  the 
e-tistence  of  the  award  which  the 
pleadings  put  in  issue,  as  well  as  its 
payment,  and  that  he  had  recognized 
its  validity,  but  not  to  prove  the 
original   liabilitv  of  the  estate. 


ARBITRATION  AND  AWARD. 


961 


ment.'''  And  where  the  award  rec|uires  the  defenchmt  to  pay  to 
the  plaintiff  a  sum  certain,  and  the  plaintiff'  to  pay  to  the  defendant 
an  annuity  for  life,  and  each  party  to  execute  mutual  releases  for  all 
demands  pertainino-  to  the  arbitration,  the  plaintiff'  must  aver 'and 
prove  a  tender  by  him  to  the  defendant  of  the  requisite  release,  upon 
his  giving  the  requisite  security  for  the  annuity,  and  the  defendant's 
refusal  thereof.''**  But  in  an  action  for  money  awarded  to  be  paid 
to  the  plaintiff  as  a  creditor  of  one  of  the  parties  to  the  award,  out 
of  funds  in  the  hands  of  the  defendant,  it  is  not  necessarv  that  the 
plaintiff',  in  order  to  maintain  his  action,  prove  a  demand  on  the 
defendant. ■'■' 

4.  Illegality  of  Award  As  Affecting  Its  Admissibility,  —  Tn  an 
action  in'  which  an  award  is  the  basis  of  the  cause  of  action  or 
defense,  the  submission  and  award,  which  are  consistent  and  har- 
monious, the  latter  with  the  former,  and  both  with  the  pleadings, 
are  admissible  in  evidence  for  the  party  seeking  to  avail  himself  of 
them,  although  their  validity  in  law  may  in  fact  be  open  to  serious 
objection.^" 


47. 

221. 

48. 
294. 
49. 
50. 


Snodgrass  v.  Gavil,  28  Pa.  bt. 
Hiigg  V.  Collins,  18  N.  J.  Law 


Sccarce  v.  Scearce,  7  Ind.  286. 
Richards  v.  Drinker,  6  N.  J. 
Law  ,^07;  Onion  v.  Robinson,  15  Vt. 
510;  Hewitt  V.  Furnian.  16  Serg.  & 
R.  (Pa.)  135;  Lobb  V.  Lobb.  26  Pa. 
St.  327 ;  Hume  v.  Hume,  3  Pa.  St. 
144;  Dickerson  v.  Rorkc.  30  Pa.  St. 
390. 

The  Consideration  of  Matters 
Extraneous  to  the  Submission,  and 
Other  Acts  Constituting  Misconduct, 
if  not  apparent  on  the  face  of  the 
award,  are  not  grounds  for  the  ex- 
clusion of  the  submission  and  award 
as  evidence.  Wliether  such  facts  are 
proved  is  for  the  jury  to  determine, 
under  proper  instructions  from  the 
court ;  but  the  court  can  not  deter- 
mine them  and  refuse  to  receive  the 
award  as  evidence,  or  exclude  it 
after  it  has  been  admitted.  Burns  v. 
Henilrix,   54  Ala.  ;8. 

That  a  Party  Was  Denied  a 
Proper  Hearing  is  no  ground  for 
ruling  out  tlie  award  as  evidence ; 
the  inquiry  whether  this  was  so  or 
not  being  a  question  for  the  deter- 
mination of  the  jury.  Riley  v.  Hicks, 
81  Ga.  263,  7  S.  E.  17,3.  And  in 
Harris  v.  Seal.  23  ^'fe.  435.  defend- 
ant's offer  to  prove  great  and  mani- 
fest  errors   by   the   arbitrator   to   his 

61 


great  injury,  and  the  disallowance  as 
evidence  by  the  arbitrator  of  various 
items  of  claims  proved  Iiy  him 
against  the  plaintiff,  and  that  the 
decision  was  influenced  by  prejudice 
and  partiality,  was  rejected,  although 
he  expressly  disclaimed  any  imputa- 
tion of  corruption  or  of  general  want 
of  integrity.  The  court  ruled  that 
the  award  could  be  neither  recom- 
mitted nor  rejected  for  either  of  the 
reasons  asserted  unless  the  referee 
should  testify  that  he  had  become 
satisfied  that  errors  or  mistakes  ex- 
isted in  the  award  which  rendered  a 
revision  of  it  necessary. 

Notice  to  Third  Arbitrator But 

an  award  by  two  of  the  three  arbi- 
trators to  whom  the  matters  were 
submitted,  without  any  notice  to  the 
third  arbitrator  and  refusal  by  him 
to  act,  is  inadmissible  in  evidence  in 
a  subsequent  proceeihng  to  enforce 
(he  performance  of  the  award.  Ban- 
nister V.  Read,  6  111.  92. 

The  Mere  Fact  That  One  of  the 
Parties  With  His  Counsel  With- 
draws From  the  Hearing  after 
having  participated  therein  during  a 
portion  of  the  time,  is  no  reason  for 
excluding  the  award  as  evidence  on 
a  subsequent  proceeding  between  the 
same  parties  involving  the  same  sub- 
ject matter,  as  against  the  party  who 
withdrew.  Caldwell  v.  Caldwell.  121 
Ala.  598,  25  So.  825. 

VoL  I 


962 


.IRBITR.inOX  AXD  AWARD. 


Grounds  of  Decision  not  Shown.  —  The  fact  that  the  award  dues 
not  show  on  its  face  just  how  the  resuh  was  reached  is  no  sjround 
for  excliiding-  it  as  evidence  on  behalf  of  the  successful  party  in  an 
action  by  him  on  a  bond   cnnditioned   for  the  performance  of  the 

award. ^^ 

The  Mere  Fact  That  an  Award  Is  Signed  by  but  Two  of  Three  Arbitra- 
tors to  whom  the  submission  was  referred,  is  no  objection  to  its 
admission  in  evidence  to  support  a  cause  of  action  thereon,  wliere 
the  statute  authorizes  awan's  to  be  signed  by  a  majority  of  the 
arbitrators. '- 

The  Fact  That  Exceptions  Have  Been  Filed,  although  subse(|uently 
withdrawn,  to  an  award  which  has  been  made  the  judgment  of  the 
court,  does  not  affect  the  admissibility  of  the  award. "'^ 

5.  Best  and  Secondary  Evidence.  —  Proof  of  the  contents  of  a  lost 
submission  and  award  may  lie  made  by  parol  evidence. '■'' 

6.  Pleading  and  Proof.  —  A.  \"ariance. — A  party  who  relies 
upon  an  award  to  suppurt  his  right  of  action  or  defense,  cannot 
give  evidence  thereof  which  does  not  in  precise  terms  identify  the 
award  proved  with  that  alleged."^ 


51.  Grounds  of  Decision  Need  Not 
Be  Shown.  —  Where  the  crmtrnver^y 
under  submission  relates  to  cross- 
money  demands,  whether  in  suit  or 
not,  or  where,  in  any  case,  the  cir- 
cumstances are  such  that  the  arbitra- 
tors will  be  warranted  in  requiring 
the  party  who,  upon  the  whole,  ap- 
pears to  be  in  default,  to  pay  to  the 
other  a  gross  sum  of  money,  it  is  not 
necessary,  nor  is  the  better  practice, 
for  the  award  to  show  upon  its  face 
just  how  the  result  was  reached;  and 
the  fact  that  it  does  not  so  show  that 
fact  is  no  ground  for  excluding  it  as 
evidence.     Stearns    v.    Cope,    log    111. 

340- 

52.  Whitewater  Valley  Canal  Co. 
V.  Henderson,  3  Ind.  3 ;  Tliompson  v. 
Blanchard,  2  Iowa  44.  So  held  also 
in  Gas  Co.  v.  Wheeling,  8  W.  Va. 
320,  where  the  submission  by  impli- 
cation  authorized   an   award   by   two. 

But  an  Award  Purporting  to  Be 
the  Award  of  the  Three  Arbitrators 
to  whom  the  submission  was  made, 
which  is  in  fact  executed  by  only  two 
of  them,  is  inadmissible  in  evidence 
in  a  subsequent  proceeding  to  en- 
force it.     Bannister  v.  Read.  6  111.  02. 

And  an  Award  by  a  Single  Ar- 
bitrator must  have  been  signed  and 
delivered  to  the  parties  before  it  can 
be  used  in  evidence.  Morrison  v. 
Russell.  10  Ired.  Law  (X.  C")  273. 

Vol.  I 


53.  McRory  v.  Sellars.  46  Ga.  ^50. 

54.  Brown  v.  East.  5  T.  B,  Men. 
(Ky.)  405;  Collier  v.  Watley,  120 
Ala.  38,  23   So.  796, 

But  not  where  the  party  offering 
the  evidence  does  not  first  give  evi- 
dence accounting  for  the  absence  of 
the  award.  Burke  v.  Vovles.  5 
Blackf.    and.)    190. 

Leading  Question  Put  to  Witness. 
In  .\danis  ;■.  Harrold.  2q  Ind.  19S. 
to  prove  the  contents  of  the  award, 
which  was  shown  to  have  been  lost, 
tlie  plaintiff  put  a  paper  in  the  hands 
of  a  witness,  and  asked  him.  "  State 
whether  or  not  this  is  a  true  copy  of 
the  award?"  It  w-as  in-ged  that  this 
question  was  objectionable  as  lead- 
ing; but  the  court  held  the  objection 
untenable,  stating  that  "leading 
questions  arc  not  always  objection- 
able. They  are  sometimes  eminently 
proper.  It  would  be  difficult  to  im- 
agine any  mode  better  calculated  to 
get  at  the  real  truth  of  the  matter 
than  by  the  very  interrogatory  put." 

Rut  evidence  of  the  terms  of  a  set- 
tlement based  upon  an  arbitration  in 
writing  cannot  be  given  without  nrii- 
ducing  the  award.  Smith  v.  Mc- 
Gchcc,   T4   .\la.  404. 

55.  Variance  Between  Pleading 
and  Proof.  —  Thus  evidence  if  an 
award  by  arbitrators  is  a  mat-ri-il 
variance  from  a  complaint  setting  up 


ARIUTR.iriOX  AXD  AUWRD. 


%3 


7.  Awards  As  Evidence  Against  Strangers.  —  An  award  is  not 
competent  evitlence  as  against  a  person  not  a  party  thereto,  and  wlio 
sustains  no  such  relations  as  constitute  a  legal  i)riviiv  between 
himself  ami  either  party  thereto. ■'''     Nor  can  it  be  received  under  the 


an  award  by  an  umpire.  Lyon  v. 
Blossom,  4  Ducr  (N.  Y.;  ,318.  But 
proof  of  a  submission  and  award  to 
two  arbitrators  named,  and  an  um- 
pire to  be  chosen  by  them  as  therein 
provided,  is  not  a  variance  from  an 
allegation  of  a  submission  and  award 
to  three  arbitrators  and  an  award  by 
them.      Cliase  r'.   Jcfis,  51    X.   H.  494. 

Award  Settling  Terms  of  Ex- 
ecutory   Contract And    .in    award 

under  a  suliniission  of  a  dispute  in 
relation  to  the  share  of  the  crop 
claimed  by  one  of  the  parties,  which 
simply  finds  that,  "  the  contract  has 
been  proved  that  defendant  was  to 
give  plaintiff  the  fifth  of  the  crop 
made  for  said  defendant."  doi-s  not 
support  an  averment  and  comidaint 
in  a  subsequent  action  on  the  award, 
averring  that  the  arbitrators  "  award- 
ed to  plaintiff  the  one-fifth  part  of 
said  crop."  Roundtree  '•.  Turner, 
36  Ala.  555. 

Award  To  Be  Judgment  of  Court. 
Proof  that  suits  pending  should  be 
submitted,  and  that  the  award 
should  be  the  judgment  of  the  court, 
is  a  material  variance  from  an  aver- 
ment in  the  declaration  on  an  award 
of  an  agreement  to  submit  to  arbitra- 
tion certain  differences  e.xisting,  and 
that  the  defendant  undertook  to  ob- 
serve and  perform  the  award,  and 
will  defeat  the  plaintiff's  right  of 
recovery  in  such  an  action.  Smith 
f.  Cross  white.  5  Humph.  (Tcnn.) 
59.  The  court  said :  "  The  submis- 
sion proved  was  made  of  record,  by 
order  of  court,  and  stipulates  that 
the  award  is  to  be  the  judgment  of 
the  court,  the  design  being  to  put  an 
end  to  those  suits,  and  prevent 
further  litigation.  Rut,  according  to 
the  submission  stated  in  the  declara- 
tion, a  right  of  action  only  would 
exist  to  enforce  the  award.  Instead 
of  putting  an  end  to  litigalion.  it 
would  only  increase  it." 

Award       Adjusting'       Partnership 

Transaction Tn   Wood  v.   Deutch- 

nian.  Ro  Tnd.  524.  it  was  held  that  a 
complaint  declaring  for  a  "balance 
on  settlement  of  partnership  account" 


was  not  sustained  by  evidence  of  an 
award  for  an  amount  due  on  adjust- 
ment of  partnership  transactions; 
that  such  evidence  did  not  establish 
a  claim  for  an  amount  due  from  the 
defendant  upon  a  settlement  between 
the  parties,  but  that  it  showed  rather 
that  the  mutual  accounts  between 
them  had  been  merged  in  the  arbi- 
tration proceeding,  and  that  the 
plaintiff's  remedy,  if  any.  was  on  the 
award. 

Award  To  Be  Full  Release. 
Payiitciit  on  Demand.  —  Tn  Parmelee 
V.  Allen,  32  Conn.  115,  an  action  on 
an  award,  the  declaration  averred 
that  the  award  required  the  defend- 
ant to  pay  the  sum  awarded  on  de- 
mand ;  while  the  award  merely  re- 
quired him  to  pay  the  plaintiff  the 
sum  mentioned,  to  be  in  full  of  all 
demand  when  he  had  done  the  other 
acts  required  by  the  award  to  be 
done.  It  was  held  that  the  payment 
of  the  money  was  to  be  on  demand  ; 
that  the  last  clause  was  not  intended 
to  affect  the  time  for  its  payment, 
and  that  there  was  no  variance. 

56.  Coon  V.  Osgood.  15  Barb.  (X. 
Y.)  583;  Woodward  t'.  Woodward. 
14  111.  .370:  Smith  V.  Weber,  i  Ad.  & 
El.  119.  28  Eng.  C.  L.  119,  40  Rev. 
Rep.  286.  Compiirc  Thorpe  z'.  Eyre. 
I  Ad.  &  El.  936,  28  Eng.  C.  L.  426. 
where  it  was  held  that  on  an  issue 
between  a  landlord  and  an  execution 
creditor  of  his  tenant,  whether  the 
crops  on  the  land  at  a  certain  time 
were  the  property  of  the  party  sn 
found  by  the  award  to  have  been 
tenant,  the  award  was  admissible  on 
behslf  of  the  landlord. 

Award  Not  Evidence  Against 
Grantee  'Without  Notice — In  Emery 
T'.  Fowler,  .v'^  Mc.  90.  it  appeared  that 
owners  of  adjoining  lands  agreed  in 
writing  to  submit  to  arbitration  a 
dispute  between  them  as  to  the 
boundary  line:  tliat  thereafter,  but 
l)efore  the  award,  one  of  the  parties 
sold  his  land  to  another  having  no 
notice  of  the  arbitration  agreement; 
and  it  was  held  that  an  award  stib- 
scquently    made    was    not    admissible 

Vol.  I 


9f)4 


ARBITRATION  AND  AWARD. 


rule  allowing  verdicts  as  proof  of  reputation,  although  between 
strangers  to  the  record.''" 

III.  MATTERS  IN  DEFENSE  OR  AVOIDANCE  OF  AWARDS. 

1.  Contradiction    or    Explanation    by    Extrinsic    Evidence.  —  A. 

Genkkal  Rule.  —  It  is  a  general  rule  that  parol  or  other  extrinsic 
evidence,  the  only  tendency  of  which  is  to  vary  or  explain  a  written 
submission  and  award,  cannot  be  received.^* 


in  a  suit  involving  such  boundary 
line,  between  the  grantee  under  the 
deed,  and  the  other  party. 

57.  Award  Not  Evidence  of 
Reputation. —  "The  authority  of  an 
arbitrator  is  entirely  derived  from 
the  consent  of  the  parties  to  the  ref- 
erence ;  his  award  has  no  force  ex- 
cept by  reason  of  that  consent,  and 
no  instance  can  be  proved  in  which 
strangers  have  been  held  to  be  in  any 
way  affected  in  their  rights  by  an 
award,  either  as  evidence  of  right  or 
of  reputation.  The  award  is  but  the 
opinion  of  the  arbitrator,  formed,  not 
upon  his  own  knowledge,  as  declara- 
tions used  by  way  oi  reputation 
commonly  are,  but  upon  the  result  of 
evidence  laid  before  him,  most  prob- 
ably in  private,  and  formed  also 
fiost  litem  luotain,  having  none  of  the 
qualities  upon  which  evidence  of 
reputation  rests.  It  may  be  said  that 
the  verdict  of  a  jury  is  equally  de- 
fective in  such  qualities.  Whether 
it  be  so  or  not,  it  is  sufficient  to  say 
that  the  admissibility  of  a  verdict  as 
evidence  of  reputation  is  established 
by  too  many  authorities  to  be  now 
questioned,  but  that  the  principle  of 
those  authorities  is  not  clear  enough 
to  embrace  an  award.  We  are  there- 
fore of  opinion  that  the  learned  judge 
was  perfectly  right  in  rejecting  the 
award."  Evans  v.  Rees,  to  Ad.  & 
El.  151,  37  Eng.  C.  L.  lOi.  50  Rev. 
Rep.  366. 

58.  Extrinsic  Evidence  Inadmis- 
sible to  Vary  or  Explain  Written 
Submission  and  Award.  —  Alabama. 
Thnmason  r.  Odinn,  31  Ala.  108,  68 
Am.  Dec.  159. 

Kentucky.  —  Crimes  7'.  Grimes,  i 
Dana  234. 

Maine.  —  Buck  v.  Spofford,  35  Me. 
526;   McNear  v.   Bailey,   18   Me.  251. 

Massachu.'ictts.  —  Richardson  v. 
Ins,   Co.,  3  Mete,   573. 

Vol.  I 


Neiv  Hampshire.  —  Pike  v.  Gage, 
29  N.  H.  461 ;  Furber  v.  Chamber- 
lain, 29  N.  H.  405. 

Neiv  Jersey.  —  Leslie  v.  Leslie,  52 
N.  J.  Eq.  332,  31  Atl.  724,  affirming 
N.  J.  Eq.,  24  Atl.   1029. 

New  York.  —  Efner  v.  Shaw,  2 
Wend.  567. 

Vermont.  —  May  v.  Miller,  59  Vt. 
577.  7  Atl.  S18.  _ 

Wisconsin.  —  Kane  v.  Fond  du 
Lac,  40  Wis.  495. 

Oral  Agreement  Collateral  to 
Written  Submission Parol  evi- 
dence is  inadmissible  to  enlarge  the 
powers  of  the  arbitrators  to  pass 
upon  and  include  matters  not  sub- 
mitted to  them,  by  showing  that  at 
the  hearing  before  the  arbitrators  it 
was  so  agreed,  without  specifying 
when  the  agreement  was  made — 
especially  where  the  award  conclu- 
sively shows  that  the  only  submis- 
sion acted  on  was  the  one  in  writing. 
Palmer  v.  Green,  6  Conn.   14. 

Finality    of    Award In    AIcDer- 

mot  7".  United  States  Ins.  Co.,  3 
Serg.  &  R.  (Pa.)  604,  the  award 
found  that  "  proof  had  not  been 
produced  sufficient  to  establish  a 
claim  against  the  defendant ;"  and  it 
was  held  incompetent  to  show  that 
the  plaintiff  desired  a  postponement 
before  the  arbitrators,  but  that  de- 
fendant urged  a  decision,  when  such 
evidence  is  offered,  not  for  the  pur- 
pose of  impeaching  the  award  for 
misconduct  or  precipitancy  of  the 
arbitrators,  but  as  tending  to  show 
that  the  award  was  not  final. 

Supplementary     Explanatory 

Award Under  a  parol  submission, 

it  may  be  shown  that  after  the  award 
had  been  made  the  parties  verbally 
consented  to  the  arbitrators'  making 
an  additional  award  for  the  purpose 
of  ex-plaining  their  original  award. 
Kvcloth  7'.   Chase.   17  Mass.  458. 


ARBITRATION  AND  AWARD. 


'»65 


B.  CoNTKOLLiXG  Intent  AND  Meaxixc.  —  Nor  can  extrinsic 
evidence  be  received  to  control  the  intent  and  meaning  of  the  award 
made  by  the  arbitrators,''"  or  to  explain  the  intent  and  meanins;-  of 
the  parties  to  an  arbitration  bond."" 

Improper  Execution  of  the  Award  may  be  shown  bv  extrinsic  evi- 
dence, on  a  motion  for  an  attachment  for  failnre  to  perform  the 
award,  for  the  purpose  of  annulling-  the  award. "^ 

C.  Ambiguity.  —  But  extrinsic  evidence  is  competent  to  explain 
an  uncertain  expression  in  a  written  submission"-  or  award."^ 
But  evidence  of  the  meaning  of  the  arbitrators  can  not  be  received 
to  obviate  a  patent  ambiguity."'' 

D.  Testimony  of  Arbituatoks.  —  And  the  rule  excluding 
extrinsic  evidence  to  vary  or  explain  a  written  submission  or  award 
is   equally   applicable   to   the   testimony   of   the   arbitrators."^     Xor 


Boundary     Lines.  —  In     Robertson 

V.  McNeil,  12  Wend.  (N.  Y.)  578, 
ejectment  to  recover  lands  awarded 
to  the  plaintiff,  it  was  held  to  be  in- 
competent for  the  defendant  to  show 
that  the  line  established  by  the  arbi- 
trators was  not  the  line  referred  to 
in  the  submission  to  be  found  and 
established  by  the  arbitrators.  But 
the  testimony  of  the  arbitrator  that 
the  line  established  was  in  conform- 
ity to  the  original  referred  to  in  the 
submission   was   competent. 

Correction  on  Recommitment.  — On 
a  motion  to  accept  an  award  returned 
under  a  submission  under  rule  of 
court,  it  is  competent  to  introduce 
evidence  to  show  that  the  award, 
which  had  been  recommitted  to  the 
arbitrators  for  correction,  and  a  new 
award  returned,  had  been  in  fact 
corrected  by  the  arbitrators  in  mat- 
ters of  form  only.  Atkinson  t'. 
Crookor.   35   Me.    135. 

Signing  Award  Without  Reading. 
In  Withington  v.  Warren,  to  Mete. 
(Mass.)  431,  an  action  on  a  promis- 
sory note  for  a  sum  awarded  by  ar- 
bitrators to  be  paid  by  him  to  the 
plaintiff,  it  is  held  that  the  de- 
fendant could  not  defend  by  show- 
ing that  one  of  the  arbitrators, 
upon  the  statement  of  the  chair- 
man who  drew  up  the  award, 
that  it  was  right.  signed  it 
without  reading  it  or  knowing  its 
contents,  and  that  it  was  for  a  larger 
sum  than  was  agreed  upon  by  the 
arbitrators,  unless  he  also  shows 
that  the  said  arbitrator  was  induced 
by    some    false    representation,    fraud 


or    misconduct    to    sign    a    different 
award  from  that  which  he  intended. 

59.  Cobb  V.  Dortch,  52  Ga.  548; 
Clark  V.  Burt,  4  Cush.  (Mass.)  396; 
Parker  v.  Parker,  103  Mass.  167; 
Doke  '■.  James,  4  N.  Y.  568:  Scott  v. 
Green,  89  N.  C.  278. 

60.  Sessions  v.  Barfield.  2  Bav 
(S.  C.)   94- 

61.  Stalworth  ;■.  Inns.  2  D.  &  L. 
428.  And  see  Kerr  z'.  Jeston,  i 
Dow  N.  S.  338;  Wade  v.  Dowling, 
4  El.  &  Bl.  44. 

62.  Faw  V.  Daw.  i  Cranch  C.  C. 
8g,  440,  7-8  Fed.  Cas.  Nos.  3663, 
4701. 

63.  Thus  of  an  uncertain  descrip- 
tion. Bancroft  v.  Grover,  23  Wis. 
463.  99  Am.  Dec.   195. 

64.  See  generally,  the  title  "  Am- 
biguity." 

65.  Bigelow  v.  Maynard.  4  Cush. 
(Mass.)  317;  King  v.  Jemison,  t,} 
Ala.  499. 

That  He  Did  Not  Unite  or  Concur 
with  his  co-arbitrators  in  making  or 
publishing  the  award,  cannot  be 
proved  by  the  testimony  of  the  arbi- 
trator. Ellison  V.  Weathers,  78  Mo. 
115. 

Vagueness  or  Uncertainties  cannot 
be  explained  by  the  testimony  of  the 
arbitrators.  Alexander  v.  McNear. 
28  Fed.  403. 

Arbitrators    Cannot    Be    Examined 
Evidence     Was     laid 
of  a    tender  of   conti- 
how  much  and  _  when 
in    what    kind    of 
money :    but   they   may  be   examined 
as  to  a  single  point,  such  as  did  they 

Vol.  I 


as     to     What 
Before   Them 

nental   money, 
it    was    made,    or 


966 


IRBITR.rnON  AND  AWARD. 


can   the   arbitrators   be   called   upun   to   disclose   the   grounds   upon 
which  thev  made  their  award,''"  nor  to  construe  their  award."" 


allow  interest.  Wade  v.  Gallagher,  i 
Veates  (Pa.)  77. 

Finality  of  Award An  arbitra- 
tor may  be  called  npon  to  testify  to 
facts  showing  that  no  final  award 
was  made,  and  that  he,  as  the  arbi- 
trator entrusted  with  the  award, 
discovered  a  mistake  in  it  soon  after 
he  had  signed  it.  and  that  he  there- 
upon refused  to  deliver  it  as  his 
award.  Shulte  v.  Hennessey,  40 
Iowa  352.  See  also  Hintman  v. 
Nichols,  116  Mass.  521,  where  it  was 
held  that  an  arbitrator  under  an  oral 
submission  could  testify  that  he 
"  had  no  idea  the  reference  was 
final,"  as  shoAving  that  he  had  not 
understood  that  he  had  rendered  any 
decision  upon  the  question  which 
finally  determined  the  rights  of  the 
parties. 

When  Award  Returned  Into  Court. 
Where  the  clerk  of  the  cmirl  omitted 
In  make  the  usual  indorsement  on 
arbitration  papers  left  with  him  to  be 
filed,  testimony  of  one  of  the  arbitra- 
tors is  admissible  to  show  that  the 
award  had  been  returned  within  the 
time  stipulated  in  the  submission. 
1  oung  V.  Dugan.  i  0.  Greene 
(  Iowa)    152. 

Alteration  of  Submission.  —  In 
Abel  7.'.  Fitch,  20  Conn.  90,  the  ques- 
tion was  whether  the  submission  was 
in  its  original  form  as  used  by  the 
arbitrators,  or  had  been  altered  by 
an  interlineation  since  the  submis- 
sion and  award ;  and  it  was  held 
proper,  in  order  to  prove  the  altera- 
tion, to  introduce  the  testimony  of 
the  arbitrators  that  they  had  no 
knowledge  or  recollection  that  this 
interlineation  was  in  the  submission 
when  they  acted ;  that  according  to 
their  recollection  and  belief  there 
was  no  question  before  them  of  mat- 
ters contained  in  the  interlineation : 
nor  did  they  hear  anything  about 
them  from  the  parties,  but  arbitrated 
only  upon  questions  submitted  in  the 
submission  as  it  read  without  the 
iiilerliiieatinn. 

Examining  Arbitrators  as  to  Affi- 
davits Made  by  Them On  motion 

to  set  aside  an  award,  in  support  of 
which  has  been  filed  atTidavits  of  the 


arbitrators,  the  court  may,  in  its  dis- 
cretion, permit  the  other  party  to  call 
the  arbitrators  and  examine  them 
orally  as  to  matters  .stated  by  thein 
in  their  affidavits.  Robinson  v. 
Shanks,  118  Ind.  125,  20  N.  E.  713. 
"  It  is  doubtless  true,"  said  the  court, 
"  that  a  juror  can  not  be  heard  to 
impeach  his  verdict.  Perhaps  the 
same  rule  would  apply  to  an  arbi- 
trator whose  award  is  attacked.  In 
this  case,  however,  the  testimony  of 
the  arbitrators  had  been  heard  in  sup- 
port of  the  award.  As  the  object  of 
all  judicial  investigation  is  to  ascer- 
tain the  exact  truth,  we  think  that 
if  the  court  had  reason  to  believe  that 
the  affidavits  of  the  arbitrators  did 
not  state  the  whole  truth,  we  think 
it  was  in  its  discretion  to  call  and 
examine  them  in  relation  to  the  mat- 
ters about  which  they  had  testified 
in  their  affidavits.  In  this  case  there 
does  not  seem  to  have  been  any 
abuse  of  discretion  in  this  regard." 

66.  Testimony  of  Arbitrators  Dis- 
closing Grounds  of  Decision.  — King- 
ston V.  Kincaid,  i  Wash.  C.  C.  448, 
14  Fed.  Cas.  No.  7821  ;  Bigelow  z>. 
Alaynard,  4  Cush.  (Mass.)  317.  And 
.iccording  to  Aldrich  v.  Jessiman,  8 
N.  H.  516.  aftidavils  of  the  arbi- 
trators cannot  be  received,  giving  a 
construction  of  their  award,  and 
stating  the  question  which  was  meant 
(o  be  presented.  And  sec  Ward  v. 
.\merican  Bank.  7  Mete.  (Mass.) 
.'S6  (where  it  was  so  held  of  a  writ- 
ten statement  of  the  arbitrator  stating 
substantially  what  he  might  testify)  ; 
I.eggo  V.  Young.  16  C.  B.  626  (where 
il  was  so  held  of  a  letter  of  the  arbi- 
trator stating  the  grounds  of  his 
decision). 

67.  Testimony  of  Arbitrators  to 
Continue  Award.  —  Ward  v.  Gould. 
5  Pick.  (Mass.)  291;  Cobb  V.  Dol- 
phin Mfg.  Co..  T08  N.  Y.  463.  IS 
N.  E.  438;  Cobb  V.  Dorlch.  52  Ga. 
548;  Mulligan  v.  Perry.  64  Ga.  567. 
See  also  Wiswall  v.  Hall.  Quincy 
1  .Mass.)  27,  wherein  it  was  held 
that  arbitrators  could  not  be  admit- 
ted to  testify  that  their  award  that 
each  party  should  bear  his  own  costs 
was     made     in     consideration     of     a 


Vol.  I 


ARBIT RATIOS  AXD  AWARD.  '»(.7 

E.  AuMissioxs  AND  Declakatioxs.  —  And  the  rule  exckuling 
extrinsic  evidence  to  control  the  terms  of  an  award  extends  to 
aihnissions  made  by  one  of  the  parties  as  to  the  intent  and  mean- 
ing, of  the  arbitrators."^  Nor  can  declarations  of  the  arbitrators 
be  received  for  that  purpose,''"  although  they  were  made  at  the  time 
they  published  the  award/" 

2.  Authority  of  the  Arbitrators.  —  A.  The  Appoixtmext  of 
THE  U.MPiRi;.  —  It  may  be  shown  by  parol  evidence  that  after  the 
submission  in  writing  the  parties  agreed  that  the  arbitrators  should 
have  power  to  call  in  an  umpire.  Such  an  agreement  is  a  new 
and  independent  contract,  and  is  not  a  variance  of  the  written  sub- 


promise  by  one  party  never  to  en- 
force a  certain  judgment  against  the 
other. 

Statement    of   Rule In   speaking 

of  the  question  whether  an  award, 
reduced  to  writing  in  plain,  unam- 
biguous terms,  can  afterwards  be 
shown  by  the  ar1)itrators  themselves, 
or  by  other  parol  evidence,  not  to 
mean  what  it  clearly  purports  to 
mean  on  the  face  of  it,  but  was  in- 
tended to  mean  something  else  not 
expressed  in  the  award,  the  court  in 
Cobb  v.  Dortch,  52  Ga.  548.  said ; 
"If  that  can  be  done  in  the  absence 
of  fraud  or  mistake,  then  the  award 
of  arbitrators  is  of  but  little  value; 
it  would  settle  nothing  in  relation  to 
the  subject  matter  of  their  award; 
besides,  it  is  as  much  against  public 
policy  to  allow  arbitrators  to  impeach 
'heir  award  after  it  has  been  reduced 
to  writing,  and  delivered  to  the 
parties  making  the  submission,  as  it 
would  be  to  allow  jurors  to  impeach 
their  own  verdict  after  it  has  been 
made  and  delivered  to  the  court." 

Explaining     Phraseology In 

Boughton  I'.  Seamans,  9  Hun  (N.  Y. ) 
392,  the  question  put  to  the  arbi- 
trators, "What  did  you  agree  to?" 
was  held  as  not  upon  its  face  calling 
for  au}'  evidence  touching  the  con- 
sultations or  reasons  of  the  arbi- 
trators, but  only  a  statement  by 
them  of  what  the  award  in  fact  was. 
there  being  some  dispute  owing  to 
the  phraseology  of  the  award,  as  to 
what  it  was. 

68.  Clark  r.  Burt,  4  Cush.  (Mass.) 
,to6. 

Declarations  of  Party  Previous  to 
Arbitrament.  —  In   Cook  r.   Gardner, 


i.?o  Mass.  313,  a  trust  deed  provided 
that  if  the  beneficiary  should  not  dis- 
charge his  obligations  to  the  grantor, 
the  trustee  might  appoint  arbitrators 
to  pass  on  the  matters  submitted 
to  them,  with  power  to  determine 
the  trust  upon  terms  by  them  con- 
sidered just  and  equitable,  and  that 
thereupon  the  trustee  should  hold 
the  land  for  the  benefit  of  the  grantor. 
It  was  held,  on  a  writ  of  entry  by 
the  trustee  against  the  beneficiary 
after  the  award  determining  the 
lru5t,  that  evidence  of  declarations 
by  the  grantor,  to  the  effect  that  the 
lieneficiary  had  discharged  the  obli- 
gations imposed  on  him  by  the  deed 
«  as  not  admissible.  The  court  said  : 
"  The  question  had  been  submitted 
111  and  decided  by  the  tribunal  which 
the  parties  in  interest  had  selected. 
.'\ny  admissions  which  had  been 
made  (by  the  grantor)  before  the 
Iiearing  by  that  tribunal  were  proper 
matters  for  its  consideration.  Such 
admissions,  wdiether  tnade  before  or 
after  that  hearing,  were  not  com- 
petent evidence  for  the  purpose  of 
vitiating  the  award,  nor  to  affect 
the  rights  which  were  established  by 
it." 

69.  Declarations  of  an  Arbi- 
trator, to  the  effect  that  he  and  his 
co-arbitrators  neglected  to  be  sworn, 
should  not  be  received  for  the  pur- 
pose of  impeaching  •  the  award. 
Kankakee  &  S.  R.  Co.  ■;■.  Alfred,  3 
111.  App.  511.  See  also  Hubbell  v. 
Russell,  2  Allen  (Mass.)  196.  holding 
thus  of  declarations  made  by  the  ar- 
liitrator  several  days  after  making 
and  publishing  his  award. 

70.  Clark  f.  Burt,  4  Cush. 
(.Mass.)    396. 


Vol.  I 


968 


ARBlTRAriON  AND  AWARD. 


mission.''     Otlierwise  under  a  statutory  submission  providing  that 
it  shall  be  made  a  rule  of  court/- 

B.  iMPRorijR  Appointment  of  the;  Umpire  may  be  shown,  on 
a  motion  for  an  attachment  for  failure  to  perform  the  award,  for 
the  purpose  of  annulling  the  award. '^ 

C.  Termin.xtion  of  Submission.  —  Extrinsic  evidence  may  be 
received,  on  a  motion  for  an  attachment  for  failure  to  perform 
an  award,  to  show  that  the  arbitrators'  authority  to  act  had  been 
revoked.'*  But  on  a  proceeding  to  enforce  an  award  against  two 
defendants,  evidence  by  one  of  them  that  after  the  hearing  on  the 
submission,  but  before  the  arbitrators  had  declared  their  award,  he 
had  declared  to  them  that  he  would  not  be  bound  by  their  award 
is  not  competent  to  prove  revocation  of  the  submission. ■'■  But 
where  an  arbitrator  has  been  called  to  prove  a  parol  submission  and 
an  award  thereunder,  it  is  conijietent  for  the  other  party  to  prove 
by  him  facts  showing  that  the  submission  had  ceased  to  be  operative 
when  the  award  was  made.'" 


71.  Sharp  v.  Lipsey,  2  Bail-.-y 
(S.  C.)   113. 

72.  Elmendorf  v.  Harris,  23 
Wend.  (N.  Y.)  628,  35  Am.  Dec. 
587.  Nor  is  the  award,  if  signed  by 
the  umpire  only,  any  evidence  of 
such    appointment. 

73.  Improper      Appointment      of 

Umpire Lord  r.  Lord,  5  EI.  &  IjI. 

404,  84  Eng.   C.   L.  403- 

74.  Alilne  v.  Gratrix,  7  East  608; 
King  V.  Joseph.  5  Taunt.  452.  22 
Rev.  Rep.  803. 

75.  Robertson  v.  McXicl.  \2 
Wend.   (N.  Y.)   578. 

As  to  evidence  to  show  that  the 
arbitrators  exceeded  their  authority, 
see   Infra   this   title. 

76.  Perit  v.  Cohen,  4  Whan. 
(Pa.)  81.  The  facts  sought  to  l)e 
proved  were  that  soon  after  the 
stibmission  a  meeting  of  the  arbi- 
trators was  held,  and  upon  the  facts 
and  statements  then  before  them, 
they  decided  that  they  could  make 
no  award  and  so  informed  the  par- 
ties ;  and,  second,  that  long  after- 
wards, without  any  new  submission 
or  notice  to  defendant,  they  met  and 
made  the  avvard  in  question,  not  on 
the  facts  and  statements  communi- 
cated by  the  parties,  but  upon  cir- 
cumstances which  had  happened  after 
the  first  meeting  and  after  the  aban- 
donment of  the  reference.  The  court 
said  :  "  The  court  below  fell  into  an 
error  in  rejecting  the  evidence,  under 
the    impression,    it    would    seem,    that 

Vol.  I 


the  witness  was  incompetent,  or 
could  not  be  required  to  give  it, 
because  he  acted  as  an  arbitrator  in 
making  the  award  upon  which  the 
plaintiff  relied  for  his  recovery 
against  the  defendant.  The  court 
seem  to  have  taken  up  the  idea,  that 
the  evidence,  which  the  defendant 
proposed  to  give  by  the  witness, 
tended  to  impeach  the  propriety,  if 
not  the  integrity  of  his  conduct,  as  an 
arbitrator.  This,  however.  I  think, 
was  a  misapprehension ;  for  the  evi- 
dence offered  to  be  given  by  him. 
instead  of  going  to  show  that  he 
acted  improperly  as  an  arbitrator  be- 
tween the  parties  here.  wouUl  have 
shown,  if  it  had  been  given,  that  he 
in  fact  was  not  an  arbitrator  at  the 
time,  and  had  no  authority  from 
the  parties,  to  act  as  such ;  and  that, 
though  he  had  had  such  authority 
some  time  before  that,  yet  he  with  the 
other  gentleman  upon  whom  it  was 
conferred,  after  making  an  attempt 
to  execute  it,  but  being  unable  to  do 
so.  had  surrendered  or  given  it  up 
again  to  the  parties ;  who  thereupon 
had  a  right  to  consider  the  sub- 
mission as  terminated,  and  no  longer 
in  force." 

This  case  also  held  it  competent 
for  tne  defendant  to  bring  out  these 
facts  on  cross  examination,  and  with- 
out first  having  onened  his  rase. 
The  court  said  :  "  Having  given  evi- 
dence accordingly  by  the  witness, 
which,   without   more,  went  to  prove 


ARBITKATIOX  AXD  AWARD. 


'!()') 


D.  Resignation  of  Auimtkatous.  —  Evidence  is  admissible,  lo 
bar  an  action  on  an  award,  to  show  that  the  arbitrators  had  resigned 
their  authority,  before  making  their  award,  and  that  their  resigna- 
tion had  been  accepted  by  the  parties.  It  is  certainly  competent  to 
show  that  they  acted  without  authority." 

E.  SuBSTiTUTio.v  or  .\Kr.ni;.\ToRS.  — ■  Parol  evidence  is  admissi- 
ble to  show  that  the  arl^itrainrs  who  made  the  award  acted  in  the 
place  of  those  first  agreed  upon,  by  the  consent  of  the  parties.'* 

3.  The  Oath  of  the  Arbitrators.  —  When  the  fact  that  the  arbitra- 
tors have  been  sworn  is  not  re(|uired  by  statute  to  be  evidenced 
by  a  writing,  parol  evidence  is  competent  to  show  that  fact.''-*  So 
also  of  the  fact  that  the  ])arties  waived  the  necessity  of  the  oath  of 
the  arbitrators.*" 

4.  Time  of  Meeting.  —  If  it  is  not  required  by  an  express  pro- 
vision in  the  submission,  or  by  some  statute,  that  the  arbitrators 
shall  keep  a  detailed  written  account  of  their  meetings,  adjourn- 
ments, and  all  other  proceedings,  parol  evidence  is  admissible  to 
show  the  time  when  the  arbitrators  met  for  the  hearing.*' 

5.  Number  of  Arbitrators  Present  and  Acting.  —  Although  the 
award  may  not  on  its  face  show  that  all  the  arbitrators  were  pres- 
ent and  acted  under  the  submission,  that  fact  may  be  shown  bv 
evidence  nliiiiidc."'- 

6.  Matters  Submitted  to,  and  Decided  by,  the  Arbitrators.  —  A. 
In  Ghneual.  —  W  hcnever  ])ariies  have  submitted  dis|)utes  nr  dif- 


that  the  writing,  purporting  to  In- 
an  award,  was  made  in  pursuanct-  of 
an  agreement  of  submission  in  force 
at  the  time  of  making  the  award, 
he  (the  plaintiff)  could  with  no 
propriety  or  color  of  reason,  after 
closing  his  examination  of  the  wit- 
ness in  chief,  object  to  the  defend- 
ant's asking  such  questions  of  the 
witness  as  would  tend  to  elicit  evi- 
dence from  him.  showing  that  the 
submission,  of  which  he  testified,  as 
having  been  made,  had  been  put  an 
end  to.  before  the  making  of  the 
award;  and  consequently  the  awarl 
was  made  without  any  submission, 
which  authorized  it." 

77.  Relyea  i:  Ramsay,  2  \\'end. 
(N.  Y.)   602. 

78.  Douglass  T'.  Brandon,  6  Baxt. 
(Tenn.")   58? 

79.  Parol  Testimony  to  Show 
That  Arbitrators  Have  Been  Sworn. 
Crook  7'.  Chambers.  40  Ala.  239; 
Price  V.  Kirby.  i  Ala.  184:  Cones  7'. 
Vanosdol,  4  Tnd.  248,  citing  Jacobs 
?•.  .uoffat,  T,  Blackf.  (Ind.)  .395.  And 
see  Shryock  v.  Morton.  2  A.  K. 
^farsh.     561.       Com  fare     Bethea     7\ 


Hood,  9  La.  Ann.  88;  Sharkey  z: 
Wood,  5  Rob.   (La.)   326. 

80.  Waiver  of  Arbitrators'  Oath. 
Tucker    7:    .\llen.    47     Mo.    488. 

81.  Porter  f,  Dugat.  12  Mart. 
O.    S.    (La.)    245. 

82.  Hoffman  z:  Hoffman.  26  N.  J. 
Law  175;  Schultz  z\  Halsev,  3  Sandf. 
(N.  Y.)  405. 

Statement    of    the    Rule "  It    is 

apprehended  that  no  case  can  be  ad- 
duced, showing  the  necessity  of  this 
fact  appearing  in  the  award  itself. 
To  prove  it  by  parol,  does  not  con- 
travene any  adjudged  principle  in 
the  exposition  of  awards.  It  neither 
impeaches  nor  supports  its  merits, 
hut  supplies  a  fact  not  affirmed  or 
denied  by  the  award,  and  which, 
perhaps,  it  was  not  the  duty  of  the 
two  arbitrators  to  notice.  If.  in  this 
case,  one  of  the  arbitrators  had  not 
met,  and  arbitrated  with  the  other 
two,  would  it  not  be  coinpetent  to 
prove  it.  and  thereby  show,  what  a 
defendant  is  always  entitled  to  show, 
in  a  court  of  law.  that  the  award  is 
not  within  the  submission?"  .\ck- 
ley  r.  Finch.  7  Cow.   (N.  Y.")  290. 

Vol.  I 


970 


AKBITRATIOX  AXD  A]VARD. 


ferences  to  arbitration  and  award,  and  the  award  does  not  upon  its 
face  show  what  matters  were  in  fact  submitted  and  decided,  and  it 
subsequently  becomes  a  material  fact  as  to  whether  or  not  the  matter 
then  at  issue  had  been  submitted  to  and  decided  bv  the  arbitrators, 
either  party  may  introduce  evidence  aliunde  for  the  purpose  of 
showing  what  matters  were  in  fact  sulimitted.**"'    But  parol  evidence 


83.  England.  —  Brown  v.  Croy- 
don Canal  Co..  9  Ad.  &  EI.  5^^,  36 
Eng.  C.  L.  282. 

Dclazi'are.  —  Robinson  %'.  Burton.  2 
Hon  St.   62. 

Kentucky. — Shackelford  v.  Pucket. 
2  A.  K.  Marsh.  4,^5.  12  Am.  Dec.  422. 

Maine.  —  Comery  v.  Howard,  81 
Me.  421,  17  Atl.  318  (dictum)  ;  Carter 
V.  Shibles,  74  Me.  273. 

Massachusetts. — Blackwell  ?'.  Goss, 
u6  Mass.  394:  Leonard  v.  Root,  15 
Gray  553;  Cook  v.  Jaques.  15  Gray 
59 ;   Hodges  v.   Hodges,  5   Mete.  205. 

Xorlli  Carolina.  —  Osborne  v.  Cal- 
vert, 83  N.   C.  365.  86  N.   C.   170. 

Pennsylvania.  —  Huckestein  v. 
Kaufman.  173  Pa.  St.  199,  33  Atl. 
lOsS. 

'J  enuessec.  —  Newman  v.  Wood, 
Mart.   &  Y.    190. 

Contra.  —  Gardener  v.  Odcn,  2 
Cush.    (Miss.)    382. 

"  Without  the  Aid  of  Parol  Evi- 
dence," said  the  court  in  Scbackel- 
ford  V.  Purket,  i  A.  K.  Marsh.  (Ky.) 
435,  12  Am.  Dec.  422,  "  it  would  be 
impossible  to  sustain  a  general  sub- 
mission of  all  matters  in  dispute. 
For,  as  the  submission  contains  no 
suggestion  of  the  matters  disputed, 
it  must  be  inoperative  unless  those 
matters  can  be  ascertained  by  matters 
extraneous  from  the  submission  ;  for 
it  is  plain  no  defect  in  the  submis- 
sion, the  mere  act  of  the  parties  can 
be  explained  by  anything  contained 
in  an  award — the  act  of  the  admin- 
istrators ;  and  there  is  nothing  else 
but  parol  evidence  which  can  be 
resorted  to  for  the  purpose  of  sup- 
porting the  submission."  .\nd  in 
Bennett  v.  Pierce,  28  Conn.  314.  the 
court  in  sustaining  the  admissibility 
of  such  evidence,  say :  "  The  parol 
evidence  was  not  offered  for  the 
purpose  of  altering  or  changing  'he 
terns  of  the  written  submission  ,  or 
even  for  the  purpose  of  explaining 
an  ambiguity  contained  in  it,  wh^ch 
ni.'.y  be  done  in   some  cases;  but,  as 

Vol.  I 


intimated,  for  the  mere  purpose  of 
applying  the  instrument  to  its  proper 
subject  matter,  which  may  always  be 
done.  And  we  see  no  more  ob- 
jection to  it  in  this  case  than  there 
is  in  proving  by  parol  that  a  piece 
of  land  is  the  same  that  is  described 
m  a  deed,  because  it  answers  to  the 
description." 

Accidental  Omission  to  Lay  Mat- 
ter Before  Arbitrators.  —  Where 
there  is  a  submission  to  arbitration 
of  all  demands  which  either  party 
has  against  the  other  one.  one  of  the 
parties  as  plaintiff  in  a  subsequent 
action  against  the  other,  who  has 
pleaded  the  award  as  in  bar  plaintiff's 
cause  of  action,  cannot  introduce 
evidence  to  show  that  the  matters 
on  which  he  has  brought  suit  were 
by  accident  never  laid  before  the 
arbitrators  for  their  consideration, 
nor  did  they  decide  thereon.  Wheeler 
r.  Van  Houten,  12  Johns.  (N.  Y.) 
311.  The  court  said:  "It  would  be 
a  very  dangerous  precedent,  to  allow 
a  party,  on  a  submission  so  general, 
intended  to  settle  everything  be- 
tween the  parties,  to  lie  by,  and  sub- 
mit only  part  of  his  demands,  and 
then  institute  a  suit  for  the  part  not 
brought  before  the  arbitrators.  The 
objection  of  the  submission  was  to 
avoid  litigation;  and  neither  party  is 
at  liberty  to  withhold  a  demand  from 
the  cognizance  of  the  arbitrators,  on 
such  submission  and  then  to  sue  for 
it.  It  is  true,  if  a  person  sues  upon 
several  and  distinct  causes  of  action, 
and  submits  only  a  part  of  them  to 
the  jury,  he  is  not  precluded  from 
suing  again  for  such  distinct  cause 
of  action  as  was  not  passed  upon.  In 
that  case,  he  was  not  bound  origi- 
nally, to  unite  the  different  causes  of 
action,  and,  therefore,  shall  not  be 
barred;  but  here  he  boiuid  himself 
to  the  defendant  to  submit  every  de- 
mand, and  cannot  recede  from  his 
agreement."  See  also  Owen  v. 
Bocrum,   23    P.arli.    193. 


ARBITKATIOX  AXD  AWARD. 


'ill 


of  what  was  understood  and  intended  and  acted  upon  is  not  compe- 
tent to  show  what  the  award  itself  does  not  show.** 

B.  As  Showinc  Excess  of  Authority  r.v  Aruitkators.  —  It  is 
a  very  general  rule  that  it  may  be  shown  by  parol  evidence,  either 
in  defense  or  avoidance  of  an  award,  that  the  arbitrators  acted  in 
excess  of  their  jurisdiction  by  considering  and  passing  upon  matters 
not  prcperlv  within  the  terms  of  the  submission,  or  by  omitting  to 
pass  upon  matters  submitted  to  them,'*^  although  there  are  decisions 


Misconduct      of      Party      Causing 

Omission  by  Arbitrators But  it  is 

proper  for  the  plaintiff  to  show  that 
he  endeavored  to  hring  liefore  the 
arbitrators  the  subject  matter  of  the 
present  cause  of  action,  but  that  the 
defendant,  by  his  objections,  caused 
the  arbitrator  to  refuse  to  consider 
it.  Such  evidence  not  only  shows 
that  the  cause  of  action  was  not  in- 
ckided  in  the  award,  but  that  it 
could  not  be.  on  account  of  the  mis- 
conduct of  the  defendant  himself. 
Morrss  v.  Osborn,  64  Barb.    (N.  Y. ) 

543. 

Where  the  Submission  Mentions 
Certain  Items,  and  it  is  objected 
that  the  award  makes  no  mention 
of  or  decision  thereon,  it  can  be 
proved  by  parol  that  there  was  in  fact 
a  dispute  between  the  parties  about 
those  items  that  had  been  submitted 
to  the  arbitrators,  and  that  the  latter 
had  acted  upon  them.  Hewitt  v. 
Furman,  16  Serg.  &  R.   (Pa.)    135. 

Parol  evidence  is  always  resorted 
to  lor  the  purpose  of  identifying  the 
thing  or  matter.  Burrows  v.  Guthrie, 
'.I  Til  70. 

Matters  Expressly  Excluded  by 
Award.  -•-  Although  a  submission 
may  be  general  of  all  matters  in 
dispute,  and  the  award  may  recite  the 
consideration  of  such  matters,  yet 
the  defendant  in  an  action  on  the 
award  may  give  evidence  of  in- 
debtedness to  him  from  the  plain- 
tiff where  the  arbitrators  in  a  memor- 
andum on  the  back  of  the  award, 
expressly  stated  that  they  took  no 
notice  of  such  indebtedness.  Griffith 
z\  Jarrett.  7  Har.  &  J.   (Md.)  70. 

84.  As  for  example  what  the  ar- 
bitrator intended  to  decide  and  did 
decide.  Such  evidence  adds  to  and 
varies  the  effect,  if  it  does  not  con- 
tradict, the  written  award.  Parker 
v.  Parker,  10,^  Mass.  167.  And  see 
sii/'ra.  this  article  III,   i.  B.     "  CoN- 


TR.\DICTI0N    O.R    EXPLANATION    BY    Ex- 

TKiNsic  Evidence;"  "Controlling 
IxTENT  AND  Meaning." 

Performance  of  Contract  Submit- 
ted. —  In  Galvin  v.  Thompson,  13 
Me.  367,  an  action  on  an  award,  it 
was  held  competent  to  show  by  parol 
how  far  each  party  had  performed 
or  fallen  short  of  performance  of 
the  contract  submitted  to  the  deter- 
mination of  the  arbitrators,  and  what 
claims  thence  resulted  by  one  upon 
the  other,  depending  on  facts  sub- 
sequent to  the  agreement  and  which 
could  only  be  verified  bv  such  proof. 

Award  Not  Separating  Demands 
Due  Party  in  Different  Capacities. 
In  Strong  i'.  Beroujon,  18  Ala.  16S, 
it  was  contended  that  the  award  in 
question  was  uncertain  because  it  did 
not  show  what  was  awarded  to  one 
of  the  parties  in  his  own  right  and 
what  as  guardian ;  but  it  was  said 
that  this  was  not  required  by  the 
submission,  and  that  if  it  ever  be- 
came a  material  question  in  the  event 
of  a  future  suit  about  the  same  mat- 
ters, evidence  would  be  admissible  to 
prove    it. 

85.  Parol  Evidence  to  Show 
Excess  of  Authority.  —  Alabama. 
Burns    z\    Hendrix.    54   Ala.   78. 

Indiana.  —  Brown  v.  Harness,  II 
Ind.  App.  426,  38  N.  E.   1098. 

loii'a.  —  Sharp  r.  Woodbury,  18 
Iowa  195;  Dice  v.  Yarnel.  Morr.  241. 

Maine.  —  Wyman  f.  Hammond,  55 
Me.  534;   McNear  z:  Bailey,   18   Me. 

.\Iassacliusctts.  —  Hubbell  v.  Bis- 
sell,  2  .Allen  196;  Gaylord  z:  Norton, 
130   Mass.  74. 

AVti'  York.  —  Dodds  v.  Hakes,  114 
N.  Y.  260,  21  N.  E.  398;  Briggs  v. 
Smith,  20  Barb.  409 :  Butler  v.  New 
York.  7  Hill  329,  (reversing  i  Hill 
489.  and  in  effect  overruling  Barlow 
T'.  Todd.  3  Johns.  367,  2  Johns.  Ch. 
55;   Perkins  r'.  Wing.   10  Johns.   143, 

Vol.  I 


'J72 


ARBITRATION  AND  AWARD. 


to  the  contrary.*" 

C.  Testimony  of  the  Arbitkatuks. 


And   for  the  purpose  of 


and  see  De  Lorig  v.  Stanton,  9  Johns. 
38;  and  followed  in  Williams  v. 
uoodrich,  4  Denio  194)  ;  French  v. 
New,  20  Barb.  481. 

North  Carolina.  —  Walker  v. 
Walker,  i  Winst.  255 ;  Brown  v. 
Brown.    4    Jones    Law    123. 

Pennsylvania. — Dickerson  v.  Rorke, 
30   Pa.   St.   390. 

Statement    of    the    Rule "  Snch 

evidence,"  said  the  court  in  Butler  v. 
New  York,  7  Hill  329,  "  has  a  bear- 
ing upon  the  right  and  power  of  the 
arbitrators  to  make  the  award.  It 
does  not  propose  to  vary  the  written 
terms  of  the  award,  but  to  show 
that  the  arbitrators  did  award  upon 
matters  not  submitted  to  them.  It 
is  analogous  to  the  case  of  a  .special 
power  of  attorney,  where  oral  evi- 
dence can,  unquestionably,  be  re- 
ceived to  show  that  the  act  done  or 
the  instrument  executed  by  the  at- 
torney was  not  within  the  scope  of 
his  authority.  The  award  of  arbi- 
trators is  absolute  and  conclusive 
except  in  the  specitied  cases  of  mis- 
conduct, or  where  they  exceed  their 
power.  These  are  matters  not  neces- 
sarily or  ordinarily  appearing  on  the 
face  of  the  award,  and  generally  can 
only  be  brought  to  the  consideration 
of  a  court  by  extrinsic  evidence.  It 
would  seem  like  a  denial  of  justice, 
where  arbitrators  have  transcended 
th;  power  and  authority  given  them, 
that  the  party  shall  be  precluded  from 
giving  any  proof,  and  be  bound  to 
submit,  merely  because  the  arbi- 
trators have  not  made  such  defect 
of  authority  apparent  upon  the  face 
of   the   award." 

■'  The  Purpose  of  Such  Evidence 
Is  Not  to  Vary  the  Terms  of  the 
Award,  but  to  show  that  the  arbi- 
trators did  award  on  matters  not 
submitted  to  them.  The  law  is  well 
settled  that  the  power  of  arbitrators 
is  confined  strictly  to  the  matters  sub- 
mitted to  them,  and  if  they  exceed 
that  limit  their  award  will,  in  gen- 
eral, be  void.  They  cannot  decide 
upon  their  own  jurisdiction,  nor  take 
upon  themselves  authority  by  deciding 
that  they  have  it.  but  must  in  fact 
have   it,  under  the  agreement   of  the 

Vol.  I 


parties  whose  differences  are  sub- 
mitted to  them,  before  their  award 
can  have  any  validity,  and  the  fact 
of  jurisdiction,  when  their  decision 
is  challenged,  is  always  open  to 
inquiry."  Dodds  v.  Hakes,  114  N.  Y. 
260,  21    \.   E.  ,398. 

Affidavit   of   Arbitrators   or   Other 

Persons The     court     may     receive 

the  affidavits  of  the  parties — the  arbi- 
trators or  other  persons — to  show 
what  took  place  at  the  hearing  before 
the  arbitrators,  for  the  purpose  of 
showing  that  the  arbitrators  ex- 
ceeded their  powers  under  the  sub- 
mission. Williams  v.  Goodrich,  4 
Denio    (N.   Y.)    194. 

86.  Ruckmaii  t.  Rawson,  37  X.  J. 
Law   565. 

Parol  Evidence  of  What  Was  Con- 
sidered  Where      three      ^ucces^ive 

arbitraments  have  been  had.  and 
awards  made,  and.  in  an  action  on 
the  last  award,  it  appears  on  the 
face  of  the  award  that  the  arbitrators 
had  allowed  damages  adjudicated  on 
in  a  prior  arbitrament,  parol  evi- 
dence is  admissible  as  to  what  had 
been  considered  on  the  prior  award 
in  order  to  show  how  far  such  award 
was  conclusive ;  but  not  as  to  what 
had  occurred  under  the  last  award  to 
show  an  excess  of  authority,  and 
thus  to  contradict  or  explain  the 
award.  LToagland  v.  Veghte.  23  N. 
J.    Law   92. 

Of  Failure  to  Consider.  —  In 
Whitewater  Valley  Canal  Co.  "'.  Hen- 
derson, 3  Ind.  3,  an  action  upon  an 
award  for  damages  for  iniuries  to 
plaintiff,  caused  by  defendant's  enter- 
ing on  his  land  and  taking  material 
for  the  construction  of  the  defend- 
ant's canal,  it  was  held  that  the  de- 
fendant could  not  introduce  evidence 
that  at  the  time  of  the  injuries  the 
lands  were  owned  by  a  third  person, 
but  that  the  arbitrators,  on  deter- 
mining upon  their  award,  refused  to 
take  into  account,  imder  a  claim  of 
offset  to  the  damages  claimed  by  the 
plaintiff,  the  benefits  and  advantages 
resulting  from  the  construction  of 
the  canal  to  the  whole  of  the  lands 
of  which  plaintiff's  land  was  a  parcel. 

Consideration  of  Matter  Not  Fur- 


ARBITRATION  AND  AWARD. 


973 


showingf  tlie  facts  shown  by  the  two  preceding  sections  as  facts 
jiroper  to  be  shown,  it  is  proper  to  use  the  testimony  of  the  arbitra- 
tors.'*^ And  the  testimony  of  an  arbitrator,  who  is  a  lawyer,  offered 
for  this  purpose,  is  not  to  be  exckided  on  the  ground  that  the 
communications  made  to  him  on  the  hearing  were  privileged.*' 
But  such  testimony  cannot  be  received  for  the  purpose  of  impeach- 
ing the  award.*'-' 

7.  Mistake. — .A.  In  Geneu.vi..  —  The  right  to  impeach  or  avoid 
an  award  on  the  ground  that  the  arbitrators  have  mistaken  the  law 
on  the  facts  or  have  miscalculated,  or  the  like,  when  the  fact  is  not 
ajiparent  on  the  face  of  the  award,  is    one  upon    which  the  courts 


nishing  Legal  Claim —  In  Rundell  v. 
Lf  Fleur,  0  Alk'ii  (Alass.)  480,  it 
was  Iield  that  where  an  award,  undct 
a  general  submission,  by  bond,  of  all 
demands  to  arbitration,  is  iniobjec- 
tionable  on  its  face,  and  no  partiality 
or  corruption^  is  charged  against  the 
arbitrators,  parol  evidence  is  inad- 
missible to  show  that  they  considered 
in  making  their  award  of  damages,  a 
matter  which  furnished  no  legal 
ground  of  claim  for  damages. 

Boundary    Line A    party    to    an 

award  settling  a  boundary  line  dispute 
between  himself  and  the  other  parly, 
cannot,  for  the  purpose  of  showing 
an  excess  of  authority  by  the  arbi- 
trators, introduce  evidence  that  at 
the  time  of  the  arbitration  there  was 
no  dispute  in  relation  to  the  boundary 
line  in  dispute.  Searle  v.  Abbe,  i.l 
Gray    (Mass.)    409. 

87.  Testimony  of  Arbitrators  to 
Show  Matters  Submitted  and  De- 
cided. —  England.  —  Burdeugh  v. 
L.   R.,  5   H.  L.  418. 

United  States.  —  York  etc.  R.  Co. 
V.   Myers,   18  How.   246, 

Delazi'arc.  —  Allen  v.  Smith,  4  Har. 
234;  Stevens  v.  Gray,  2  Har.  347. 

Illinois.  —  Spurck  f.   Crook,   19  111. 

415- 

Maine. — ^^Buck  v.  Spofford,  35  Me. 
526. 

Massachusells.  —  Hale  v.  Huse,  10 
Gray  99;  Evans  v.  Clapp,  123  Mass. 
165,  25  Am.  Rep.  52;  Hodges  v. 
Hodges,  5  ^letc.  205. 

Missouri.  —  Valle  v.  North  Mo.  R. 
Co..  37   Mo.  445. 

Nebraska.  —  Hall  ''.  Vanier,  6  Neb. 

85. 

iVfic  )'or/,\  —  New  York  -r.  Butler. 
7    Hill    329    (reversing    i    Barb.    ;^2S. 


4  How.  Pr.  446)  :  Briggs  ;■.  Smith. 
20    Barb.    409. 

Pennsylvania. — Graham  v.  Graham, 
9  Pa.  St.  254,  49  Am.  Dec.  557;  Con- 
verse V.  Colton.  49  Pa.  St.  346; 
Zeigler  v.  Zeigler,  2  Serg.  &  R.  286; 
Roop  V.   Brubacker,   i   Rawl.   304. 

Contra.  —  Thomason  v.  Odum,  31 
.Ma.  108,  68  Am.  Dec.  159:  State  v. 
Stewart.  12  Gill  &  J.  (Md.)  458; 
Gardener  v.  Oden,  2  Cush.  (Miss.) 
382. 

Testimony     to     Enlarge     Written 

Award In    Glade    v.    Schmidt.    20 

111.  App.  157  (afHrmed  126  111.  485), 
it  was  held  that  wdien  the  written 
award  pursues  the  submission,  it 
cannot  be  enlarged  by  testimony  of 
the  arbitrators  showing  that  they 
considered  and  settled  matters  not 
submitted ;  although  such  testimony 
might  be  admissible  in  a  direct  at- 
tack to  set  aside  the  award  or  in  an- 
swer to  a  suit  upon  it,  in  support  of 
a  plea  denying  the  validity  of  the 
award. 

88.  Cadv  V.  Walker.  62  JNIich.  157, 
28  N.  W.  805,  4  Am.  St.  Rep.  834. 

89.  Dohe  I'.  James,  4  N.  Y.  568. 
Writing    Signed    by    Arbitrators. 

Where  two  of  the  arbitrators  are 
called  and  examined  as  witnesses 
touching  the  matters  submitted  to 
them,  and  they  contradict  each 
other,  a  writing  signed  by  them, 
and  containing  that  portion  of 
the  award  sought  by  one  of  the 
parties  to  be  rejected  as  not  having 
been  submitted  to  the  arbitrators 
under  the  submission,  after  it  has 
been  submitted  to  them,  is  com- 
petent evidence  to  be  considered  by 
the  jury  in  determining  the  relative 
weiglu    that    ought    to    be    given    to 

Vol.  I 


974 


.IRBITKATIOX  AND  AWARD. 


are  by  no  means  in  accord.""  Of  course,  if  the  courts  of  a  particular 
jurisdiction  do  not  allow  an  inquiry  into  an  award  upon  any  such 
ground,  they  will  not  allow  the  introduction  of  any  kind  of  evidence 
aliunde  to  show  it;  and  again  if  the  courts  do  allow  such  an  inquiry, 
the  important  question  then  is,  what  kind  of  evidence  may  and  will 
they  receive  for  the  purpose  of  showing  the  mistake.'-" 

B.  Testimony  of  rut  Arbitrators.  —  Accordingly,  some  of  the 
courts  hold  that  for  the  purpose  of  showing  mistake  of  the  arbitra- 
tors, it  is  proper  to  receive  the  testimony  of  the  arbitrators, "- 
although  there  are  courts  holding  otherwise."^ 


the  te^itimony  of  the  arbitrators.  Mc- 
Culloiigh  V.  McCulIough,  12  Ind.  487. 

90.  Consequences  of  Mistake. 
As  was  said  by  Mr.  Morse  in  his 
work  on  Arbitration  and  Award 
(chap,  .xix.)  :  "We  now  approach 
the  most  difficult  topic  in  the  law 
of  arbitration,  to  wit,  the  question, 
what  will  be  the  effect  of  a  mistake 
made  by  the  arbitrator  in  matter  of 
law  or  of  fact,  not  obvious  on  the 
face  of  the  award  itself?  The  em- 
barrassment in  dealing  with  this 
matter  lies  in  the  utter  inconsistency 
of  the  judicial  decisions ;  for  so  soon 
as  we  seem  to  have  successfully 
educed  a  rule  or  principle  from  some 
of  them,  we  straightway  find  it  con- 
tradicted by  other  authorities.  Thus 
the  only  certain  element  is  the  entire 
uncertainty.  The  trouble  exists  in 
England  to  an  even  greater  extent 
than  in  our  own  country.  Russell 
acknowledges  that  '  a  close  ex- 
amination of  the  cases  compels  one 
to  say  that  one  uniform  principle 
has  not  been  adhered  to  as  to  the 
consequences  of  a  mistake.' "  Citing 
Lord  EHensborough  as  having  ac- 
knowledged the  same  difficulty  in 
Chace  v.  Westmore.  13  East  .\sf>;  and 
Chief  Justice  Parker,  in  Jones  v. 
Boston  Mill  Corporation.  6  Pick. 
(Mass.)  148;  Russell  on  Arli..  jid 
ed..   p.   292. 

91.  Scope    of    the    Article The 

question  of  the  right  to  impvach  an 
award  for  mistake  naturally  does  not 
fall  within  the  scope  of  a  work  on 
evidence.  And  it  is  thought  by  the 
writer  of  this  article  that  the  proper 
point  at  which  to  start  is  with  the 
assumption  that  tlie  courts  do  allow 
such  an  inquiry,  and  accordingly 
restrict  the  treatment  of  the  question 
here  to  showing  what  evidence  may 
be  received. 

Vol.  I 


92.  Williams  v.  Paschall,  3  Yeates 
(Pa.)  564;  King  v.  Armstrong,  25 
(".a.  264;  Roop  V.  Brubacker,  i  Rawle 
(Pa.)    304. 

Mistake  Must  Be  An  Available 
Ground.  —  Of  course  the  mistake 
nnist  be  one  recognized  b\'  courts 
as  one  available  to  the  party  as  a 
ground  for  impeaching,  the  award. 
Thus  Barows  ?•.  Sweet,  143  Mass. 
316,  9  N.  E.  665,  allowed  the  tes- 
timony of  the  arbitrator  to  be  re- 
ceived to  show  an  inadvertent 
charge  against  one  party  of  an  item 
which  all  the  parties  admitted  and 
intended  should  have  been  charged 
to  another,  and  that  but  for  such 
mistake  his  award  would  have  been 
different.  While  Monk  f.  Beal.  2 
Allen  (Mass.')  585.  holds  that  hi- 
testimony  cannot  be  received  to  shoiv 
an  erroneous  conclusion  upon  the  evi- 
dence before  him.  And  again  in 
Leavitt  V.  Comer.  5  Cush.  ( Mass. ) 
129,  testimony  of  one  of  the  arbi- 
trators tending  to  show  that,  although 
the  award  was  signed  by  him.  yet 
in  fact  it  was  not  his  award,  as  he 
intended  to  have  made  the  same, 
and  that  in  making  their  computations 
the  arbitrators  overlooked  certain 
items  and  made  certain  omission.^ 
which  materially  affected  the  result, 
was  held  to  have  been  pruperlv 
rejected. 

Concurrence  of  All  the  Arbitrators. 
Again,  some  of  the  courts  modify  the 
above  rule  by  holding  that  all  of  the 
arbitrators  must  be  produced  and  a 
concurrence  by  all  of  them  in  the 
mistake  shown.  Stow  '•.  Atwood.  28 
III  30;  Pulliam  7'.  Pensonean,  33  111. 

374- 

93.  Newland  f.  Douglass.  2  Johns. 
(N.  v.)  62;  Chapman  t'.  Ewing.  "8 
.■\Ia.  403.  And  in  Shiver  1:  Ross.  I 
Hrev.     (S.    C.)     203.    on    motion    to 


ARBITR.ITIOX  AXD  AJi'-lKn. 


')7S 


A  Letter  From  the  Arbitrator  to  one  of  tile  parties  statin^-  the 
grounds  of  his  decision  cannot  he  recei\-e(l  to  show  mistake  of  hiw 
by  him." 

C.  Admissions  oi*  Akiutkator.  —  Again  it  has  been  held  that  a 
mistake  of  law  on  the  jiart  of  the  arbitrator  which  is  not  apparent 
on  the  face  of  the  award,  can  only  be  proved  by  the  express  admis- 
sions or  statements  of  the  arbitrator  himself  that  he  had  meant  to 
decide  according  to  the  legal  rule  and  mistaken  it.''^ 

D.  AfFiDAViTS.  —  I'ut  it  has  been  held  that  after  an  award  has 
been  filed  in  court  by  the  arbitrators,  the  affidavits  of  the  arbitra- 
tors that  they  made  a  mistake  in  calculation  will  not  justify  the 
court  in  changing  the  award.'"'  Otherwise,  however,  of  affidavits 
showing  that  the  arbitrators  had  misconstrued  the  rule  of  reference 
as  to  the  extent  of  their  jurisdiction,  and  had  misdecided  accord- 

inglv." 

An  Ex  Parte  Statement  Purporting  to  Contain  the  Evidence  Before  the 

Arbitrators,  compiled  from  the  nc.ites  of,  and  sworn  to  by  counsel  for 

one  of  the  parties,  but  under  no  authority  derived  from  the  rules 

and  practice  of  the  court,  or  the  consent  of  the  opposite  party,  is 

not  competent  evidence  on  a  motion  to  set  aside  the  award  for  mis- 

take."* 


confirm  an  award,  it  was  insist'jil  that 
the  arbitrators  had  made  a  mistake, 
and  leave  was  asked  to  examine  one 
of  the  arbitrators  to  e.Nplain  tlie 
award,  and  discover  whether  the 
same  mistake  was  not  made ;  hnt  the 
motion  was  denied.  The  conrt  said: 
"  If  the  arbitrators  themselves,  or  a 
majority  of  them,  would  come  for- 
ward and  e.\press  their  dissatisfac- 
tion with  the  award,  and  offer  to 
explain  some  mistake  or  miscalcula- 
tion which  they  had  involuntarily 
committed,  it  would  be  a  good  cause 
for  sending  them  out  again,  or  refer- 
ring the  matter  back  to  them,  to 
reconsider  their  award;  or  even  for 
refusing  to  affirm  the  award,  without 
sending  it  back  to  be  reconsidered. 
But  as  this  was  not  the  case  in  the 
present  instance,  the  rule  was  ordered 
to  be  made  absolute." 

Evidence  of  Promises  by  the  Ar- 
bitrators    to     Correct     Errors     and 
mistakes    is    inadmissible    in    defense 
of  an   action   at   la\y   on   the   award. 
.  Efner  r.  Shaw.  2  Wend.  (N.  Y.)  567. 

94.  T^eggo  V.  Young.  t6  C.  B. 
626.  And  see  Ward  r.  American 
Bank.  7  Mete.  (Mass.)  48S,  so  hold- 
ing of  such  a  statement  in  writing  by 
the    arbitrator. 

95.  Admissions  of  Arbitrator  to 
Show   Mistake.  —  Bell     i'.     Price.   22 


N.  J.  Law  578.  See  also  Morgan 
r.  Mather,  2  Ves.  Jr.  15,  2  Rev.  Rep. 
163.  And  see  Valle  '•.  Xorth 
Missouri  R.  Co.,  37  Mo.  445,  where 
it  is  said  "  that  the  arbitrator  may 
come  into  court  of  equity  and  prove 
the  mistake,  but  that  it  ought  to  be  a 
mistake  that  does  not  result  from 
the  mere  negligence  of  the  losing 
party,  but  one  that,  by  due  diligence 
he   would   not   be   able   to   discover." 

96.  Tilghnian  z'.  Fisher,  9  \\'att; 
(Pa.)  441,  wherein  the  court  said: 
"  It  would  be  monstrous  indeed,  if 
the  court  were,  upon  the  application 
of  either  party,  to  undertake  to  alter 
the  award  of  arbitrators  to  what 
they,  at  the  solicitation  of  the  party, 
had  declared  on  oath  w^s  their  in- 
tention, so  as  to  make  it  materially 
dilTerent.  by  enlarging  the  ar.iount 
nearlv  five  hundred  dollars  from 
what  they  had  returned  in  their 
award.  The  iniquity  that  would 
inevitably  result  from  such  a  practice, 
were  it  to  obtain,  is  too  obvious  to 
require  it  to  be  stated." 

97.  Thus,  in  Jones  v.  Corrv,  s 
Bing.  N.  C.  187,  35  Eng.  C.  L.  icg. 
55  Rev.  Rep.  652.  such  affidavit  was 
received  and  the  award  set  aside, 
notwithstanding  on  the  face  of  the 
award   there  was   no  objection. 

S»8.     Bell   I'.    Price,   22   N.    T.    Law 

Vol.  I 


')7(> 


ARBITRATION  AND  AWARD. 


8.  Misconduct,  Fraud,  Cormption-  Partiality,  Etc.  —  A.  In  Gen- 
eral. —  Under  the  rule  allowing  a  party  to  impeach  an  award  upon 
the  ground  that  the  arbitrators  have  been  guilty  of  corruption,  par- 
tiality, gross  misbehavior  and  the  like,  the  evidence  to  establish 
those  facts  may  be  either  direct,  or  of  such  a  character  as  will  lead 
the  mind  to  the  inevitable  conclusion  that  the  award  was  influenced 
by  dishonest  methods."" 

Constructive  Fraud.  —  Extrinsic  evidence  to  show  fraud  on  the 
part  of  the  arbitrators,  as  a  ground  for  avoiding  the  award,  must 
be  such  as  will  show  an  actual  and  intentional  fraud  and  not  a  con- 
structive fraud  such  as  flows  from  an  erroneous  or  unjust  judg- 
ment.^ 

The  Amount  of  the  Award  is  a  fact  that  may  be  shown  and  taken 
into  consideration  as  tendmg  to  show  misconduct  on  the  part  of  the 
arbitrators. - 

B.  Testimony  of  the  Arbitr.vtors. — The  weight  of  authority 
seems  to  be  to  the  effect  that  an  arbitrator  is  not  a  competent  wit- 
ness to  impeach  his  own  award  by  evidence  of  his  own  misconduct,^ 


57S.  The  court  al.so  ruled  that  the 
statement  was  incompetent  for  the 
further  reason  that  the  court  could 
not  review  the  merits  of  the  award  by 
an  examination  of  the  evidence  be- 
fore  the  arbitrators. 

99.  Bumpass  v.  Webb,  4  Port. 
(Ala.)  65,  29  Am.  Dec.  274.  And 
see  Hartupee  v.  Pittsburgh,  131  Pa. 
St.  535,  19  Atl.  507,  where  evidence 
sought  to  be  adduced  on  a  charge 
of  collusion  between  the  arbitrator 
and  one  of  the  parties  was  ruled  out, 
because  of  its  insufficiency,  as  not 
showing    any    such    collusion. 

Heated  Discussion  Between  Arbi- 
trators   During    Consultation But 

evidence  to  the  effect  that  after  the 
hearing  and  while  the  arbitrators 
were  in  consultation,  the  chairman 
expressed  in  a  decided  manner  his 
views  of  the  law  of  the  case ;  that 
one  of  the  arbitrators  stated  that  he 
should  rely  upon  the  chairman's 
knowledge  of  the  law  ;  that  the  other 
arbitrator  dissented  from  the  chair- 
man :  that  there  was  a  heated  and 
unfriendly  discussion  between  the 
chairman  and  dissenting  arbitrator, 
and  that  afterwards  the  other  two 
refused  to  discuss  the  case  further 
with  him,  will  not  justify  the  setting 
aside  of  the  award  conformable  to 
the  submission  and  unobjectionable 
upon  its  face.  Roberts  i:  Old  Colony 
R.   Co..   123   Mass.   552. 

Injustice  of  Award.  —  So  evidence 


introduced  for  the  purpose  of  assail- 
ing an  award,  the  utmost  tendency 
of  which  is  to  show  that  the  judg- 
ment of  the  arbitrators  is  unjust, 
will  not  sustain  a  charge  of  fraud, 
partiality  or  corruption.  Elrod  v. 
Simmons,   40   .\la.   274. 

And  in  Hoffman  v.  De  Graff,  109 
N.  Y.  638,  16  N.  E.  357,  it  was  held 
incompetent  for  a  party  to  introduce 
evidence  as  to  the  value  of  land, 
which  had  been  submitted  to  arbi- 
tration, and  the  character  and  com- 
petency of  the  adverse  party's  wit- 
nesses who  had  testified  before  the 
arbitrators,  for  the  purpose  of  avoid- 
ing the  award  for  misconduct  of  the 
arbitrators. 

Proceeding  Ex  Parte P,ut  in  an 

action  on  an  award,  defended  on 
the  ground  of  misconduct  on  the 
part  of  the  arbitrators,  it  is  com- 
petent for  the  defendant  to  show 
that  the  arbitrators,  contrary  to  the 
express  provision  of  the  submission, 
received  c.r  partr  statements  and 
affidavits  from  one  party,  without  the 
knowledge  of  the  other.  Spcer  7'. 
Bidwell.   4+  Pa.   St.   23. 

1.  Hostetter  i'.   Pittsburg.  107  Pa. 

St.   419. 

2.  Brown  v.  Bellows,  4  Pick. 
(Mass.)  178.  See  also  Smith  v. 
Coolev,    S   Daly    (N.   Y.)    40T. 

3.  Claycomb  v.  Butler.  36  111.  too; 
French  7'.  New,  20  Barb.  481 :  Den- 
man  V.  Bayless,  22  111.  300;  Elbuahcr 


Vol.  I 


ARBITRATION  AND  AWARD. 


977 


nor  that  of  his  co-arbitrators/  nor  of  a  part}'  if  it  involve  his  own 
misconduct.^  But  he  may  depose  to  facts  which  transpired  at  or 
during-  the  arbitration  tending  to  show  the  award  to  be  void  for 
legal  cause." 

C.  Declarations  in  Pais.  —  But  evidence  of  declarations  of  the 
arbitrators,  uttered  in  pais,  after  having  made  his  award,  is  admissi- 
ble in  support  of  a  charge  of  partiality  by  him.' 

D.  Affidan'ITs.  —  It  has  been  held  that  affidavits  may  be  intro- 
duced in  evidence  for  the  purpose  of  showing  partiality  or  misbe- 
havior.* 

9.  Performance  of  the  Award.  —  In  an  action  on  an  award  it  is 
competent  for  the  defendant  to  give  evidence  to  show  performance 
of  the  award,"  or  to  give  evidence  that  the  plaintiff  had  not  com- 
plied with  its  terms. ^"  And  the  plaintiiif,  in  an  action  on  an  arbitra- 
tion bond  may  give  evidence  showing  its  breach.^' 


V.  Buckley,  l6  Serg.  &  R.   (Pa.)   72; 
Overby  v.  Thrasher,  47  Ga.  10. 

4.  Tucker  v.  Page,  69  111.    179. 

But  an  Arbitrator  Who  Has  Re- 
fused to  Join  in  the  Award,  is  com- 
petent to  testify  to  acts  of  miscon- 
duct committed  by  another  arbitrator. 
i<evin  V.  Lancashire  Ins.  Co.,  66 
Minn.  138,  68  N.  W.  854,  where  the 
court  said :  "  It  will  be  obser\cd 
that  this  evidence  was  not  offered 
for  the  purpose  of  explaining  or 
altering  the  award,  but  with  a  view 
to  invalidating  it  altogether ;  nor 
was  it  calling  on  an  arbitrator  to 
testify  as  to  the  grounds  of  his  de- 
cision, but  as  to  e.xtrinsic  facts  tend- 
ing to  show  misconduct  on  the  part 
of  one  of  the  arbitrators  who  joined 
in  making  the  award.  It  is  also  to  be 
observed  that  the  witness  was  not 
called  to  impeach  his  own  award,  for 
he  had  never  joined  in  the  award. 
We  apprehend  no  case  can  be  found 
which  holds  that  an  arbitrator  (es- 
pecially one  who  has  refused  to  join 
in  the  award)  is  incompetent  to  tes- 
tify as  to  acts  of  misconduct  com 
mitted  by  another  arbitrator.  If  such 
was  the  law,  the  grossest  fraud,  cor- 
ruption or  partiality  might  prevail, 
and  its  victim  have  no  relief.  The 
rule,  founded  on  considerations  of 
puljlic  policy,  that  no  affidavit  shall 
be  received  from  a  juror  to  impeach 
his  verdict,  is  not  applicable,  to  its 
full  extent,  to  arbitrators." 

5.  EUemaker  v.  Buckley,  16  Serg. 
?:   R.    (Pa.)    72. 

62 


6.  Strong  V.  Strong,  9  Cush. 
(Mass.)    560. 

7.  Declaration  by  Arbitrators  to 
Show  Partiality.  —  Strong  %:  Strong, 
Q    Cush.    (Mass.)    560. 

8.  Pleasants  v.  Ross,  i  Wash. 
(Va.)  156.  I  Am.  Dec.  449.  But 
comf'arc  Smith  v.  Smith,  32  Me.  23, 
where  it  is  held  that  the  affidavit 
of  a  party  is  not  evidence  on  a  motion 
to  reject  an  award,  that  he  was  in- 
duced by  fraud  to  enter  into  the 
submission. 

9.  Evidence    of    Performance    of 

the   Award Thus   in   an   action   to 

enforce  performance  of  an  award 
directing  the  defendant  to  execute 
to  the  plaintiff  a  "  good  and  authen- 
tic deed  of  conveyance "  of  certain 
lands,  performance  of  the  award  may 
lie  shown  by  the  defendant  by  evi- 
dence of  a  tender  of  such  a  deed, 
a.greeably  to  the  award,  as  was 
effectual  to  convey  all  the  right  and 
title  to  the  land  which  the  defend- 
ant had  at  the  time  of  the  award ; 
it  is  not  necessary  that  he  show  that 
he  had  legal  title  thereto.  Preston  v. 
\\  hitcomb,  11  Vt.  47.  Nor  can  the 
defendant  show  in  answer  thereto 
that  the  defendant  had  no  legal  title 
to  the  land,  or  that  a  third  person 
had   adverse   possession   thereof. 

10.  Keaton  v.  Mulligan.  43  CTa. 
.^08. 

11.  Breach  of  Bond In  Quimby 

7',  Melvin.  35  N.  H.  198,  an  action 
on  an  arbitration  bond,  it  was  held 
proper     for     the     plaintiff     to     show 

Vol.  I 


978 


ARBITKATIOX  AXD  AWARD. 


10.  Pleading  and  Proof.  —  A.  X'ariance.  —  The  evidence  oftcrcd 
for  the  purpose  of  inipeacliing'  an  award  upon  any  of  the  sjrounds 
just  discussed,  must  sup])ort  the  particular  ground  set  up.'- 

11.  Burden  and  Requisite  Cogency  of  Proof.  —  One  who  is  seek- 
ing to  impeach  the  valichty  of  an  award  upon  a  groimd  available  to 
him  for  that  purpose,  sucli  as  fraud,  misconduct,  excess  of  author- 
ity by  the  arbitrators,  and  tlie  like,  has  the  burden  of  proving-  such 
ground;''  and  that  liurden  must  be  sustained  by  evidence  clearly 
and  convincingly  establishing  the  ground  set  up." 


breach  of  the  bond  by  evidence  that 
the  defendant  prevented  one  of  the 
arbitrators  from  taking  part  in  the 
award  in  reference  to  the  costs,  they 
being  inchided  in  the  matters  sub- 
mitted, although  the  costs  were  the 
only  matter  undecided. 

12.  Thus  Error  in  Judgment  in 
Law,  Mistake  of  Facts,  or  in  the 
Amount,  cannot  be  shown  under  an 
allegation  charging  fraud  and  cor- 
ruption. Root  7'.  Renwick.  15  111. 
461. 

13.  Arkansas.  —  Green  t.  Ford,  17 
.■\rk.  586. 

Georgia.  —  Cobb  v.  ^[orris,  40  Ga. 
671  ;  Hardin  ?'.  Almand,  64  Ga.  582. 

Louisiana.  —  New  Orleans  Elev. 
Co.  f.  New  Orleans.  47  La.  Ann. 
1351,   17   So.  860. 

Maine.  —  Hayes  z\ 
Me.  112;  Akinson  5 
Me.   135. 

Maryland.  —  Witz  ; 
Md.  351.  .33  Atl.  718. 

Massachusetts.  —  Gaylord  7'.  Nor- 
ton, 130  Mass.  74;  Roberts  v.  Old 
Colony  R.  Co.,  123  Mass.  552;  Boston 
Water  Power  Co.  7'.  Gray,  6  Mete. 
131  :   Sperry  z'.  Ricker,  4  Allen   17. 

Michigan.  —  Clement  r.  Comstock, 
2    Mich.    359. 

Nci'raska.  —  Connecticut  F.  Ins. 
Co.  z:  O'Fallon,  49  Neb.  740.  69  N. 
\V.    118. 

Nczi'  Hani/'shire.  —  Richardson  z'. 
Huggins,  23  N.   H.   106. 

Burden  of  Proving  Excess  of  Au- 
thority—  So  in  an  action  to  set 
aside  an  award,  in  which  it  appears 
Iiy  comparison  with  the  arbitration 
agrtemeiit  that  the  arbitrators  ex- 
ceeded their  authority,  and  made  an 
award  in  respect  to  matters  not  sub- 
mitted to  them,  and  the  defendant 
comcnds  that  the  coniplainanl.  after 
be    had     s-en    the    award    .-ind     fully 

Vol.  I 


Forskoll,     31 
Crooker,    35 

Tregallas,  82 


understi;od  what  it  contained,  as- 
sented to  its  execution,  the  defend- 
ant has  the  burden  of  establishing 
that  fact.  Leslie  z'.  Leslie.  52  N.  J. 
Eq.  ,^22.  31   .\x\.  724. 

"The  Party  'Who  Charges  the 
Arbitrators  With  ji.aving  Committed 
Errors  in  Fact,  and  who  seeks  on 
that  ground  to  set  aside  their  award, 
must  lay  before  the  court  all  the  evi- 
dence in  reference  to  the  alltged  errors 
which  was  before  the  arbitrators. 
For  without  the  whole  evidence,  how 
can  this  court  say  the  arbitrators 
were  mistaken?  It  will  not  do  to 
produce  a  part  of  the  evidence 
raising  a  [<rinia  facie,  and  it  may  be  a 
strong  case  of  mistake  and  withhold 
the  remaining  part,  or  seek  to  throw 
upon  the  other  party  the  burden  and 
expense  of  proving  the  mistake  is 
upon  the  party  charging  it.  The 
court  cannot  intelligently  decide  that 
the  arbitrators  erred  without  having 
before  it  the  same  evidence  upon 
which  they  acted :  and  if  the  burden 
of  proving  the  mistake  is  upon  the 
party  charging  it,  then  upon  him 
rests  the  burden  of  producing  the 
whole  evidence  in  relation  to  it." 
Bell  V.  Price,  21  N.  J.  Law  ^2.  .18. 

14.  Clear  and  Conclusive  Proof 
Necessary.  —  Kentucky.  —  Gallant  i: 
Downey,   2  J.   J,    Marsh.   346. 

Micliigan.  —  Bush  v.  Fisher 
(Mich.),  ^8  N.  W.  446;  Batten  v. 
Patrick   (Mich.),  81   N.  W.   1081. 

Minnesota.  —  Mosness  z:  German 
American  Ins.  Co.,  50  Minn.  ■^41.  ^2 
N.   W.  932. 

Mississij'/'i.  —  Thornlrui  z\  Mc- 
Neil,   I    Cush.   369. 

Nczv  Ko;-^.  —  Wood  z:  .Auburn 
etc.  R.  Co.,  8  N.  Y.  160. 

Pcnnsvlzvnia. — Robinson  z\  Bick- 
ley,  .30  Pa.  St.  .^^4;  Bond  f.  Olden, 
4   Yeates  243;   Warden   z:    Parker.  2 


.ARBITRATION  AND  AWARD. 


979 


Yeates  513;  Williams  v.  Paschall,  3 
Yeates  564, 

Tennessee.  —  Dougherty  i'.  M. 
Wliortcr,  7  Yerg.  239;  Hardeman  v. 
Burge,  10  Yerg.  201. 

I'eynwnt.  —  Kendrick  v.  Tarbell.  26 
Vt.  416. 

Mistake  Must  Be  Clearly  Shown. 
.■\nd  where  parties  have  submitted 
their  controversies  to  arbitration  the 
one  who  seeks  to  annul  the  award 
on  the  ground  of  mistake,  must  not 
only  clearly  establish  the  mistake, 
and  ihat  he  was  prejudiced  thereby, 
but  that  if  the  mistake  had  not  oc- 
curred the  award  would  have  been 
different       Gorham     v.     Millard,     50 


Iowa  554;  Thompson  v.  Blanchard, 
2  Iowa  44. 

So  held  also  where,  in  the  absence 
of  fraud,  it  is  claimed  that  certain 
matters  were  in  fact  before  the  arbi- 
trators and  within  the  submission, 
but  were  not  examined  or  acted 
upon  by  them.  Tomlinson  z:  Tom- 
linson,  3  Iowa  575. 

But  the  Burden  of  Proof  to  Show 
That  Arbitrators  Rejected  and  Ex- 
cluded Pertinent  and  Material  Tes- 
timony offered  before  them,  is  satis- 
fied by  a  fair  preponderance  of  evi- 
dence. Mossness  i:  German  Amer- 
ican Insurance  Co.,  50  Minn.  341,  52 
N.   W.  932. 


ARDENT  SPIRITS.— See  Intoxicating  Liquors. 


ARREST. — See    Attendance    of    Witnesses;     Impeach- 
ment. 

Vol.  I 


ARSON. 

By  D.  MoDNTJOY  Cloud. 

I.  CORPUS  DELICTI,  981 

1.  Fact  of  Fire,  981 

2.  I II  tent  J  982 

A.  Generally,  982 

B.  Presninptioiis,  982 

a.  Of  Accident,  982 

h.  Of  Intending  Natural  Results,  982 

3.  Cliaractcr  of  Structure,  982 

4.  Ozvnership,  982 

A.  Generally,  982 

B.  Deeds  and  Records,  982 

C.  Possession,  982 

D.  Parol,  983 

E.  Objections  to  Proof  of,  983 

5.  Occupancy,  983 

6.  Variance,  983 

II.  MOTIVE,  983 

I.  ///  inn,  983 

A.  Of  Whom,  983 

B.  To  Ozcner  or  Occupant,  984 

C.  To  Oi^'iicr  of  Contents,  984 

D.  To  Oi^'iier's  Agent,  984 

E.  Proving  III  Will,  984 

a.  Threats  Against  Oivner,  984 

b.  Against  Oi^'iier's  Family,  985 

c.  Weight  of  Tlireats  as  Evidence,  985 

d.  Orrfrr  0/  Proof,  986 
2.  Pecuniary  Motii'C,  986 

A.  Generally  Admissible,  986 

B.  Focf  0/^  Insurance,  986 

a.  Relevancy,  986 

b.  jl/o(/c  o/^  Proof,  987 

(i.)  Existence  of  Insurance  Company,  987 
(2.)    Validity  of  Policy,  987 
(3.)   P'alue  of  Property,  987 
(4.)   Defendant's  Financial  Condition,  988 
Vol.  I 


ARSON. 


981 


3.  Other  Motive.  y88 

4.  Defendant's  Proof  of  Motiz'e  in  Another,  y88 

III.  CONFESSIONS  AND  CONDUCT,  988 

1.  Generally,  988 

2.  As  Part  of  Res  Gestae,  989 

3.  Made  at  Request,  989 

4.  Behavior  at  Fire,  989 

5.  Behavior  After  Fire,  990 

6.  Possession  of  Goods,  990 

IV.  EVIDENCE  OF  OTHER  FIRES  OR  ATTEMPTS,  990 

1.  Generally  Inadmissible,  990 

2.  Part  of  One  Scheme,  990 

3.  P(7r^  0/   One  Conflagration,    991 

4.  Previous  Attempts,  991 

V.   NATURE  AND  SUFFICIENCY,  991 

1.  Circumstantial  Evidence,  991 

2.  Articles  Connected  With  the  Crime,  992 

3.  Experiments,  992 

4.  Opinions,  992 

5.  SnfRciency,  992 

I.  CORPUS  DELICTI. 

1.  Fact  of  Fire. —  Upon  a  question  whether  the  act  proceeded 
beyond  a  mere  attempt,  boards  showing  marks  of  fire  ma\'  be  put  in 
evidence/  and  the  question  whether  or  not  any  part  of  the  building 
was  actually  burned  will  be  for  the  jury.- 


1.  Com.  V.  Betton,  5  Cush. 
(Mass.)   427. 

2.  Portion  of  Burnt  House  Pro- 
duced in  Court. —  Upon  the  trial  of 
one  for  arson,  the  state,  in  connection 
with  other  evidence,  produced  in 
court  a  board  from  the  side  of  the 
building  alleged  to  have  been  burned, 
and  which  was  offered  as  exhibiting 
the  whole  of  the  part  burnt.  It  was 
held  that,  whether  such  board  had 
been  so  afifected  by  fire  as  to  con- 
stitute a  burning,  was  a  question  of 
fact  to  be  decided  by  the  jury,  and 
Shaw  C.  J.,  said :  .  .  .  "  Whether 
the   fire   took   effect   on    the   fiber   of 


the  wood,  must  depend  on  an  in- 
ference of  fact  to  be  drawn  from  its 
condition,  as  indicated  by  its  being 
discolored,  blackened,  scorched, 
charred  or  consumed.  .  .  .  The 
judge  may  inspect  and  examine  it, 
and  comment  on  the  evidence,  but 
the  jury  must  decide."  Com.  v.  Bet- 
ton,   5   Cush.    (Mass.)    427. 

In  ~ Minnesota,  by  statute  (Penal 
Code,  §  375 )  where  one  was  indicted 
for  burning  a  barn,  it  was  held  com- 
petent to  show  that  an  inhabited 
dwelling  caught  fire  from  the  barn,  in 
order  to  prove  the  material  ingre- 
dient of  the  offense  charged,  viz.,  that 

Vol.  I 


982 


ARSON. 


2.  Intent.  —  A.  Generally.  —  The  rule  that  intent  may  be 
proved  by  circumstantial  evidence  is  peculiarly  applicable  to  cases 
of  arson. ^ 

B.  Presumptioxs.  —  a.  Of  Accident.  —  In  the  absence  of  evi- 
dence a  fire  is  presuined  to  have  been  accidental.* 

b.  Of  Intending  Natural  Results. — One  who  sets  a  fire  is  pre- 
sumed to  intend  the  natural  consequences  of  his  act.'* 

3.  Character  of  Structure.  —  To  show  that  a  structure  is  such  a 
building  as  the  indictment  specifies,  evidence  of  its  use  and  contents 
is  admissible,"  where  the  character  of  the  structure  is  not  other- 
wise clearly  shown  or  admitted." 

4.  Ownership. —  A.  Generally. —  See  articles  "Ownership" 
and  "  Title."  The  matter  is  considered  here  only  as  the  cases 
seem  to  state  rules  peculiarly  applicable  to  arson. 

B.  Deeds  and  Records.  —  Ownership  of  the  burned  building 
may  be  shown  by  title  deeds  or  the  record  thereof.^ 

C.  PossESSiOxN.  —  V>y  open,  exclusive,  undisputed  possession  of 
the  burned  premises.'' 


the  inhabited  dwelling  was  "  endan- 
gered." State  V.  Grimes,  50  Minn. 
I-'.!.  52   N.  W.  275. 

3.  For  method  of  proving  intent 
generally,  sec  article  "  Intent." 
People  I'.  Hiltel  131  Cal.  577,  63  Pac. 
919;  State  V.  Byrne.  45  Conn.  273; 
Com.  f.  McCanhy,  119  Mass.  354; 
Com.  7'.  Bradfnrd,  126  Mass.  42; 
People  V.  Vasalo,  120  Cal.  168,  52 
Pac.  305;  Meislcr  v.  People,  31  Mich. 
99;  Hall  ■:■.  State,  3  Lea  (Tenn.)  552. 

Intent  Shown  by  Attempt  to  Fire 
Another  House Upon  an  indict- 
ment for  attempting  to  fire  a  dwell- 
ing, by  attempting  to  set  fire  to 
another  building,  the  jury  may  infer 
the  attempt  alleged  from  the  evi- 
dence of  the  attempt  to  fire  the 
other  building.  Com.  v.  Wade,  17 
Pick.    (Mass.)    395. 

4.  Phillips  V.  State.  29  Ga.  105. 
Evidence   to    Show   Accident.  —  In 

Hamilton  v.  People,  29  .Mich.  173, 
it  was  held  error  to  have  excluded 
evidence  that  persons  were  in  the 
habit  of  playing  cards  in  the  barn 
with  lights,  as  the  fire  might  have 
started  that  way. 

5.  State  V.  Phifer,  90  N.  C.  721  ; 
.Morris  v.  State.  124  A\:\.  44,  27  So. 
3,36. 

The  accused  having  set  fire  at 
night  to  an  inhabited  dwelling,  it  ap- 
pearing that  the  act  was  willftd.  evi- 

Vol.  I 


dence  of  his  intent  was  inadmissible. 
People  V.  Jones,  2  Edni.  Sel.  Cas. 
(N.  Y.)  86. 

6.'    Contents  of  Corn  Crib In  an 

indictment  for  arson,  the  building 
was  designated  as  a  "  corn  crib,"  and 
proof  that  "  corn  and  fodder "  were 
kept  in  it  was  admissible  to  show 
the  building  to  be  such  as  was  con- 
templated by  the  indictment,  though 
evidence  of  the  contents  of  the  barn 
at  the  time  of- the  fire  was  held  in- 
admissible.    Brown  v.  State,  52  Ala. 

345- 

7.  Simpson  r'.  State,  rii  .'Ma.  6, 
20  So.  572;  Hamilton  ?'.  People,  29 
Mich.  173. 

8.  Com.  V.  Preecc,  140  Mass.  276, 
5  N.  E.  494- 

Introduction  of  Deed  to  Property. 
In  State  v.  Smalley,  50  Vt.  736,  the 
defendant  was  charged  with  burning 
a  house  alleged  to  belong  to  him. 
The  prosecution,  to  prove  his  owner- 
ship, introduced  a  deed  to  the  prop- 
erty executed  in  the  name  of  another 
person,  and  supplemented  such  deed 
by  evidence  showing  that  defendant 
had  actually  purchased  the  property 
and  had  made  several  payments 
thereon,  while  the  person  named  in 
the  deed  had  never  made  payment. 
It  was  held  that  such  evidence  was 
admissible. 

9.  State  V.  Thompson,  97  N.  C. 
496,   I    S.   E.  921. 


ARSON. 


')S?, 


D.  Parol.  —  .\nd  may  probably  be  proved  by  parol  evidence,'" 
including  the  declarations  of  the  accused;"  as  where  defendant 
occupied  as  lessee  of  the  one  alleged  to  be  the  owner. 

E.  ObjiJCTIgns  to  Proof  Op. — And  an  objection  that  the  evi- 
dence does  not  show  property  in  the  alleged  owner  of  the  burned 
building  must  be  taken  at  the  trial,  and  cannot  be  made  on  a  motion 
in  arrest  of  judgment. '" 

5,  Occupancy.  —  Upon  an  indictment  for  arson,  where  the  occu- 
pancy of  the  burned  building  is  an  essential  ingredient  of  the 
crime,  it  is  insufficient  to  show  that  fact  by  mere  inference.'^  But 
it  may  be  shown  by  parol  evidence." 

6,  Variance. —  In  prosecutions  for  arson,  the  crime  being  one 
of  a  local  nature,  whatever  is  stated  in  the  indictment  by  way  of 
description  of  the  locality  of  the  ofifense,  must  be  strictlv  proved  as 
laid.'^ 

In  Massachusetts. —  I'nder  an  indictment  for  burning  a  building,  a 
conviction  cannot  be  had  by  proof  of  the  burning  of  a  structure 
other  than  a  dwelling."'  Xor  is  parol  evidence  admissible  to  prove 
such  ownership.'' 

II.  MOTIVE. 


1.  Ill-Will. 


A.  Of  Wui 


■Evidence  of  ill-will  is  limited  to 


10.  State  I'.  Burrows,  i  Houst. 
(Del.)  74;  State  v.  Smalley,  50  Vt. 
736 ;  Rogers  v.  State,  26  Tex.  App. 
404,  9  S.  VV.  762. 

Parol  Evidence  to  Show  Owner- 
ship. —  In  Knights  v.  State.  58  Neb. 
225.  78  N.  W.  508.  it  was  held  com- 
petent to  prove  the  ownership  of  a 
store  building  by  parol  evidence,  in 
the  absence  of  a  showing  that  such 
building  was  real  estate. 

In  State  i'.  Tennebom,  92  Iowa 
551,  61  N.  W.  193,  an  abstractor 
was  allowed  to  testify  that  the  record 
title  of  the  property  burned  was  in  a 
certain  woman,  it  was  held  that,  if 
this  was  error  it  was  harmless, 
where  the  ownership  was  sub- 
sequently proved  by  a  deed,  and  by 
the  testimony  of  the  w'oman's  hus- 
liand. 

In  State  v.  Lyon,  12  Conn.  486,  an 
indictment  for  burning  a  shop,  one 
count  alleged  it  to  be  the  property 
of  B  and  C  as  trustees  for  D,  and 
another  count  alleged  it  to  belong 
jointly  to  B  and  C.  There  was  no 
evidence  to  support  the  first  allega- 
tion, and  to  support  the  second,  only 
the  testimony  of  one  witness  that,  at 


tiie  time  the  shop  was  burned,  he 
was  employed  therein  by  B,  and  of 
another  witness  that,  at  the  saine 
time,  the  accused  was  working  in  the 
same  shop,  employed  by  one  E.  It 
was  held  insufficient  to  authorize  a 
conviction. 

11.  Conversations  Admissible  to 
Show  Ownership.  —  Upon  the  trial  of 
one  for  arson,  where  the  indictment 
alleged  the  building  to  have  been 
burned  with  the  design  of  defraud- 
ing the  insurance  companies,  testi- 
mony of  a  witness  as  to  his  con- 
versations with  the  accused,  were 
held  admissible,  as  tending  to  show 
ownership  in  the  latter.  Com.  v. 
Wesley,  166  Mass.  248,  44  N.  E.  228. 

12.  Rogers  v.  State,  26  Tex. 
App.  404.  9  S.  W.  762. 

13.  Stale  I'.  Thompson.  97  N.  C. 
496,  I   S.  E.  921. 

14.  Stallings  v.   State,  47  Ga.  572. 

15.  State  I'.  Jaynes,  78  N.  C.  504; 
State  V.  Roseman,  66  N.  C.  634; 
State  V.  Burrows,  i  Houst.  (Del.)  74. 

16.  People  V.  Slater,  5  Hill.  (N. 
Y.)   401. 

17.  Com.  V.  Hayden.  150  Mass. 
332,  23  N.  E.  51. 

Vol.  I 


984 


ARSON. 


the  defendant  himself,  and  is  inachnissible  as  regards  the  members 
of  his  family.'* 

B.  To  Owner  or  Occupant.  —  Evidence  of  ill-will,  harbored 
by  the  accused  against  the  owner  of  the  burned  building,'"  or  an 
occupant  thereof,  is  admitted.-" 

C.  To  Owner  of  Contents.  —  So  of  ill-will  towards  the  owner 
of  property  contained  in  the  burned  building.-' 

D.  To  Owner's  x\gent. — A  motive  of  arson  cannot  be  shown 
by  proof  of  the  ill-will  of  tlie  accused  towards  the  agent  of  the 
owner.^- 

E.  Pro\'inc.  Ill-Will.  —  a.  Threats  Against  Ozciicr. — Threats 
uttered,  by  one  accused  of  arson,  against  the  person  or  property 


18.  Bell  V.  State,  74  Ala.  420. 

19.  As  to  proof  of  motive  gen- 
erally, sec  the  article  "  Motive." 

Alabama.  —  Bell  v.  State.  74  Ala. 
420;  Hinds  V.  State,  55  .-Ma.  145; 
Overstreet  v.  State,  46  Ala.  30;  Simp- 
son V.  State,  III  Ala.  6,  20  So.  572. 

Georgia.  —  Meeks  v.  State.  103  Ga. 
420,  30  S.  E.  252. 

Michigan.  —  People  v.  Eaton,  59 
Mich.  559,  26  N.  W.  702. 

North  Carolina.  —  State  v.  Rhodes, 
III  N.  C.  647.  IS  S.  E.  1038. 

Vermont.  —  State  i'.  Ward,  61  Vt. 
153,    17    Atl.    483. 

ilvidence  of  Previous  Difficuicies. 
Hudson  V.  State,  61  Ala.  333;  Davis 
V.  State,  15  Tex.  App.  594;  Winslow 
V.  State,  76  Ala.  42. 

Ill-Will  Toward  Wife.  _  Upon  the 
question  of  motive,  it  is  competent  to 
prove  the  prisoner's  ill-vifill  for  his 
wife,  where  the  latter  owns  an  in- 
terest in  the  building  burned.  State 
V.  Hannett,  54  Vt.  83. 

Wages  Due  From  Owner Where 

the  accused  was  employed  as  a 
laborer  on  the  farm  of  the  prosecutor, 
it  was  attempted  to  show  a  motive 
in  the  burning  by.  proof  that  the 
prosecutor  had  not  paid  him  his  en- 
tire wages  promised.  It  was  held 
that  a  failure  to  pay  the  balance  due 
was  insufficient,  when  taken  alone, 
to  furnish  a  sufficient  motive  for 
arson.  Ross  v.  State,  109  Ga.  516, 
35  S.  E.  102.  See  also  Simpson  v. 
State,  III  Ala.  6,  20  So.  572. 

20.  Oliver  v.  State,  33  Tex.  Crim. 

.^pp.    541,    28    S.    W.    202. 

Defendant's  Wife  in  Burned  Build- 
ing—  In  Shepherd  ?■.   People,  19  N. 

Vol.  I 


'^'-  537-  tlie  court  said :  "  The  evi- 
dence showing  the  terms  upon  which 
the  prisoner  lived  with  his  wife  was 
of  the  same  general  cliaracter  (i.  e. 
tending  to  show  a  motive).  Ordi- 
narily one  would  be  slow  to  do  an 
act  which  would  endanger  the  safety 
of  a  person  connected  with  him  in 
this  relation.  But  if,  instead  of  the 
sentiments  of  regard  and  afifection, 
he  entertained  towards  her  feelings 
of  bitterness  and  hatred,  the  pre- 
sumption would  be  quite  otherwise." 

21.  Mc.Adory  v.  State,  62  Ala.  154. 
In    State   v.    Emery,    59   Vt.   84,   7 

.\tl.  129,  the  defendant  was  charged 
with  firing  a  barn,  and  the  evidence 
showed  his  threats  and  ill-feeling 
toward  one  who  owned  cattle  in  such 
barn.  It  was  held  that  evidence 
tending  to  prove  the  defendant's 
knowledge  of  the  presence  of  those 
cattle  in  the  barn,  was  admissible  to 
show  motive. 

22.  Such  Evidence  Too  Remote. 
In  State  v.  Battle,  126  N.  C.  1036, 
35  S.  E.  624,  a  trial  for  arson,  Mont- 
gomery, J.,  said :  .  .  .  "  Malice 
or  ill-will  is  evidence  upon  which  a 
jury  might  infer  a  motive  to  commit 
a  crime  against  a  person  or  the  prop- 
erty of  the  object  of  ill-will  or 
malice,  but  the  commission  of  the 
crime  for  the  purpose  of  compelling 
the  injured  person  to  punish  the 
enemy  of  the  criminal  cannot  be  a 
basis  of  inference  of  the  motive  to 
commit  the  crime.  It  is  too  remote. 
Such  a  conclusion  must  be  based 
upon  evidence,  not  of  motive,  but  of 
the  fact  as  to  the  object  on  the 
part  of  the  criminal  committing  the 
crime." 


.-iKSON. 


')S5 


of  one  whose  properly  has  been  burned,  are  admissible  to  prove  the 
existence  of  ill-will.-^ 

b.  Against  O-n'ticr's  Family.  —  Evidence  of  threats  against  a  son 
and  grandson,  by  reason  of  their  close  relationship  to  the  owner 
of  the  burned  property,  is  admissible,  thought  not  weighty,  as  show- 
ing ill-will  to  the  family  and  a  motive  for  the  crime.-* 

c.  Weight  of  Threats  .-is  Evidence.  —  If  a  threat  is  proved,  its 
weight  as  evidence  against  the  accused  is  for  the  jury.-^  And  the 
lapse   of   time   between    such   threat   and   the   burning,   affects   the 


23.  For  proof  of  ill-will  generally 
see  article  "  Malice." 

Alabama.  —  McAdory  v.  State,  62 
Ala.  154;  Pratler  v.  State.  107  Ala. 
26,  18  So.  238;  Brock  V.  State,  26 
Ala.  104;  Winslow  v.  State,  76  Ala. 
42;  Hinds  V.  State.  55  Ala.  145; 
Hudson  V.  State,  61  Ala.  333 ;  Over- 
street  V.    State,  46   Ala.   30. 

California.  —  People  v.  Lattimore, 
86  Cal.  403,  24  Pac.  1091. 

Illinois.  —  Carlton  v.  People,  150 
111.  181,  37  N.  E.  244. 

loiva.  —  State  v.  Millmeier,  102 
Iowa  692,  72  N.  W.  275. 

Maine.  —  State  v.  Fenlasan,  78  Me. 
495,  7  Atl.  385 ;  State  v.  Day,  79  Me. 
120,  8  Atl.  544. 

Massachusetts.  —  Com.  v.  Choate, 
105  Mass.  451 ;  Com.  v.  Goodwin,  14 
Gray  55;  Com.  v.  Quinn,  150  Mass. 
401,  23  N.  E.  54;  Com.  V.  Allen, 
128  Mass.  46,  35  Am.  Rep.  356. 

Michigan.  —  People  v.  Eaton,  59 
Mich.  559,  26  N.  W.  702. 

Missouri.  —  State  v.  Crawford,  99 
Mo.  74,  12  S.  W.  354 ;  State  v.  Moore, 
61   Mo.  276. 

Nevada.  —  State  v.  McMahon,  17 
Nev.  365,  30  Pac.   1000. 

New  York.  —  People  v.  Murphy, 
10  N.  Y.  Crim.  177,  17  N.  Y.  Supp. 
427. 

North  Carolina.  —  State  v.  Lytle, 
117  N.  C.  799,  23  S.  E.  476;  State  v. 
Rhodes,  in  N.  C.  647,  15  S.  E.  1038; 
State  T'.  Thompson,  97  N.  C.  496, 
I   S.  E.  921. 

Tennessee.  —  Hensley  v.  State,  9 
Humph.  243. 

Vermont.  —  State  v.  Emery,  59  Vt. 
84,  7  Atl.   129. 

Virginia.  —  Sawyers  v.  Com.,  88 
Va.  356,  13  S.  E.  708;  Shifflet  v. 
Com.,  14  Gratt.  652;  Bond  v.  Com., 
83  Va.  581,  3  S.  E.   149- 


IVest  I'irginia.  —  Gregg  7 ■.  State.  3 
W.  Va.  705. 

In  Winslow  v.  State,  76  Ala.  42, 
the  court  said :  "  The  previous 
threats  of  the  defendant,  and  his 
declarations  in  the  nature  of  threats, 
were,  on  the  same  principle,  properly 
admitted  :  while  they  are  not  of  them- 
selves convincing  of  guilt,  from 
them,  in  connection  with  the  other 
circumstances,  if  believed  by  the  jury, 
guilt  may  be  a  logical  sequence." 

Hostility   Continuing   to   Time   of 

Fire One  charged  with  arson,  had 

threatened  that.  "  unless  his  mother 
got  something  out  of  the  property 
he  would  burn  the  building;"  it  ap- 
peared that  although  his  mother  did 
get  something,  yet  there  was  ill- 
feeling  between  the  accused  and  his 
sister  when  the  threat  was  made, 
which  ill-will  continued  down  to  the 
time  of  the  burning,  his  sister  occu- 
pying a  part  of  the  building  during 
the  time.  It  was  held  that  such  evi- 
dence was  admissible.  Com.  v. 
Crowe.  165  Mass.  139,  42  N.  E.  563. 

24.  State  v.  Thompson,  97  N.  C. 
496,  I  S.  E.  921. 

25,  State  v.  Hallock,  70  Vt.  159, 
40  Atl.  51. 

In  Fulton  I'.  State,  58  Ga.  224,  the 
court  said:  "If  the  prisoner  threat- 
ened to  burn  the  gin-house,  and  it 
was  burned  accordingly,  by  some 
person,  on  the  same  night  the  threat 
was  uttered,  whether  the  prisoner  is 
the  incendiary  is  for  the  jury  to 
determine.  If  they  should  believe 
the  threat  was  made,  and  made  se- 
riously, and  that  the  house  was  not 
burned  accidently,  but  by  design, 
they  might  deem  it  sufficient  to 
identify  the  prisoner  as  the  guilty 
party." 

Vol.  I 


986 


ARSON. 


weight,  but  not  the  aihnissibihty  of  the  evidence.-" 

d.  Order  of  Proof.  —  Evidence  of  the  threats  of  the  jirisoner  arc 

admissible  at  any  staije  of  the  prosecution's  case.-' 

2.  Pecuniary  Motive.  —  A.  Gkn'erai.ly   Admissible.  —  The  state 

may  show  a  pecuniary  motive  in  the  accused,  to  commit  the  crime. -^ 
B.  Fact  of  Ixsurancf:.  —  a.  Rclcz'ancy.  — And  to  that  end  proof 

that  the  accused  held  a  policy  of  insurance  on  the  burned  building 

or  on  goods  therein  at  the  time  of  the  fire.-"  or  acted  for  one  who 


26.  Hudson  7'.  State.  Oi   Ala.  .^33. 
Threats   Made   Two   Years   Before. 

State  t'.  Jones,  io5  Mo.  302.  17  S.  W. 
366;  Com.  I'.  Goodwin.  14  Gray 
(Mass.")   55. 

Threats  Made  Three  Years  Before. 
Com.  ■;'.  Qninn.  150  ^la-i^.  401.  2? 
N.  E.  54- 

Chief  Indicia  of  Corpus  Delicti, 
111  Sawyers  T'.  Com..  88  Va.  356,  13 
S.  E.  708,  the  court  said :  "  Among 
the  chief  indicia  which  go  to  sub- 
stantiate at  once  the  corfitis  delicti 
and  the  guih  of  the  prisoner  in  a 
case  like  this,  say  the  authorities, 
are  the  circumstances  that  the  fire 
broke  out  suddenly  in  an  uninhabited 
house  or  in  different  parts  of  the 
same  building,  and  that  the  accused 
had  a  cause  of  ill-will  against  the 
sufiferer.  or  had  been  heard  to 
threaten  him." 

In  People  v.  Simonsen.  107  Cal. 
345,  40  Pac.  440.  the  court  said : 
"  A  building  may  be  burned  under 
such  suspicious  circumstances  as  to 
indicate  the  act  of  an  incendiary, 
and  thus  a  corfiis  delicti  established 
and  the  doors  opened  for  the  defend- 
ant's admissions  and  confessions ; 
but  there  must  be  some  evidence  of 
some  kind  tending  to  show  the  in- 
cendiary character  of  the  fire,  aside 
from  these  admissions  and  confes- 
sions." 

27.  In  State  v.  Day.  79  Me.  120, 
8  Atl.  544,  a  prosecution  for  arson, 
the  court  .said :  "  While  it  is  true 
that  the  commission  of  the  offense 
charged  must  necessarily  be  the 
foundation  of  every  criminal  prose- 
cution, j'et  it  by  no  means  follows 
that  it  is  necessary  that  the  accused 
party  should  be  previously  shown  to 
be  connected  with  the  crime  in  order 
to  render  his  threats  in  relation  to 
the  commission  of  such  crime  ad- 
mis-i!i1(.-.     The   c  r  Irr   in    which    tlu-y 

Vol.  I 


are  received  is  not  material.  They 
arc  admissible  at  any  stage  of  the 
government's   case." 

28.  Com.  V.  Hudson,  gy  Mass.  565. 
Pecuniary   Reward In    State   v. 

Green.  92  N.  C.  779,  an  indictment 
for  burning  a  mill,  after  evidence 
had  been  introduced  tending  to  prove 
guilt,  it  was  held  competent  for  the 
state  to  prove,  as  showing  a  pecu- 
niary motive,  that  the  prisoner  was 
to  be  paid  for  the  crime,  that  he 
had  declared  shortly  before  the  fire 
that  he  had  no  money,  but  expected 
to  have  some  soon,  and  did,  in  fact, 
have  some  soon  after  the  fire. 

29.  State  v.  Watson,  63  xMe.  128; 
Freund  v.  People,  5  Park.  Crim.  (N. 
Y.)  198;  People  V.  Fournier  (Cal.), 
47  Pac.   1014. 

Suggestion  to  Agent  as  to  In- 
creasing Insurance Evidence  that. 

a  month  before  the  fire  the  accused 
suggested  to  an  insurance  broker 
that  there  should  be  an  increase  of 
insurance  upon  the  building  after- 
wards burned,  was  held  admissible, 
as  showing  a  motive  to  coimnit  the 
offense.    Com.  ■:'.  Bradford,  126  Mass. 

Mortgages  of  Destroyed  Goods   to 

Repel  Presumption Where  it   was 

contended  by  the  prosecution  that 
defendant's  motive  in  firing  the 
building  was  to  collect  the  insurance 
on  his  stock  of  goods,  which  was 
worth  $500.00  on  the  day  of  the  fire, 
and  insured  for  $2000,  the  defendant 
introduced  in  rebuttal,  office  copies 
of  the  mortgages  on  such  goods, 
dated  six  months  before  the  fire, 
amounting  to  $1700.  It  was  held  that 
the  mortgages  were  immaterial  and 
had  no  tendency  to  disprove  the  de- 
fendant's motive  to  destroy  the  goods. 
Com.  V.  McCarthy,  119  Mass.  354- 
But  in  People  v.  Doncburg.  51  App. 
lliv.    613,   64    N.    V.    Supp.   438.   the 


ARSON. 


'»S7 


liad  such  a  policy  is  admissible."" 

Over-Insurance. —  It  is,  likewise,  .competent  to  prove  that  the 
burned  property  was  over-insured.''"  Hut  not  for  mere  purpose  of 
impeaching-  the  character  of  the  defendant. "- 

Defendant's  Knowledge.  —  Provided  defendant  knew  of  such  over- 
insurance,''"  and  the  demand  of  the  insured  against  the  company  for 
such  over-insurance.^* 

1).  Mode  of  Proof. — (l.)  Existence  of  Insurance  Company.  — It  is 
unnecessary  to  prove  the  legal  existence  of  the  insurance  company.''''' 

(2.)  Validity  of  Policy.  —  Nor  the  validity  of  the  policy  of  insur- 
ance issued  to  the  accused ;""  nor  that  the  latter  could  sue  upon  such 
policy." 


burned  property  was  owned  by  ibe 
wife  of  the  accused,  was  mortgaged 
for  $1560  and  insured  for  $1300,  loss, 
if  any.  payable  to  the  mortgagee. 
The  property  was  unprofitable  and 
there  was  nothing  to  show  that  the 
accused  would  be  benefited  by  burn- 
ing it.  It  was  held  insufficient  to 
show  a  motive  in  the  accused. 

Disposition  of  Insurance  Money. 
Upon  the  trial  of  one  charged  witli 
arson,  to  obtain  insurance  money,  it 
was  held  error  to  refuse  to  charge 
the  jury  that  the  law  presumed  that 
the  accused  would  not  steal  or  mis- 
apply the  insurance  money  if  he 
obtained  possession  thereof.  People 
z:  Fitzgerald,  156  N.  Y.  253,  50  N,  E. 
846. 

30.  People  v.  Scott.  10  Utah  217, 
37  Pac.  335. 

In  Tennessee,  it  has  been  held  in- 
admissible upon  the  trial  of  one  for 
burning  the  house  of  another,  by  the 
latter's  procurement,  to  prove  the 
building  to  have  been  insured. 
Roberts  v.  State,  7  Cold.  (Tenn.) 
359- 

31.  Stitz  -'.  State,  104  Ind.  359, 
4  N.  E.  145 ;  Shepherd  v.  People, 
19  N.  Y.  537;  People  v.  Sevine 
(Cal.),  22  Pac.  969;  People  v.  Kelly, 
II  App.  Div.  495,  42  N.  Y.  Supp. 
756. 

And  so  to  prove  want  of  motive 
it  may  be  shown  that  the  property 
was  worth  more  than  the  insurance. 
Stale   V.   Ward,  61    Vt.    153,   17   Atl. 

483. 

32.  Stitz    V.    State,    104    Ind.    359, 
4  X.  E.  MS- 
SB.     People  T'.  Kelly,  11  App.  Div. 


49^.  42   N.   Y.    Supp.   756:   Martin  7\ 
Stale.  28  Ala.  71. 

34.  Stitz    7'.    State.    104    Ind.    359, 

4  N.  E.   14.S. 

35.  Unitril  Slates.  —  U.  S.  7: 
Amedy.   1 1   Wheat.   ,^92. 

California.  —  People  v.  Hughes,  29 
Cal.  257;  People  r.  Schwartz,  .32  Cal. 
t6o. 

Di.'slrict  of  Columbia.  —  U.  S.  v. 
McBride,  7  Mackey  371. 

Illinois.  —  McDonald  ?'.   People,  47 

111.   5,U 

Indiana. — Johnson  r.  State,  65  Ind. 
204. 

Massacltiisetis.  —  Com.  v.  Gold- 
stein,  114  Mass.  272. 

Michigan.  —  Meister  v.  People,  31 
Mich.  99. 

Missouri.  —  State  v.  Tucker,  84 
Mo.   23. 

Nciv   York.  —  Carncross 
I    N.   Y.   Cr.   S18:   Freund 

5  Park.  Cr.  198. 
Ohio.  —  Evans    v.    State, 

St.  4.S8. 

In  State  z:  Byrne,  45  Conn.  273,  the 
court  said:  "If  he  (the  defend- 
ant) believed  that  the  policy  was 
legally  issued,  that  it  was  valid,  and 
would  be  paid,  and  burned  the  build- 
ing with  the  expectation  and  belief 
that  the  money  would  be  paid,  and 
for  the  purpose  of  obtaining  it,  it 
was  enough.  The  actual  payment 
of  tne  money,  and  the  legality  and 
validity  of  the  policy,  are  not  essen- 
tial elements  of  the  crime." 

36.  People  t.  Hughes,  29  Cal.  237 ; 
State  T'.  Byrne,  45   Conn.  273. 

37.  People  r.  Hughes,  29  Cal.  257. 


i'.  People, 
i'.   People, 

24    Ohio 


Vol.  I 


988 


ARSON. 


(3.)  Value  of  Property.  • —  And  not  only  evidence  of  value  is  admis- 
sible, but  also  evidence  of  its  enhanced  value  by  reason  of  its  loca- 
tion, tog^ether  with  circumstances  showing  the  profits  derived  there- 
from.^* 

(4.)  Defendant's  Financial  Condition.  —  It  has  been  held  that,  upon 
trials  for  arson,  evidence  of  the  defendant's  financial  condition  is 
irrelevant  and  inadmissible,^"  though  the  contrary  view  seems  to 
have  been  taken. ^^ 

3.  Other  Motive.  —  Advantage  to  be  gained  by  destroying  records 
or  other  papers  may  be  shown  as  motive.'" 

4.  Defendant's  Proof  of  Motive  in  Another.  —  The  accused  may 
show  that  others  possessed  some  motive  for  burning  the  property. *- 
Upon  a  trial  for  arson,  evidence  that  another  had  uttered  threats 
to  burn  the  building  in  question,  is  irrelevant  and  inadmissible.''^ 

III.  CONFESSIONS  AND  CONDUCT. 

1.  Generally.  —  The  character  of  the  crime  of  arson  renders  con- 
viction frequently  dependent  upon  an  extrajudicial  confession.''* 
But  the  corpus  delicti  must,  as  in  other  cases,  be  established  by  evi- 
dence  aiiiiinie   such   confession.*^     Statenients   and   declarations   of 


38.  Hudson  7>.  State,  6i  Ala.  333. 

39.  State  z:  Moore,  24  S.  C.  150, 
58  Am.  Rep.  241. 

40.  Defendant's  Financial  Con- 
dition. —  In  Reg.  V.  Grant,  4  F.  &  F. 
322,  an  indictment  for  arson,  where 
one  count  in  the  indictment  charged 
an  intent  to  defraud  the  insurance 
company,  evidence  ■was  admitted  to 
prove  the  prisoner  to  be  in  easy  cir- 
cutiistances  and  under  no  financial 
necessity  to  obtain  the  insurance 
funds. 

41.  State  V.  Travis.  39  La.  Ann. 
356,  I  So.  817 ;  'Winslow  v.  State, 
76  Ala.  42;  Luke  z'.  State,  49  Ala. 
30,  20  Am.  Rep.  269. 

42.  Hudson  v.  State,  61  Ala.  333. 
But  the  accused  will  not  be  per- 
mitted to  give  the  names  of  such 
other  persons.  One  was  accused  of 
starting  a  fire  in  a  building  not  his 
own  in  order  to  burn  the  adjoining 
building  occupied  by  himself;  the 
prosecution  having  shown  that  de- 
fendant's building  was  insured,  it 
was  competent  for  defendant  to  show 
that  the  building  wherein  the  fire 
started  was  also  insured — thus  show- 
ing motive  in  another  than  himself. 
People  r.  Fournier  (Lai.),  47  Pac. 
1014. 

Vol.  1. 


43.  Carlton  v.  People,  150  111.  181, 
37  N.  E.  244;  Ford  V.  State,  112  Ind. 
373,  14  N.  E.  241 ;  State  v.  Crawford, 
99  Mo.  74,  12  S.  W.  354;  Shifflet  v. 
Com.,   14  Gralt.    (Va.)    652. 

But  see  Hensley  Z'.  State,  9  Humph. 
(Tenn.)  243,  where  it  was  held  com- 
petent for  the  accused  to  prove  that 
a  third  person  had  made  threats  to 
burn  the  building  in  question  and  was 
in  the  neighborhood  on  the  night  of 
the  fire. 

44.  As  to  proof  of  confessions  see 
article  "  CoNrESSiONS."  Smith  v. 
State.  64  Ga.  605. 

Corrobora  ting  Circumstances. 
Where  the  prisoner  had  confessed  to 
the  crime  it  was  held  that,  evidence 
of  the  building's  having  been  burned 
under  circumstances  indicating  in- 
cendiarism, though  weak  and  un- 
satisfactory in  those  details  which 
were  susceptible  of  clearer  proof, 
was  nevertheless  admissible  as  being 
sufficiently  corroborated  by  the  con- 
fession. People  z'.  Jones,  123  Cal. 
65,   55   Pac.   698. 

45.  Sam  v.  State,  33  Miss.  347; 
Winslow  V.  State,  76  Ala.  42 ;  People 
V.  Jones,  123  Cal.  65,  55  Pac.  698; 
Wimberly  v.  State,  105  Ga.  t88.  31 
S.  E.  162;  jMurray  v.  State.  43  Ga. 
256. 


ARSON. 


989 


the  accused,  tendinis-  to  show  his  guilt,  are  admissible." 

2.  As  Part  of  Res  Gestae.  —  Any  statement  that  is  part  of  the 
res  gestae  is,  of  course,  admissible  on  that  ground.'" 

3.  Made  at  Inquest.  —  The  voluntary  testimony  of  the  accused 
before  a  fire  inquest,  is  competent  evidence  against  him  on  his 
prosecution  for  arson. ^**  Although  he  was  not  informed  that  he 
need  not  criminate  himself.*" 

4.  Behavior  at  Fire.  —  Evidence  of  the  conduct  of  the  defendant, 
during  the  fire,  is  admissible.'"' 


46.  See  "  Confessions."  "  Dec- 
LAR.ATIONS,"  Com.  V.  Cliase,  147 
Mass.  597,  18  N.  E.  565. 

Statements  on  Morning  After  Fire. 
In  Com.  V.  Crowe,  165  Mass.  139. 
42  ISl.  E.  563,  the  accused,  on  the 
morning  after  the  fire,  said  to  his 
brother-in-law,  "  Is  this  the  place 
where  the  fire  was?"  to  which  the 
latter  replied,  "  Don't  you  know  it 
is "  at  which  the  accused  laughed. 
The  conversation  was  overheard  by  a 
policeman  who  thereupon  arrested  the 
brother-in-law  for  being  drunk,  and 
the  accused  said,  "  Yoii  want  to  ar- 
rest him  to  find  out  what  lie  knows 
about  who  set  the  fire."  It  was  held 
that  these  facts  were  admissible  in 
evidence. 

47.  See  article  "  Res  Gestae." 
Upon   the    trial     of   an    indictment 

for  aiding  and  abetting  the  insured 
in  setting  fire  to  his  house  with  the 
intent  to  thereby  defraud  the  insur- 
ance company,  the  statement  of  the 
party  insured  made  after  the  fire 
occurred,  claiming  and  swearing  to 
his  proof  of  loss,  are  part  of  the  res 
gestae  and  admissible.  Searless  1'. 
State,  6  Ohio  Cir.  Ct.  331. 

Statements  a  Part  of  Res  Gestae. 
In  People  v.  O'Neil,  112  N.  Y.  35s, 
19  N.  E.  796,  the  defendant  was  pres- 
ident and  owned  most  of  the  stock 
of  the  company  whose  building  was 
destroyed;  it  was  held  that,  the  proof 
of  loss  which  he  made  out  jointly 
with  another  of  the  company's  offi- 
cials, giving  the  total  insurance,  and 
stating  it  to  be  his  opinion  that  the 
fire  was  of  incendiary  origin,  were 
admissible  against  him  as  part  of  the 
res  gestae. 

A  False  Statement  Made  by 
Defendant  After  the  Fire,  to  the 
effect   that  the  barn  burned   was  not 


insured,  was  held  to  constitute  no 
part  of  the  res  gestae,  and  could  not 
aid  in  defrauding  the  insurance  com- 
panies, and  should  have  been  ex- 
cluded. Hamilton  i'.  People,  29 
Mich.  173. 

48.  Com.  v.  Bradford,  126  Mass. 
42;  Com.  V.  "Wesley,  166  Mass.  24S. 
44  N.  E.  228;  Com.  V.  King,  8  Gray 
(Mass.)   501. 

49.  Com.  V.  King,  8  Gray  (Mass.) 
501. 

50.  State  t'.  Ward,  61  "Vt.  153,  17 
.•\tl.  483;  People  V.  Burton,  9  N.  Y. 
Crim.  207,  28  N.  Y.  Supp.  1081.  See 
also  People  v.  Fournier  (Cal.),  47 
Pac.  1014. 

Defendant's  Behavior  at  the  Fire. 
In  Reg.  V.  Taylor,  5  Cox  C.  C.  13S. 
the  indictment  was  for  firing  a  cer- 
tain hay-rick,  and  evidence  was  ad- 
mitted to  show  the  presence  of  the 
accused  at  the  burning  of  other  ricks 
on  the  same  night,  for  the  purpose 
of  illustrating  the  prisoner's  behavior 
before  and  after  the  fire  in  question, 
notwithstanding  there  were  indict- 
ments against  him  for  the  two  other 
fires;  but  evidence  of  threats  and 
statements  connected  with  the  other 
indictments,  but  not  illustrative  of 
the   one   in   issue,  were  inadmissible. 

Where  the  prisoner  was  accused  of 
aiding  and  abetting  the  firing  of  his 
own  house,  a  witness  testified  that, 
during  the  fire,  when  the  firemen 
and  general  public  had  access  to  the 
house,  the  prisoner  arrived  and  see- 
ing witness  with  others  inside  the 
house,  pulled  him  out;  that  prisoner 
afterwards  asked  witness  if  he  had 
told  anyone,  and  upon  receiving  a 
negative  answer,  replied  that  he  was 
glad,  as  that  would  have  made  him 
appear  guilty.  It  was  held  weak  and 
inclusive,    and    insufficient    to    over- 


Vol.  1, 


990 


ARSON. 


5.  Behavior  After  Fire.  —  So  is  the  conduct  nf  ilie  accused  after 
tlie  fire,  l)ut  cdunected  therewith."^ 

6.  Possession  of  Goods.  —  Possession  by  the  accused  of  tioods 
from  the  Inirned  huihUng,  may  go  to  the  jury  in  connection  with 
other  evidence  of  the  defendant's  guilt. ^'- 

IV.  EVIDENCE  OF  OTHEK  FIRES  OR  ATTEMPTS. 

1.  Generally  Inadmissible.  —  Evidence  that  other  buildings  in  the 
same  place  were  limned  about  the  same  time,  is  inadmissible.'' ' 

2.  Part  of  One  Scheme.  —  E-xcept  where  the  state  undertakes  to 
show  tiiat  the  tires  to  be  proved,  were  part  of  a  scheme  that  included 
the  tire  charged  in  the  indictment.^* 


come  the  presumption  of  the 
prisoner's  innocence.  People  '■.  Kelly, 
1 1  App.  Div.  495,  42  N.  Y.  Supp.  756. 
Conduct  of  Defendant's  Clerk. 
Upon  a  trial  for  arson,  the  admission 
of  evidence  that  the  prisoner's  clerk 
prevented  the  removal  of  goods  from 
the  burning  store,  was  not  'error,  it 
appearing  the  prisoner  himself  had 
forbidden  such  clerk  to  carry  out 
any  goods  and  had  prevented  another 
from  doing  so.  Bluman  r.  State,  3;} 
Te.x.  Crim.  .\pp,  4,^.  21  vS.  W.  1027. 

51.  The  Rule  Stated.  —  In  People 
V.  O'Neil.  112  N.  Y.  ,SS5,  19  N.  E. 
796,  the  court  said :  "  We  do  not 
think  the  court  committed  an  error 
in  the  reception  of  this  evidence.  Its 
adiTiission  was,  under  the  circum- 
stances, somewhat  a  matter  of  dis- 
cretion. It  was  a  remote  circum- 
stance, but  it  bore  upon  the  question 
of  guilt,  in  that  it  tended  to  show 
what  was  his  conduct  and  demeanor, 
when  engaged  in  matters  connected 
w'ith  the  fire,  and  in  the  course  and 
disposition  of  which  he  was  prin- 
cipally interested  and  a  prominent 
actor.  The  calm  or  disturbed  de- 
meanor, the  natural  or  the  unusual 
conduct,  of  the  individual,  arc  wit- 
nesses to  the  workings  of  the  mind, 
and,  taken  in  connection  with  all 
other  circumstances  tending  to  con- 
nect him  with  an  event,  aid  the  jury 
in  forming  the  inference  of  inno- 
cence or  of  guilt." 

52.  Johnson  -•.    State.  48  (ja.    116. 
Goods    in    Prisoner's    Trunk In 

State  f.  Vatter,  71  Iowa  557,  32  N. 
W.  506,  it  was  held  competent  to 
prove  that  certain  goods  which  were 
in    the   house   on    the   day    it    burned, 

Vol.   1. 


were  discovered  in  the  prisoner's 
trunk. 

Stolen   Bank    Notes    Possessed    by 

Accused In  State  v.  Gillis.  4  Ue\. 

( N.  C.)  606,  the  evidence  showed 
the  prisoner's  possession  of  bank 
notes  similar  to  some  stolen  from 
the  house  when  the  arson  was  com- 
mitted, and  that  his  explanations  of 
their  possession  were  conflicting;  it 
was  held  admissible  as  tending  to 
show   his  guilt. 

.V  witness  may  testifv  that,  after 
the  fire,  he  bought  from  the  wife  of 
the  defendant,  goods  of  the  same 
kind  as  those  insured  in  the  Inirned 
building.  Johnson  !■.  Slate,  65  Ind. 
204, 

53.  Com.  ?■.  Gauvin,  14;  Mass.  i  ?4. 
8  N.  E.  895;  Brock  v.  State,  26  Ma. 
104. 

TJpon  the  Trial  of  an  Accessory 
before  the  fact,  in  the  burning  of  a 
barn,  evidence  of  the  burnin.g  of  a 
depot  in  a  neighboring  town,  is  in- 
admissible. State  V.  Dukes,  40  S.  C. 
481.  19  S.  E.  134. 

■Where  the  Other  Fires  Are  Not 
Shown  To  Be  of  Incendiary  Origin, 
evidence  that  such  other  fires  de- 
stroyed property  belonging  to  the 
same  owner,  is  inadmissible.  People 
I'.  Fitzgerald,  is6  X.  Y.  25.?.  50  N.  E. 
846. 

Evidence  of  Fires  Five  Years 
Before,  in  which  the  accused  was  in- 
terested, is  incompetem.  State  v. 
Raymond,  :;?  X.  -I.  Law  260.  21  .Atl. 
.U'8. 

54.  Where  the  Accused  Had 
Predicted  the  Fire,  and  had  said 
lli.ii  .ill  the  houses  of  the  owner 
wiiuld    btn-n,    it    was    held    cnmp.tcnt 


ARSON. 


'I'll 


3.  Part  of  One  Conflagration.  —  Or  where  the  fires  were  pari  nf 
one  eoiiflagTatioii.'"'' 

4.  Previous  Attempts.  —  Evidence  of  a  previous  attempt  1)\'  the 
accused  to  burn  the  same  buihhng'  is  admissible.^"' 

V.  NATUKE  AND  SUFFICIENCY. 

1.  Circumstantial    Evidence.  —  Direct    evidence    to    estalilish    the 
crime  of  arson,  is  not  essential.'^" 


to  show  that  the  dwelling  of  the 
same  person  had  been  set  on  fire  a 
short  time  before  the  fire  in  ques- 
tion. State  V.  Hallock,  70  Vt.  159, 
40  Atl.  51. 

Evidence  to  Prove  an  Incendiary 
Origin  lias  been  admitted  to  show 
that  botli  fires  were  part  of  a  scheme 
planned  and  e.xeciited  by  the  prisoner 
and  his  associates.  Wright  z\  Peo- 
ple,  I    N.  Y.  Cr.  462. 

Testimony  of  the  Prosecutor,  to 
the  eifect  that  he  had  taken  unusual 
precaution  to  prevent  the  fire  in  ques 
tion  "  because  of  other  fires  "  is  ad- 
missible to  prove  an  incendiary  origin 
for  the  one  in  question.  State  v. 
iMc.Mahon.  17  Nev.  365,  30  Pac.  1000. 

In  England.  —  In  Reg.  v.  Dossett, 
2  C,  &  K.  306.  an  indictment  for 
arson,  by  willfully  discharging  a  gun 
close  to  a  hayrick  and  thereby  set- 
ting the  same  on  fire,  evidence  was 
admitted  to  show  that  on  another 
occasion  the  accused  was  observed, 
with  a  gun  in  his  hand,  near  the 
rick,  and  that  the  hay  was  then  on 
fire. 

In  Reg.  z'.  Gray,  4  F.  &  F.  iioj, 
where  the  prisoner  was  accused  of 
burning  his  house  to  obtain  insurjince, 
evidence  was  admitted  to  show  that 
twice  before  insurance  had  been  col- 
lected from  other  companies  for  suc- 
cessive fires,  in  order  to  establish  the 
fire  in  question  to  have  been  in- 
tentional and  not  accidental. 

55.  Woodford  7:  People,  5  Thomp. 
&  C.  (N.  Y.)  539,  affirmed  in  62 
N.  Y.  117,  20  Am.  Rep.  464,  where 
a  dwelling  and  two  outhouses  were 
situated  in  such  a  manner  that 
should  one  burn  all  must  burn,  it  is 
competent  to  prove  that  the  three 
structures  must  have  been  set  fire  to 
at  the  same  time.  People  v.  Hiltel, 
131  Cal.  577,  63  Pac.  919. 

56.  State  r.  Ward,  61   Vt.   153,  17 


Atl.  483 ;  People  v.  Lattimore,  86 
Cal.  403,  24  Pac.  1091 ;  Com.  <■.  Mc- 
Carthy, 119  ^lass.  354;  State  z'.  Hal- 
lock,  70  Vt.  159,  40  Atl.  51;  People 
-'.  Shainwold,  51  Cal.  468;  Com.  ?■. 
Bradford,  126  Mass.  42. 

But  in  Reg.  "'.  Bailey,  2  Co.x  C.  C. 
311,  evidence  was  admitted  showing 
previous  efTorts  to  set  fire  to  other 
portions  of  the  same  building,  not- 
withstanding the  fact  that  no  evidence 
had  been  introduced  to  connect  the 
accused    with    such    other    attempts. 

Previous  Solicitation  of  Another. 
The  testimony  of  a  witness,  that,  sev- 
eral months  before  the  trial,  the 
accused  requested  him  to  do  the 
burning,  is  admissible  in  evidence. 
Martin  z:  State,  28  Ala.  71  ;  People  t'. 
Bush,  4  Hill  (N.  Y.)  133,  following 
McDermott  r.  People,  5  Park  Crim. 
(N.  Y.)   102. 

Contra.  —  Offer  Several  Years  Be- 
fore  But   in   Carncross   z'.    People, 

I  N.  Y.  Crim.  518.  evidence  of  de- 
fendant's proposal  to  burn  the  house 
in  question,  made  several  years  be- 
fore, to  one  unconnected  with  the 
offense  in  question,  was  held  inad- 
missible. 

Statements  During  Solicitation. 
Evidence  that,  during  his  solicitation 
of  another  to  burn  a  building,  the 
accused  stated  to  the  latter  that  he 
had  twice  before  attempted  to  burn 
such  building,  is  admissible.  Mc- 
Swean  Z'.  State,  113  Ala.  661.  21  So. 
211. 

57.  Whitfield  z:  State,  25  Fla.  289. 
5  So.  805 ;  Winslow  z'.  State,  76  Ala. 
42;  State  z'.  Carroll,  85  Iowa  I,  51 
N.  W.   1159. 

Rule   Stated In   Smith  r.   State, 

64  Ga.  605,  the  court  said:  "  If  it 
required  positive  testimony  to  convict 
in  cases  of  arson,  it  would  be  next 
to  impossible  ever  to  procure  a  con- 
viction,  for  it   is  a   crime  committed 

Vol.  1. 


9')2 


ARSON. 


2.  Articles  Connected  With  the  Crime.  —  It  is  competent  to  intro- 
duce such  articles  as  the  evidence  associates  with  the  incendiary.^' 

3.  Experiments.  —  It  is  competent  to  introduce  evidence  of  cer- 
tain experiments  and  comparisons,  made  after  the  occurrence  of 
the  fire,  in  order  to  explain  and  illustrate  the  manner  in  which  the 
premises  were  burned."^" 

4.  Opinions.  —  It  is  incompetent,  in  a  trial  for  arson,  for  a  witness 
to  testifv  that  "  he  thought  the  house  was  burned  by  some  one."^" 

5.  Sufficiency.  —  It  is  impracticable  to  state  a  useful  rule  for 
determining  whether  or  not  a  given  set  of  facts  will  or  will  not 
sustain  conviction,  but  in  the  note  several  illustrations  will  be 
given. "^ 


under  cover  of  darkness  and  when 
there  is  no  human  eye  to  see ;  there- 
fore, circumstances  and  confessions 
are  the  only  evidence  usually  ob- 
tained ;  and,  whilst  they  should  be 
received  with  great  caution,  yet  if 
they  are  such  as  to  convince  the 
mind  and  satisfy  the  judgment  of  the 
upright  and  intelligent  juror,  this  is 
all  that  the  law  requires." 

Where  circumstantial  evidence  is 
relied  upon  to  establish  the  corpus 
delicti  it  must  be  cogent  and  con- 
clusive. State  V.  Millmeier,  I02  Iowa 
692,  72  N.  W.  275. 

Where  one  was  charged  with 
firing  an  outhouse  "  used  as  a 
kitchen,"  the  prosecution  introduced, 
over  defendant's  objection,  evidence 
that  at  the  same  time  the  outhouse 
was  burned,  the  dwelling  house,  fif- 
teen yards  away,  was  also  set  on 
fire  by  means  of  sticks  lied  together 
with  a  rope  belonging  to  the  ac- 
cused, and  soaked  with  oil.  It  was 
held  that  such  evidence  was  admis- 
sible. State  1'.  Thompson,  97  N.  C. 
496,  I  S.  E.  gji. 

Presumption  of  Connivance.  —  The 
fact  that  incendiaries  entered  the 
owner's  house  in  his  absence  and 
prepared  to  set  fire  thereto,  raises  no 
inference  of  connivance  on  the  part 
of  such  owner.  People  v.  Kelly,  11 
App.   Div.  495,  42  N.  Y.   Supp.  756. 

58.  State  r.  Ward,  61  Vl.  181,  17 
Atl.  483;  Gawn  V.  State,  7  Ohio 
Dec.  6, 

Flask  Containing  Kerosene.  —  In 
Morris  v.  State  (Ala.).  27  So.  3,^6. 
it  was  held  competent  to  prove  that 
a  half-pint  flask  containing  kerosene 
oil    had   been    found   about    100   feet 


from  the  house  which  was  burned, 
and  that  such  flask  had  contained 
something  like  bluing,  and  that  it 
had  been  seen  in  the  possession  of 
the  defendant's  wife  during  the  pre- 
vious summer,  and  had  then  had 
water  and  bluing  in  it. 

Jug  Formerly  in  Possession  of  De- 
fendant's 'Wife.  —  In  Thomas  v. 
State.  107  Ala.  13,  18  So.  229,  a  trial 
for  arson,  the  evidence  showed  the 
accused  to  have  been  seen  approach- 
ing the  premises  in  question  with  a . 
jug  in  her  hand,  that  she  poured 
oil  therefrom  upon  the  building, 
ignited  it  and  ran  away.  It  was  held 
that  evidence  of  the  same  jug's  having 
been  in  the  possession  of  the  husband 
of  the  accused  at  a  time  prior  to 
the  fire,  was  admissible,  as  showing 
opportunity  to  have  the  jug  in  her 
possession  at  the  time  of  the  burn- 
ing, and  to  identify  her  as  the  guilty 
party. 

59.  Reg.  V.  Hasseltine,  12  Cox 
C.  C.  404.  See  also  Com.  v.  Choate, 
105  Mass.  451  ;  People  ?'.  Fournier 
(Cal.),  47  Pac.   1014. 

60.  State  r.  Nolan,  48  Kan.  723, 
29  Pac.  568. 

61.  Facts  Sufficient  to  Convict. 
Alabama.  —  Overstreet  f.  State. 
46  Ala.  30;  Childress  v.  State.  86 
Ala.  77,  5  So.  775 ;  Cook  v.  State.  83 
Ala.  62,  3  So.  849. 

California.  —  People  v.  Sevine, 
(Cal.),  22  Pac.  969. 

f'/oncyn.  — Whitfield  7:  Stale,  25 
Fla.  28g,  5  So.  805. 

Georgia.  —  Johnson  ?'.  State,  89 
Ga.  107,  14  S.  E.  889;  Brooks  r. 
Slate,  ,1  Ga.  612;  Allen  7:  State,  91 
Ga.   189.   16  S.  E.  980. 


Vol.  1. 


ARSON. 


993 


Illinois.  —  Carlton  i'.  People,  150 
111.  181.  37  N.  E.  244. 

lozva.  —  State  v.  turgor,  94  Iowa 
33.  62  N.  W.  696. 

Louisiana.  —  State  v.  Fiilford,  33 
La.  Ann.  679. 

Maine.  —  State  v.  Taylor,  45  Me. 
322. 

Massachusetts.  —  Com.  -'.  Squire,  i 
Mete.  258. 

Micliigan.  —  People  v.  Burridge, 
99  Mich.  343,  58  N.  W.  319. 

Missouri.  —  State  v.  Moore,  61  Mo, 
2-6. 

Ohio.  —  Evans  ;'.  State,  24  Ohio 
St.  458. 

Virginia.  —  Sawyers  v.  Com..  88 
Va.  356,  13  S.  E.  708. 

In  People  v.  Hiltel.  131  Cal.  577, 
63  Pac.  919,  the  evidence  showed 
that,  at  the  time  of  the  arrival  of  the 
tirst  neighbor  the  accused  was  seen 
appearing  from  behind  the  burning 
building,  fully  dressed,  except  his 
coat  was  off ;  that  no  cry  or  alarm 
had  been  heard,  and  that  accused 
made  no  attempts  to  save  the  effects 
until  the  arrival  of  neighbors;  that 
shortly  before  the  fire,  he  was  very 
much  excited  and  angry  with  his 
wife,  who  owned  the  house,  and  who 
was  about  to  get  a  divorce  from  ac- 
cused on  account  of  his  cruelty.  The 
accused  testified  that  he  was  asleep 
at  8  o'clock,  and  the  fire  was  discov- 
ered soon  after  8,  and  had  been 
burning  a  considerable  time.  It  was 
held  sufficient  evidence  to  convict. 

Sufficient  to  Go  to  the  Jury. 
In  Meeks  v.  State,  103  Ga.  420,  30 
S.  E.  252,  the  evidence  showed  the 
prisoner  to  have  entertained  ill-feel- 
ing towards  his  employer,  claiming 
the  latter  ow-ed  him  money ;  that  he 
subsequently  made  threats,  from 
which  it  might  be  inferred  that  he 
intended  to  be  revenged  by  burning 
his  employer's  house ;  that  a  day  or 
two  before  the  fire,  he  was  overheard 
plotting  with  his  brother,  though  the 
plot  did  not  appear;  that  the  em- 
ployer's family  was  away  from  home 
on  the  night  of  the  fire;  that  tracks 
were  traced  from  the  vicinity  of  pris- 
oner's  house  to  within   a   few  yards 


of  the  one  burned,  and  from  the  lat- 
ter back  home  by  a  circuitous  route ; 
that  these  tracks  were  made  by  shoes 
with  a  peculiar  worn  place  upon 
them,  and  that  the  prisoner's  shoes 
fitted  them  exactly;  that  upon  his  ar- 
rest, the  prisoner  desired,  for  no  ap- 
parent reason,  to  change  his  shoes. 
It  was  held  sufficient  to  go  to  the 
jury  on  his  guilt  or  innocence.  Peo- 
ple V.  Burton,  9  N.  Y.  Cr.  207,  28 
N.  Y.  Supp.  108;  State  v.  Shines,  125 
N.  C.  730,  34  S.  E.  552. 

Facts  Insufficient  to  Convict. 
Georgia.  —  Green  v.  State,  in  Ga. 
139,  36  S.  E.  609. 

loiva.  —  State  v.  Delaney,  92  Iowa 
467,  61  N.  W.  189;  State  V.  Johnson, 
19  Iowa  230. 

Kcntuckv.  —  Com.  v.  Phillips, 
(Ky.),  14  S.  W.  378. 

Massachusetts.  —  Com.  ?■.  Wade, 
17  Pick.  395. 

Mississippi.  —  Luker  v.  State, 
(Miss.),  14  So.  259. 

New  York.  —  McGary  v.  People, 
45  N.  Y.  153- 

Te-t-aj.  —  TuUis  v.  State,  41  Tex. 
598. 

Virginia.  —  Garner  v.  Com.,  (Va.), 
26  S.  E.  507 ;  Brown  v.  Com.,  87  Va. 
215,  12  S.  E.  472. 

In  Boatwright  v.  State,  103  Ga. 
430,  30  S.  E.  256,  the  evidence 
showed  that  the  prisoner  had  had  a 
difference  with  his  employer,  Boyd, 
about  the  amount  due  for  services ; 
that  a  short  time  before  the  fire,  the 
prisoner  advised  a  friend  not  to  go 
near  the  house,  as  they  might  hold 
him  responsible  should  anything  oc- 
cur ;  that  when  his  attention  was 
called  to  the  fire,  soine  distance 
away,  accused  said :  "  Look  what  a 
fire  over  to  Boyd's !"  that  he  had 
stated  to  fellow  prisoners  in  jail  that, 
he  had  not  burned  the  house,  but 
knew  who  had,  and  had  offered  a 
little  boy  a  dollar  if  he  would  burn 
it ;  that  there  was  nothing  to  con- 
nect this  boy  with  the  fire ;  that 
there  had  been  three  fires  at  the 
Boyd  place  that  summer.  It  was 
held    insufficient   to   convict. 


ART,  STATE  OF.— See  Patent 


s. 


63 


Vol.  I 


ASSAULT  AND   BATTERY. 

Civil  Action  by  Geo.  A.  Whipple. 
Criminal  Action  by  Horace  T.  Smith. 


I.  CIVIL  ACTION,  y.j5 

1.  Evidence  Generally  Admissible,  995 

A.  Intent  and  Malice,  995 

B.  Res  Gestae,  ij^jj 

C.  Declarations  and  Admissions,  997 

D.  Opinion  Evidence,  997 

E.  Real  Evidence,  997 

F.  Character  and  Condition  of  Parties,  998 

2.  Evidence  in  Special  Pleas,  999 

A.  Moderate  Castigavit,  999 

B.  Son  Assanlt  Demesne,  1000 

C.  Replication  De  Injuria,  1000 

D.  Molliter  Manns  Iniposnit,  1000 

3.  Damages,  looi 

A.  Mitigation  of  Damages,   looi 

a.  In  General,  looi 

b.  Provocation,  1002 

c.  Criminal  Prosecution,  1003 

B.  Aggravation  of  Damages,  1004 

a.  In  General,  1004 

b.  Financial  and  Social  Condition   of  Parties. 

1004 

C.  Consequential  Injuries,  1005 

II.  CRIMINAL  ACTION,  1006 

1.  Presumptions  and  Burden  of  Proof,  1006 

2.  Res  Gestae,  1007 

A.   Weapons,  1008 

3.  Nature  of  Injuries,  1008 

A.  Wounds  in  Evidence,  1009 

4.  Intent,  Malice,  Declarations  and  Threats,  1009 

A.  Former  DifUcuities,   1009 

5.  Recklessness,  Illegal  Act,  ion 

6.  Assault  on  Female,  101 1 

A.  Appearance  of  Injuries,  1012 

B.  Former  Acts,  1012 

C.  Character  of  Female,  1012 

7.  -Sad  Reputation  of  Defendant,  1012 

A.  Discredit  Defendant  as   Witness,   T013 

Vol.  1. 


ASSAULT  AND  BATTERY. 


9'»5 


III.  MATTERS  OF  DEFENSE,   1013 

1.  Res  Gestae,  1013 

2.  Intent.  1013 

3.  Declarations  and  Tlireats  of  Prosecutor,  1013 

4.  Infonnafion,   1014 

5.  Declarations  After  Assault,   1014 

6.  Actions  Against  Prosecutor,  1015 

7.  Defense  of  Another,  1015 

8.  Defense>  of  Property,  1015 

9.  Master  of  Ship,  1016 

10.  Arrest.  1016 

11.  Punishment,  1017 

12.  Evidence  of  Intoxication,  1018 

13.  Provocation  Which  is  of  the  Res  Gestae,  roi8 

14.  Discredit  Prosecuting  Witness,  1019 

15.  Good  Reputation  of  Defendant,  1019 

16.  Consent,  1020 

17.  Opinions,  1020 

:8.  Pr/or  Acquittal  or  Conviction,  1020 

I.  THE  CIVIL  ACTION. 

1.  Evidence  Generally  Admissible.  —  A.  Intent  and  Malice. 
The  intention  to  do  harm  is  of  the  essence  of  an  assault. "^  And 
the  intent  is  to  be  collected  from  the  circtmistances  of  the  case ; 
and  therefore  overt  acts  when  accompanied  by  words  that  are  mere 
threats  and  in  themselves  negative  the  idea  of  a  present  intention  to 
assault,  are  not  sufficient  to  sustain  the  action.-  As  physical  contact 
is  not  necessary  to  the  consummation  of  an  assault,  the  allegation 
of  an  assault  is  proved  by  evidence  that  defendant  did  an  overt  act 
ag-ainst  plaintiff  capable  of  causing  injury,  with  the  intent  to  injure 


1.  Intention. —  Greenl.  Ev.,  vol. 
2,  §  83. 

In  Com.  z'.  White,  no  Mass.  407, 
Wells,  J.,  said :  "  It  is  not  the 
secret  intent  of  the  assaulting  party, 
nor  the  undisclosed  fact  of  his  ability 
or  inability  to  commit  a  battery,  that 
is  material,  but  what  his  conduct  and 
the  attending  circumstances  denote 
at  the  time  to  the  party  assaulted." 
In  Blake  v.  Barnard.  9  Car.  &  P. 
626.  it  was  held  not  to  be  an  assault 
if  the  gun  was  not  loaded.  But  see 
remark  in  McKay  z\  State,  44  Tex. 
43- 

In  Metcalfe  v.  Conner,  s  Litt.  (15 
Ky.)  370,  it  was  said  that  a  tnan 
going  into  a  house  with  clubs  did 
not  commit  an  assault,  unless  the 
iiTtention    to    assault    was    shown. 


So  where  defendant  entered  on  a 
holding  over  tenant  who  refused  to 
quit  and  removed  the  furniture  and 
the  windows,  it  was  held  not  to  be 
an  assault  as  there  was  no  intention 
to  do  violence  to  the  person,  but  if 
there  had  been  an  assault  these  acts 
would  undoubtedly  aggravate  it. 
Sterns  r.  Sampson,  59  Me.  568,  8 
Am.  Rep.  442;  Meader  i'.  Stone.  7 
Mete.  (Mass.)  147;  and  see  O'Don- 
nell  V.  Mclntyre,  37  Hun  (N.  Y.) 
623;  atKrmcd  118  N.  Y.  156,  23  N.  E. 
455:  Plank  v.  Grimm,  62  Wis.  251, 
22  N.  W.  470;  Degenhardt  v.  Heller, 
93  Wis.  662.  68  N.  W.  41 T,  57  Am. 
St.  Rep.  945. 

2.  The  Intention  ftnalifled  Dy 
Words. —  Tubervillc  v.  Savage,  I 
Mod.    3.    where    defendant,    drawing 

Vol.  1. 


9% 


ASSAULT  AND  BATTERY. 


whether  tlie  act  failed  in  its  intended  efifect  or  not.-''  Malice  or  want 
of  malice  may  be  shown,  when  exemplary  damages  are  allowable 
for  the  purpose  of  aggravating  or  mitigating  general  damages/ 


his  sword  said:  "If  it  were  not 
assize  time,  I  would  not  take  such 
language  from  you."  Blake  v. 
Barnard,  9  Car.  &  P.  626. 

3.  Futile    Overt   Acts Smith   v. 

Newsam,  i  \'L-nt.  256;  Tombs  v. 
Painter,  13  East  i;  Lewis  v.  Hoover, 
3  Blackf.  (Ind.)  407;  Handy  v. 
Johnson,  5  Md.  450;  Liebstadter  v. 
Federgreen,  80  Hun  245,  29  N.  Y. 
Supp.  1039;  IMorgan  v.  O'Daniel,  19 
Ky.  Law  193,  39  S.  W.  410. 

4.  MacDougall  v.  Maguire,  35  Cal. 
274,  9S  Am.  Dec.  98.  In  Bartram 
V.  Stone,  31  Conn.  159,  it  is  said: 
"  In  an  action  for  assault  and  bat- 
tery, the  plaintiff  may  prove  the 
previous  threats  of  the  defendant  to 
make  the  assault,  lioth  for  the  pur- 
pose of  proving  that  the  defendant 
made  the  assault,  and  to  prove  that 
it  was  maliciously  made.  Where  it 
is  material  to  show  the  animus  with 
which  an  act  was  done,  both  the 
prior  and  subsequent  declarations  of 
the  party  doing  the  act,  as  well  as 
those  which  accompany  the  act,  are 
admissible." 

Time  Limits  on  Acts  or  Words 
Showing  Malice.  —  In  Irwin  v. 
Ycagcr,  74  Iowa  174.  37  N.  W.  1,36, 
it  was  held  error  to  admit  in  evidence 
that  more  than  two  years  prior  to  the 
alleged  assault,  in  a  difficulty  be- 
tween the  plaintiff  and  the  defend- 
ant, defendant  said  "  Never  mind,  I 
will  fi.\  }-ou  yet,"  as  the  evidence  was 
too   remote   to   show  malice. 

Breitenbach  v.  Trowbridge,  64 
Mich.  3,93.  31  N.  W.  402,  8  Am.  St. 
Rep.  829.  held,  that  the  question 
whether  defendant  after  an  assault, 
had  not  called  plaintiff  "a  damned 
police  court  shyster,"  is  not  competent 
on  his  cross  examination  for  the  pur- 
pose of  showing  malice  at  the  time  of 
the  assault. 

In  Peterson  v.  Toner  80  Mich. 
350,  45  N,  W,  346,  held,  that  for  the 
purpose  of  showing  defendant's 
malice  in  making  an  assault  on  plain- 
tiff, the  latter  may  introduce  evi- 
dence   of   threats    made   against    him 

Vol.  1. 


by  defendant,  three  or  four  years 
before   the   assault. 

Subsequent  Threats In  Spear  v. 

Sweeney,  88  Wis.  545,  60  N.  W.  io6o, 
held,  abusive  epithets  addressed  to  a 
person  fourteen  hours  after  an  as- 
sault was  made  upon  him,  are  ad- 
missible in  evidence  to  show  that  the 
assault  was  made  witli  express 
malice. 

Circumstances  Tending  to  Show 
Malice.  _  In  Elfers  z:  Woollcy,  116 
N.  Y.  294,  22  N.  E.  548,  the  court 
say:  "The  rule  is  well  settled  in 
this  state  that  in  an  action  for  assault 
and  battery,  all  the  circumstances  im- 
mediately connected  with  the  transac- 
tion tending  to  exhibit  and  explain 
the  motive  of  the  defendant  are  com- 
petent for  the  purpose  of  showing 
whether  he  acted  maliciously  or  in 
an  honest  belief  that  he  was  justified 
in   what  he  did." 

In  Volt?  V.  Blackmar,  64  N.  Y. 
440,  a  conversation  had  on  the  night 
before  the  alleged  assault,  was  ad- 
mitted as  evidence  tending  to  show 
the  motive. 

Watkins  v.  Gaston,  17  Ala.  664. 
Threats  made  ten  days  before  the 
assault  are  admissible  to  show 
motive.  Bell  i'.  Morrison,  27  Miss. 
68. 

In  Castner  %'.  SHker,  23  N.  J.  Law 
95,  it  was  held  that  acts  and  declar- 
ations of  plaintiff  occurring  more 
than  two  or  three  months  before 
the  affray  and  on  several  occasions, 
are  not  admissible  to  show  an  in- 
tention of  wanton  violence  at  the 
time  of  the  assault. 

In  Byers  r.  Horner,  47  Md.  23,  it 
is  said :  "  Any  acts  or  declarations 
indicative  of  the  existence  of  malice 
or  ill-will  on  the  part  of  defendant 
towards  plaintiff  at  the  time  of  the 
wrong  committed,  may  be  given  in 
evidence  to  prove  malice." 

Malice  Determined  by  All  the  Cir- 
cumstances. —  Frost  V.  Pinkerton.  61 
App.  Div.  566,  70  N.  Y.  Supp.  802. 

All  the  circumstances  should  be 
considered  in  determining  whether 
there   was   malice.     Borland   7>.   Bar- 


ASSAULT  AND  BATTERY. 


997 


B.  Res  Gestae.  —  Any  acts  or  declarations  which  are  a  part  of 
the  res  gestae  are  admissible  in  evidence.^ 

C.  Declarations  and  Admissions.  —  Admissions  made  by  sig- 
nificant acts  are  receivable  in  evidence  against  the  defendant  f  also 
admissions  of  the  defendant  at  the  trial  of  a  criminal  action  for 
the  same  assault.'  Declarations  made  to  a  physician  are  admissible 
so  far  as  they  refer  to  plaintiff's  physical  condition  and  sensations. ° 

D.  Opinion  En'idence.  —  Opinion  evidence  is  generally  inadmis- 
sible except  in  cases  where  the  witnesses  may  have  better  means  of 
forming  opinions  than  the  jury.' 

E.  Real  Evidence.  —  The  weapon  with  which  the  assault  was 


rett,   76   Va.    128,   44   Am.   Rep.    152. 

In  Klein  z:  Thompson,  19  Ohio 
St.  569,  evidence  of  e.xpress  maUce 
is  admissible  though  not  averred  in 
the  petition.  Reddin  v.  Gates,  52 
Iowa  210,  2  N.  \V.  1079;  Crosby  v. 
Humphreys,  S9  Minn.  92,  60  N.  W. 
843. 

5.  Bruce  v.  Priest,  87  Mass.  100; 
Queen  v.  Bedell,  48  N.  H.  546;  State 
V.  Rawles,  65  N.  C.  ,-534;  Ward  v. 
White,  86  Va.  212,  9  S.  E.  1021,  19 
Am.   St.  Rep.  883 ;  Byers  r.  Horner, 

47  Md.  23;  Havilan'd  v.  Chase.  74 
N.  C.  477;  Nelson  v.  State  (Te.x. 
Grim.  App.),  20  S.  W.  766. 

See  also  "  Mitigation  of  Dam- 
ages, Provocation,"  post  I.  3.  b. 

See  Cherry  v.   McCall,  23  Ga.   193. 

See  also  "  Mitigation  of  Dam- 
ace,"  in  general,  t>ost  I.  3 ;  IMaisen- 
backer  v.  Society  Concordia,  71  Conn. 
369,  42  Atl.  67;  Pokriefke  v.  Mack- 
urat,  91  Mich.  399,  51  N.  W.  1059; 
Gillespie   v.    Beecher,   85    Mich.    347, 

48  N,  W.  s6i;  Puett  v.  Beard,  86 
Ind.   104. 

See  in  Rosenbaum  v.  State,  S3  Ala. 
354,  what  took  place  between  pros- 
ecutor and  prisoner  at  a  previous 
interview  in  the  forenoon  of  the 
same  day,  cannot  be  proved,  as  it  is 
too  far  removed  to  constitute  a  part 
of   the   res   gestae. 

Cleveland  v.  Stilwell,  75  Iowa  466, 
39  N.  W.  711;  Matthews  j',  Terry, 
10  Conn.  455 ;  Bracegirdle  v.  Orford, 
2  M.  &  S.  77 ;  Brzezinski  v.  Tierney, 
60  Conn.  55,  22  Atl,  486,  where  com- 
plaint alleged  an  assault  and  battery 
with  a  cane,  it  was  held  admissible 
to  prove  that  while  beating  the  plain- 
tiff,     the      defendant      pushed      him 


against  a  car,  thereby  injuring  him. 
Blake  v.   Damon,   103  Mass.   199. 

6.  Jewett  V.  Banning.  21  N,  Y.  27. 
The  fact  that  defendant  remained 
silent  when  accused  by  plaintiff  of 
making  an  assault  on  him  may  be 
taken   as   an   admission. 

In  Heneky  :■.  Smith,  10  Or.  349, 
45  Am.  Rep.  143,  evidence  of  the 
fact  that  six  days  after  plaintiff 
brought  suit,  defendant  made  a  con- 
veyance   of    land,    was    received    as 


an  admission  of 
;■.  Moore,  3  Ind. 
E.    724;    Puett    zi. 

Trowbridge,  64 


tending    to    shoi 
liability,      Myers 
App.    226,    28    N. 
Beard,  86  Ind.  104. 

7.  Brietenbach 
Mich.  393,  31  N.  W.  402,  8  Am.  St. 
Rep.  829. 

8.  Lichtenwallner  v.  Laubach,  105 
Pa.  St.  366;  Newman  v.  Dodson,  61 
Tex.  91  ;  Earl  v.  Tupper,  45  Vt.  275. 

In  Collins  v.  Waters,  54  III  485, 
it  is  held  that  plaintiff's  declarations 
to  his  physician  as  to  how  and  with 
what  instrument  the  injury  was  pro- 
duced, is  inadmissible  in  a  civil  action 
for  assault. 

9.  In  State  r.  Garvey,  11  Minn. 
154,  opinion  of  prosecuting  witness 
as  to  the  intent  with  which  defendant 
committed  the  act  is  not  admissible, 
where  he  has  no  better  means  to 
judge,  than  the  jurv.  Smith  v.  State 
(Tex.  Grim.  App.),  20  S.  W.  360, 
opinion  of  a  witness  as  to  whether  a 
whipping  by  a  school  teacher  was 
severe,  cruel  or  unjust  is  not  ad- 
missible. Trimble  v.  State  (Tex. 
Crim,  App.),  22  S.  W.  879,  opinion 
not  admissible  as  to  why  defendant 
assaulted  plaintiff. 


Vol.  1. 


998 


ASSAULT  AND  BATTERY. 


committed  nia\'  be  pfoduced  in  evidence  upim  being  properly  identi- 
fied.'" 

F.  Charactek  and  Condition  of  Parties.  —  Evidence  of 
defendant's  good  character  is  not  admissible  in  a  civil  action." 
Nor  can  the  plaintiff  give  in  evidence  that  he  is  a  man  of  good 
general  character.'-  Wwi  if  the  evidence  has  already  shown  that 
defendant  was  acting  in  self-defense,  then  evidence  of  the  turbulent 
and  quarrelsome  disposition  of  the  plaintiff  is  admissible,  if  it  was 
known  to  defendant  at  the  time  of  the  assault ;'"  unless  the  character 
of  plaintiff  has  no  connection  with  the  assault.'*  But  if  defendant 
was  the  aggressive  party  he  cannot  show  that  the  person  assaulted 
was  a  violent  man  or  had  a  bad  character.'^ 

Physical  Condition  of  the  Parties.  —  It  is  competent  to  give  in  evi- 
dence to  the  jury  the  physical  condition  of  the  plaintiff  or  defend- 
ant before,  at  the  time  of,  and  after  the  assault,  where  it  is  necessary 
to  explain  the   transaction   and   its   consequences.""'     Also  to  show 


10.  \'on  Reeden  v.  Evans,  52  111. 
App.  209. 

11.  United  States.  —  Brown  v. 
Evans,  17  Fed.  912,  affinncd  109  U. 
S.    180. 

California. — Anthony  v.  Grand,  lOi 
Cal.  235,  35  Pac.  859;  Vance  v. 
Richardson.  1 10  Cal.  414,  42  Pac.  909. 

Connecticut.    —    Thompson  v. 

Church,   I   Root  312. 

Indiana.  —  Elliott  v.  Russell,  92 
Ind.  526;  Sturgeon  v.  Sturgeon,  4 
Ind.   .\pp.  232,  30  N.  E.  805. 

hnca.  —  Reddin  v.  Gates,  52  Iowa 
210,   2   N.   W.    1079, 

Kentucky.  —  Drake  v.  Com.,  10  B. 
Mon.    225. 

Maine.  —  Soule  v.  Bruce,  67  Me. 
584. 

Massachusetts.  —  Day  v.  Ross,  154 
Mass.   13,  27   N.   E.  676. 

Michigan.  —  Fahey  z:  Crotty,  63 
Mich.  383.  29  N.  W.  876,  6  Am.  St. 
Rep.  305  ;  Pokriefke  v.  Mackurat,  91 
Mich.  399,  51  N.  W.  1059;  Dcrwin 
V.  Parsons,  52  Mich.  425,  18  N.  W. 
200,   50   Am.    Rep.   262. 

Mississipfi.  —  Sowell  v.  McDon- 
ald,   58    Miss.    251. 

Missouri.  —  Lyddon  v.  Dose.  81 
Mo.    App.   64. 

Nebraska.  —  Barr  v.  Post,  56  Neb. 
698,  77  N.   W.    123. 

North  Carolina.  —  Smithwick  v. 
Ward.  7  Jones  Law  64. 

Ohio.  —  Sayen  v.  Ryan,  9  Ohio 
Cir.  Ct.  631. 

12.  Givens  r.  Bradley,  6  Ky.  192, 
6   Am.    Dec.    646;    Reed'  v.    Kelly,   4 

Vol.  1. 


Bibb.     (Ky.)    400;    Quinton    v.    Van 
Tuyl,  30  Iowa  554. 

13.  Galbraith  v.  Fleming,  60 
Mich.  403,  27  N.  W.  581  ;  Harrison 
V.  Harrison,  43  Vt.  417;  Knight  v. 
Smythe,  57  Vt.  529;  Keep  v.  Quail- 
man,  68  Wis.  451,  32  N.  W.  233; 
Culley  r.  Walkeen,  80  Mich.  443, 
45  N.  W.  368;  Silliman  v.  Samp- 
son, 42  App.  Div.  623,  59  N.  Y. 
Supp.   923. 

Defendant  cannot  show  that  plain- 
tiff was  an  irritating  and  troviblesomc 
old  man  and  had  similar  trouble 
before.  Maclntoch  7'.  Bartlett,  67 
Me.   1,^0. 

Must  Be  Shown  by  General 
Reputation  and  Not  Opinion. 
Colder  z:  Lund.  50  Xeb.  867.  70  N. 
W.  379- 

14.  McKenzie  t.  .'Mien,  3  Slrob. 
(S.  C.)  546;  Cummins  v.  Crawford, 
88  111.  312,  30  Am.  Rep.  558;  Mc- 
Carty  v.  Leary.  118  Mass.  509;  Shook 
V.  Peters,  59  Tex.  393 ;  Littlehale  v. 
Dix,   II   Cush.    (Mass.)    364. 

15.  Kuney  v.  Dutchcr,  56  Mich. 
308,  22  N.  W.  866;  Bruce  v.  Priest, 
87    Mass.    ICO. 

16.  Stone  V.  Moore.  83  Iowa  186, 
49  N.  W.  76.  In  Bonino  z:  Cale- 
donia, 144  Mass.  299.  II  N.  E.  98, 
a  physician  allowed  to  testify  as  to 
condition  of  plaintifT's  nose  eight 
months  after  the  injury,  where  the 
request  is  for  him  to  state  the  con- 
dition of  the  plaintiff  at  that  time, 
so  far  as  related  to  the  effect  of  the 
injury   In  the  nose — there  being  evi- 


ASSAULT  AND  BATTERY 


999 


the  relative  sizes  of  the  plaintiff  and  defendant  as  bearing  on  the 
amount  of  force  necessary  to  be  used  by  defendant.'' 

2.  Evidence  in  Special  Pleas.  —  .\.  Moder.xte  C.xstigavit. 
When  the  plea  of  moderate  eastiga-:it  is  put  in,  the  defendant  must 
not  only  show  his  authority,  and  the  cause  of  the  beatinp;,  but  also 
that  it  was  in  fact  moderate;  and  if  by  his  own  evidence  it  appears 
that  he  has  abused  his  authority  and  inflicted  blows  unnecessary 
for  the  purpose,  his  issue  fails  him,  and  it  is  of  his  own  wrons:^  and 
without  the  cause  set  forth  in  his  plea.'"  The  defendant  must  also 
show  that  the  plaintiff  was  his  apprentice,  by  the  evidence  of  the 
articles  of  apprenticeship.'"  Evidence  is  not  admissible  as  to  what 
was  the  customary  practice  of  other  masters  in  chastising-  their 
apprentices,-"  or  that  the  ordinary  management  of  the  defendant 


dence  to  conni-ct  the  then  condition 
with  the  injury. 

Family  witnesses  were  allowed  to 
give  a  full  account  of  the  physical 
condition  of  plaintiff  before  the  in- 
jury, and  of  his  sufferings  then  and 
since,  and  of  the  continued  infirmities, 
without  apparent  improvement,  for 
three  and  one-half  years  after  the 
iniurv.  Kuney  ;■.  Dutcher,  s6  Mich. 
,^o8,   22  N.   W.  866. 

Elliott  V.  Van  Buren,  ,3,^  Mich.  49, 
20  Am.  Rep.  668;  Jackson  t'.  We. Is, 
i.S  Te.x.  Civ.  App.  27s,  35  S.  W.  528. 
Evidence  that  the  plaintiff  had 
hemorrhages  of  the  lungs  eighteen 
months  before  and  was  weak  and 
feeble  at  the  time,  accompanied  by 
evidence  from  which  it  would  be  in- 
ferred that  defendant  had  knowledge 
of  such  facts,  is  admissible.  Ously 
f.  Hardin,  23  111.  352.  Competent  to 
show  that  plaintiff  was  weak-min'ded. 

Evidence  as  to  plaintiff's  condition 
the  following  morning  is  adinissible. 
Hannan  v.  Gross,  5  Wash.  703,  32 
Pac.  787.  ■ 

Where  plaintiff  had  been  injured 
in  the  army,  it  was  admissible  to 
show  that  these  injuries  had  been 
aggravated,  and  to  what  extent,  by 
the  assault.  Watson  v.  Rheinder- 
knecht,  82  Minn.  235,  84  N.  W.  798. 

Reddin  v.  Gates,  52  Iowa  210,  2 
N.  W.  1079.  Held,  that  a  ferreotype 
of  the  condition  of  plaintiff's  wounds. 
taken  shortly  after  the  battery,  with 
testimony  that  it  was  a  correct 
representation  of  the  then  condition, 
was  competent. 

17.    Thomason    z:    Gray,    82    Ala. 


291,  3  So.  38.  In  determining  the 
amount  of  force  necessary  to  be  used 
by  defendant,  the  jury  may  consider 
the  age  and  relative  size  of  the 
parties.  Crosby  v.  Humphreys,  59 
Minn.  92,  60  N.   W.  843. 

18.  Hannen  t'.  Edes,  15  Mass.  365. 
In    Matthews    z:    Terry,    to   Conn. 

455.  the  court  say  on  this  issue : 
"  It  is  claimed  by  the  defendant,  that 
the  relation  of  master  and  servant 
existed  between  them,  which  con- 
ferred upon  him  this  right.  Admit- 
ting that  relation  to  have  existed,  it 
by  no  means  followed  that  the  de- 
fendant possessed  the  power  claimed. 
There  is  no  doubt  but  that  for  just 
cause,  a  parent  may  reasonably  cor- 
rect his  child,  a  master  his  ap- 
prentice, and  a  schoolmaster  his 
pupil.  Yet  that  power  cannot  be 
lawfully  exercised  by  a  master  over 
his  hired  servant,  whether  that  ser- 
vant is  employed  in  husbandry,  in 
manufacturing  business,  or  in  any 
other  manner,  c.vccpt  in  the  case  of 
sailors.  And  if  the  master  beat  such 
servant  though  moderately,  and  by 
way  of  correction,  it  is  good  ground 
for  the  servant's  departure,  and  he 
may  support  an  action  against  the 
master  for  battery.  Citing  i  Chitty 
Pr.  73,  75 ;  Newman  i'.  Bennett,  2 
Chitty  195.  See  also  Watson  v. 
Christie,  2  Bos.  &  P.  224;  Brown  v. 
Howard,  14  Johns.  (N.  Y.)  119; 
Thome  v.  White,  i  Pet.  Adm.  168, 
23  Fed.  Cas.  No.  13.989;  Sampson 
V.  Smith,  IS  Mass.  365. 

19.  Greenl.   Ev.,   vol.   2,   §97. 

80.     Newman  v.  Bennett,  2  Chitty 
195- 


Vol.  1. 


lOOU 


ASSAULT  AND  BATTERY 


was  mild  and  moderate.-^ 

B.  Son  Assault  Demesne.  —  When  the  defendant  pleads  son 
assault  demesne,  he  must  prove  that  the  plaintiff  assaulted  him 
first, ^^  and  that  what  was  done  by  him  was  in  necessar}^  defense  of 
his  own  person.-'  A  previous  assault  is  not  admissible  in  evidence 
under  this  plea,  or  any  assault  other  than  the  one  laid  in  the  decla- 
ration.-* It  is  also  necessary  to  prove  an  assault  commensurate 
with  the  trespass  soutjht  to  be  justified"'^  when  the  plea  is  used,  and 
the  reply  is  dc  injuria,  all  averments  of  the  plea  are  put  in  issue, 
and  the  plaintiff  can  only  recover  for  the  excess  of  force  he  proves  ;-° 
and  under  these  pleas  the  defendant  is  confined  to  evidence  in  excuse 
of  the  battery.^' 

C.  Replication  de  Injuria.  —  The  replication  dc  injuria  is 
really  a  traverse  to  a  plea  in  excuse,  and  therefore  puts  in  issue 
only  the  matter  of  excuse  alleged  in  the  plea :  therefore,  under  de 
injuria,  the  plaintiff  may  show  in  evidence  that  the  defendant's  bat- 
tery was  excessive.-*  Where  there  is  only  one  count  and  a  traverse 
de  injuria,  no  evidence  can  be  introduced  relating  to  any  other 
assault  than  the  one  specified  in  the  plea.-" 

D.  MoLLiTER  Manus  Imposuit.  — Although  the  plea  may  justify 
a  mere  assault,  it  is  never  good  if  the  evidence  shows  a  beating  and 
wounding.'"  Where  the  assailant  does  not  use  force,  evidence  of  a 
request  to  depart  should  be  given  under  this  plea.'*     Where  a  per- 


21.  Lander  v.  Seaver,  32  Vt.  114, 
76   Am.   Dec.    156. 

22.  Stevens  v.  Lloyd,  i  Cranch 
C.  C.  124,  23  Fed.  Cas.  No.  13,402; 
Schlosser  v.  Fox.  14  Ind.  365.  See 
Wilken  v.  Exterkamp,  19  Ky.  Law 
1 132,  42  S.  W.  1 140.  In  the  absence 
of  a  plea  of  son  assault  demesne, 
defendant  cannot  prove  that  plain- 
tiff  first   assaulted    him. 

23.  Rogers  v.  Waite,  44  Me.  275; 
Fitzgerald  v.  Fitzgerald,  51  Vt.  420; 
Watson  V.  Hastings,  l  Penn.  (Del.) 
47,  39  Atl.   587. 

24.  Gibson  v.  Fleming,  i  Har.  & 
J.  (Md.)  483;  Dole  V.  Erskine,  37 
N.  H.  316;  Peyton  v.  Rogers,  4  Mo. 

254- 

25.  Reece  v.  Taylor.  4  N.  &  M. 
470. 

26.  Harrison  v.  Harrison,  43  Vt. 
417;  Watson  t'.  Hastings,  i  Penn. 
(Del.)    47,  39  Atl.   587. 

27.  Frederick  v.  Gilbert,  8  Pa.  St. 
454.  But  if  plaintiff  attempts  to 
justify  he  must  newly  assign  the 
matter  of  justification.  Elliot  v. 
Kilburn,  2  Vt.  470. 

28.  Ayers  v.  Kelley,  n  111.  17; 
Fortune   v.   Jones,   30   III.   .-Xpp.    116, 

Vol.  1. 


reversed  128  111.  518,  21  N.  E.  523; 
Fisher  v.  Bridges,  4  Blackf.  (Ind.) 
S18;  Gaither  v.  Blowers,  11  Md. 
536;  Hannen  v.  Edes,  15  Mass.  347; 
Curtis  V.  Carson,  2  N.  H.  539;  Ben- 
nett V.  Appleton,  25  Wend.  (N.  Y.) 
371 ;  Bartlett  v.  Churchill.  24  Vt. 
218;  Mellen  v.  Thompson,  32  \'t. 
407;  Philbrick  v.  Foster,  4  Ind.  442; 
Dole  V.  Erskine,  37  N.  H.  316; 
Thomas  v.  Black,  8  Houst.  (Del.) 
507,  18  Atl.  771- 

29.  Carpenter  v.  Crane,  5  Blackf. 
(Ind.)  119;  Berry  v.  Borden,  7 
Blackf.    (Ind.)    .384. 

30.  Cox  V.  Cooke,  i  J.  J.  Marsh. 
(Ky.)  360;  Shain  v.  Markham,  4 
J.  J.  Marsh.  (Ky.)  578.  20  Am.  Dec. 
232;  Boles  V.  Pinkerton,  7  Dana 
(Ky.)  453;  French  v.  Marstin,  24 
N.  H.  440,  57  Am.  Dec.  294;  Gates 
V.  Lounsbury,  20  Johns.  (N.  Y.) 
427;  Bush  V.  Parker,  i  Bing.  (N.  C.) 
72;  Brubaker  v.  Paul,  7  Dana  (Ky.) 
428,   32   Am.    Dec.    in. 

31.  Mcllvay  v.  Cockran,  2  Marsh. 
(Ky.)  276;  Ford  v.  Logan,  2  Marsh. 
(Ky.)  325.  See  Tullay  v.  Reed,  i 
Car.  &  P.  6;  Ballard  v.  Bond,  i 
Jur.  7. 


ASSAULT  AND  BATTERY 


1001 


son  is  justified  in  laying  hands  on  anotlier,  tliis  plea  will  be  sus- 
tained by  evidence  of  the  use  of  necessary  and  reasonable  force,  but 
not  of  unnecessary  and  unreasonable  force.'-  And  the  one  who 
justifies  the  use  of  force,  must  prove  the  circumstances  of  justifica- 
tion.'^ 

3.  Damages.  —  A.  Mitigation  of  Damagi;s. — -a.  In  General. 
Mitigation  of  damages  in  a  case  of  assault  is  admissible,'*  but  the 
circumstances  of  mitigation  must  form  part  of  the  res  gestae.'^ 
Although  consent  to  an  assault  is  no  justification,  yet  such  consent 
may  be  shown  in  mitigation  of  damages."'"'  In  actions  for  indecent 
assaults  and  solicitations,  evidence  may  be  given  for  the  purpose  of 
mitigating  damages,  as  to  the  general  character  of  plaintiff  for 
unchastity,  but  evidence  of  specific  acts  is  inadmissible."'  But 
usually  the  evidence  of  character  of  plaintiff  or  defendant  is  imma- 
terial, and  inadmissible  to  mitigate  damages.'* 


32.  Green  v.  Bartram,  4  Car.  &  P. 
308,  where  B  would  have  been  jus- 
tified in  using  reasonable  force  to 
put  A  out  of  his  house,  yet  was  not 
justified    in    having    A    arrested. 

England.  —  Hillary  v.  Gay,  6  Car. 
&  P.  284;  Edwick  V.  Hawkes,  18  Ch. 
D.  199 ;  Eyre  v.  Norsworthy,  4  Car. 
&  P.  502 :  Iniason  v.  Cope,  5  Car.  & 
P.  193 ;  Thomas  i'.  Marsh,  $  Car.  & 
P.  596. 

United  States.  —  Denver  etc.  R. 
Co.  V.  Harris,  122  U.  S.  597. 

Connecticut.  —  Larkin  v.  Avery,  23 
Conn.  304. 

Illinois.  —  Comstock    i'.     Brosseau, 

65    111.   39- 

New  Jersey.  —  Todd  v.  Jackson, 
26   N.   J.   Law  525. 

New  York.  —  Hyatt  v.  Wood.  3 
Johns.  239,  4  Johns.  150,  4  Am.  Dec. 
258;  Wood  V.  Phillips,  43  N.  Y.  152; 
McMillan  v.  Cronin,  75  N.  Y.  474; 
Bristor  v.  Burr,  120  N.  Y.  427,  24 
N.  E.  937,  8  L.  R.  A.  17;  O'Donneil 
V.  Mclntyre,  27  Hun  623. 

Ohio.  —  Pitford  -■.  .\rmstrong, 
Wright  94. 

Te.vas.  —  Sinclair  v.  Stanly,  69 
Tex.  718,  7  S.  W.  511.  See  also 
Canavan  v.  Gray,  64  Cal.  5 ;  Franck 
V.  Wiegert,  56  Mich.  472,  23  N.  W. 
172. 

Contra.  —  Sterling  v.  Warden,  51 
N.  H.  217,  12  Am.  Rep.  80;  Kellam 
v.  Janson,  17  Pa.  St.  467;  Rich  v. 
Keyser,   54    Pa.    St.   86. 

Eviction  From  Railway  Train. 
Coleman  -■.  X.  Y..  X.  H.  &  11.  R.,  106 
Mass.   t6i. 

Eviction   of  Trespasser.  —  Brebach 


r.  Johnson,  62  111.  App.  131  ;  Gyre 
V.  Culver,  47  Barb.  (N.  Y.)  592; 
Beecher  7',  Parmele,  9  Vt.  352,  31 
Am.  Dec.  633 ;  Brothers  r.  Morris, 
49  Vt.  460;  Abt  V.  Burgheim,  80  111. 
92;  Jones  V.  Jones.  71  111.  562; 
Wright  V.  So.  Exp.  Co.,  80  Fed.  85 ; 
Low  V.  Elwell,  121  iNIass.  309,  23  Am. 
Rep.  272. 

33.  Hanson  i'.  E.  &  N.  A,  R.  Co., 
62  Me.  84,  16  Am.  Rep.  404;  Cole- 
man V.  N.  Y.,  N.  H.  &  H.  R.,  106 
Mass.  161  ;  Brown  z\  Gordon,  i 
Gray  (Mass.)  182;  Rhinehardt  v. 
Whitehead,  64  Wis.  42,  24  N.  W. 
401. 

34.  Anonymous,  Brayt.   (Vt.)   168. 

35.  Mowry  v.  Smith,  9  Allen 
(Mass.)  67;  Tyson  v.  Booth,  100 
Mass.  258;  Child  v.  Homer,  13  Pick. 
(Mass.)  503;  Byers  v.  Horner,  47 
Md.  23.  Currier  v.  Swan,  63  Me. 
323.  Evidence  of  a  previous  assault 
upon  the  same  afternoon  between 
the  parties  admissible  in  mitigation 
of  damages,  but  not  the  details 
thereof.  See  also  Flint  ,■.  Bruce, 
68  Me.   183. 

36.  Adams  v.  Waggoner,  33  Ind. 
531,  S  Am.  Rep.  230;  Barholt  v. 
Wright,  45  Ohio  St.  177,  12  N.  E. 
185,  4  Am.  St.  Rep.  535;  Logan  v. 
.\ustin,  I  Stew.  (Ala.)  476;  Schutter 
V.  Williams,  I  Ohio  Dec.  47 ;  Grotton 
I'.  Glidden,  84  Me.  589,  24  Atl.  1008. 

37.  Dimick  v.  Downs,  82  111.  570; 
Gore  V.  Curtis,  81  Me.  403,  17  At!. 
314,  10  Am.  Rep.  265;  Miller  7. 
Curtis,  158  Mass.  127,  32  N.  E.  1039, 
35  Am.   St.  Rep.  469. 

38.  Reddin  7'.  Gates,  52  Iowa  210, 

Vol.  I 


1002 


ASSAULT  AND  BATTERY. 


b.  Provocation.  —  No  provocation  will  reduce  the  damages,  in  an 
action  for  assault  and  battery,  below  compensatory  or  actual  dam- 
ages, unless  it  amounts  to  a  justification.^"  But  any  act  of  provoca- 
tion, or  any  insulting  and  provoking  language  used,  at  the  time 
of  the  assault  and  battery,  may  be  given  in  evidence  in  mitigation  of 
damages."     Such  provocation  or  language  is  not  admissible  unless 


2  N.  \V.  1079 ;  Corning  ?'.  Corning, 
6  N.  Y.  97;  Willis  V.  Forrest,  2  Dner 
310. 

39.  United  States.  —  Cushnian  %'. 
Waddell,  l  Baldw.  57,  6  Fed.  Cas. 
No.  3516. 

Connecticut.  —  Burke  v.  Melvin,  45 
Conn.  243. 

Delaware.  ^-  Tatnall  z\  Courtney, 
6  Houst.  434. 

IlUiwis.  —  Scott  -'.  Fleming.  16  111. 
App.    5.39- 

Kcntuckx. — Waters  v.  Brown.  3 
A.  K.  Marsh,    do  Ky.)   557- 

Maine. —  Prentiss  v.  Shaw,  56  Me. 
427.  96  Am.  Dec.  475. 

Keii:  York.  —  Keves  v.  Devlin,  3 
E.    D.    Smith    518.  " 

Tennont.  —  Goldsmith  v.  Joy,  61 
Vt:  488.  17  Atl.  loio,  IS  Am.  St."  Rep. 
923.  4  L.  R.  A.  500. 

IVisconsin.  —  Birchard  ?'.  Booth.  4 
Wis.  85;  Corcoran  v.  Harran,  55  Wis. 
120,  12  N.  W.  468;  Brown  7'.  Swine- 
ford.  44  Wis.  282.  28  Am.  Rep.  582. 

40.  Rochester  v.  Anderson,  i 
Bihb  (Ky.)  428;  .^very  r.  Ray,  i 
Mass.  12;  Ellsworth  v.  Thompson. 
13  Wend.  (N.  Y.)  65S;  Cushman  v. 
Ryan,  i  Story  91.  6  Fed.  Cas.  No. 
3515;  Cushman  T.  Waddell,  i  Baldw. 
57,  6  Fed.  Cas.  No.  3516;  Burke  v. 
Melvin,  45  Conn.  243;  Brown  v. 
Swineford.  44  Wis.  282.  28  .\m.  Rji>. 
582,  provocation  of  an  assault, 
though  not  sufficient  for  justification 
may  go  to  exclude  exemplarj'  dam- 
ages. Richardson  v.  Hine,  42  Conn. 
206;  Matthews  r'.  Terry.  10  Conn. 
455;  Bartrani  !■.  Stone.  31  Conn.  159. 

in  Fairbanks  v.  Witter.  18  Wis. 
301,  on  the  strength  of  a  provocation 
at  the  time,  evidence  was  admitted  in 
mitigation  of  damages,  tending  to 
show  that  plaintiff  had  during  several 
years  previous  to  the  affray  frequently 
tried  to  provoke  a  quarrel  with  de- 
fendant, and  had  threatened  on 
various  occasions  to  take  his  life. 

In  Stetler  v.  Nellis,  60  Barb.  (N. 
Y.  >  524.  the  court  said  although  cvi- 

Vol.  1. 


deuce  of  acts  done  or  words  spoken 
by  plaintiff  long  before  the  cause 
of  action  arose,  is  inadmissible  for 
the  purpose  of  showing  provocation 
and  mitigating  the  damages,  yet, 
where  such  acts  or  words  arc  a 
portion  of  a  series  of  provocations 
frequently  repeated  and  continued 
down  to  the  time  of  the  assault,  they 
may  be  shown  in  evidence. 

In  Bundy  v.  Maginess,  76  Cal.  532, 
18  Pac.  668,  it  was  said,  where  de- 
fendant alleges  acts  of  provocation 
both  before  and  at  the  time  of  the 
assault,  and  that  those  that  caused 
the  assault  and  batterj-  were  those 
at  the  time  of  the  assault,  he  cannot 
give  evidence  of  other  provocative 
acts. 

Dole  V.  Erskine.  37  N.  H.  316,  held 
that  evidence  that  plaintiff  had  for  a 
long  time  previous  to  the  assault  and 
battery  entertained  hostile  feelings 
towards  defendant  and  had  formerly 
committed  an  assault  on  him,  is  lu- 
admissible. 

.An  article  published  in  a  newspaper 
two  days  before  the  assault,  is  ad- 
missible in  evidence  as  part  of  the 
res  gestae.  Ward  v.  White.  86  Va. 
212,  9  S.  E.  1021,  19  .\m.  St.  Rep. 
883. 

England.  —  Eraser  v.  Berkeley,  7 
Car.  &  P.  621. 

.irkansas.  —  Ward  i'.  Blackwood, 
41  Ark.  295,  48  Am.  Rep.  41. 

Connecticut.  —  Guernsey  v.  Morse, 
2  Root  252,  I  Am.  Dec.  69. 

Delatvare.  —  Jarvis  ;'.  Manlove,  5 
Harr.   452. 

Illinois.  —  Ogden  v.  Claycomb.  52 
111.  365:  Murphy  v.  McGrath,  79  11! 
594;  Donnelly  v.   Harris,  41    111.   126. 

Indiana.  —  Fullerton  1:  Warrick,  3 
Blackf.  219,  25  Am.  Dec.  99. 

Iowa.  —  Ireland  v.  Elliott,  5  Iowa 
478,  68  Am.  Dec.  715;  Thrall  v. 
Knapp.  17  Iowa  468;  Gronan  v. 
Kukkuck,  59  Iowa  18,  12  N.  W.  748. 

Kentucky.  —  Chandler  v.  Newton, 
13  Ky.  Law  927. 


ASS.IULT  AND  BATTERY 


1003 


it  is  a  part  of  the  res  gestae.*^  And  therefore  evidence  of  a  provo- 
cation given  by  plaintiff  some  time  before  the  assault,  is  not  admis- 
sible in  evidence. *- 

c.  CriminaJ  Prosecution.  —  In  a  civil  action  for  assault  and  bat- 
tery evidence  may  not  be  given  to  the  jury  for  the  purpose  of  reduc- 
ing damages,  that  the  plaintiff  had  been  prosecuted  criminally  for 
the  assault  and  ])aid  his  fine.*''  The  record  of  the  indictiuent  may 
be  introduced  in  evidence  to  show  that  the  indictment  and  action 
are  founded  on  the  same  transaction.*"' 


Louisiana.  —  Richardson  -'.  Zuntz, 
26  La.  Ann.  313;  Caspar  r.  Pros- 
dame,  46  La.  Ann.  36,   14  So.  317. 

Maryland.  —  Caither  v.  Blowers, 
II   Md.  536. 

Massachusetts. — Paul  i'.  Bisset,  121 
Mass.    T70. 

Michigan.  —  Millard  7'.  Trua.x.  84 
Mich.  S17,  47  N.  W.  iioo.  22  .Am. 
St.  Rep.  70s. 

Minnesota.  —  Crosby  v.  Hum- 
phreys, 59  Minn.   92,  60  N.  W.  843. 

Ne'ci'  York.  —  Willis  i'.  Forrest,  2 
Duer  310 ;  Lee  r.  Woolsey,  19  Johns. 
319,  10  Am.  Dec.  230. 

North  Carolina.  —  Barry  v.  In- 
gles, Taylor  72. 

Tennessee.  —  Jackaway  i'.  Diila,  7 
Yerg.  82,  27  Am.   Dec.  492. 

In  Marker  v.  Miller,  9  Md.  338,  it 
was  held  that  the  fact  that  the  as- 
sault was  comnn'tted  by  the  defend- 
ant in  vindication  of  his  truth  and 
veracity  is  a  mitigating  circumstance 
if  he  had  the  truth  on  his  side,  and 
hence  plaintiff  may  rebut  it  by  proof 
that  truth  was  with  him.  But  see 
Butt  f.  Gould,  34  Ind.  552,  and 
Bartram  v.  Stone,  31   Conn.   159. 

41.  Avery  v.  Ray,  i  Mass.  12; 
Ellsworth  z<.  Thompson,  13  Wend. 
(N.  Y.)  658:  Richardson  v.  Hine, 
42  Conn.  206;  Brooks  7:  Carter.  34 
Fed.  505;  Millard  v.  Truax,  84  Mich. 
517,  47  N.  W.  1 100.  22  .\m.  St.  Rep. 
705;  Coxe  V.  Whitney,  9  Mo.  531; 
Lee  J'.  Woolsey,  19  Johns.  (N.  Y  ) 
319;  Chapell  I'.  Schmidt,  104  Cal.  mi, 
3S  Pac.  892. 

Where  defense  was  that  plaintiff 
unlawfully  entered  defendant's  gar- 
den and  was  picking  his  flowers  at 
the  time  of  the  assault,  it  was  not 
error  to  exclude  evidence  of  prior 
commissions  of  the  saine  trespass. 

Alabama.  —  Keiser  ?'.  Smith,  71 
Ala.  481,  46  Am.  Rep.  ,142. 


Indiana. 


■  Baker  v.  Gausin,  76  Ind. 


317- 


lotvQ.  —  Cleveland  v.  Stilvvell.  75 
Iowa  466,  39  N.  W.  711. 

Kentucky.  —  Rochester  ;■.  Ander- 
son,  1   Bibb  428;  Dungan  v.  Godsey, 

2  A.  K.  Marsh.  352 :  Sherley  v. 
Billings,  8  Bush  147,  8  Am.  Rep.  451. 

Massachusetts. — Hall  v.  Powers.  12 
Mete.  482,  46  Am.  Dec.  698;  Paul  v. 
Bisset,  121  Mass.  170. 

iVcic  York.  —  Mayixard  v.  Beards- 
ley,  7  Wend.  560,  22  Am.  Dec.  595. 

Virginia.  —  Davis  v.  Franck,  2>i 
Gratt.  413;  McAlexander  v.  Harris, 
6  Munf.  465. 

42.  Rochester  v.  .\nderson,  i 
Bibb  (Ky.)  428;  Chrisman  ;■.  Hunter, 

3  Dana  (Ky.)  83;  Berry  v.  Ingles, 
Taylor  72;  Roach  v.  Caldbeck,  64  Vt. 
S93,  24  Atl.  989;  Waters  v.  Brown, 
3  A.   K.   Marsh.    (Kv.)    557- 

43.  Alabama. —  VhWyxps  z:  Kelly, 
29  Ala.  628. 

California.  —  Bundv  v.  Maginess, 
76  Cal.  532,   18  Pac. '668. 

Delaivare.  —  Keller  z'.  Taylor,  2 
Houst.  20. 

lozva.  —  Reddin  v.  Gates,  52  Iowa 
210,  2  N.  W.  1079. 

Kentucky.  —  Reed  v.  Kelly,  4  Bibb 
400. 

Mississippi.  —  Wheatley  v.  Thorn, 
I    Cush.  62. 

Missouri.  —  Corwin  z'.  Walton,  i8 
-Mo.  71,  59  Am.  Dec.  285. 

South  Carolina.  —  Wolff  v.  Cohen, 
8  Rich.  Law  144. 

I'ermont.  —  Roach  z:  Caldbeck.  64 
Vt.  593,  24  Atl.  989;  Headle  v.  Wat- 
son, 45  Vt.  289,   12  Am.  Rep.   197. 

Contra.  —  Smithwick  z'.  Ward,  7 
Jones  Law  64;  Rhodes  z\  Rodgers, 
151  Pa.  St.  634.  24  Atl.  1044; 
Flanagan  v.  Womack,  54  Tex.  45 ; 
Jackson  v.  Wells,  13  Te.x.  Civ.  App. 
275.  35  S.  W.  528. 

44.  Blackburn  z:  Minter.  22  Ala.  613. 

Vol.  1. 


1(1(14 


ASSAULT  AND  BATTERY. 


The  pecuniary  circumstances  of  the  defendant  may  be  considered 
in  awarding  damages/^  and  also  the  station  or  position  of  the  par- 
ties.*" 

B.  Aggravation  of  Damages.  —  a.  /;;•  General.  — Circumstances 
of  outrage  and  insuh  attending  an  assault  and  battery,*"  which  wound 
the  feelings  or  tend  to  lower  the  party  injured  in  the  estimation 
of  society,  may  be  given  in  evidence  to  influence  the  award  of  dam- 
ages beyond  the  usual  amount."  Malice  may  also  be  shown  in 
evidence  in  aggravation  of  actual  damages  even  though  exemplary 
or  punitive  damages  are  also  recoverable  on  the  same  ground.*" 
But  evidence  of  words  spoken  at  the  time  of  the  assault,  or  at 
another  time  and  place,  is  inadmissible  in  aggravation  of  damages."'" 
Where  it  is  averred  that  the  assault  was  unlawfully  made,  matters 
of  aggravation  may  be  given  in  evidence  without  pleading  them.^' 

b.  Financial  and  Social  Condition  of  Parties.  —  When  an  aggra- 
vated assault  and  battery  is  sued  for,  evidence  is  admissible  of 
the    pecuniary    ability    of    the    defendant,'"    or    of   his    social    posi- 


45.  Sloan  v.  Edwards,  6i  Md.  89. 
But  the  court  say  as  to  financial  con- 
dition that  where  the  question  is 
"what  is  pecuniary  condition  of  de- 
fendant "  and  the  answer  is  "  gen- 
erally considered  good "  it  is  inad- 
missible because  too  indefinite. 
Schmidt  V.  Pfeil,  24  Wis.  452; 
Harris  v.  Marco,  16  S.  C.  575 ;  Dailey 
V.   Houston,   58   iVIo.  361. 

In  Mullin  t'.  Spangenberg,  112  111. 
140,  court  say  defendant  cannot  show 
he  is  without  pecuniary  resources, 
unless  by  way  of  rebuttal.  Johnson 
V.  Smith,  64  Me.  553;  Jacoby  v. 
Guier,  6  Serg.  &  R,    (Pa.)   399- 

46.  Sloan  v.  Edwards,  61  Md.  89; 
Dailey  v.  Houston,  58  Mo.  361  ; 
Schelter  v.  York,  Crabbe  449,  21 
Fed.  Cas.  No.  12,446;  Jarvis  v.  Man- 
love,  5  Harr.   (Del.)  452. 

47.  Barnes  v.  Martin,  15  Wis. 
240,  82  Am.  Dec.  670;  Dickey  v.  Mc- 
Donnell, 41  111.  62 ;  Root  V.  Stur- 
divant,  70  Iowa  55,  29  N.  W.  802; 
Worford  v.  Isbel,  i  Bibb  (4  Ky.)  247, 
4  Am.  Dec.  633;  Pratt  v.  Ayler,  4 
Har.  &  J.  (Md.)  448. 

In  Shafer  v.  Smith,  7  Har.  &  J. 
(Md.)  67,  other  trespasses  to  plain- 
tiff, or  to  his  family,  if  committed 
at  the  time  of  the  principal  trespass, 
may  be  given  in  evidence  to  increase 
the  damages.  Bell  v.  Morrison,  27 
Miss.  68;  Joice  v.  Branson,  73  Mo. 
28;  Pendleton  v.  Davis,  I  Jones  (N. 
C. )  98;  Dean  v.  Raplee,  75  Hun  389, 
27  N.  Y.  Snpp.  438. 

Vol.  1. 


48.  Townsend  v.  Briggs  (Cal.), 
32  Pac.  307 ;  Ously  v.  Hardin.  23  111. 
352;  Johnson  v.  McKee,  27  Mich.  471  ; 
Elliott  V.  Van  Buren,  33  Mich.  49,  20 
Am.  Rep.  668,  aggravation  of  an  ex- 
isting disease;  Hodges  v.  Nance,  i 
Swan  (Tenn.)  57;  Bagley  v.  Mason, 
69  Vt.   17s,  37  Atl.  287. 

49.  Webb  v.  Oilman,  80  Me.  177, 
13  Atl.  688;  Shafer  v.  Smith,  7  Har. 
&  J.  (Md.)  67;  Joice  v.  Branson.  73 
Mo.  28. 

50.  Hallowell  z'.  Hallowell,  i  T. 
B.  Mon.   (Ky.)    130. 

51.  Sampson  v.  Henry,  II  Pick. 
(Mass.)  379;  Pierce  v.  Carpenter,  65 
Mo.  App.  191.  See  Birchard  ■?: 
Booth,  4  Wis.  85,  where  damage  is 
not  the  necessary  or  natural  con- 
sequence of  the  assault  and  battery  or 
where  it  is  matter  of  aggravation, 
evidence  cannot  be  given  unless 
specially  stated  on  the  record. 

52.  United  States.  —  Brown  v. 
Evans,  17  Fed.  912. 

Illinois.  —  Cockran  r.  Aminon,  16 
ill.  315;  Jones  V.  Jones,  71  111.  562. 

Kcntucl;y.  —  Gore  v.  Chadwick,  6 
Dana  (36  Ky.)  477. 

Maine.  —  Webb  v.  Gilman,  80  Me. 
177,   13  Atl.  688. 

Maryland.  —  Sloan  v.  Edwards,  61 
Md.  89. 

North  Carolina.  —  Pendleton  v. 
Davis,  I  Jones  98. 

Ohio.  —  Hendricks  v.  Fowler,  16 
Ohio  Cir.  Ct.  597. 

.Smith   Carolina.  —  Rowe  v.   Moses, 


ASSAULT  AND  BATTERY 


1005 


tion,^''  but  this  evidence  is  not  admissible  on  the  subject  of  actual 
compensatory  damages.^'' 

c.  Consequential  Injnries.  —  Where  the  complaint  is  general,  no 
special  damages  alleged,  evidence  may  be  given  of  damages  natu- 
rally and  necessarily  resulting  from  the  act  of  defendant. °'''  Where 
the  damages  are  consequential  they  must  be  set  forth  specially  in 
the  petition,  or  else  no  evidence  of  such  damages  will  be  allowed.'^" 


9  Rich.  Law  423,  67  Am.  Dec.  560; 
Harris   v.   JNIarco,    16   S.   C.   575. 

Wisconsin.  —  Barnes  v.  Martin,  15 
Wis.  240,  82  Am.  Dec.  670;  Draper 
V.  Baker,  61  Wis.  450,  21  N.  W.  527, 
50  Am.  Rep.  143 ;  Birchard  v.  Booth, 
4  Wis.  85. 

53.  McNamara  v.  King,  2  Gilm. 
(III.)  432;  Sloan  V.  Edwards,  61  Md. 

89 :  Eltringham  v.  Earhart,  67  Miss. 
488.  7  So.  346,  19  Am.  St.  Rep.  319; 
Dailey  v.  Houston,  58  Mo.  361 ;  Jones 
V.  Jones,  71  III.  562;  Gaithers  v. 
Blowers,  II  Md.  536. 

54.  Roach  V.  Caldbeck.  64  Vt.  593, 
24  Atl.  989;  Hare  v.  Marsh,  61  Wis. 
435,  21  N.  W.  267,  50  Am.  Rep.  141. 

55.  Morgan  v.  Kendall.  124  Ind. 
454,  24  N.  E.   14.^-  9  L-  R-  A.  445. 

Andrews  v.  Stone,  10  Minn. 
72,  where  no  special  damages  alleged, 
not  confined  to  nominal  damages, 
but  may  recover  such  general  dam- 
ages as  are  proved  to  result.  O'Leary 
z'.  Rowan,  31  Mo.  117. 

Stevenson  v.  Morris,  37  Ohio  St. 
10,  41  Am.  Rep.  481 ;  Birchard  v. 
Booth,  4  Wis.  85.  Need  not  set  out 
in  petition  necessary  or  usual  con- 
sequences of  the  injury,  and  may 
recover  for  these  even  though  they 
accrue  after  the  commencement  of 
the  suit.  Gronan  v.  Kukkuck,  59 
Iowa  18,  12  N.  W.  748;  Sloan  v. 
Edwards.  61  Md.  89;  Fetter  v.  Beale, 
I  Ld.  Raym.  339,  2  Salk.  11;  Moore 
V.  Adam,  2  Chitty  198;  i  Chitty  PI, 
346- 

56.  Vertz  v.  Singer  Mfg.  Co.,  35 
Hun    (N.  Y.)    116. 

In  Hutts  V.  Shoaf,  88  Ind.  395,  it 
is  said  that  if  the  complaint  alleges 
that  the  plaintiff  was  made  lame  and 
sick,  evidence  of  special  damage  is 
admissible,  though  no  specific  amount 
is  claimed  "  eo  nomine." 

In   Hamm  t.   Romine,  98   Ind.   77, 


complaint  alleged  permanent  dis- 
ability, and  it  was  held  that  plain- 
tiff could  give  evidence  as  to  her  ill 
health  since  the  assault.  Sloan  v. 
Edwards,  61  Md.  89,  held  might 
show  that  had  become  subject  to  fits, 
although  not  specially  alleged  as 
grounds  of  special  damages.  Avery 
V.  Ray,  I   Mass.  12. 

In  Welch  v.  Ware.  32  Mich.  77, 
declaration  set  up  items  of  injury, 
suffering  and  expense,  avers  hin- 
drance in  plaintiff's  affairs,  loss  of 
profits  in  occupation  as  a  theatrical 
performer,  etc.  Held,  that  evidence 
was  admissible  of  price  plaintiff  was 
paying  for  board  of  himself  and 
family,  value  of  the  joint  services 
of  hitnself  and  wife  as  performers, 
and  of  proportion  his  services  were 
worth. 

Cannot  recover  for  doctor's  bill 
resulting,  unless  specially  set  forth. 
O'Leary  v.  Rowan,  31   Mo.   117. 

In  Robinson  v.  Stokely,  3  Watts 
(Pa.)  270,  consequential  injury  to 
plaintiff's  business  must  be  averred 
in  declaration,  otherwise  evidence  of 
such  injury  is  inadmissible.  Kuhn 
V.  Freund,  87  Mich.  545.  49  N.  W. 
867 ;  Pettit  V.  Addington,  Peake  62. 
If  consequent  sickness  be  intended 
to  be  relied  on,  it  must  be  laid  under 
a  per  quod. 

Exceptions  to  Above.  —  Special 
damages  may  be  recovered,  wdien  not 
declared  on  in  the  complaint,  if  the 
evidence  in  regard  to  such  special 
damages  is  given  to  the  jury  without 
objection.  Atkinson  v.  Harran,  68 
Wis.  405,  32  N.  W.  756. 

Must  Be  Proved  as  Averred. 
.\llegation  that  plaintiff  expended 
uKineys  to  be  cured  is  not  sustained 
by  proof  that  he  simply  incurred 
liability  therefor.  Ward  v.  Haws,  5 
Minn.  440. 


Vol.  1. 


1006 


ASSAULT  AND  BATTERY 


II.  CKIMINAL  ACTION. 

1.  Presumptions  and  Burden  of  Proof.  —  The  burden  is  upon  the 
state  to  prove  the  assault  to  be  a  criminal  one,''  not  made  in  self- 
defense,^'  even  where  a  deadly  weapon  was  used  f''  but  it  has  also 
been  held  that  the  burden  is  upon  the  defense  to  justify  the  use  of 
such  weapon.""  There  is  no  presumption  that  a  billy, "^  axe,"^  pistol, 
or  other  instrument  is  a  deadly  weapon,"'  and  the  burden  is  upon 
the  state  to  show  its  deadly  character"*  as  used."'' 

Where  the  defense  relies  upon  some  distinct  and  independent 
fact  not  part  of  the  res  gestae,  the  burden  shifts  to  the  defendant."" 

Natural  Results.  —  The  law  presumes  that  the  defendant  intends 
the  ordinary  results  of  his  acts,"'  and  the  acts  of  his  accomplices. 

Loaded  Gun  Aggravated  Assault.  —  The  burden  is  upon  the  defend- 
ant to  prove  that  his  ii,m\  was  not  loaded,""  and  it  has  been  held  that 
the  burden  is  upon  the  defendant  to  justify  mayhem."" 


57.  Presumptions   and   Burden   of 

Proof Com.   v.    McKie,    i    Gray   67 

Mass.)  61,  61  Am.  Dec.  410;  State  v. 
Shea,  ID4  Iowa  724,  74  N.  W.  687; 
People  V.  Shanley.  30  Misc.  290 ,  62 
N.  Y.  Supp.  389;  State  v.  Fowler.  52 
Iowa  103,  2  N.  W.  983 ;  State  v.  Mor- 
phy>  22  Iowa  270;  State  v.  Por- 
ter, 34  Iowa  131  ;  U.  S.  ?'.  Luiit,  i 
Sprague  (U.  S.)   311. 

If  the  defendant  relies  upon  no 
separate,  distinct  or  independent  fact, 
but  confines  his  defense  to  the  orig- 
inal transaction  on  which  ths  charge 
is  founded  with  the  accompanying 
circumstances,  the  burden  of  proof 
never  shifts,  but  remains  upon  the 
state  throughout  the  whole  case  to 
prove  the  act  a  criminal  one  beyond 
a  reasonable  doubt.  People  v.  Rod- 
rigo,  69  Cal.  601,  II   Pac.  481. 

58.  State  v.  Hickam,  95  Mo.  322, 
6  \m.  St.  Rep.  54. 

59.  Deadly     Weapon —  State     v. 

Hickam,  95   Mo.  i22.  6  .^m.   St.  Rep. 

54- 

People,   91    >..    \. 


State   (Tex.  .App.), 


60.     Sawyer 
667. 

81.     Ballard 
13  S.  W.  674. 

62.  Melton  v.  State.  30  Tex.  .\pp. 
273,  17  S.  W.  257. 

There  is  no  presumption  that  an 
ax  is  a  deadly  weapon,  but  its  char- 
acter in  this  regard  depends  upon  its 
size,  martner  of  use  and  proof  is  re- 
quired. Gladney  v.  State  (Tex. 
App.),   12  S.  W.  868. 

Vol.  1. 


63.  Ballard  v.  State  (Tex.  App.), 
13  S.  W.  674;  Hilliard  v.  State,  17 
Tex.  App.  210;  Parks  v.  State  (Tex. 
App.),  IS  S.  W.  174- 

64.  Hunt  -'.  State,  6  Tex.  App. 
663;  Hillard  v.  State,  17  Tex.  App. 
210. 

65.  Branch  v.  State,  35  Tex. 
Crim.  App.  304,  a  S.  W.  356. 

66.  People  v.  Rodrigo,  69  Cal.  601, 
1 1  Pac.  481 ;  Com.  v.  ^IcKie,  67 
Mass.   (i  Gray)  61. 

67.  Natural  Results.  —  Donaldson 
V.  State,  ID  Tex.  App.  307  ;  Atkins  v. 
State,  II  Tex.  App.  8;  Evans  v. 
State,  25  Tex.  Snp.  304;  People  v. 
Wright.  93  Cal.  564.  29  Pac.  240. 

The  law  warrants  the  presumption 
that  a  person  intends  the  results  or 
consequences  to  follow  an  act  which 
he  intentionally  commits,  which  or- 
dinarily do  follow  such  acts.  State 
V.  Gillett,  56  Iowa  459,  9  N.  W.  362. 

It  is  presumed  that  one  who  hires 
another  to  commit  an  assault,  in- 
tends the  probable  consequences  of 
his  act.  State  v.  Merchant  (N.  H.). 
18  Atl.  6.S4. 

68.  Loaded  Gun — State  v.  Cherry, 
^2,  N.  C.  (II.  Ired.)  475;  Crow  v. 
State,  41  Tex.  468;  Burton  v.  State, 
3  Tex.  App.  408,  30  Am.  Rep.  146; 
Caldwell  v.  State,  5  Tex.  19;  State 
V.  Herron,  12  Mont.  230,  29  Pac.  819. 
},>,  Am.   St.  Rep.   576- 

69.  Sec    "  Mavhem." 

Where  the  defendant  bit  oflf  a  por- 
tion iif  tlie  car  of  the  assaulted  party. 


ASSAULT  AND  BATTERY. 


I(iu7 


2.  Res  Gestae.  —  The  res  i^cstac  of  the  assault  are  competent  evi- 
dence/" and  include  the  acts,''  declarations,'-  appearance,'"  and 
physical  condition  of  the  parties,'^  and  of  the  accomplices  of  either,'^ 
as  well  as  all  the  circumstances  of  the  assault.'^ 


the  burden  of  establishing  that  it  was 
done  in  self-defense  was  upon  the 
defense.  State  f.  Skidmore,  87  N.  C. 
509. 

70.  Res  Gestae.  —People  v.  Pearl, 
76  Mich.  207,  42  N.  W.  1 109,  IIS 
.\ni.    St.   Rep.   304,   4   L.   R.   A.   709. 

Sec  Res  Gest.\e."  Smith  v.  State, 
123  Ala.  64,  26  So.  641 ;  Blount  v. 
State,  49  .'Ma.  381. 

Each  party  to  the  affray  should  be 
permitted  to  give  all  the  details  and 
the  jury  will  then  be  better  able  to 
pass  upon  their  credibility.  State  v. 
Newland,  27  Kan.  764.  Although 
the  prosecutor  was  the  aggressor, 
the  State  may  show  that  the  defend- 
ant struck  after  the  necessity  for  de- 
fense had  ceased.  Harris  v.  State, 
123  Ala.  69,  26  So.  515. 

71.  Richards  v.  State,  3  Tex. 
App.  423 ;  Blount  v.  State,  49  Ala. 
381.  The  defendant  may  prove  that 
his  pistol  was  not,  in  fact,  loaded 
with  ball,  although  he  believed  it  to 
be  at  the  time  and  intended  homi- 
cide. State  I'.  Swails,  8  Ind.  524,  65 
Am.   Dec.   772. 

The  prosecuting  witness  testified 
that  the  defendant  struck  him ;  on 
cross-examination  it  is  proper  to  in- 
quire, "  How  he  knew  witness  struck 
him,  and  what  defendant  was  doing 
when  he  turned  around."  Com.  v. 
Crowley,  167  Mass.  434,  45  N.  E. 
766. 

72.  State  ;■.  Wiggins,  152  Mn.  170. 
53  S.  W.  421. 

The  witness  heard  the  cry  of  the 
prosecutor  and  as  he  ran  to  his  as- 
sistance, saw  somebody  run  away. 
The  witness  asked  what  was  the 
matter  and  the  prosecutor  said  de- 
fendant was  trying  to  choke  him  to 
death.  Held,  the  declaration  of  the 
prosecutor,  part  of  the  its  gestae 
and  admissible.  Monday  i'.  State,  32 
Ga.  672,  79  Am.  Dec.  314. 

Threats  made  at  the  time  of  the 
assault  coupled  with  conditions,  the 
defendant  had  no  right  to  exact,  may 
be  shown  in  aggravation.  Crow  v. 
State,  41   Tex.  468. 


73.  Com.    V.     Malone,     114    Mass. 

295. 

Evidence  of  the  conduct,  de- 
meanor and  expression  of  the  de- 
fendant at  or  about  the  time  of  the 
assault  is  always  admissible.  Blount 
V.   State,  49  Ala.  381. 

74.  Harris  !■.  State,  123  Ala.  69, 
26  So.  515;  Hodges  V.  State,  15  Ga. 
117. 

75.  Rape  -'.  State,  34  Tex.  Crim. 
App.  61S,  31  S.  W.  652 ;  Jackson  v. 
U.  S.,  102  Fed.  473,  42  C.  C.  A.  452; 
Elmore  v.  State,  no  .Ma.  63,  20  So. 
323 ;  Ross  7'.  State.  62  Ala.  224. 

Contemporaneous  declarations  of 
those  not  on  trial,  who  were  of  the 
assaulting  party,  are  admissible. 
Blount  V.   State.  49  A\a.   381. 

When  the  combination  to  commit 
an  assault  is  established,  the  acts  or 
declarations  of  one  accomplice  in  the 
prosecution  of  the  enterprise  is  evi- 
dence against  others  and  when  a 
t>rima  facie  case  of  joint  action  is 
shown  the  whole  transaction  should 
he  "submitted  to  the  jury.  Tompkins 
V.  State.  17  Ga.  356. 

Where  there  was  a  conspiracy  to 
assault  a  temperance  speaker  it  is 
competent  to  show  that  the  conspir- 
ators went  together  to  the  place  of 
assault,  that  some  of  the  parties 
worked  for  the  others  and  that  some 
of  them  had  been  engaged  in  the 
liquor  business.  Yeary  r.  State 
(Tex.),  66  S.  W.  1 106. 

76.  Yeary  v.  State  (Tex.).  66  S. 
W.  1 106;  Law  V.  State.  34  Tex. 
Crim.  App.  79,  29  S.  W.  160;  Tomp- 
kins V.  State,  17  Ga.  336 ;  Harris  v. 
State,  123  Ala.  69,  26  So.  515;  State 
I'.  Goering,   106  Iowa  636.  77   X.  W. 

327. 

Where  two  parties  made  a  demon- 
stration with  guns  against  the  prose- 
cutor and  while  he  was  attempting 
to  disarm  one  and  a  third  party  was 
trying  to  disarm  the  other,  the  de- 
fendant cut  the  prosecutor  and  third 
party  in  quick  succession  with  a 
knife,  all  the  facts  and  circum- 
stances are  competent  evidence  for 
the    State   as     part     of    the   res   gcs- 

Vol.  1. 


1008 


ASSAULT  AND  BATTERY 


About  the  Time.  - — And  include  matters  just  before"  and  after  the 
assault.'* 

Remote  Facts.  —  But  those  remote  in  time'"  or  space  are  not  com- 
petent unless  upon  special  grounds.*" 

A.  \\'e.\pons.  —  The  weapon  used  may  be  identified  by  a  wit- 
ness,"' and  the  manner  of  its  use  may  be  described  as  affecting  its 
deadly  character. *- 

3.  Nature  of  Injuries.  —  The  extent  and  nature  of  the  injuries 
of  the  prosecutor  may  be  shown  by  his  testimony,*^  by  a  non-expert 


tae.  Smith  v.  State,  123  Ala.  64, 
26  So.  641. 

It  may  be  shown  as  part  of  the 
res  gestae  that  the  father  of  the  de- 
fendant in  the  same  affray  inflicted 
other  wounds  upon  the  prosecuting 
witness.  Hoflfmann  z'.  State,  65  Wis. 
46,  26  N.  W.  110. 

Where  there  was  testimony  tend- 
ing to  show  the  same  motive  for  as- 
saulting several  persons,  evidence  of 
assaults  upon  such  other  persons  at 
the  time  of  the  assault  in  issue  is 
admissible.  Horn  i'.  State,  102  Ala. 
144.   15   So.   278. 

77.  About  Time.  —  People  v.  De- 
masters,   109  Cal.  607,  42  Pac.  236. 

Evidence  that  defendant  before 
striking  the  blow  pointed  a  pistol  at 
the  assaulted  person  and  tried  to 
pull  the  trigger  is  part  of  the  res 
gestae  and  admissible.  Nelson  v. 
Slate  (Tex.  Crim  .\pp.),  20  S.  W. 
766. 

78.  Com.  v.  Malone,  114  ;Mass. 
295;  Horn  v.  State,  102  Ala.  144,  15 
So.  278;  State  V.  Fowler,  52  Iowa 
10,3,  2  N.  W.  983;  People  v.  Teix- 
eira,  123  Cal.  297,  55  Pac.  988; 
Hodges  z:  State,  15  Ga.  117;  Mon- 
day V.  State,  32  Ga.  672,  79  Am.  Dec. 

314- 

Where  the  offense  charged  was  as- 
sault with  a  pistol,  evidence  that  the 
defendant  immediately  afterward 
procured  an  ax  and  attacked  the 
same  party,  is  admissible  to  show 
auimiis  and  as  a  part  of  the  res 
gestae.  Richards  !■.  State,  3  Tex. 
App.  423. 

Declarations  of  an  assaulted  party 
after  he  had  run  600  feet  were  held 
competent.  Waechter  r.  State..  34 
Tex.   Crim.   .\pp.  297,  30  S.  W.  800. 

Statements  made  by  the  assaulted 
boy  when  he  came  home  wounded 
and    crying     were     regarded    by    the 

Vol.  1. 


court  as  part  of  the  res  gestae  and 
admissible.  Pool  i".  State  (Tex. 
Crim.  App.),  23  S.  W.  801. 

79.  Remote  Matters.  —  Rosen- 
baum  V.  State,  33  Ala.  354;  Hadley 
7'.  State,  58  Ga.  309;  State  r.  Noe- 
ninger,  108  Mo.  166,  18  S.  W.  990; 
Whilden  v.  State,  25  Ga.  396,  71  Am. 
Dec.  181. 

Evidence  that  threats  were  made 
after  the  assault  to  lynch  the  de- 
fendant is  not  admissible  for  him. 
Mc.\llister  v.   State,  49  Ga.   306. 

Declarations  of  the  assaulted  boy 
after  he  came  home  and  a  stranger 
was  called  in  to  hear  them  are  not 
part  of  the  res  gestae  and  are  not 
admissible.  Pool  Z'.  State  (Tex. 
Crim.  App,),  23  S.  W.  891. 

Evidence  that  the  parties  are  rec- 
onciled and  now  friends  is  not  com- 
petent for  the  defense.  Hadley  v. 
State,  58  Ga.  309. 

80.  State  V.  Fowler,  52  Iowa  103, 
2  N.  W.  983 ;  Rosenbaum  7'.  State, 
^^  .Ma.  354;  State  z'.  Noeninger,  108 
Mo.   t66;"i8  S.  W.  990. 

81.  Weapons —  Thompson  v. 
State,  35  Tex.  Crim.  App.  352,  33 
S.  W.  871 ;  Cain  z:  Warner,  13  Pa. 
Supp.   Ct.   461. 

82.  State  v.  Swails,  8  Ind.  524,  65 
Am.  Dec.  772;  Tolett  v.  State  (Tex. 
Crim.  App.),  55  S.  W.  335;  Hunt  v. 
Stale,  6  Tex.  App.  663;  Shaddle  v. 
Slate.  ,34  Tex.  572;  Chambers  t'. 
State,  42  Tex.  254 ;  Skidmore  z: 
Slate,  43  Tex.  93:  Filkins  r.  People, 
69  N.  Y.  lor.  25  Am.  Rep.  143. 

Whether  the  gun  was  loaded  and 
how  loaded  is  very  material  evi- 
dence under  an  indictment  for  shoot- 
ing at  another.  .Mien  -■.  State,  28 
Ga.  395-  73  Am.  Dec,  760. 

83.  Injuries — People  v.  Suth- 
erland, 104  Mich.  468.  62  N.  W.  566; 
People  z:  Zounek,  66  Hun  626.  20 
\.   V.   Supp.  75.^- 


ASSAULT  AND  BATTEKY. 


.1009 


witness,'*"'  or  by  the  testimony  of  a  phxsician  or  surgeon^^  who  alone 
can  give  his  opinion  as  to  the  injuries,*''  or  upon  an  agreed  state- 
ment or  hypothetical  case.*' 

A.  Wounds  in  Evidence.  —  The  wounds  themselves  may  be 
exhibited  to  the  jury  by  the  state*"*  or  defense.*" 

4.  Intent,  Malice,  Declarations  and  Threats.  —  Declarations  of  ill- 
will,'"'  and  threats  by  the  defendant"'  or  his  accomplices,""  and  rele- 
vant conversations  between  the  parties"^  before"^  or  after  the 
assault,  are  competent  for  the  state  to  show  malice  or  intent. °^ 

A.  Former  Difficulties.  —  Evidence  that  former  difificulties 
existed  between  the  parties  is  admissible,""  but  evidence  of  what 
those  difficiUties   were   is  exckided   l)v   some  courts,"'  while  others 


84.  Kinnard  v.  State,  35  Te.x. 
Crim,  App.  276,  33  S.  W.  234;  Pilcher 
I'.  State,  32  Te.x.  Crim.  App.  ^S7,  2=5 
S.  W.  24. 

85.  State  v  Haynie.  118  N.  C. 
1265,  24  S.  E.  536. 

86.  Opinions Dean  r.    State,  Sg 

Ala.  46,  8  So.   38. 

87.  Doolittle  V.  Stale,  93  hid. 
-72. 

88.  Exhibit  Wounds.  —  People  v. 
Sutherland,  104  Micli.  468,  62  N.  W. 
566;  Parrisli  v.  State.  ^2  Tex.  Crim. 
.\pp.  583,  25   S.  W.  420. 

89.  The  prosecuting  witness 
should  be  required  to  exhibit  his  al- 
leged wounded  arm  to  the  jury  and 
a  contrary  ruling  of  the  court  is  er- 
ror. King  V.  State,  ico  Ala.  8=;,  14 
So.  878. 

90.  Declarations  and  Threats. 
Walker  v.  State.  85  Ala.  7.  4  So.  fi86, 
7  Am.   St.  Rep.   17. 

See  "  Intent,"  "  Mauci:,"  "  Mo- 
tive." 

The  prosecutor  testified  that  five 
weeks  before  the  assault  he  heard 
the  defendant  say,  "  if  he  had  not 
just  now  got  out  of  trouble  he  would 
ijreak  a  stick  over  the  head  of  "  the 
prosecutor.  Held,  the  testimony 
was  admissible  to  show  animus.  Bol- 
ton V.  State  (Te.x.  Crim.  App),  ,^9 
S.  W.  672. 

91.  State  V.  Henn,  39  Minn.  476. 
40  N.  W.  572;  Skelton  v.  State  (Tex. 
Crim.  App.),  51  S.  W.  943;  Walker 
V.  State,  85  Ala.  7,  4  So.  686;  7  Am. 
St.  Rep.  17. 

Evidence  that  defendant  said  on 
the  day  of  the  assault  that  he  ex- 
pected to  kill  somebody  before  he 
left  town  is  admissible  to  show  in- 
tent.    Read  v.  State.  2  Ind.  438. 

64 


92.  Veary  v.  State  (Te.x.  Crim. 
.\pp.),  66  S.  W.  1 106. 

93.  Walker  v.  State,  85  .\la.  7,  4 
So.  686,  7  Am.  St.  Rep.  17. 

The  assaulted  wife  may  testify  to 
conversations  between  her  and  the 
assaulting  husband.  Doolittle  v. 
State,  93  Ind.  2y2. 

94.  State  v.  Henn,  39  Min.  476. 
40  N.  W.  ^72;  Walker  v.  State,  85 
Ala.  7,  4  So.  686,  7  .Am.  St.  Rep.  17. 

95.  After.  —  Cogswell  v.  Com.,  17 
Ky.  Law.  Rep.  822,  i2  S.  W.  935 ; 
.•\ilen  V.  State,  74  Ind.  216;  Richards 
V.  State,  3  Tex.  App.  423;  \\'alker  v. 
State,  85  Ala.  7,  4  So.  686,  7  Am.  St. 
Rep.   17. 

Declarations  made  by  the  accused 
regretting  that  he  missed  the  as- 
saulted party  when  he  shot  at  him 
are  admissible,  to  contradict  the  de- 
fense that  he  fired  into  the  air  to 
frighten  the  prosecuting  witness. 
Cogswell  V.  Com.,  17  Kv.  Law  Rep. 
822,   32   S.  W.   935- 

Where  an  officer  wrongfully  ar- 
rested and  assaulted  a  person — 
what  the  officer  did  and  said  at  the 
police  station  afterward  is  compe- 
tent. State  I'.  Davidson.  44  Mo. 
.\pp.  513. 

96.  Former  Difficulties.  —  \\  here 
malice  aforethought  is  an  element  of 
the  crime,  evidence  of  former  trouble 
and  quarrels  is  competent.  State  v. 
Forsythe,  98  Mo.  667,  r   S.  W.  834. 

97.  May  v.  State.  6  Tex.  .\pp. 
191  ;  Latham  r.  State.  39  Tex.  Crim. 
.App.  472,  46  S.  W.  638:  Stewart  v. 
State,  78  Ala.  436 :  Wood  v.  State,  86 
.\la.  71  ;  Gunter  v.  State,  iii  .\la.  23. 
20  So.  632,  56  Am.  St.  Reo.  17. 

It  is  error  to  permit  the  state  to 
go    minutely    into    other    quarrels    of 

Vol.  1. 


1010 


ASSAULT  AND  BATTERY 


hold  to  the  contrary  and  admit  evidence  of  the  facts  of  such  ditiflcul- 
ties,"*  inchiding  the  acts  and  declarations  of  the  assauUed  party 
tending  to  anger  the  defendant ;""  and  it  is  proper  to  ask  the  prose- 
cutor as  to  the  motive  or  cause  of  the  assault/  but  where  his  opinion 
is  sought  or  given,  the  evidence  should  be  excluded. - 

When  the  evidence  for  the  prosecution  as  to  such  difficulties  sug- 
gests a  wrong  upon  the  part  of  the  defendant,  the  defense  should 
be  permitted  to  explain  the  transaction.-' 

Where  malice  or  premeditation  is  not  an  element  of  the  offense, 
and  does  not  affect  its  grade,''  where  the  matters  were  remote''  or  a 


the  defendant.  People  i'.  Kenyon,  93 
Mich.  19.  52  N.  W.  1032.  The  party 
alleged  to  have  been  assanlted  had  an 
encounter  with  defendant's  brother  a 
few  mornings  before  and  the  brother 
was  killed,  but  the  defendant  was  not 
present.  Held,  evidence  of  such  en- 
counter was  not  admissible  against 
the  defendant.  State  v.  Clayton,  ico 
i\Io.  516,   n  S.  W.  819,  18  Am.   Rep. 

565. 

98.  State  r.  Sanders,  106  Mu.  188, 
17  S.  W.  223;  Ross  z:  State,  62  Ala. 
224;  Tompkins  'c'.  State,  17  Ga.  356; 
People  V.  Deitz,  86  Mich.  419,  49 
N.  W.  295;  Sullivan  v.  State,  31  Tex. 
Crim.  App.  486,  20  S.  W.  927.  37 
Am.  St.  Rep.  825;  'Walker  v.  State, 
85  Ala.  7,  4  So.  686.  7  Am.  St.  Rep. 
17;  State  V.  Schleagal,  50  Kan.  325, 
31  Pac.  1 105;  State  r.  INIontgoniery, 
65  Iowa  483,  22  N.  W.  639. 

hi  proof  of  malice  it  may  be  shown 
that  the  assaulted  party  w-as  on  the 
jury  which  recently  convicted  the  dv- 
feiulant.  Trimble  r.  State  ( Tex. 
Crim.  App.),  22  S.  W.  879. 

Evidence  that  defendant  married 
the  prosecutor's  sister  soon  after  the 
assault  and  that  the  prosecutor  had 
interfered  with  their  affairs  just  be- 
fore the  assault  are  competent. 
Thomas  r.  State,  117  Ala.  178,  23 
So.  665. 

In  an  action  against  a  policeman 
for  assault  in  arresting  the  mother 
without  cause,  it  is  competent  to 
prove  that  the  officer  had  seduced 
her  daughter  to  show  his  motive  in 
making  the  arrest.  People  v.  Daily, 
14^  N.  Y.  638,  37  N.  E.  823. 

99.  .\  speech  which  was  the  cause 
of  a  conspiracy  to  assault  the 
speaker  mav  be  given  in  evidence  in 
the  absence'  of  proof  that  the  defend- 
ant did  not  hear  the  speech  or  have 
it   communicated   to  him.     Yeary.   v. 

Vol.  1. 


State  (.Tex.  Crim..\pp.),66  S.W.  1106. 
It  is  competent  tor  the  state  to 
prove  that  the  assaulted  party  said 
that  "no  honest  man  would  avail 
himself  of  the  bankrupt  law "  and 
that  the  defendant's  father  had  just 
passed  through  bankruptcy.  State  i'. 
Grififs,  3   Ired.    (N.   C.J    504. 

1.  The  questions,  "  What  caused 
the  defendant  to  strike  you?'" 
"  What  was  his  motive  for  striking?" 
are  not  objectionable,  especially 
where  the  answer  is  not  an  opinion. 
Trimble  v.  State  (Tex.  Crim.  App.i, 
22  S.  W.  879. 

2.  Trimble  v.  State  (Tex.  Crim. 
App.),  22  S.  W.  879. 

3.  Where  the  state  gives  evidencj 
of  former  affray  between  the  parties 
too  remote  to  be  part  of  the  res  ges- 
tae to  show  malice  or  intent,  the  de- 
fense may  show  that  the  prosecutor 
was  the  aggressor  in  the  former  dif- 
ficulty and  pleaded  guilty  to  an  as- 
sault while  defendant  acted  wholly  in 
defense.  Morrison  i\  Stale,  37  Tex. 
Crim.  -App.  601,  40  S.  \V.  591. 

The  prosecuting  witness  testified 
that  there  had  lieen  no  trouble  be- 
fore between  the  parties,  except 
about  a  letter  of  his  which  the  de- 
fendant had  opened.  Held,  error  for. 
the  court  to  exclude  testimony  of  the 
defendant,  that  his  mother  who  had 
poor  eyesight,  opened  the  letter  and 
handed  it  to  defendant  to  read :  that 
he  read  no  more  after  he  discovered 
the  mistake,  but  returned  it  to  the 
postoffice.  Skelton  v.  State  (Tex. 
Crim.  .^pp.).  51  S.  W.  943- 

4.  In  a  simple  case  of  assault  and 
battery,  declarations  or  threats  of  the 
accused  made  some  time  before  an' 
inadmissible.  State  1:  Norton.  f2 
N.  C.  628. 

5.  People  J'.  Deitz.  86  Mich.  -\"'- 
_;o  \.  W.  206. 


ASSAULT  AND  BATrERV 


li)li 


reconciliation  had  occurred,  such  evidence  of  intent  or  moti\'e  h:is 
been  excluded."  Such  evidence  is  confined  to  matters  between  the 
parties  themselves/  and  the  defendant  may  testify  as  to  his  intent 
and  motive  in  the  matter." 

5.  Recklessness,  Illegal  Act.  —  Where  there  was  no  intent  to 
assault  the  prosecutor,  net^ligence  or  recklessness  may  be  shown," 
and  evidence  that  the  assault  was  committed  in  the  performance 
of  an  illeji^al  act  is  admissible ;'°  but  it  has  been  held  that  an  act 
vialum  prohibitum  would  not  supply  the  place  of  malice,"  and  to 
rebut  the  claim  of  accident  the  ill-will  of  the  defendant  may  be 
shown. ^- 

6.  Assault  on  Female. — Declarations. — The  declarations  of  the 
assaultetl  woman  or  i>irl,  which  are  voluntary  and  spontaneous, 
made  at  the  time  of  the  assault, ^^  or  very  soon  afterward,  are 
admissible  against  the  defendant,'*  but  her  narratives  of  past  events 
should  be  excluded.'^ 


6.  Threats  two  years  old  with  in- 
tervening reconciliation  too  ancient. 
People  V.  Deitz,  86  Mich.  419,  49  N. 
W.  296. 

7.  Where  the  prosecutor  made 
the  attack  and  was  severely  punished, 
he  may  not  show  that  long  before, 
the  father  of  the  defendant  made 
threats  against  him.  People  v.  Pearl, 
76  Mich.  207.  4  L.  R.  A.  709.  5  Am. 
St.  304. 

Evidence  that  the  defendant  said 
triat  the  ward  of  the  assaulted  men 
owed  him  a  gambling  debt  a1id  thit 
he  would  have  his  money  or  the 
ward's  blood,  is  not  admissible. 
State  V.  Moberlv,  121  Tslo.  604,  26 
S.  W.  364. 

8.  The  quo  aiiiino  of  the  assault 
is  material  in  fi.xing  the  grade,  the 
ofifense  and  direct  proof  of  such  in- 
tent is  admissible.  Filkins  i".  Peo- 
ple. 69  N.  Y.  Id. 

Where  the  accused  gives  the  rea- 
sons that  induced  him  to  conmiit  the 
assault,  the  state  may  show  that  the 
reasons  or  fact  did  not  exist  and 
that  the  defendant  was  mistaken  in 
his  beliefs  as  to  facts.  Cornelisnn  ;■. 
Com.,  84  Ky.  583.  2  S.  W.  235. 

9.  Recklessness Com.     v.     !Mc- 

I.augblin,  5  Allen  (Mass.)  507;  Peo- 
ple V.  Raher.  92  Mich.  165,  52  N.  W. 
625,  31  Am.  St.  Rep.  575. 

10.  Illegal  Act.  —Turner  7:  State, 
35  Tex.  Crini.  App.  369,  33  S.  W. 
972;  Cowley  I'.  State.  10  Lea  (Tenn.) 
282;  Smith  I'.  AIcLain,  ir  W.  Va. 
658;  Powell  r.  State,  32  Tex.  230,  22 


S.  W.  667;  Dunaway  v.  People,  no, 
111.  333,  51  Am.  Rep.  686;  McGehee  v. 
State,  62  Miss.  yy2,  52  .\m.  Rep.  2C9; 
State  I'.  Gilman.  69  Me.  163.  31  ,\m. 
Rep.  257. 

Where  a  grossly  negligent  dis- 
charge of  a  pistol  is  the  assault  in 
question,  the  ordinance  making  such 
discharge  unlawful  is  competent  evi- 
dence. Com.  J'.  Hawkins,  157  Mass. 
551,  32  N.  E.  862. 

11.  Com.  I'.  .-Vdanis,  114  Mass. 
323.   19  .Am.  Rep.  362. 

18.  To  rebut  the  claim  that  an  as- 
sault producing  severe  injury  was  ac- 
cidental, it  may  be  shown  that  the 
defendant  did  not  show  the  injured 
party  any  attention  or  -.ympalhy. 
State  7'.  .^Iford,  31   Conn.  40. 

13.  Assault  on  Female.  See 
"  R.'>lPF.." 

If  the  declarations  of  the  assaulted 
woman  or  child  are  voUmtary.  spon- 
taneous and  contemporanerus  with 
the  main  fact  and  not  narratives  of 
past  events,  they  are  admissible 
a.gainst  the  accused.  \'eal  t'.  State,  8 
Tex.  App.  474- 

14.  Declarations  made  by  the  as- 
saulted woman  10  minutes  afterward 
are  admissible.  Pilcher  r.  State,  32 
Tex.  Crim.  .\pp.  s^7-  -i  S-  ^^'-  24- 

15.  Veal  r.  State,  8  Tex.  App. 
474;  Price  V.  State,  35  Tex.  Crim. 
App.  501.  34  S.  W.  622. 

What  an  assaulted  female  tnld  the 
officer  during  the  week  is  not  evi- 
dence. Com.  -'.  Fitzgerald,  123 
Mass.  408. 

Vol.  1. 


1012 


ASSAULT  AND  BA'ITBRy 


Complaint.  —  Though  the  fact  that  she  made  a  complaint  is  admis- 
sible.'" 

A.  ArPEAR.\NCE  OF  IxjuKiES.  —  Evidence  of  the  appearance  and 
condition  of  the  prosecutrix  immediately  after  the  allesjed  assault 
is  admissible. ^^ 

B.  Former  Acts. —  Evidence  of  a  previous  indecent  assault  upon 
the  same  party  is  competent  to  show  motive  or  intent.^* 

C.  Cii.NRACTi'K  (IE  Fe.m.veE.  —  Evidence  of  the  general  reputation 
of  the  prosecutrix  as  to  chastity,'''  of  her  specific  acts  of  uncliastity,"" 
or  immodestv  with  the  defendant.-'  hut  not  with  others,  is  admissi- 
ble for  the  defense. -- 

7.  Bad  Reputation  of  Eefendant.  —  F.vidence  of  the  bad  reputa- 
tion of  the  defendant  is  r.ot  admissible,-'  and  specific  matters  to  his 
discredit-^  not  relating  to  the  assaulte<l  ])arty  should  be  excluded.-^ 


When  the  defendant  offers  evi- 
dence (if  a  declaraticm  of  the  prose- 
cnting  witness  that  she  did  not  know 
who  committed  the  assauh,  it  ren- 
ders her  declaration  that  the  assauU 
was  committed  liy  liini,  competent. 
Duke  T'.  State,  35  Tex.  Crini.  .\\y;t. 
2SX  i3   S.  W.  349. 

16.  Complaint It  may  be  shown 

that  the  assaulted  female  made  som,' 
complaint,  but  her  declarations  in 
making  it  are  not  admissible  unless 
part  of  the  res  i^cstar.  People  r. 
Hicks.  gS  Mich.  86,  56  N.  W.   iiC2. 

17.  Appearance  and  Injuries.  — 
Price  <•.  State,  35  Tex.  Crim.  .\p\t. 
501,  34  S.  W.  622. 

Sec  "Res  Gr.sT.Mt."  11.  2.  anic. 

18.  Former  Acts Com.  v.  Ken- 
dall, 113  Mass,  210,  18  Am.  Rep.  469. 

Where  an  assault  was  committed 
upon  a  moving  tr.iin  in  one  state,  a 
previous  assault  nn  tlu'  train  in  an- 
other state  may  be  shown  to  explain 
the  latter  assauU.  Stale  '■.  Place.  3 
Wash,  g;3,  32,Pnc.  -,<i. 

19.  Reputation.  —  Donaldson  f. 
State.  10  Tex.  .\pp.  307:  McCombs  7'. 
State.  8  Ohio  St.  643;  Slate  f.  Forsh- 
ner,  43  N.  H.  89.  So  ,Am.  Dec.  132; 
Com.  V.  Kendall.  113  Mass.  210,  iS 
Am.  Rep.  469. 

20.  McCombs  r.  State,  8  Ohio  Ft. 
643;  State  I'.  Forshncr,  43  N.  H.  89, 
80  .'km.  Dec.  132. 

The  prosecutrix  may  be  required  to 
answer,  whether  there  had  been  prior 
acts  of  sexual  inter'-ourse  between 
her  and  the  defendant.  Donaldson 
7\  State,  10  Tex.  Apu.  "17, 

21.  Com.  7''  Ken-'al'.  113  Mass. 
210,  18  .-Xm.  Rep.    \(r). 

Vol.  1. 


Upon  an  indictment  for  an  inde- 
cent assault,  the  defendant  offered  to 
prove  that  the  married  prosecuting 
witness  promised  to  kiss  him  if  he 
would  take  her  for  a  drive.  Held. 
that  it  was  error  to  exclude  such  evi- 
dence.    Coin.  r.  Bean,  iii  Mass.  4,38. 

22.  State  -■.  Fitzsimmons,  18  R.  1. 
2,36.  49  Am.  St.  Rep.  766 ;  Regend  v. 
Holmes,  Cox  C.  C.  137;  McCombs  f. 
State,  8  Ohio  St.  643. 

Evidence  of  specific  acts  is  not  ad- 
missible to  show  character  of  the 
complainant.  People  'c'.  Frindel,  58 
Hun  626,  12  N.  Y.  Supp.  J98; 
Thomas,  r.  State,  67  N.  Y.  218;  Har- 
nian   v.    State,   40   Tenn.     (3    Head). 

23.  Sec  '■  Repi--t.\tion ."  ''Char'C- 

TER." 

Declarations  of  the  prosecuting 
witness  that  he  was  afraid  to  testify 
are  admissible.  State  v.  Day.  22  Or. 
160,  29  Pac.  352. 

24.  People  v.  Denliy.  ic8  Cal.  34. 
40  Pac.   1051. 

Evidence  of  a  plan  at  an.  ther  time 
to  commit  a  distinct  and  discon- 
nected crime,  and  rob  the  assaulted 
party,  is  not  admissible.  State  f. 
Moberly,  121   Mo.  604,  26  S.  \y.  36J. 

It  is  error  to  admit  declarations  of 
an  accomplice  that  be  belonged  to  a 
band  who  revenged  each  other's  in- 
juries. Hart  r.  Com.  22  Ky.  Law 
Rep.  1 183,  60  S.  W.  298. 

25.  The  assaulted  wife  was  prop- 
erly permitted  to  testify  that  h-r  hus- 
band married  her  under  an  assumed 
name  and  h;id  no  occupation.  Doo- 
little  V.  State.  ()3   Ind.  272. 


ASSAULT  AND  BATTERY 


101.1 


A.  DisCRiiDiT  Diii'ENDANT  As  WITNESS. — \'>u{  where  the  defend- 
ant becomes  a  witness,  such  evidence  may  be  used  to  (hscredit  him 
as  in  other  cases.""  Admissions-''  and  confessions-^  are  competent 
under  the  general  rules  of  evidence. 

Denial.  —  Evidence  tending  to  show  that  the  assault  was  com- 
mitted by  another  is  admissible,  but  evidence  of  his  threats  unsup- 
ported by  other  evidence  should  be  excluded.-'' 

III.  MATTERS  OF  DEFENSE. 

1.  Res  Gestae.  —  On  the  question  of  self  defense  evidence  of  the 
res  gestae^"  including  the  wounds  received  by  the  defendant,  is  ad- 
missible.^^ 

2.  Intent.  —  The  defendant  may  testify  as  to  his  intent  and 
motive^-  and  his  belief  regarding  the  purposes  of  the  prosecutor  at 
the  time  of  the  assault."-' 

3.  Declarations  and  Threats  of  Prosecutor.  —  Evidence  of  threats 
and  declarations  of  ill-will  which  were  made  by  the  prosecutor 
before   the    assault''''    of    his    former    difficulties    with    the    defend- 


26.  Discredit  Defendant  as  Wit- 
ness  Where  the  defendant  is  a  wit- 
ness, to  discredit  him,  it  may  be 
shown  upon  his  cross-examination, 
that  he  had  been  indicted  twice  be- 
fore for  stealing.  Bolton  z'.  State 
(Tex.  Crini.  App.).  .19  S.  W.  672. 

27.  An  admission  made  while  un- 
der arrest,  by  the  defendant  to  the 
officer,  not  procnred  by  threats  is 
competent  for  the  state.  Com.  '•.■. 
Mitchell,  117  JNIass.  4JI.  See  ''  Con- 
fessions." 

28.  The  confessions  or  admissions 
of  the  defendant  made  while  intoxi- 
cated are  admissible,  but  the  degree 
of  into.xication  maj'  he  shown  as  af- 
fecting their  weight.  State  v.  Grear, 
28  Minn.  426,  10  N.  'W.  472,  41  .A.m. 
Rep.  296. 

29.  Disconnected  threats  not  part 
of  the  res  gestae  made  by  a  third 
party  against  the  assaulted  one  may 
not  be  shown  by  the  defendant  where 
the  defense  is  that  the  assault  was 
committed  by  another.  State  1'. 
Reaudet,  52  Conn.  5.36,  4  M].  237,  55 
.\ni.  Rep.  155. 

30.  Res    Gestae Stale    r.    Goer- 

ing,  106  Iowa  636.  77  N.  \V.  .'27. 

In  proof  of  self-defense  it  is  com- 
petent to  show  that  a  stick  in  the 
hands  of  the  prosecuting  witness  and 
used  by  him  iii  the  affray  had  the  ap- 
pearance of  being  loaded.  Law  f. 
State,  ,^4  Tex.  Crim.  App.  70,  29 
S.  W.  160.    Evidence  that  the  defend- 


ant provoked  an  assault  upon  him  is 
competent  to  rebut  evidence  of  self- 
defense.  Henry  ■;■.  State,  79  .-Ma.  42; 
Page  V.  State,  69  Ala.  229 ;  Johnson 
V.  State,  69  Ala.  253. 

31.  The  Extent  and  Nature  of 
the  Defendant's  Injuries  may  be 
shown  where  he  relies  upon  self 
defense  as  a  justification  and  the 
complaints  of  pain  he  made  while 
suffering  are  admissible  evidence. 
Com,  V.  Jardine.  143  Mass.  S67,  10 
N.  E.  250. 

32.  Berry  v.  State,  30  Tex.  App. 
423,  17  S.  'W.  1080. 

33.  U.  S.  r.  Lunt,  i  Sprague 
(U.    S.)    31 1. 

34.  Declarations  and  Threats. 
Gunter  v.  State.  11 1  Ala.  23,  20  So. 
632,  56  Am.  St,  Rep,  17;  State  v. 
Goodrich,  19  Vt,  116,  47  Am,  Dec, 
676;  Harman  r.  State.  40  Tenn,  (3 
Head)    243, 

Contra.  —  State  c'.  Skidmore,  87 
N,    C,    509. 

Evidence  of  threats  and  acts  of 
hostility  on  the  part  of  the  pros- 
ecuting witness  so  far  as  known  by 
or  reported  to  the  defendant  is  com- 
petent in  proof  of  self  defense  to 
show  what  danger  the  defendant 
might  reasonably  have  apprehended 
from  the  assault  of  such  witness. 
State  V.  Dee,  14  Minn.  35.  'Where 
there  was  evidence  that  the  pros- 
ecutor had  made  threats  before  the 
affrav    and     the     defendant    testified 


Vol.  1. 


1014 


ASSAULT  AND  BATTERY. 


zni"  but  not  with  others,'"^  and  of  his  quarrelsome  and  vin(hcti\-e 
reputation  is  athnissible  to  show  self  defense.''' 

4.  Information.  —  The  defendant  may  testify  as  to  his  information 
rajrardino-  such  matters^*  and  may  show  by  other  evidence  that  the 
information  was  imparted  to  him.^" 

Exceptions.  —  Where  the  defendant  was  the  aggressor  and  there 
is  no  evidence  of  self  defense,*"  or  where  the  defendant  did  not 
recognize  the  prosecutor'"  or  know  of  his  dangerous  character  or 
reputation,  such  evidence  would  not  be  competent  to  show  self 
defenses- 
Relatives. —  Similar  c\idencc  as  to  the  relatives  of  the  prosecutor 
is  not  admissible.""  ■' 

5.  Declarations  After  Assault.  —  Evidence  of  the  acts*^  or 
declarations  of  the  |iroseculor  occurring  after  the  assaidt   and  too 


that  he  made  a  movement  toward 
his  hip  pocket  as  if  to  draw  a 
revolver,  evidence  of  the  prosecu- 
tor's good  repntation  for  being 
peaceable  is  admissible.  Rhea  v. 
Stale,  37  Tex.  Crini.  ,\pp.  i  ^8.  38 
S.   W.    1012. 

35.  Former   Difficulties State   v. 

Dee.  14  Minn.  35 ;  Gunter  v.  State, 
III  Ala.  23,  20  So.  632,  56  \m.  St. 
Rep.   17. 

36.  Evidence  of  difficulties  be- 
tween the  prosecutor  and  others  not 
connected  with  the  as.sault  in  ques- 
tion, should  be  excluded.  Bolton  v. 
State  (Tex.  Crim.  .A.pp.),  39  S.  W. 
672. 

37.  Reputation  of  Prosecutor. 
Lewallen  v.  State.  6  Tex.  .'Xpp.  475 ; 
People  V.  Frindel,  58  Hiui  482,  12 
N.    Y.    Supp.   498. 

Where  an  assault  is  in  self  de- 
fense, evidence  of  the  violent  char- 
acter of  the  assaulted  party  is  ad- 
missible, but  where  the  defendant 
was  the  aggressor  such  evidence  is 
not  admissible.  People  v.  Kellv,  94 
N.  Y.  526. 

38.  Information State    -■.    Dee, 

14  Mimi.  35;  U.  S.  ?'.  bunt,  i 
Spraguc    (U.   S.)   311. 

39.  A  prison  keeper  justified  an 
assault  upon  a  prisoner  with  a  cane 
as  being  necessary  for  discipline 
and  in  self  defense,  and  offered 
testimony  of  the  sheriff  that  he  had 
informed  defendant  upon  his  de- 
livery of  the  prisoner  to  him  that 
he  was  a  violent  and  desperate  man. 
Hrld.  rciection  of  this  tcslimonv  was 
error.      State    r.    bull.    4S   Yt.    581. 

Vol.  1. 


40.  Exceptions State    v.    Reed, 

137  Mo.  125,  38  S.  VV.  574;  Martin 
V.  State,  5  Ind.  App.  453,  32  N.  E. 
594;  Whilden  v.  State,  25  Ga.  396, 
71  Am.  Dec.  181  ;  State  v.  Jackson, 
17  Mo.  544,  59  Am.  Dec.  281  ;  Har- 
man  zk  State,  40  Tenn.  (3  Head) 
243 ;  People  v.  Frindel,  58  Hun  482, 
12  N.  Y.  Supp.  498 ;  Brown  v.  State, 
74  Ala.  42;  Rufus  V.  State,  117  .\la. 
131,  23  So.  144;  Wright  -'.  State, 
17  Tenn.    (9  Yerg)    342. 

Where  the  defendant  was  first  as- 
saulted in  his  saloon  and  his  assiil- 
ant  then  went  outside  and  defied 
him,  and  the  defendant  procured  a 
revolver,  went  out,  renewed  the 
affray  and  fired  wdien  his  former 
assailant  was  in  full  retreat,  evi- 
dence of  bad  character  of  the  pros- 
ecutor is  not  admissible.  State  v. 
Paterno,  43  La.  Ann.  514,  9  So.  442. 

41.  Where  an  assault  was  made 
by  owner  in  alleged  defense  of  his 
property  and  he  did  not  recognize 
the  prosecutor,  evidence  that  the 
prosecutor  was  a  quarrelsome  man 
was  properly  excluded.  Henderson 
V.  State,   12  Tex.  525. 

42.  Hender.son  7:  State.  12  Tex. 
52.V 

43.  Exidence  of  an  assault  upon 
the  defendant  by  a  brother  of  as- 
saulted party  earlier  in  the  day  is 
not  admissible  in  justification  for 
pointing  loaded  gini.  May  7\  State. 
6  Tex.   App.   191. 

44.  The  defense  may  nnt  show 
that  the  assaulted  person  had  a 
weapon  a  short  time  after  the  as- 
sault. Stale  V.  Noeningcr,  108  Mo. 
166,  18  S.  W.  990. 


ASSAULT  AND  BATTERY 


1015 


remote  for  the  res  gestae  is  general!)'  excluded,''^  but  may  become 
competent  in  cross  examination^"  or  to  discredit  his  testimony."*' 

6.  Actions  Against  Prosecutor.  —  Evidence  that  the  prosecutor 
was  indicted  or  even  convicted  of  an  assault  upon  the  defendant 
for  the  same  aflfray  is  not  competent  in  proof  of  self  defense,''*  but 
may  be  evidence  to  discredit  him  as  a  witness.*" 

7.  Defense  of  Another.  —  The  defendant  may  show  that  the 
assault  was  matlc  in  defense  of  another'^"  and  evidence  of  the  rela- 
tions existing  between  the  defendant  and  the  person  he  sought  to 
defend  is  admissible.^' 

8.  Defense  of  Property.  —  Evidence  of  the  facts  and  circumstai'.ces 
as  to  the  right  forciblx  to  retain,''-  recapture  or  obtain  jjosscssion 
of  lands"'"  or  goods  is  admissible  in  defense  of  an  assault  made  for 


45.  Slate  7'.  Ncwlaiul.  2~  Kan. 
746. 

46.  State  v.  Goodrich,  19  Vt.  116. 
47   Am.    Dec.   676. 

The  declarations  of  tlie  assavdted 
person  made  soon  after  the  affray 
are  not  competent,  except  to  con- 
tradict his  testimony.  State  v. 
X'oeiiinger.  108  Mo.  166,  18  S.  W. 
990. 

47.  State  v.  Goodrich,  19  Vt. 
1 16.  47  Am.  Dec.  676. 

48.  Com.  V.  Lincohi.  110  Mass. 
410. 

Evidence  that  one  defendant  ob- 
tained a  warrant  against  the  pros- 
ecutor for  an  assault  is  not  admis- 
sible.     Hadley   v.    State,   58  Ga.   309. 

49.  State  v.  Kepplc.  2  Kan.  .\pp. 
401,   42   Pac.   745. 

50.  State  V.  Totmaii,  80  Mo.  .\pp. 
125:  State  I'.  Reed.  i,?7  .\io.  ijj,  ,^8 
S.  W.  574;  Spicer  v.  People.  11  111. 
App.  294. 

One  who  intervenes  to  defend  a 
party  to  an  affray  does  so  at  his 
own  peril ;  he  stands  in  the  shoes  of 
the  defended  party  and  can  only  do 
such  acts  as  the  latter  might  law- 
fully do  under  the  circumstances, 
and  the  wrongful  acts  of  the  de- 
fended party  may  be  shown  against 
such  defendant.  Wood  'e.  State,  128 
.-Via.  27,  29  So.  557. 

One  may  lawfully  do  in  defense 
of  another  what  he  might  do  for 
himself.  State  v.  Foley,  12  Mo. 
.\pp.    431. 

51.  Orton  v.  State  4  Greene 
(Iowa)  140;  State  v.  Bullock.  91  N. 
C.  614;  Com.  v.  Malone,  114  Mass. 
295 ;  State  v.  Johnson,  75  N.  C. 
174;  Waddell  v.  State,  i  Tex.  App. 
720. 


The  defense  of  one's  self,  husband, 
wife,  child,  parent,  or  servant  is  a 
natural  right.  State  v.  Elliott.  11 
N.  H.  540.  A  parent  may  defend 
his  child  as  he  may  himself.  State 
V.  Herdina,  25  Minn.   161. 

52.  State  v.  Johnson,  12  Ala. 
840.  46  Am.  Dec.  283 ;  People  v. 
Teixeira,  123  Cal.  297,  55  Pac.  988; 
Filkins  v.  People,  69  N.  Y.  loi,  25 
Am.  Rep.  143 ;  Smith  v.  State. 
IDS  Ala.  136,  17  So.  107;  State  v. 
Downer.  8  Vt.  424,  30  Am.   Dec.  48. 

In  defense  for  assault  upon  one 
of  his  employers,  the  defendant  may 
show  a  special  contract  by  which 
he  was  to  have  sole  possession  of 
the  place  where  he  worked  and  that 
the  assault  was  in  defense  of  such 
possession.  Com.  i'.  Ribert,  144  Pa. 
St.  413.  22  Atl.  1031  ;  Com.  v.  Dona- 
hue. 148  Mass.  529,  20  N.  E.  171,  12 
Am.  St.  Rep.  591,  2  L.  R.  A.  623; 
Com.  V.  Renard,  8  Pick  (Mass.) 
133;  State  V.  Dooley,  121  Mo.  591, 
26  S.  W.  558 ;  Anderson  &  .\ustin 
V.  State,  6  IBaxt.  (Tenn.)  608;  Rex 
V.  .Mittoii.  T,  Car.  &  P.  31,  14  Eng. 
C.  L.   196. 

53.  Clarke  v.  State,  89  Ga.  768, 
15  So.  696;  State  f.  Lockwood,  I 
Penn.  (Del.)  76,  39  Atl..  589; 
Goshen  v.  People,  22  Colo.  270,  44 
Pac.   503. 

A  contract  was  left  with  the  • 
fendant  in  escrow,  the  prosecutor 
asked  permission  to  see  the  doc- 
ument and  then  attempted  to  carry 
it  away.  Held,  an  assault  with  only 
necessary  force  was  justifiable.  Com. 
z\  Lynn.   123   Mass.   218. 

A  tenant  put  new  windows  in  the 
rented  house,  the  property  was  soil 
and   after  possession   under   the   sale 

Vol.  1. 


1016 


ASSAULT  AND  BATTERY. 


such  a  purpose,''^  but  evidence  of  anger  and  undue  violence  ma_\-  be 
shown  in  rebuttal/^  and  where  there  is  no  question  as  to  trespass, 
evidence  of  title  to  the  locus  in  quo  is  inadmissible. 

9.  Master  of  Ship.  —  The  master  of  a  ship  may  show  that  the 
assault  was  made  in  defense  of  his  authority,  and  evidence  of  the 
information  upon  which  he  relied  and  of  the  facts  as  to  the  danger. 
is  admissible.^" 

10.  Arrest.  —  The  defendant  may  show  the  facts  and  circum- 
stances which  justify  an  arrest^'  and  that  the  assault  was  only  the 
necessary  force  required  to  make  such  arrest,'''  but  the  conviction 
or  acquittal  of  the  arrested  and  assaulted  person  is  not  competent 
evidence,''"  but  evidence  of  malice  or  undue  severity  on  the  part  of  the 
officer  is  admissible.''"  The  defendant  may  show  that  an  assault 
upon  an  officer  was  made  in  resisting  an  illegal  arrest.''' 


such  tenant  came  back  and  removed 
the  windows.  Held,  an  assault 
without  unnecessary  force  in  their 
recapture  was  justifiable.  State  i'. 
Elliott,    II    N.   H.    540. 

The  defendant,  lessor,  lirought  an 
action  before  a  justice  of  the  peace 
against  the  prosecuting  witness,  the 
lessee,  to  obtain  possession  but 
while  the  lessee  was  attending  court, 
fastened  up  the  house  against  the 
lessee,  who  broke  open  tlie  house, 
when  he  was  assaulted  by  the 
lessor.  Held,  the  papers  and  docket 
of  the  justice  were  admissible  to 
show  the  state  of  the  action  at  the 
time,  but  the  lease  for  the  premises 
should  be  excluded.  State  v.  Mc- 
Kinley.  82   Iowa  445,  48  N.   W.  804. 

54.  Com.  V.  Lynn,  123  Mass.  218; 
Com.  v.  Donahue,  148  Mass.  529,  20 
N.  E.  171,  2  L.  R.  A.  623;  State  v. 
ijmith,   105   Ala.    136,   17   So.   107. 

The  ownership  or  right  of  pos- 
session of  property  in  whose  defense 
the  assault  is  made  is  material  and 
may  be  shown.  Filkins  v.  People, 
69  N.  Y.  101  :  State  v.  Forsythe,  89 
Mo.  667,  I  S.  W.  834;  State  v. 
Dooley,  121  Mo.  591,  26  S.  W.  558; 
State  V.  Morgan,  3  Ircd.  (N.  C.) 
186. 

55.  To  relnU  the  defense  that  the 
as.sault  was  only  the  necessary  force 
required  in  a  lawful  recapture  of 
property,  it  may  be  shown  that  the 
assault  was  made  in  any  angry  and 
rude  manner  with  unnecessary  force. 
Bonner  v.  State,  97  Ala.  47,  12  So. 
408. 

56.  Master    of    Ship U.     S.    v. 

I.unt,    I     Sprague     (I'.    S. )    3ri. 

57.  Evidence    that    the    defendant 

Vol.  1. 


was  a  member  of  an  association  to 
detect  crime  and  appreliend  crim- 
inals, that  a  crime  had  been  com- 
mitted, that  the  prosecuting  witness 
was  suspected  and  the  assault  was 
made  in  arresting  him,  is  competent 
to  show  intent.  Kercheval  v.  State. 
46   hid.    120. 

58.  State  v.  McNinch.  90  X.  C. 
695;  State  V.  Pugh,  loi  N.  C.  737. 
7  S.  E.  757,  9  Am.  St.  Rep.  44. 

The  officer  is  the  judge  of  the 
propriety  and  necessity  of  adopting  a 
certain  mode  of  securing  his  pris- 
oner, but  it  may  be  shown  that  the 
officer  did  not  act  honestly  in  the 
matter  and  was  gratifying  his 
malice.  State  v.  Stalcup,  _■  Ired. 
(N.   C.)    io. 

59.  The  queslion  is  did  the  offi- 
cer use  unnecessary  force  con- 
stituting an  assault  in  making  the 
arrest,  and  evidence  of  the  convic- 
tion of  the  prosecuting  witness  is 
irrelevant  and  should  be  excluded. 
State  v.    Gregory.   30   Mo.   App.   582. 

Against  an  officer  on  trial  for 
assault  in  arresting  the  complain- 
ant, the  judgment  of  acquittal  of 
the  latter  is  not  competent.  Pat- 
terson V.  State,  91  Ala.  s8,  8  So. 
756. 

60.  State  r.  Stalcup,  2  Ired.  (X. 
C.)  50;  State  -'.  Gregory,  30  .Mo. 
.\pp.  582 ;  State  ;■.  Davidson,  44  Mo. 
.•\pp.  513;  People  V.  !.)ailv,  143  N. 
Y.  638.  37  X.  E.  823. 

.See  "  Intent." 

61.  Denby  v.  State,  108  Cal.  54. 
40  Pac.  1051  ;  State  v.  Beek.  76  N. 
C.  10;  Stockton  V.  State.  25  Tex. 
772 ;  -Massie  v.  State,  27  Tex.  App. 
617.  II  S.  W.  638. 


ASSAULT  AND  BATTERY 


1017 


In  Defense  of  a  Conductor  for  Ejecting  One  From  His  Car,  evidence  as 
to  improper  ctnuhict  at  the  time  and  for  a  considerable  period 
before  is  admissible.''-  The  defense  may  show  the  reasonable  rule 
or  custom  the  conductor  sought  to  enforce,"^  and  the  conductor  mav 
testify  as  to  his  belief  concerning  the  misconduct  of  the  prosecutor/"' 
The  state  may  show  the  undue  violence  of  the  assault''^  or  the 
removal  of  the  prosecutor  while  the  cars  were  in  motion.'"' 

11.  Ptinishment.  —  Evidence  that  the  defendant  was  the  parent  of 
the  assaulted  jiarty  or  stood  in  loco  parentis  is  admissible  for  the 
defense,'^'  and  upon  the  issue  as  to  the  reasonableness  of  the  ])unish- 
ment,  the  nature  of  the  offense,''**  the  severity  of  the  punishment,'''' 
the  nature  of  the  instruinent  used  in  correction,  and  all  the  attendant 
circumstances  may  be  shown.'"  A  witness  may  not  give  an  opinion 
upon  this  issue, '^'  but  the  defendant  may  tcstif}-  as  to  his  purpose  and 


62.  Tlic  passenger  sliowed  uiily 
his  spent  ticket  and  was  ejected 
from  the  car.  Held,  misconduct 
which  justified  the  conductor  in 
ejecting  him  when  he  re-entered, 
showing  his  good  ticket.  State  v. 
Campbell,  32  N.  J.  Law  309. 

The  misconduct  of  an  ejected  pas- 
enger  during  his  whole  trip  where 
it  was  a  short  one  is  competent  for 
the  defendant  conductor  in  proof  of 
justification.  People  v.  Caryl,  3 
Parker   Crim.    (N.   Y.)    326. 

63.  Com.  ■;'.  Powers,  48  Mass. 
(7  Mete.)  596;  People  t'.  McKay. 
46  Mich.  439,  9  N.  W.  486,  41  Am. 
Rep.  169;  State  r.  Goold.  53  Me. 
279;  State  V.  Overton,  24  N.  J.  Law 
435,  61  Am.  Dec.  671  ;  State  r. 
Thompson,  20  N.  H.  250. 

Evidence  of  the  custom  of  lli  • 
company  in  collecting  tickets  is  com- 
petent defense  of  a  conductor  for 
assault  in  removing  one  from  a  car 
upon  refusal  to  deliver  up  his 
ticket.  People  r.  Carvl,  •?  Parker 
Rep.    (N.   Y.)    326. 

64.  The  passenger  deposited  his 
fare  but  the  street  car  conductor 
under  an  honest  mistake,  ejected  him 
from  the  car  for  supposed  non- 
payment. Held,  intent  is  an  element 
of  the  assault  and  such  belief  of 
the  conductor  may  be  shown  in  de- 
fense and  as  a  justification.  State 
T'.   McDonald,   70  ]\Io.   App.   510. 

65.  State  v.  Ross.  26  N.  J.  Law 
224. 

66.  State  7'.  Kinney,  34  Minn. 
.311,  25  N.   W.  70s. 

67.  .\nderson    r.    State,    3    Head 


(^Tenn.)  455,  75  Am.  Dec.  774; 
Snowden  v.  State,  12  Tex.  App. 
105,  41  Am.  Rep.  667;  Gorman  v. 
State,  42  Te.x.  221  ;  Donnelly  v.  Ter- 
ritory (Ariz.),  52  Pac.  368;  State 
T'.   Bost    (S.   C),   34   S.   E.   650. 

Articles  of  apprenticeship  are 
competent  to  show  the  defendant's 
rights  in  relation  to  his  apprentice. 
Orton  7'.   State,  4  Iowa   140. 

The  probate  record  appointing 
the  prosecuting  witness  conservator 
of  the  person  and  estate  of  the  de- 
fendant, is  competent  to  rebut  the 
defense  that  he  was  a  trespasser  in 
defendant's  house.  State  7'.  Hyde, 
29    Conn.    564. 

68.  Dean  7'.  State.  89  .\la.  46,  8 
So.  38 ;  Anderson  7'.  State.  3  Head 
(Tenn.)  455,  75  Am.  Dec.  774. 

69.  Kinnard  v.  State.  35  Tex. 
Crim.  App,  276,  33  S.  W.  234;  An- 
derson   7'.    State,    3    Kead     (Tenn.) 

455- 
Sec  "  Injuries." 

70.  Dean  v.  State,  89  Ala.  46,  8 
So.  38;  Danenhoflfer  v.  State,  79 
Ind.    75. 

.•\  parent  or  one  standing  in  loco 
/carditis,  exercises  pro  hoc  vice, 
judicial  functions  and  to  determine 
the  reasonableness  and  animus  of 
the  punishment,  the  nature  of  the 
instrument  used  and  all  attendant 
circumstances  may  be  shown.  Dean 
7'.    State,   89   Ala.   46,   8   So.   38- 

71.  In  defense  of  a  school 
teacher  a  witness  may  not  give  his 
opinion  that  the  whipping  was 
neither  severe,  cruel  nor  unjust. 
Smith  7'.  State  (Tex.  Crim.  .^pp.). 
20   S.  W.   360. 

Vol.  1. 


1018 


ASSAULT  AND  BATTERV. 


intention,'-  l)Ut  his  self  serving'  declarations  are  not  admissible."'' 

12.  Evidence  of  Intoxication.  —  Intoxication  of  the  defendant, 
where  part  of  the  res  gestae,  is  admissible,'^  and  where  intent  is  an 
element  of  the  crime  intoxication  may  be  shown  in  defense,'^  or  to 
reduce  the  grade  of  the  offense,'"  but  where  intent  is  not  a  part  of 
the  crime,  evidence  of  intoxication  is  not  admissible.''  It  is  com- 
petent for  the  state  to  show  that  to  ner\'e  himself  for  the  assault 
llie  defendant   became   intoxicated. '~ 

13.  Provocation  Which  is  of  the  Res  Gestae,  ma\  be  shown."' 
while  evidence  of  other  provocation  is  excluded  in  many  jurisdic- 
tions**" but  admitted  in  others.'*^ 


72.  Kinnard  v.  State,  35  Tex. 
Crim.  App.  276,  33  S.  \V.  234; 
Berry  v.  State,  30  Tex.  App.  423, 
17  S.  W.  1080;  Danenhoffer  v. 
State,  79   Ind.   75. 

73.  Kinnard  v.  State,  35  Tex. 
Crim.    App.   276,   Zi    S.   W.   234. 

74.  Carter  v.  State,  87  Ala.  113, 
6    So.    356. 

Intoxication  of  the  defendant  is 
of  the  res  gestae  and  may  be  shown. 
State  V.  Garrey,  II   Minn.  154. 

75.  Cline  v.  State,  43  Ohio  St. 
ii2,  I  N.  E.  22 ;  Parlcer  Crim.  Rep. 
(N.  Y.)  291 ;  Mooney  v.  State,  a 
Ala.  419;  Chrisman  v.  State,  54 
Ark.  283,  15  S.  VV.  889,  2b  Am.  St. 
Rep.   44. 

Intoxication  to  such  an  extent 
that  the  defendant  docs  not  know 
what  he  is  doing  may  be  shown 
as  defense.  Statu-  i'.  Garvcy,  11 
Minn.    154. 

76.  Ford  v.  State,  71  Ala.  385; 
.Mooney  v.  State,  2i  Ala.  419;  lingel- 
hardt  v.  State,  88  Ahi.  100,  7  So. 
IS4- 

Drunkenness  may  not  be  shown 
in  defense  of  assault  and  battery, 
but  where  the  law  recognizes  de- 
grees of  the  offense  and  intent  or 
premeditation  are  elements  of  the 
crime,  it  may  be  shown  to  reduce 
its  grade.  Engelhardt  i\  State,  88 
Ala.    100,   7   So.    154. 

77.  People  t'.  Gordon,  103  Cal. 
568,  3y  Pac.  534;  Walker  v.  State, 
85  Ala.  7,  4  So.  686,  7  Am.  St.  Rep. 
17;   Com.  V.   Malone,   114  Mass.  295. 

On  an  indictment  of  assault  with 
a  deadly  weapon  evidence  of 
drunkenness  of  the  defendant  at  the 
time  is  immaterial  and  not  admis- 
sible, as  proof  of  specific  intent  is 
not  necessary.  People  v.  .Marseilcr, 
70  Cal.  98,  II   Pac.  503. 

Vol.  1. 


78.  Cline    v.    State.    43    Ohio    S 
ii2,    I    N.   E.   22. 

79.  Rawlins  v.  Com.,  i  Leigh 
(Va.)    581,   19  Am.   Dec.   757. 

The  law  has  enough  regard  for 
the  weakness  of  human  nature  to 
regard  a  violent  attack  as  a  sufficient 
excuse  for  going  beyond  the  mere 
necessities  ot  sell  defense  and  chas- 
tising the  aggressor  withm  such 
bounds  as  do  not  exceed  the  natural 
limits  of  the  prosecution.  People 
V.  Pearl,  76  Mich.  207,  42  N.  VV. 
1 109,  4  L.  I-!..  A.  709,  15  Am.  St. 
Rep.   304. 

80.  Rawlings  v.  Com.,  i  Leigh 
(.V'a.)    581,   17  Am.   Dec.  707. 

Evidence  that  the  prosecutor  had 
killed  defendant's  dog,  and  that  it 
was  a  small  pet,  is  not  admissible 
tor  the  detendant.  Rogers  v.  State, 
126  Ala.  40,  28   So.  619. 

The  prosecuting  witness  was 
asked  if  he  had  not  struck  the  de- 
fendant at  another  time,  and  by 
objection  was  rightly  sustained. 
State  V.  Montgomery,  65  Iowa  483. 
22  N.  W.  639. 

81.  People  V.  Ross,  66  Mich.  94. 
33  N.  W.  30;  Maher  v.  People,  10 
Mich.  212,  81  Am.  Dec.  781  ;  Brown 
V.  State,  79  .\la.  42. 

Where  the  defense  is  tlv.-  use  of 
opprobrious  words,  the  relative  size 
and  strength  of  the  parlies,  and  all 
the  circumstances  of  the  case  should 
be  shown.  .Marion  v.  State.  68  Ga. 
290. 

Although  the  shooting  occurred 
the  next  day.  evidence  of  an  at- 
tempted rape  made  by  the  assaulted 
party  upon  the  defendant's  wife  or 
daughter  is  competent.  Biggs  v. 
State,  29  Ga.   723.  76  .\m.   Dec.  630. 

Evidence  of  the  general  character 
of   the   wife    for   virtue   and   chastity 


ASSAULT  AND  BATTERY 


1019 


14.  Discredit  Prosecuting  Witness.  —  Upon  cross  examination  of 
the  prosecutor,  his  hostile  feelings,  declarations  of  ill-will  and  the 
making  of  threats  may  he  shown  to  discredit  his  testimony,'-  and 
after  his  attention  has  been  called  to  such  declarations  and  threats, 
but  not  before.  Ihey  may  be  proved  b\'  any  competent  evidence, '■'■  hut 
evidence  of  the  facts  of  previous  difficulties  too  remote  for  vcs 
gestae,  is  not  admissible.*^ 

15.  Good  Reputation  of  Defendant.  —  Evidence  of  the  general 
good  reputation  of  defendant,  with  reference  to  the  nature  of  the 
offense  charged  is  competent  for  the  defense'"  even  to  raise  a  doubt 
where  none  existed,*"'  and  it  is  error  for  the  court  unreasonably  to 
limit  the  number  of  character  witnesses,"'  but  where  the  assault  is 
only  a  misdemeanor,  evidence  of  good  character  of  the  defendant 
is  sometimes  excluded.*'  Evidence  in  rebuttal  and  cross  examina- 
tion are  admissible  as  in  other  cases,'" 


is  admissible  for  the  defense,  where 
her  character  had  been  attacked  \ty 
the  state  upon  a  trial  of  her  hus- 
band for  shooting  one  who  as- 
sauhed  her.  Biggs  v.  State,  29  Ga. 
y22,  76  Am.  Dec.  630;  Booker  v. 
State,  4  Tex.  App.  564;  People  -'. 
Webster,  89  Cal.  572 ;  State  v.  Mont- 
gomery, 65  Iowa  483,  22  N.  W.  639. 

82.  State  v.   Dee,   14  Minn.  35. 

83.  Booker  v.  State,  4  Tex.  App. 

564. 

A  declaration  of  the  prosecuting 
witness  that  "  he  would  say  any- 
thing or  do  anything "  to  get  the 
defendant  convicted,  is  not  admis- 
sible unless  the  witness'  attention 
was  called  to  the  statem  cut  to  lay 
the  foundation  for  the  impeachment 
of  his  testimony.  State  i\  Dicker- 
son,  98   N.   C.  708,  3.  S.   E.  687. 

It  is  proper  to  inquire  of  the 
prosecuting  witness  if  he  has  not 
expressed  feelings  of  hostility  toward 
the  defendant  and  such  inquiry  is 
a  necessary  foundation  for  evidence 
of  declaration  made  by  the  witness. 
Booker   v.    State,   4   Tex.   App.    564. 

84.  Rosenbaum   i'.    State,   33   Ala. 

354- 

Evidence  of  manner  and  conduct 
of  prosecuting  witness  at  an  earlier 
meeting  same  day,  not  of  the  res 
gestae,  too  remote  and  not  admis- 
sible.    Henry  v.   State,  79  Ala.  42. 

85.  People  v.  Rodrigo,  69  Cal. 
601,  II  Pac.  481;  People  v.  Spriggs, 
58  Hun  603,  n  N.  Y.  Supp.  433; 
State  i:  Schleagel,  50  Kan.  325.  31 
Pac.  1105;  State  v.  King,  78  Mo. 
555  >  People  v.  Jassino,  100  Mich. 
536,  59  N.  W.  230. 


Evidence  of  good  character  is 
of  the  wife  for  virtue  and  chastity 
iginal  evidence,  independent  of  the 
other  evidence  of  the  cause,  both 
on  the  question  of  guilt  and  the 
degree  of  his  criminality.  Rosen- 
baum V.   State,  a  Ala.  354. 

Defendant  may  show  his  reputa- 
tion for  peace,  "  notwithstanding  lie 
was  full  of  strange  oaths,"  "  des- 
perate in  demeanor,"  and  "  reck- 
less in  display  of  deadly  weapons." 
but  evidence  of  the  custom  of  him- 
self and  associates  to  flourish 
weapons  without  intent  to  use  them 
is  admissible.  Walters  i'.  State,  17 
Tex.  Crim.  App.  226,  50  Am.  Rep. 
129. 

86.  Rosenbaum    -■.    Stale,   i;^   .\la. 

354. 

87.  The  defendant  used  three 
character  witnesses  as  to  his  gen- 
eral reputation  for  peace  and 
quietude.  The  state  informed  the 
court  that  it  did  not  intend  to  in- 
troduce evidence  in  rebuttal.  The 
court  then  excluded  further  char- 
acter testimony  by  the  defense 
although  this  was  his  first  intima- 
tion as  to  limiting  the  number  of 
witnesses,  and  the  defense  claimed 
surprise  and  that  it  had  not  called 
its  best  witnesses.  The  action  of 
the  court  was  error.  Morrison  z\ 
State,  37  Tex.  Crim.  .\pp.  601,  40 
S.  W.  591- 

88.  Drake  v.  Com.,  49  Ky.  (lO 
B.  Mon.)  225;  Matthews  f.  State, 
32  Tex.    117. 

89.  The  defendant,  charged  with 
improper  assault  upon  a  woman, 
offered    evidence   of   his   good    char- 

Vol.  I 


1020 


ASSAULT  AND  BATTERV 


16.  Consent.  —  Evidence  of  consent  is  admissible  in  defense,""  but 
upon  a  charge  of  assault  upon  a  girl  under  the  statutory  age  such 
evidence  is  generally  excluded'"  unless  as  part  of  the  res  gestae."^ 
Many  courts,  however,  admit  such  evidence  as  a  defense.*" 

17.  Opinions.  —  Except  that  of  experts  in  proper  cases, "^  opinion 
evidence  is  not  admissible  in  cases  of  assault,"^  though  some  courts 
show  a  disposition  to  relax  this  rule.'-"' 

18.  Prior  Acquittal  or  Conviction.  —  Evidence  of  ac(|uittal  or  con- 
viction in  a  prosecution  for  or  involving  the  assault  charged,  is 
admissible/''  but  where  the  issue  as  to  the  assault  charged  was  not 
included  in  the  prosecution,  such  evidence  should  be  excluded."' 


acter.  Upon  cross  examination  of 
the  character  witnesses,  they  tes- 
tified that  his  general  character 
was  bad  for  rnnning  after  women." 
Held,  that  the  evidence  was  prop- 
erly admitted.  Balkuni  ■:■.  State,  iis 
A\a..   117.  22  So.  532. 

Where  the  defendant  offered  evi- 
dence of  good  character  as  a  peace- 
able, orderly  and  law-abiding  cit- 
izen, it  was  error  to  admit  evidence 
in  rebnttal  of  his  soldier  record  or 
reputation  as  to  his  being  often 
absent  without  leave  and  drinking 
and  gambling.  Burns  t.  State,  23 
Tex.   .>pp.  641.   5    S.   W.    140. 

90.  Consent  to  an  assault,  com- 
mitted without  malice,  may  be 
shown  as  a  defense.  State  v.  Back, 
I  Hill  (S.  C.)  363,  26  Am.  Dec. 
190. 

91.  People  r.  McDonald.  9 
Mich.  150;  Hill  V.  State.  37  Tex. 
Crim.  App.  279,  38  S.  W.  987,  66 
.\m.  St.  Rep.  803;  People  v.  Verde- 
green,  106  Cal.  211,  39  Pac.  607.  46 
.^m.  St.  Rep.  2';4;  Havs  7:  People, 
I    Hill    (N.    Y.)    351. 

There  is  a  great  difference  be- 
tween submission  and  consent,  and 
involuntary  submission  would  not 
be  evidence  of  consent.  Regina  v. 
Day,  9  Car.  &  P.  722.  .38  Eng.  C.  L. 
.w6. 

92.  People  v.  Verdegrccn.  106 
Cal.  211.  39  Pac.  207.  46  .\m.  St. 
Rep.  234- 

93.  State  ~:  Packett.  11  Nev. 
255,  21  Am.  Rep.  754;  Smith  r. 
State,  12  Ohio  St.  466.  80  Am.  Dec. 
,365;  Regina  v.  Meredith.  8  Car.  &• 
P.   589,   34   Eng.   C.    L.   539. 

94.  Where  an  expert  has  no 
better  means  to  form  an  opinion  as 
to    the    intention    of    the    defendant 

Vol.  1. 


than  the  jury  has,  his  testimony 
should  be  excluded.  State  v.  Gar- 
vey,   1 1   Minn.  154. 

95.  Trimble  r.  State  (Tex.  Crim. 
.\pp. ),   22  S.   W.  879. 

Where  the  prosecutor  testified  that 
llic  defendant  and  he  were  always 
good  friends  and  that  the  defend- 
ant shot  without  any  cause  or 
provocation,  the  questions  by  de- 
lendant"s  counsel.  "  Pistol  must  have 
gone  off  accidentally  then?"  and 
"  Will  you  tell  the  jury  whether  the 
shooting  was  accidental?"  were 
properly  excluded,  as  calling  for  con- 
clusions. Gunter  v.  State,  1 1 1  .Ala. 
23,  20  So.  632,  56  Am.  St.  Rep.  17. 

96.  The  prosecuting  witness  may 
be  asked  what  he  understood  by  the 
defendant's  remark  at  the  time  of 
the  assault  that  "  the  easiest  way 
is  the  best,"  and  his  answer  that 
"  he  thought  tliey  meant  to  use  him 
roughly "  is  competent.  People  v. 
Moore,  50  Hun  356,   3   N.   Y.   Supp. 

159- 

97.  Com.  7'.  Miller,  5  Dana 
(Kv.)  320;  Regina  v.  Smith,  34 
U.  'C.  Q.  B.  552 :  Gunter  7:  State. 
Ill  Ala.  23.  20  So.  632.  56  .^m.  St. 
Rep.    17. 

Where  the  indictment  for  a 
higher  grade  of  crime  includes  a 
charge  of  assault  either  in  terms  or 
by  implication,  acquittal  or  •convic- 
tion or  improper  discharge  of  the 
jury  against  objection  of  defendant 
may  be  shown.  Mitchell  r.  State.  42 
Ohio     St.    38-!. 

98.  Regina  7:  Smith,  1,4  V.  C.  Q. 
B.   552. 

.'Kn  acquittal  in  a  lower  grade  of 
offense  would  not  be  a  bar  to  a 
prosecution  for  a  higher  one.  Stal  • 
7'.   Foster.  3;^   Iowa   525. 


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